Part Three

Transcription

Part Three

NOVEMBER
2014
Contents of Part 3
PART 3. INSTRUMENTS FOR COMBATING THE MANIPULATION OF SPORTS
COMPETITIONS ............................................................................................................. 3 Title 1. Instruments for Preventing the Manipulation of Sports Competitions ........ 5 Chapter 1. Information and Educational Instruments ................................................ 5 Section 1. Summary Table of Information and Educational Actions related to sport
integrity ............................................................................................................................ 5 Section 2. Analysis of Information and Education Actions Associated with Sport Integrity
....................................................................................................................................... 34 Chapter 2. Regulatory Instruments Applicable to Sporting Bets ........................... 47 Section 1. National Legislation in the Field of Sporting Bets ......................................... 48 Section 2. National Regulatory Authorities for Sports Bets, Some Examples ............. 182 Section 3. Tools Applicable to the Fight against Illegal Sports Bets............................ 213 Section 4. Self-Regulation of Betting Operators .......................................................... 226 Title 2. Instruments of Suppression ........................................................................ 234 Chapter 1. The Primary Function of the Sporting Movement: Preserving sport
integrity ...................................................................................................................... 234 Section 1. General Presentation of Disciplinary Authority ........................................... 235 Section 2: Disciplinary Rules and Procedures Applied to Cases of Manipulation of
Sports Competitions .................................................................................................... 296 Chapter 2. The Desired Function of Other Private Actors: Economically
Sanctioning Violations of Sport Integrity – Example of Sponsoring.................... 380 Chapter 3. The Expected Reaction of States and International Organisations:
Allowing an Efficient Criminal Repression of Sports Competitions .................... 394 Section 1. Applicable International Norms................................................................... 395 Section 2. Applicable Domestic Norms ....................................................................... 408 Title 3. Mechanisms for Coordinating the Multiparty Fight against the
Manipulation of Sports Competitions ...................................................................... 469 Chapter 1. Limits of Existing Instruments .............................................................. 469 Section 1. The Virtues and Limits of a Historical Model of National Coordination:
Horseracing Betting ..................................................................................................... 469 Section 2. Virtues and Limits of the Current Mechanisms of Coordination of the Fight
against the Manipulation of Sports Competitions. ....................................................... 482 Chapter 2. Finding Efficient Coordination Mechanisms for the Fight against the
Manipulation of Sports Competitions ...................................................................... 496 Section 1. The Available Normative and Institutional Models...................................... 496 Section 2. The Common Principles Applicable to all Stakeholders ............................. 639 Section 3. The Distribution of the Financial cost of Combating the Manipulation of
Sports Competitions: the Example of the French Right to Consent to Bets ................ 711 © University Paris 1 Panthéon-Sorbonne & International Centre for Sport Securitty (ICSS)
2
© University Paris 1 Panthéon-Sorbonne & International Centre for Sport Securitty (ICSS)
3
PART
THREE.
INSTRUMENTS
FOR
COMBATING
MANIPULATION OF SPORTS COMPETITIONS
THE
Having described the phenomenon of the manipulation of sports competitions in
all its dimensions, and having decrypted the rationality of the actors, it is now time to
focus on the means to fight against manipulation of sports competitions.
Beyond their diversity and their varyingly developed technical sophistication,
whether dealing with prevention (Title 1) or repression (Title 2), a fundamental issue
remains: the need for a coordinated fight at the national, transnational and international
levels (Title 3).
4
Title 1. Instruments for Preventing the Manipulation of Sports Competitions
Under a broad definition of the concept of prevention, many measures can be
seen as preventive tools. This is the case, for example, concerning limitations on the
types and forms of bets, the improved governance of sports bodies, a better
coordination between police and judicial institutions, or the recent Convention of the
Council of Europe on the manipulation of sports competitions.
But if one makes a strict interpretation of the concept of prevention, one must
then focus on the following diptych: information and education (Chapter 1) and
instruments for regulating sports bets (Chapter 2).
Chapter 1. Information and Educational Instruments
After identifying informational and educational actions related to sports
(Section 1), it will be possible to draw some conclusions and suggest some ideas for
reform (Section 2).
Once again, the convergence of the actors and even the implementation of joint
actions must be considered by all stakeholders as a major goal.
Section 1. Summary Table of Information and Educational Actions related to
sport integrity
The method used for identifying information and educational actions related to
sport integrity will be presented (§ 1) before going into the details of each of these
actions (§ 2).
§ 1. Method Used for Identifying Information and Educational Actions related to
Sport Integrity
NOTE ON METHODOLOGY
The risks related to sport integrity, and principally the manipulation of sports events, are
phenomena where sharp rises have been witnessed the past several years. Among the
measures that are most likely to reduce these scourges, one can cite prevention,
information and education as being undoubtedly essential. These measures are simple to
implement, efficient and immediately operational. For example, the risk of an informed
athlete or a referee taking part in fixing a sporting event is greatly reduced.
The purpose of this study is to understand how sports organisations and public
authorities nowadays manage these tools, and to make some recommendations on this
matter.
The study was carried out in three stages:
§
§
§
Survey of all actions of education, awareness-raising, information and training
relating to sporting integrity (sports organisations, government institutions, etc.);
Analysis of actions based on the following criteria: objectives, type of action (training
of instructors, face-to-face or group awareness, online-e-learning training
programmen, written materials, videos), targets, covered geographical area,
launching date, etc.;
recommendations and conclusions.
5
§ 2. Survey of Educational and Preventive Actions related to Sport integrity
Before analysing the various identified actions - which will be discussed in the
next chapter – it is important to organise the list below. The two most significant criteria
in this regard are the sporting discipline - football and archery do not necessarily have
the same characteristics - and the geographical coverage area.
This list contains over sixty initiatives. It was established with the assistance of
1
an independent researcher - Benjamin Braquet - who directly contacted organisations
that may have put in place programmes to protect sport integrity. SportAccord has also
contributed in this matter. This list is obviously not exhaustive - mainly because some
organisations did not respond to the information request - but aims to give a good
overview on the issue.
After considering multi-sports bodies (A), the actions implemented in the
2
thirteen sporting disciplines will be studied (B).
A. Multi-sport
1. World
a. International Olympic Committee (IOC)
Name
Purpose
Nature
Fair play – Protect your sport
Informing the world of sport and the general public on the importance of
protecting sport integritys competitions
§ Creation of a working group and expert groups for illegal and
irregular bets;
§ Awareness Tools for athletes (quizzes, confrontations during the
§
§
§
§
Trainers
Targets
Number of
persons
trained
Budget
1
2
Youth Olympic Games, etc.) and National Olympic Committees;
Code of conduct for sports stakeholders;
Code of Ethics taking into account bets during the Olympic Games;
Monitoring of sporting bets during the Olympic Games;
Alert procedure in case of cheating or suspicion during the Olympic
Games ([email protected] or +41 800 12 14 16).
Experts appointed by the IOC
National Olympic Committees
Athletes and sports stakeholders
Sports managers
N/A
N/A
Launching
2011 (2007 relating to the monitoring of sporting bets)
Web link
[http://www.olympic.org/ethics-commission?tab=paris]
[http://braquet-consulting.com/].
N/A indicates that the information is not available, including cases when such information was not provided.
6
b. SportAccord (Association of International Sports Federation)
Name
SportAccord (Association of International Sports Federation)
Purpose
Educate international sports federations (or even national) about the
threat of match fixing and sporting bets
Nature
§ Model regulations for international sports federations on sports bets
and risks of match fixing;
§ Code of conduct for sports stakeholders;
§ Practical guide and database on sport integrity and sporting bets;
§ E-learning
programme
for
athletes
(videos
+
quiz):
[http://realplayer.sportaccord.com]
Trainers
Experts (Declan Hill, CK Consulting)
Targets
Priority: International sports federations
Secondary: national federations, institutions, athletes
Number of
persons
trained
-
Budget
N/A (funding from EL and WLA lottery associations)
Launching
2011
Web link
[http://www.sportaccord.com/en/what-we-do/sports-integrity/]
c. ISPA (International Sports Press Association)
Name
Which national networks to combat match-fixing?
Purpose
Trainers
Training of national journalists to deal with the threat of match fixing and
sports bets
§ A one-day information seminar on the risks related to match fixing
and sports bets.
AIPS Experts, EL, CK Consulting
Targets
National journalists
Number of
persons
trained
Budget
3 countries as of 31/12/2013 : Italy, France, Austria (between 20 and 80
journalists per country)
Launching
2012
Web link
[http://www.aipsmedia.com/index.php]
Nature
Funding from EL and WLA lottery associations
2. America - USA
a. FBI (Federal Bureau of Investigation - federal criminal investigative body and
an internal intelligence agency)
Nom
Sport Bribery Programme
Purpose
Inform American athletes (universities and professional sports) about
the risks related to gambling, corruption, doping and more generally
organised crime
§ Face to face awareness raising (group meetings).
Nature
7
Trainers
FBI agents
Targets
Professional sports associations,
athletes, referees and directors of American universities (“Colleges”)
N/A
Number of
persons
trained
Budget
N/A
Launching
1982 (NBA) – 1983 (NFL)
Web link
[http://www.fbi.gov/about-us/investigate/organizedcrime/sports_bribe]
b. NCAA (National College Athletic Association – Association organising the
athletic programmes of many colleges and universities in the United States)
Name
Don’t bet on it
Purpose
Nature
§
§
§
§
§
§
§
Trainers
Targets
Number of
persons
trained
Education of student athletes of the NCAA on the risks related to
sporting bets
Study on gambling behaviours of student athletes (in 2012, 25.7%
of male athletes and 5.2% of female athletes had made bets during
the previous year. 2.1% of basketball players said they were
approached);
Creation of a working group on sporting bets;
Dedicated
internet
link:
[http://www.dontbetonit.org],
with
information about the risks associated with sporting bets, videos,
discussion forums, etc.;
Information brochure available at each university;
Educational Kit for athletes with FAQ;
Awareness-raising for male and female athletes on campuses and
during competitions, in the context of pre-season training (with
video, specific guide) on integrity risks associated with sporting
bets. Specific presentations for the 8 teams (men and women)
participating in the “Final Four”;
Annual organisation of an information day on sporting bets
(“National Sports Wagering Awareness Day”).
NCAA experts, FBI, police officers, American football coaches
association (AFCA)
All student athletes of the sports concerned (twenty sports) and in the
three divisions covered by NCAA
23.000 student athletes
Budget
N/A
Launching
2006
Web link
[http://www.dontbetonit.org]
8
c. University of Alabama
Nom
Name
N/A
Purpose
Informing students about the risks associated with gambling
Nature
Trainers
§ Presentation to students of the risks related to gambling;
§ Participation in the one-week conference on addiction problems
organised by the National Council on Problem Gambling;
§ Creation of a working group operating in connection to risks of
gambling addiction (with the possibility of discussion).
-
Targets
Students
Number of
persons
trained
Budget
33.600 students affected directly or indirectly
N/A (in partnership with the NCAA and the NASPA - National
Association of Student Personnel Administrators)
2003
Launching
N/A
Web link
d. OHSAA (Ohio High School Athletic Association – association organising
sports programmes for junior high schools and high schools in the State of Ohio)
Name
Respect the Game
Purpose
Nature
Trainers
Promoting sports ethics, fair play and integrity
“Respect the game” challenge open to all schools members of the
OHSAA (over 1.500): organisation of an educational
programme/awareness campaign where fair play is highlighted (to
promote this programme, different materials are sent to schools:
PowerPoint presentations, fair play Code, ideas of possible actions,
etc.);
§ Organisation of a special prize on fair play (Commissioner's Award
for Exceptional Sportsmanship): 6 awards and the right to compete
for the first prize (Harold Meyer Award).
§
Targets
Junior high schools and high schools in the State of Ohio and those
close to the students (parents, coaches, friends, fans, etc.) in about
fifteen sports
Number of
persons
trained
Budget
N/A
N/A (self-financing)
Launch
2004
Web link
[http://www.ohsaa.org/RTG/default.asp]
9
e. Pennsylvania State University
Name
Athletics Integrity Agreement
Purpose
Trainers
Informing students about the risks associated with gambling and sport
integrity
§ Creation of an integrity council and appointment of an integrity
officer;
§ Annual briefing session on the risks related to gambling and sport
integrity;
§ Programme-related communication;
§ Setting up of a hotline to receive alerts.
-
Targets
All university athletes
Number of
persons
trained
Budget
N/A
Nature
Launching
N/A (in partnership with the NCAA and the “Big Ten Conference” :
association of thirteen universities that manages university sporting
competitions in the Midwest
2012
Lien
Internet
Web link
N/A
f. San Jose State University
Nom
Name
Purpose
N/A
Trainers
integrity
§ Face to face awareness-raising (in small groups) and quizzes on
the rules of sporting bets (the SJSU explains the answers to the
quizzes as part of an information session: “Sports Wagering Rules
Education Session”)
§ Student athlete guide along with the Code of conduct on sporting
bets.
SJSU Experts (members of the SJSU Compliance Office)
Targets
Athletes, coaches and directors
Number of
persons
trained
Budget
N/A
Launching
2011
Lien
Internet
Web link
N/A
Nature
N/A
10
g. University of Michigan
Nom
Name
N/A
Purpose
integrity
Nature
§ Website dedicated to providing information about the risks
associated with gambling (with videos, links, etc.) and insider
trading (communication of non-public information for sporting bets
purposes).
Trainers
-
Targets
Coaches and directors
Number of
persons
trained
N/A
Budget
N/A
Launching
N/A
Web link
[http://www.umich.edu/~mgoblue/compliance/gambling/]
3. Asia: ICSS/Qatar Olympics Committee
Name
Save the dream
Purpose
Raise awareness of young athletes about the risks of match-fixing
Nature
§ Creation of a group of 11 athletes (the “Team”) representing
different sports and regions of the world, that aims at raising
international public awareness on the subject of match-fixing.
Trainers
Experts in education, integrity of sport, marketing and communication
Targets
Young athletes
Number of
persons
trained
100,000 persons reached by the programme
Budget
N/A (ICSS financing – International Centre for Sport Security)
Launching
2012
Web link
[http://www.theicss.org/initiatives/save-the-dream/]
4. Australia
a. Australian Government (national integrity of sport unit)
Name
Keep Sport Honest
Purpose
Awareness-raising for Australian sporting organisations (and athletes)
on integrity issues: doping, match-fixing, sporting bets , etc.
§ Model regulations for national sports federations on sporting bets
and risks of match-fixing (inspired from the SportAccord
programme);
§ Code of conduct on match-fixing for sports stakeholders (inspired
by the SportAccord programme);
Nature
11
Trainers
§ E-learning programme destined to athletes (videos + quizzes):
http://elearning.sport.gov.au
National integrity of sport unit
Targets
Australian sporting associations (directors and athletes)
Number of
persons
trained
Budget
N/A
Launching
2011 (National Integrity of Sport Unit)
Web link
[http://www.regional.gov.au/sport/national_integrity/]
N/A
b. COMPPS (Coalition of Major Professional and Participating Sports)
Name
Purpose
COMPPS (Coalition of Major Professional and Participating
Sports)
Protecting the integrity of professional sport in Australia:
Trainers
§ Australian Football League – AFL
§ Australian Rugby Union – ARU
§ Cricket Australia – CHIFFRE D'AFFAIRES
§ Football Federation Australia – FFA
§ National Rugby League – NRL
§ Netball Australia
§ Tennis Australia
§ Creation of a working group on integrity and bets (BIG – Betting
Integrity Group);
§ Codes of conduct on fixed matches for sports stakeholders;
§ Education and information programmes are being developed.
-
Nature
Targets
Players, coaches, officials, etc.
Number of
persons
trained
Budget
N/A
Launching
2013
Web link
http://www.compps.com.au/betting-integrity-group.html
N/A
c. National Sporting Federations (basketball, bowls, fencing, wrestling, table
tennis, archery, etc.)
Name
Anti Match-Fixing Policy
Purpose
Protecting sport integrity in Australia according to the principles defined
by the Australian Government.
Nature
§ Code of conduct (it is more of a good regulatory practice than a
genuine educational tool).
Trainers
-
Targets
Athletes, coaches, agents, referees, directors, etc.
12
Number of
persons
trained
Budget
N/A
N/A
Launching
2013
Web link
Example: [http://www.ausfencing.org/home/index.php/documents-andpolicies/all-documents-and-policies/3253-aff-anti-match-fixing-policy]
5. Europe
a. IRIS (Institute of International and Strategic Relations)
Name
Purpose
Nature
Which national networks to combat match-fixing?
Training programme for European Union States and national sports
organisations on the threat of match fixing and sporting bets
§ A one-day detailed information seminar.
Trainers
IRIS Experts, SportAccord, CK Consulting
Targets
States (Ministry of Sports and Justice, police, sporting bets regulator)
National sports organisations (National Olympic Committee and
federations)
22 countries (between 30 and 80 persons per country)
Number of
persons
trained
Budget
Launching
About 450.000€ (funding by the European Commission and the
European Lotteries association EL)
2013
Web link
[http://www.protect-integrity.com/]
b. EU-Athletes (federation of national athletes unions)
Name
Protect integrity
Purpose
Awareness-raising of athletes on the risks of match-fixing
Nature
§ Code of conduct for sports stakeholders;
§ Training of instructors (national unions);
§ Face to face awareness-raising (group meetings) with tools: as
posters, "Flash codes" for mobile phones, guides for players.
National athlete unions
Trainers
Targets
Number of
persons
trained
Budget
National athletes unions (31 association in total)
Athletes (young and professional) in 13 countries and in at least 10
different sports
In progress (objective: 25.000)
Launching
500.000 € (funding by the European Commission: 46% and the
European Gaming and Betting Association EGBA: 41%, RGA: 10% and
ESSA: 3%)
2011
Web link
[http://www.protect-integrity.com/]
13
c. Austria – Austrian Ministry of Sports (Sport Ministerium), Professional Football
federation (OFB) and League (Bundes Liga), Ski Federation (OSV)
Name
Play Fair Code for Integrity in Sport
Purpose
Educating national sports organisations on the threat of match-fixing
Nature
§ Face to face awareness-raising (in small groups) of professional
players, with the use of the interview of a player involved in a
scandal;
§ Charter to be signed by players.
National experts, UEFA and police
Trainers
Targets
Number of
persons
trained
Budget
Launching
Web link
st
nd
Clubs, players, coaches, football (1 and 2 divisions) and ski managers
Future objective: other sports, referees, youth academies
About twenty football clubs trained to date
N/A (in partnership with Raiffaisen bank)
2013
[http://www.playfairCode.at/startseite/]
d. Denmark – National Olympic Committee and Sports Confederation of Denmark
(DIF)
Name
Purpose
Nature
Trainers
Targets
Number of
persons
trained
Budget
Prohibition against Manipulation of Sports Competitions and
Similar Unethical Conduct
Protection of good sportsmanship and sport integrity with appropriate
control and sanction procedures
§ Establishment of a working group in coordination with the Ministry
of Culture, the regulatory authority in charge of sporting bets,
betting operators and sports organisations;
§ Information campaign on good sportsmanship and sport integrity;
§ Hotline for match-fixing;
§ Obligation imposed on the 61 affiliated sports federations to
establish a Code of Conduct on match-fixing and other behaviours
contrary to sports ethics (before 4 May, 2014);
§ Communication of the actions to the general public (including
campaign to journalists from televised press, radio and print
media).
Sports federations members of the National Olympic Committee and of
the sports confederation
Athletes, referees, coaches, sports administrators and their entourage
N/A
N/A
Launching
2013
Web link
-
14
e. France – French National Olympic and Sports Committee (CNOSF)
Name
“Sporting bets” programme
Purpose
Trainers
Educating national sports federations on the threat of matchfixing
§ Creation of a network of “integrity” supervisors (one per
federation);
§ Training integrity supervisors;
§ Producing an awareness-raising guide for sports
stakeholders.
National experts
Nature
Targets
National sports federations members of the CNOSF
Number of
persons
trained
Budget
Around thirty “integrity” supervisors
Launching
2012
Web link
-
N/A (auto financing)
f. Norway - Norwegian Olympic and Paralympic Committee and Confederation of
Sports
Name
The Norwegian Action Plan against Match Fixing
Purpose
Trainers
Development of a comprehensive action plan to combat the
manipulation of sporting events (awareness-raising, regulation and
market surveillance of sporting bets, adaptation of criminal laws and
sports regulations, international coordination)
§ Creating a Web link with practical information and links to relevant
organisations;
§ Organisation of a forum with the participation of sports
organisations, the monopoly-holder sports betting operator (Norsk
Tipping) and public authorities ( including the police );
§ Launching a study with athletes and coaches to share their
knowledge and perception of match-fixing problems;
§ Organisation of an international seminar on match-fixing;
§ Educational tools on match-fixing (including an e-learning
programme and regulation models);
§ Establishment of conflict of interest rules for athletes (bets,
management of non-public information, approach, etc.).
-
Targets
Athletes, coaches, referees, etc.
Number of
persons
trained
Budget
N/A
Nature
Launching
Web link
N/A (programme carried out in association with the lottery operator
Norsk Tipping, the Norwegian Football Federation and the national
public authorities)
2013
[http://www.idrett.no/english/Documents/National%20Action%20Plan%
20against %20Match-fixing%20in%20Sport.pdf]
15
g. UK - Professional Players Federation (PPF - national organisation for the
professional player associations in the United Kingdom)
Nom
Name
Purpose
Nature
Trainers
N/A
Awareness-raising of professional players to gambling addictions and
match-fixing (11 professional player associations representing 15.600
men and women).
§ National conferences on sport integrity;
§ Face to face awareness-raising (in groups) with e-learning material,
posters and guides;
§ Training of instructors (integrity supervisor – athletes - );
§ Customised management of gambling addiction problems.
Football (PFA Scotland), cricket (PCA) and rugby experts (RPA), UK
Gambling Commission (sporting bets regulator) and betting operators.
Targets
Professional sportsmen and sportswomen
Number of
persons
trained
5.620 sportsmen and sportswomen trained (including 1.940 young
persons) between 2010 and 2013 Objective: 7500 between 2013 and
2016
130 supervising players trained in 2012
16 professional football players treated in 2012 for gambling addiction
27 national conferences in 2012
Budget
100.000 £ per year (funding by betting operators BET365, Betfair and
Ladbrokes)
Launching
2010
Web link
[http://www.ppf.org.uk/index.php5?action=our_work]
B. Football
1. World
a. FIFA
Name
Purpose
Nature
Trainers
Interpol / FIFA global training, education and prevention
programme
Educating and training key football stakeholders; improving national and
international criminal legislation.
§ Establishment of an sport integrity unit;
§ Organisation of regional or national awareness-raising seminars
(Africa: 9 countries from Southern Africa, America: CONCACAF,
Asia, Europe: Italy, etc.);
§ Database and weekly newsletter on sport integrity and sporting
bets;
§ E-learning
programme
for
athletes:
[http://seriousgame.integrityinsport.info/LAUNCHER/]
-
16
Targets
National football federations
Athletes, coaches, referees, etc.
Number of
persons
trained
Budget
N/A
20 million $ (programme conducted in association with Interpol)
Launching
2011
Web link
[http://www.interpol.int/Crime-areas/Corruption/Integrity-in-sport]
b. FIFPRO (World Professional Footballers’ Union)
Name
Don’t fix it
Purpose
Awareness-raising for players on the risks of match-fixing;
Improving the status of professional footballers in order to limit the risks
of match-fixing;
Creation of a structured network on the international level in order to
combat match-fixing.
§ Creation of an international working group;
§ Study with about 3.000 players from Eastern Europe (“Black
Book”);
§ Information via a website and social networks;
§ A two-day training seminar for trainers (former players);
§ National seminar for players, referees, coaches, administrators;
§ Educational programme via the internet and questionnaire for
players;
§ Code of conduct and good practices guide;
§ Hotline on the subject of match-fixing with guarantee of anonymity.
Nature
Trainers
Former players
Targets
Players, coaches, referees, directors and their clubs (for the time being:
Finland, Greece, Hungary, Italy, Norway, Romania, Slovenia, UK)
Number of
persons
trained
Budget
N/A (objective: 12.000 players and 8.000 officials)
Launching
2012 (completed in 2014)
Web link
[http://fifpro.org/fixit/fifpro.htm]
N/A
2. America - USA
a. MLS (Major League Soccer - Highest professional level in North America)
Name
N/A
Purpose
Awareness-raising on the potential risks of match-fixing
Nature
§ Awareness-raising for club directors;
§ Education and awareness-raising programme for players on the
risks of match-fixing and gambling addiction (during pre-season);
§ Participation to the two-day information seminar organised by
FIFA/Interpol/Concacaf.
17
Trainers
-
Targets
Athletes, coaches, referees, administrators
Number of
persons
trained
Budget
N/A
Launching
2012
Web link
N/A
N/A
b. FC Edmonton (professional team of the NASL - North American Soccer League
- second tier of professional North American Soccer).
Name
Game Integrity Plan
Purpose
Educating players on match-fixing and criminal approaches.
Nature
§ Nomination of an integrity officer;
§ Signature by each player of a charter of sporting bets and matchfixing.
Trainers
Derryn Donaghey (integrity supervisor and former police officer)
Targets
The entire club staff (administrators, athletes, coaches, referees,
educators, etc.)
In particular 25 professional players and young players and loaned
players who arrive during the season in first-team.
Number of
trained
persons
Budget
N/A
Launching
2013
Web link
N/A
3. Asia
a. China – Chinese Football Association
Name
N/A
Purpose
Raising awareness and protecting clubs from criminal activities.
Nature
§ Presentation of the Interpol/ FIFA programme to the Chinese Super
League clubs;
§ Specific information for referees in order to anticipate approaches.
Trainers
-
Targets
Administrators, referees
Number of
persons
trained
N/A
Budget
N/A (in partnership with FIFA and Interpol, cooperation with Korean and
Japanese associations)
Launching
2013
Web link
N/A
18
b. South Korea – Korean Football Association
Name
N/A
Purpose
Educating players on match-fixing and criminal approaches.
Nature
Trainers
§ Creation of a working group operating on the subject of matchfixing (federation, representatives of the educational system,
st
K-League (1 division), betting operator Sports Toto – Lottery –,
Ministry of Justice);
§ Educational programme on ethical values and the risks of sport.
-
Targets
Young players, coaches, professional players, referees
Number of
persons
trained
Objective: 1.100 players, coaches and referees
Budget
N/A (cooperation with the Chinese and Japanese associations)
Launching
2011
Web link
N/A
c. Japan – Japanese Football Association
Name
N/A
Objet
Purpose
Protecting Japanese football from criminal approaches
Nature
§ National awareness-raising seminar with referees,
associations and police forces;
§ Informing all players on the risks of criminal approaches;
§ Hotline on the subject of match-fixing.
players’
Trainers
-
Targets
40 Clubs, players and referees of the J-League (1 division)
Number of
persons
trained
N/A
Budget
N/A (cooperation with the Chinese and South Korean associations)
Launching
2012
Web link
N/A
st
d. Malaysia – Football Association of Malaysia - FAM
Name
N/A
Purpose
Educating players on match-fixing and criminal approaches
Nature
Trainers
§ Creation of a working group operating on the subject of matchfixing (FAM, FIFA, police forces, Malaysian Anti-Corruption
Commission: MACC;
§ Informing clubs on the risks of match-fixing.
-
Targets
Clubs and players
19
Number of
persons
trained
Budget
N/A
N/A (in partnership with FIFA)
Launching
2012
Web link
N/A
e. Singapore – Football Association of Singapore
Name
N/A
Purpose
Aggressive fight against match-fixing
Nature
Trainers
§ Face to face awareness-raising for officials and players before the
start of the season and coaching on the risks related to matchfixing.
Police authorities
Trainers
Officials, players and support personnel of S-League clubs (1 division)
Number of
persons
trained
N/A
Budget
Launching
2012
Web link
N/A
st
4. Europe
a. UEFA
Name
European football united for the integrity of the game
Purpose
Educating European football stakeholders on the subject of match-fixing
and sporting bets
§ Creation of an integrity officers network (one per member State of
the UEFA);
§ 54 members in total;
§ Training of the integrity officers;
§ Face to face awareness-raising (in groups) of young persons
(under 17 years of age and under 19 years of age);
§ Code of Conduct for Football stakeholders;
§ Hotline on match-fixing.
UEFA Experts, FIFPro, EPFL experts
Nature
Trainers
Targets
National football federations
Players, officials and referees
Number of
persons
trained
Budget
200 young players per year
Launching
2010
Web link
[http://www.uefa.org/management/legal/news/newsid=1949359.html]
20
b. EPFL (European Professional Football League - European Association of
National Professional Football Leagues)
Name
N/A
Purpose
Nature
Educating professional European leagues on match-fixing et illegal
sports bets
§ Creation of a working group on sporting bets;
§ Code of conduct on sporting bets: http://epfl-publications.com/sportbetting/
Trainers
-
Targets
EPFL members (29 members and associate members)
Number of
persons
trained
N/A
Budget
N/A (in partnership with Transparency International)
Launching
2010
Web link
[http://www.epfleuropeanleagues.com/files/Integrity_in_Sport_poster.pdf]
c. Transparency International
Name
Staying onside: How to stop match fixing
Purpose
Partnership between professional football leagues and anti-corruption
associations in six European countries (Germany, Greece, Italy,
Lithuania, Norway, Poland, Portugal, UK)
§ Educating sports stakeholders and the general public on the
problem of match-fixing (through a dedicated internet link, blogs,
information seminars, etc.);
§ Testing innovative tools to combat match-fixing (guides, posters,
etc.).
TI, EPFL, DFL Experts
Nature
Trainers
Targets
Number of
persons
trained
Budget
Launching
Web link
Administrators and officials of professional football leagues
Clubs and football stakeholders
The general public
Objective: 600 football players, coaches, referees and officials trained
on the risks of match-fixing in 6 European countries
About 500.000 € (European Commission: 291.868 €, EPFL, DFL:
Deutsche Fussball Liga)
2013
[http://www.transparency.org/whatwedo/activity/staying_on_side_educ
ation_and_prevention_of_match_fixing]
21
d. Germany - DFB (Deutsche Fussball Bund – German Football Association) and
DFL (Deutsche Fussball Liga - German professional league)
Name
Together against match-fixing - play fair every time
Purpose
Educating German football stakeholders on match-fixing issues and
st
th
gambling addiction (1 to 5 division)
§ Appointment of an integrity officer and an anti-corruption officer
§ Code of Conduct;
§ Training of instructors (“coaches of honour”, educators, etc.)
§ Internet link dedicated to combating match-fixing with the possibility
to download numerous tools: brochure, player guide, poster,
practical guide;
§ E-learning
programme
for
athletes:
[http://gemeinsamgegenspielmanipulation.de/etraining/index.html]
§ Hotline on match-fixing with an Ombudsman (independent person
responsible for managing alerts).
DFB/ DFL trainers
Nature
Trainers
Targets
Launching
For the time being: professional clubs
Sports stakeholders (players, referees, coaches, administrators, etc.)
and their families
In the future: training centres and young players
Objective: training 1.000 coaches of honour, 10.000 coaches, 10.000
educators (in total: 26.000 Clubs – 170 000 teams – 6.8 million qualified
persons)
N/A (partnership between DFB, DFL, Transparency International,
federal institute for education and health, professional footballers union)
2011
Web link
[http://www.gemeinsam-gegen-spielmanipulation.de]
Number of
persons
trained
Budget
e. Scotland – PFA (Professional Footballers’ Association)
Name
Information programme on gambling
Purpose
Informing Scottish football players on the risks of gambling and
awareness-raising on issues of sport integrity
§ Face to face awareness-raising (in small groups) for professional
players;
§ Information tools on the risks associated with sport integrity
(posters);
§ E-learning programme for athletes (with a quiz).
PFA experts + RCA Trust (specialised consulting on issues of addiction)
Nature
Trainers
Targets
Number of
persons
trained
Budget
Clubs
Professional players
28 clubs – up to 600 players
N/A
Launching
2011
Web link
N/A
22
f. Spain – LFP (Professional Football League)
The LFP announced in the second half of 2013 the creation of an integrity
department and the future establishment of education and prevention actions on matchfixing.
g. France – LFP (Professional Football League)
Name
Purpose
N/A
st
Educating French professional football stakeholders (1 and 2
divisions) on the issues on sporting bets and match-fixing
nd
Nature
§ Appointment of an integrity supervisor per club of L1 and L2
st
nd
(1 and 2 professional divisions);
§ Regulations adapted to conflicts of interest (prohibition of betting),
insider offences, etc.;
§ Training of instructors (integrity supervisors)
§ A complete training guide on sporting bets and match-fixing;
§ Players guide and Code of Conduct;
§ Official “sporting bets” charter to be signed by the club’s president,
the coach and the captain;
§ “Sporting bets” charter to be signed by all the players.
§ Face to face awareness-raising (in small groups) of professional
players and trainees. The pilot project was conducted with the
support of Montpellier HSC.
Trainers
LFP experts, Française des Jeux (operator of France's national lottery
games), CK Consulting.
Professional clubs
Players, coaches, administrators, officials
All supervisors were trained in 2013
Objective: training all the L1 and L2 players before the end of 2014
Targets
Number of
persons
trained
Budget
N/A (in partnership with the Française des Jeux)
Launching
2012
Web link
N/A
h. France – TFC Foundation (Toulouse Football Club)
Name
N/A
Purpose
Trainers
Awareness-raising for club players (professionals and trainees) on
issues of gambling addiction, risks related to internet and social
networks, match-fixing, etc.
players and trainees, but also for young players in the region.
Experts (including la Française des Jeux)
Target
Players, coaches, educators
Number of
persons
trained
More than 1000 young persons
Nature
23
Budget
N/A (in partnership with the Française des Jeux)
Launching
2012
Web link
N/A
i. Northern Ireland - Irish FA (Irish Football Association)
Name
N/A
Purpose
Nature
§
§
§
§
Trainers
Targets
Information on the risks associated with sporting bets and more
generally on sport integrity (42 teams of the first three divisions)
Code of Conduct on sporting bets handed out in each club;
Hotline for match-fixing;
Workshops for managers, referees and delegates (representatives
of the association during games);
Regulations guide on sporting bets and posters.
Federation experts, league, police services.
Clubs
Players, coaches, administrators, officials
Objective: include young players and future referees
N/A
Number of
persons
trained
Budget
N/A (in partnership with the professional league and the police services)
Launching
2012
Web link
[http://www.irishfa.com/the-ifa/irish-fa-integrity-officer/]
j. Italy- Lega Pro
Name
Integrity Lega Pro
Purpose
Educating Italian football stakeholders on the issue of match-fixing and
st
th
addiction to gambling (1 to 5 division)
§ Creation of and “integrity office” with three integrity supervisors;
§ Integrity seminar in 12 professional clubs of the Calcio (March till
May 2012);
§ Workshops for players, referees, administrators;
§ Establishment of a territorial network of ambassadors (supervisors)
who are able to work with the integrity office of the Lega Pro, report
any suspicion of fraud, participate in field trainings.
Interpol experts, FIFA, UEFA, Sportradar
Nature
Trainers
Targets
Number of
persons
trained
Budget
Professional clubs
Referees, players, coaches, administrators, officials
2011-1012 Season: 12 clubs and 1.500 players
Objective for the 2012-2013 season: 69 clubs and 8.500 players
N/A
Launching
2011
Web link
[http://www.lega-pro.com/sito/index.php/tutti-gli-eventi/2205-integrity]
24
k. Malta- Malta Football Association
Name
N/A
Purpose
Awareness-raising for young players and students on the issue of
match-fixing
§ Face to face awareness-raising (in small groups) of juniors;
§ Posters in schools and youth centres;
§ Pre-season seminar with a presentation on the risks of match-fixing
to all the players of the top clubs.
Integrity officer and experts of the Federation
Nature
Trainers
Targets
Young football players (juniors)
young persons in schools
N/A
Number of
persons
trained
Budget
N/A
Launching
2012
Web link
N/A
l. Netherlands – KNVB (Koninklijke Nederlandse Voetbal Bond) Royal Dutch
Football Association
Name
N/A
Purpose
Nature
§
§
§
§
§
Awareness-raising for young players and students on the issue of
match-fixing
Creation of an ethics and integrity unit (with an integrity officer);
Hotline for match-fixing;
Information day on match-fixing at clubs;
Awareness-raising day on match-fixing in collaboration with Interpol
and FIFA (2012);
Specific Educational programme for referees.
In the planning stage:
§
§
§
§
§
§
Trainers
Targets
Number of
persons
trained
Budget
Website dedicated to sport integrity;
Establishment of an e-learning programme;
Training club integrity supervisors;
Training players, referees, young persons, etc.;
Code of Conduct;
Training programme for national youth teams.
-
Clubs
Sports stakeholders (players, referees, administrators, coaches, etc.)
N/A
N/A (in particular in partnership with FIFA and Interpol)
Launching
2009
Web link
N/A
25
m. Switzerland – Football Players Union
The Football Players Union calls on the same organisation as in ice hockey to
inform its members on the risks of illegal bets (see. 3.12.a).
C. Athletics: USA Track and Field (Athletics association of the USA)
Name
Win with integrity
Purpose
Trainers
Educating young athletes, their parents, coaches, educators on the
benefits of sport and the importance of sport integrity
§ Interviews and interactive forums with champions on the themes of
fair play and health in sport (including the importance of not taking
drugs);
§ Establishment of a Code of Ethics (since 2007);
§ Different educational tools on sports ethics (videos, charter, social
networks, etc.)
Participation of famous champions
Targets
Young athletes, parents, educators and coaches
Number of
persons
trained
Budget
N/A
N/A (in partnership with Team USA Athletes)
Launching
2004
Web link
[http://www.usatf.org/About/Programmes/WinWithIntegrity.aspx]
Nature
D. Baseball
The MLB (Major League Baseball (professional baseball league in North
America) uses certain tools – such as an information video on the risks of sporting bets
– designed in partnership with the NCAA.
E. Basketball
a. NBA (National Basketball Association – professional basketball league in North
America)
Name
NBA Anti-Gambling Programme
Purpose
Educating all the stakeholders in the NBA competitions on the risks of
sporting bets and the manipulation of sports events
§ Audit (following the Donaghy case, in which a referee bet on
games he refereed) with 200 interviews leading to
recommendations
contained
in
a
report
(2008);
[http://hosted.ap.org/specials/interactives/_documents/100208nba_
pedowitz.pdf];
§ Regulations on bets and Code of Conduct (including in particular
the prohibition for sports stakeholders to bet on NBA matches);
§ Face to face information on rules and Codes of conduct for all
referees during the pre-season training (with the distribution of a
specific guide);
Nature
26
Trainers
Targets
Number of
persons
trained
§ Hotline on match-fixing and sporting bets with guarantee of
anonymity;
§ Online educational programme for all NBA employees (in 2006) on
regulations, obligations and especially rules concerning gambling;
§ Awareness-raising for all NBA players during a pre-season training
(with video, specific guide) on integrity risks associated with
sporting bets;
§ Posters reminding the rules in the locker rooms;
§ Signature of a specific clause on the prohibition of betting on NBA
matches in the players’ employment contract;
§ In-depth information to all new NBA players, including a
presentation made by a former professional bettor;
§ Seminars organised in each club (in 2006) by the NBA with
detailed explanation and tools (brochures, presentations, Internet
link, discussions, etc.)
NBA experts (in particular the security director), FBI, policemen,
gambling experts
Referees, players, coaches, administrators
NBA employees
N/A
Budget
N/A
Launching
2003
Web link
N/A
b. FIBA (International Basketball Federation)
The FIBA has published a player’s guide which evokes issues associated with
3
sport integritys and sporting bets.
F. Cricket
a. ICC (International Cricket Council)
3
Name
N/A
Purpose
Protecting cricket from manipulation attempts
Nature
§ Creation of a service of about ten people dedicated to counter the
risks of match-fixing including 7 Regional Security Managers who
follow all international competitions (ACSU: Anti-Corruption and
Security unit);
§ Awareness-raising for players with a complete range of tools (it
should be noted that in order to participate in an international
competition, players are required to have completed the training
module delivered by the ACSU);
§ Very strict regulation (especially on sporting bets, insider offences
or criminal approaches);
See § 2.4 of the Handbook: [http://www.fiba.com/downloads/v3_expe/player/FIBA_Athletes_Handbook.pdf].
27
Trainers
Targets
Number of
persons
trained
§ Employment contract for players including clauses allowing access
to personal data in case of investigation;
§ Adoption of an Anti-corruption Code for players (2009).
ICC experts/ACSU
Players
Sports stakeholders
3.500 players since 2002
Budget
Precise number N/A, but estimated at several million Euros
Launching
2002
Web link
[http://www.icc-cricket.com/about/46/anti-corruption/overview]
b. UK – Professional Cricketers’ Association (Union of Professional Cricketers)
Name
N/A
Purpose
Protecting English cricket from manipulation attempts
Nature
§ E-learning programme for athletes with the possibility of verifying
the identity of persons who attend the training (video, quiz,
knowledge exams, etc.)
§ Awareness-raising for players with a complete range of tools;
§ Very strict regulation (especially on sporting bets, insider offences
and criminal approaches).
§ Player employment contracts that include clauses allowing access
to personal data in case of investigation.
Trainers
Targets
Players
Number of
persons
trained
Budget
N/A
N/A (in cooperation with the England and Wales cricket Board)
Launching
2010
Web link
N/A
G. Cycling: USA Cycling (USA governing body for bicycle racing)
Name
Purpose
Nature
Race clean programme
Educating cyclists on doping issues
§ Establishment of anti-doping controls;
§ Educational programme via various platforms.
Trainers
Targets
Number of
persons
trained
Clubs
Cyclists (young persons and professionals), coaches, administrators,
and sports directors
N/A
28
Budget
Launching
N/A (in partnership with the USADA – United States Anti-Doping
Agency –, UCI – International Cycling Union – and the WADA – World
Anti-Doping Agency)
N/A
Web link
[http://www.usacycling.org/usa-cycling-raceclean-programme.htm]
H. Flying Disc: World Flying Disc Federation
Name
N/A
Purpose
Trainers
Protecting the integrity of Flying Disc competitions against
illegal/irregular betting and the risks of match-fixing
§ Regulations and Code of Conduct on sporting bets
(http://wfdf.org/search?searchword=match+fixing&ordering=&searc
hphrase=all);
§ Education, prevention and information programme in accordance
with the principles defined by the IOC (in particular the availability
of tools for athletes);
§ Hotline for match-fixing.
-
Targets
Athletes and officials
Number of
persons
trained
N/A
Nature
Budget
N/A
Launching
2013
Web link
N/A
I. American Football: NFL (National Football League – Professional American
Football League) / NFL Players Association (Football Players Union)
Name
N/A
Purpose
Protecting the integrity and the image of the NFL
Nature
Trainers
§ Code of conduct available online;
§ Provisions on integrity included in the players’ employment
contract;
players during summer, especially on the risks associated with
gambling (with video).
NFL experts (security managers), FBI, NCAA
Targets
Players, coaches, administrators, owners, employees
Number of
trained
persons
N/A
Budget
N/A (in partnership with the NCAA)
Launching
N/A
Web link
N/A
29
J. Australian Football
Several football clubs (Carlton Football Club and Northern Blues Football Club,
Collingwood Football Club) developed a prevention policy against addiction to gambling
problems.
Example:
[http://www.carltonfc.com.au/news/2013-05-23/blues-launchgambling-awareness-programme].
K. Handball: FFHB (French Handball Federation) / LNH (National Handball
League)
Name
N/A
Purpose
Protecting French Handball from manipulation attempts
Nature
§ Very strict regulations (especially on sporting bets, insider offences
and criminal approaches);
§ In-depth training of instructors at the FFHB and LNH levels
(including the clubs’ integrity supervisors)
Trainers
FFHB/LNH experts, Française des Jeux, Interpol, CK Consulting
Targets
Integrity Supervisors at clubs, administrators
Number of
persons
trained
N/A
Budget
N/A
Launching
2013
Web link
N/A
L. Ice Hockey
a. WAIPU (World Association of Ice Hockey Players Union)
Name
Show Respect – Don’t fix it (also used for Football in Switzerland)
Purpose
Protecting sport form illegal betting
Nature
Trainers
§ Hotline on match-fixing – Information tools on match-fixing
(especially video).
-
Targets
Players and coaches
Number of
persons
trained
N/A
Budget
N/A
Launching
2013
Web link
[http://www.showrespect.com]
b. The NHL (National Hockey League – Professional Ice Hockey League in
Northern America) uses certain tools – in particular an information video on the
risks related to sporting bets – created in partnership with the NCAA (see.
3.1.2.b).
30
M. Rugby
a. IRB (International Rugby Board) in collaboration with certain national
federations
Name
Keep rugby onside: Promoting integrity in rugby
Purpose
Nature
Preserving good sportsmanship and the values of Rugby;
Preventing the risks of manipulations of sports competitions
(International Rugby Board, German, French, Dutch, Portuguese,
Czech rugby federations).
§ Creation of a think tank on the ethics and the integrity of rugby
(managed by the IRB);
§ Tools destined to protect the integrity of rugby via the Internet link:
[http://www.irbintegrity.com/index.php] - which might be used during
face to face awareness-raising.
Trainers
-
Targets
Elite players and young persons
Number of
persons
trained
N/A
Budget
Around 100.000 € (European Commission: 60.000 €, Six Nations
Championship, European Rugby Cup)
Launching
2013
Web link
[http://www.irbintegrity.com/index.php]
b. UK – Rugby Players Association
Name
N/A
Purpose
Alerting players on the risks of manipulating sports events
Nature
§ Information day organised in collaboration with Betfair;
§ Compulsory workshops for all first division players
communication tools adapted to the issue of match-fixing).
(with
Trainers
RPA and RFU experts
Targets
Players over 18 playing in first division (Aviva Premiership)
Number of
persons
trained
Objective: 500 players per year
Budget
N/A (in cooperation with the RFU – Rugby Football Union – Rugby
Union in England)
Launching
2011
Web link
N/A
31
c. FFR (French Rugby Federation) – LNR (National Rugby League)
Name
N/A
Purpose
Alerting sports stakeholders on the risks of sports events manipulation
Nature
Beyond the actions developed with the IRB:
§ Awareness-raising for referees;
§ Extensive training for instructors (in particular the integrity
st
nd
supervisors of the Top 14 and Pro D2 clubs – 1 and 2
professional divisions);
§ Guide for male and female players recalling the 5 rules to be
followed;
§ Electronic practical guide on the risks of match-fixing and sporting
bets.
Trainers
FFR experts, Française des Jeux and CK Consulting
Targets
Referees, integrity supervisors
Number of
persons
trained
N/A
Budget
N/A
Launching
2013
Web link
N/A
N. Tennis
a. TIU (Tennis Integrity Unit)
Name
N/A
Purpose
Protecting tennis from manipulation attempts (International Tennis
Federation, Grand Slam Tournaments, ATP World Tour (Association of
Tennis Professionals) – men – and WTA – Women’s Tennis
Association –)
§ Creating of a unit of about five persons dedicated to counter the
risks of match-fixing (TIU);
§ Very strict regulations (in particular on sporting bets, insider
offences or criminal approaches);
§ Contractual obligations for players including clauses allowing
access to personal data in case of an investigation;
§ E-learning programme for male and female players (video, quiz,
knowledge test, etc.). Starting from 2012, male and female players
of the Grand Slam Tournaments are required to complete the
training.
Nature
Trainers
TIU experts
Targets
Players
32
Number of
persons
trained
Budget
N/A
N/A, but estimated at more than one million Euros
Launching
2008
Web link
[http://www.tennisintegrityunit.com]
b. FFT (French Tennis Federation)
Name
N/A
Purpose
Protecting French tennis from manipulation attempts
Nature
Trainers
§ Awareness-raising of all the sports stakeholders (administrators,
employees, regional technical staff, national coaches, etc.);
§ Extensive training for instructors (especially representatives of the
National Technical Directorate);
§ Guide for male and female players recalling the 5 rules to be
followed;
§ Online practical guide on the risks of match-fixing and sporting
bets.
FFT experts, CK Consulting
Targets
Players
Number of
persons
trained
Budget
N/A
Launching
2007
Web link
N/A
N/A
O. Horse racing: British Horseracing Authority (regulatory authority for horse
racing in Great Britain)
Name
Keeping Racing clean
Purpose
Protecting Horse racing from the risks of manipulation and insider
offences (usage of non-public information) – following a report
published in 2002
§ Creation of an integrity department in 2007;
§ At first: e-learning programme, training sessions and seminars for
horse racing stakeholders;
§ Regulations concerning primarily insider offences (and the
prohibition to bet on horse race);
§ Today: detailed presentations to all new stakeholders, including
jockeys and coaches, with verification of knowledge and
understanding of rules;
§ Hotline on match-fixing with guarantee of anonymity.
BHA experts (Training at the British Racing School and the Northern
Racing College)
Nature
Trainers
33
Targets
Horse racing stakeholders
Number of
persons
trained
Budget
N/A
N/A (in partnership with British bookmakers)
Launching
2002
Web link
[http://www.britishhorseracing.com/inside_horseracing/integrity/default.
asp]
Section 2. Analysis of Information and Education Actions Associated with Sport
Integrity
After discussing the main characteristics of the actions identified above (§ 1),
some recommendations will be made (§ 2).
§ 1. Characteristics of Undertaken Actions
These actions are recent (A), more or less developed depending on the regions
(B), different depending on the discipline considered (C), even if they are sometimes of
similar nature (D) and are implemented with budgets that are difficult to evaluate (E).
A. Recent Actions
This is undoubtedly the most significant element of the analysis. Indeed, nearly
60% of the identified actions were launched less than 18 months ago, and over 75% of
the actions were undertaken less than 3 years ago. This means that the issue of sport
integrity is very recent for sports organisations and public authorities, in particular
regarding the manipulation of sports competitions and sporting bets. This situation is
perfectly logical, since most of the major scandals surfaced within the last 5 years. It is
with the development of online sporting bets that the risks of manipulating sport events
have grown exponentially.
Only one educational programme was launched prior to 2000. It is the one
developed by the FBI for the NBA and the NFL. More generally, American sports and
universities are pioneers in this field, since the first initiatives were conducted between
2003 (NBA) and 2006 (NCAA). In the rest of the world, the only disciplines to set up
education and prevention tools for match-fixing before 2010 are cricket (ICC in 2002)
and tennis (FFT in 2007, ITF Grand Slam Tournaments, ATP and WTA in 2008).
One thing remains clear: it is in response to a scandal that most organisations
are developing programmes, and these actions are rarely preventive. The American
example is typical at this level: the NBA, hit by high-profile scandals, reacted and
implemented effective tools. Other leagues, starting with the MLS (Major League
Soccer) are still far behind because they do not feel directly threatened to this day. The
coordinated approach between the government and sport in Australia, but also that of
the FFT (French Tennis Federation) are exceptions that should be highlighted.
34
However, this does not mean that the sporting movement and the public
authorities had not properly anticipated the crisis: everything went very fast, since
modern forms of betting effectively started developing since 2005 (Live Betting – live
bets during an event – Betting Exchanges, etc.). Very few people understood the real
risks associated with this phenomenon, simply because of the lack of expertise and
perspective. The industry of sporting bets and the world of sport remain to this day
disjointed. One of the challenges of the moment is precisely to get them to cooperate.
B. More or Less Developed Actions Depending on the Region
North America - the United States and Canada - was the first continent to
implement prevention and education actions related to sport integrity. The reason is
undoubtedly related to the complex history of sporting bets in these countries.
Prohibited in many American States and strictly regulated in Canada, sporting bets
have long been a major boon for organised crime, whether through street bookmakers
or online. Up until 2006 – the year in which a restrictive federal law on online sporting
4
bets was adopted – illegal bets proliferated, and the mafia often tried to bribe athletes
5
or extract inside information for betting purposes. American professional and university
sports, but also "soccer", took action to protect themselves. Today, North America still
accounts for about a quarter of the actions explored in this studying a wide variety of
disciplines (basketball, baseball, American football, ice hockey, but also athletics,
cycling, etc.).
Since 2010, it is mainly in Europe, undermined by scandals, that programmes
on match-fixing and sporting bets were implemented. Over 40% of the identified
operations are developed on the old continent, mainly in football, tennis, cricket and
rugby. More precisely, it is in the UK (primarily with football, cricket and rugby) and in
France (starting with football, tennis, handball and rugby) that the largest number of
actions is found in different sports. But it is also important to mention countries such as
Norway, Germany, Austria, Denmark, Italy and the Netherlands, which quickly
established organisations that seem to be efficient.
Australia has also, for the past few years, been at the forefront of actions for
sport integrity. Many programmes have been implemented in a coordinated manner by
the government, the States and the territories, but also by the sporting movement as a
whole. This country is undoubtedly now one of the best practices in risk management
associated with sporting bets and match-fixing.
In Asia, the major federations and professional football leagues have recently
undertaken painstaking work to fight against match-fixing, a problem that has
unfortunately become endemic. Finally, it should be noted that in Africa and Latin
America, the only initiatives were conducted by Interpol and FIFA, on continents that
seem to be increasingly affected by corruption in football and tennis.
4
UIGEA (Unlawful Internet Gambling Enforcement Act 2006).
On
this
issue,
see
NCAA
[http://fs.ncaa.org/Docs/public/pdf/ncaa_wagering_prelim_may2013.pdf].
5
Study,
available
at:
35
As a conclusion, it is important to note that the main world organisations
concerned with sport integrity (IOC, international federations of football, tennis, cricket,
rugby or basketball) or doping (cycling) have all implemented education or prevention
programmes aimed at stakeholders in their sport.
C. Different Actions in Differentiated Sporting Disciplines
Not surprisingly, football and multi-sport organisations (IOC, SportAccord, the
Australian Government, National Olympic Committees, etc.) represent each
approximately one third of the actions relating to sport integrity. According to some
statistics, football alone would be affected by more than 70% of cases concerning
events manipulation, which explains this discipline’s quick reaction and its equipment
with proper tools. For their part, multi-sport organisations typically implement models of
regulations and of a Code of Conduct, which is then adapted to each discipline.
Football is followed by American professional and university sports - even if
baseball and hockey seem to stay in the background behind basketball and football -,
then tennis, Australian football, cricket and rugby.
Among the sports that are less affected by match-fixing at the moment, the
example of rugby, which anticipates risks, could be followed. Other disciplines, mildly
concerned by sporting bets, have also already implemented adequate prevention
measures. One example is the World Flying Disc Federation or the International Floor
ball Federation which responded to the questionnaire on another subject administered
by SportAccord.
Finally, one may mention the experience of horse racing in the UK. The
authority in charge of its integrity (British Horseracing Authority) has long been a
pioneer in Europe even though it now seems overtaken by innovative tools
implemented by football, tennis or cricket.
D. Nature of Education and Prevention Actions
1. Objectives of the Programmes
Most of the identified actions are aimed at combating match-fixing and are
related to risks associated with sporting bets. In many cases, it is interesting to note that
organisations prefer to address the question of sporting bets rather than that of
manipulation of events: the objective is no doubt to prove – but to whom? – that the
problem arises from sporting bets and from underestimating some weaknesses inherent
to the sporting movement.
More rarely, educational programmes are mainly aimed at preventing the risks
of gambling addiction. This is the case in some American universities – such as the
University of Alabama – but also for some professional football players unions,
particularly in the United Kingdom. It should also be noted that countries like Australia
or England, where betting is widely democratised with rather liberal gambling policies,
bring up the subject of gambling addiction more often.
36
When talking about sport integrity, it is surprising to observe that doping is
rarely discussed directly. Such issues are mainly discussed by organisations that
regulate cycling – for example USACycling and the UCI, who responded in another
questionnaire administered by SportAccord. It's almost as if, 15 years after the "Festina"
case, the subject of doping became more widely accepted and now perceived as a
losing battle, not generating much preventive action on the part of sports organisations
and States.
Finally, some educational programmes directly target issues of ethics and fair
play. One may mention the emblematic action of the OHSAA, an association of junior
and senior high schools in Ohio, but also those of the American athletics federation and
IRB - International Rugby Board. Interestingly, the tools of the OHSAA reward schools
that have developed education programmes or awareness-raising campaigns where fair
play is put forward. The initiative of the FC Edmonton is also notable because this
Canadian 2nd division football club is developing a programme on a continent where
"soccer" is still often considered a secondary sport not affected by issues of integrity.
However, several recent cases have shown otherwise.
2. Organisation
The content of education and prevention programmes depends primarily on the
nature of the organisation implementing them. We can distinguish two main types of
operations:
§
§
§
organisations that have little direct access to athletes or those that cover a
very large geographical area enact rather general rules and Codes of
conduct for sports stakeholders. They then set up a network of experts
(often called integrity "supervisors" or "officers”) who will be trained
extensively. These experts are responsible for raising awareness among
sports stakeholders, sometimes beyond the organisation’s reach. To
compensate for this distance with the athletes, the organisation develops in
some cases an e-learning training programme. Traditionally found in this
category are the IOC, SportAccord and national Olympic committees,
international sports federations, national public authorities, etc.;
organisations that are closer to the field (they have direct access to
athletes) often organise face to face awareness raising seminars for sports
stakeholders, or create a narrow network of trainers. This category includes
sports clubs, universities, unions of players and referees, etc.;
sports federations and national sporting leagues constitute a sort of
intermediate level, and choose one or the other of the two strategies
mentioned above, depending on their relationships with their members.
In any case, it is worth noting that the organisational framework usually seen in
sports, where information is distributed from the top down from an international or
national federation to clubs is not the only possible framework. The examples analysed
in this research clearly demonstrate that it is not necessary to wait for the impetus of its
league or representative federation in order to initiate actions. Each body or
organisation has the opportunity to act at its level with its members, and to the best of
its ability.
37
Many actions of "small" stakeholders (union, club, university) are thus
particularly effective. Finally, it appears that a good cooperation between the quartet
formed by public authorities, law enforcement, gambling operators and sports
organisations is a key factor for success.
3. Content
Today, the range of actions taken by sports organisations, governments or
other entities is increasingly diverse. Without being exhaustive, the classification (see
chart below) identifies twenty separate actions, which are sometimes complementary.
It is impossible to determine an "ideal model", simply because the structures
have inherently different goals and a very different environment:
§
§
§
public authorities that respect the principle of autonomy of sport will instead
try to determine generic models – possibly laws – and even finance some
tools for the benefit of sports federations. For their part, federations develop
Codes of Conduct on sporting bets, disclosure of privileged information or
procedures in case of criminal approach;
an international sports federation where athletes travel the world – tennis
for instance –focuses on interactive training – online – while a professional
football league would rather take the time to visit all of its clubs;
A professional closed league (NBA), which has a direct and permanent
contractual relationship with all its members, does not have the same needs
as a federation of several million amateur members. Both organisations do
not develop the same action plan. The same goes for football and a
discipline, like flying disc, which is not traditionally the subject of sporting
bets and has limited means.
Content of the action
Unit dedicated to
sport integrity
(organisation)
“Sport Integrity”
Working group
Study of the
stakeholders’
behaviour
Model Regulations
Priority targets
Good practices (examples)
6
ICC (cricket), TIU (tennis), FIFA, BHA (horse
racing), Italian professional football league
Internal and
external
stakeholders
Sports and
government
institutions, media,
general public
International and
national sports
federations, national
Olympic committees
ICO, NCAA, Danish sport (DIF coordination)
and French sport (CNOSF)
7
NCAA (athletes gambling behaviours), fifpro
(Blackbook on Eastern European football
players’ status)
SportAccord, Australian government,
(national sport integrity unit)
6
The choice of the organisations mentioned in this chart is arbitrary and based on the nature and quality
available to the authors of the report as of 1 November 2013.
The NCAA is a global organisation that carries out the most extensive studies on gambling practices among
athletes since 2004 (questionnaire sent to 1,000 members of the NCAA - between 20,000 and 23,000
responses per edition).
7
38
Code of conduct
Signature of a charter
– or code of conduct –
on sporting bets,
insider offences and
competition
manipulation
Signature of an
employment contract
providing for the
possibility of
investigations
Education of public
authorities and
sporting associations
for a better
cooperation
Establishment of
integrity coordinators’
network
Sport stakeholders
(athletes, coaches,
referees, etc.)
Athletes
ICO, ICC (cricket), TIU (tennis, DIF (Danish
Olympic Committee)
Athletes
ICC (cricket) , TIU (tennis)
National
administrators (sport,
police, justice,
sporting bets)
FIFA, Australian government (national
integrity of sport unit), IRIS (European
Commission project), Norwegian Olympic
Committee, Asian football associations
National
federations, clubs
UEFA, FIFPRO, German (DFL), French
(LFP) and Italian (Lega Pro) professional
football leagues, French Olympic committee
(CNOSF), French tennis federation (FFT),
French national handball league (LNH)
Idem
Extensive training of
instructors
Integrity
coordinators
Detailed manuals for
instructors
Ombudsman
Integrity
coordinators
Sports stakeholders
E-learning training
Sports stakeholders
Online interactive
forums hosted by
champions
Training and face to
face awareness raising
Sports stakeholders
prevention through
social networks
Athletes guide with
reminder of the Code
of conduct to be
followed
Information guides
with the possibility of
internet download
Athletes
Athletes, referees
NBA, FC Edmonton (soccer – Canada),
Austrian (Bundes Liga) and French (LFP)
professional football leagues
8
French (LFP) professional football league
German football federation/league
(DFB / DFL)
NBA, TIU (tennis), FIFA/Interpol,
SportAccord, German football
federation/league (DFB/DFL), UK
professional football syndicates (PPF)
USA Track & Field
Many good practices including: FBI, NBA,
NVAA, ICC (cricket), professional footballers’
union (especially the UK)
Fifpro
Athletes
Number of good practices including EUAthletes, French sport (FFT, LFP, CNOSF),
etc.
Integrity
coordinators,
educators, athletes
German football federation/league
(DFB, DFL), IRB (rugby)
8
In order participate in an international cricket competition; it is mandatory to have completed the training
module of the ICC.
39
Website dedicated to
sport integrity
All sports
stakeholders +
general public
Guide with an official
position on matchfixing and sporting
bets
Institutional
audiences and
lobbyists
Sports
administrators
International public
opinion
Lobbyists and
media
Integrity
ambassadors
Educational generic
programme on ethics
Information on matchfixing and sporting
bets for the media
Organisation of
events or days
dedicated to sport
integritys
Communication of
education and
prevention actions
(press campaign)
Young persons
Journalists
NCAA, Interpol, SportAccord, Transparency
International, EU-Athletes, Fifpro, German
(DFB/DFL) and Italian (Lega Pro) professional
football leagues, “Play fair Code” (Austrian
sport), ICC (cricket), IRB (rugby), TIU (tennis),
University of Michigan
SportAccord
ICSS (International Centre for Sport
Security), USA Track & Field (American
athletics federation)
OHSAA (Ohio High School Athletic
Association), Korean Football Association,
TFC (Toulouse professional football club),
USA Track & Field (American athletics
federation)
ISPA (International Sports Press
Association)
Athletes, general
public, media
NCAA (in collaboration of the AFCA)
General public and
public
representatives
(journalists)
Denmark – National Olympic Committee and
Sports Confederation of Denmark (DIF)
Beyond the notion of an ideal education model, arises the question of an index
for classifying the various organisations working on the subject. Again, it would be
inadvisable to establish such a system, praising or blaming certain structures. Indeed,
the context, size, geographical coverage and available resources vary significantly from
one organisation to another, and therefore any segmentation would be impolitic.
Without going into detail, the following characteristics well may be mentioned:
§
§
several organisations that are very affected by the match-fixing
phenomenon have implemented more or less rapidly, well-structured tools.
FIFA, the German and Italian professional football leagues, as well as the
International Cricket Council (ICC) or the NCAA, fall into this category;
some institutions that were less affected by match-fixing issues have
already established, by anticipation, many education and prevention actions
(for instance rugby - IRB - international federations of floorball or flying disc,
the French tennis federation, the French professional football league, but
also several American universities);
40
§
§
some associations that are specialised in the recovery of EU or national
budgets have implemented high quality action - and communication - plans;
nevertheless, actual results are not very visible. Conversely, several
organisations like the NBA do not advertise their actions in the field of sport
integrity, but have, for several years now, conducted an in-depth policy in
this field;
many structures, although confronted, for a long time, with issues of
integrity of their sport, have not yet reacted, or have done so in a superficial
manner. The reasons are numerous: imperfect governance, denial of the
situation, conflicts of interest associated with the financing from major
sponsors closely related to the sports betting industry, etc.;
Therefore, it might be interesting to suggest the following classification, without
indicating which organisations would be part of it. Indeed, it would be presumptuous to
suggest, without an extensive audit, a classification of institutions that have already
been kind enough to provide information as part of this analysis. It seems more
appropriate, in accordance with the principle of autonomy and therefore of
accountability in sport, to get them to evaluate themselves and determine, where
appropriate, the objectives to be attained.
4. Proposed Classification
Establishment of
education and
prevention actions
Content of tools
superior to actual
needs/actual
risks
Content of tools
consistent with
actual needs/actual
risks
Content of tools
inferior to actual
needs/actual risks
By risk anticipation
In rapid response to a
problem
By a slow reaction to a
problem
To improve the image,
or for financial reasons
No action plan or no
reaction to a problem
so far
E. The Difficult Assessment of Budgets and Results
Estimating the number of people affected by different education and prevention
activities is an over-ambitious objective. Indeed, most programmes are, as we have
seen, very recent - less than 18 months for most - or even in the process of
implementation. It is therefore too early to ascertain the actual effects. Moreover, a
significant gap may be observed between the targets set by some organisations and the
reality perceived through contacts with their members.
Regarding the budgets spent, most of the data remains confidential and cannot
therefore be published. However, the evidence available estimates the total annual cost
of the above-listed actions between 6 and 9 million euros - excluding ICSS
ambassadors - which constitutes approximately one third of the budget of the World
Anti-Doping Agency.
41
These amounts will most likely be subject to a substantial increase in the future
but cannot, however, give rise to a pooling of programmes: only certain actions such as
e-learning training programmes could be used jointly by various organisations.
§ 2. Content of actions and recommendations
With regard to sport integrity, the topic of prevention tools, information and
education is probably the most consensual. In contrast, the majority of the other
proposals sometimes mentioned in order to reduce criminality in the sports sector
remain controversial. Some examples are the criminalisation of sporting fraud in
Sweden, the regulation of sporting bets in the UK, the creation of a global agency on
sport integrity at the IOC or the establishment of betting rights for a majority of gambling
operators. If the international convention adopted by the Council of Europe, which could
be taken up by the UNESCO, were ratified by a large number of countries, this would
be a major step forward. However, the process will be long in any case, like the
establishment of the World Anti-Doping Agency and the World Anti-Doping Code.
Preventing, informing, educating constitute a simple process, quite inexpensive,
operational and undoubtedly effective. It is currently the only tool capable of achieving
short-term goals. Although the recipe is known and can be analysed as follows, it still
has to be implemented on the operational level:
§ first, it is important to explain to sports organisations and to the public
authorities that sport has been, in the recent years, subject to criminal activities
and that this issue is not trivial. Sports leaders must therefore accept that all
widely broadcasted disciplines and all countries, without exception, could be
affected at one time or another. Every sports stakeholder must feel concerned,
this being a key factor for the success of sports organisations. This is not simple
and can be seen through the identification of the current actions in the field;
many structures remain in the background in the face of this threat, either
because they are in denial, because of fear, or simply because they do not
know how to react. The sports movement, national governments but also
betting operators have to accept that it is better to anticipate than to react;
§ second, every effort should be made to explain the growth of the phenomenon
which threatens sport integrity: the development of organised crime through the
Internet, the outburst of sporting bets which are often unregulated, the structural
weaknesses in sports. The last element is not trivial since many sports leaders
still put the blame exclusively on sporting bets, without bearing their share of
responsibility in this situation. Of course, it is essential that all stakeholders in
sport integrity develop a real expertise in the field of sporting bets: assimilating
the reality of the market and the business models of operators, understanding
the motivations of bettors and the modern betting techniques that allow
criminals to get rich. However this is not enough: it is also essential to work on
its own governance to reduce the risk of external attacks. This is the price of the
autonomy of sport;
42
§ Finally, the necessary procedures should be put in place and made known to
the various sports stakeholders but also to those who are “on the other side”:
organised crime. Indeed, it is generally said that a structure that equips itself
with effective tools and makes this fact known, discourages many persons with
bad intentions. These measures include, in the first place, the ban for athletes,
referees and their families to bet on their competitions, to disclose non-public
information for the purpose of betting and the obligation to report any approach
seeking to manipulate a sporting event. Informing a sports stakeholder that it is
forbidden to manipulate a sporting event seems trivial, but this is not always the
case since opportunities to gamble are now endless. Very often, the athlete
who misses a single point in tennis or, in football, does not try to stop a goal
from being scored by the opposing team when his team is already losing 3-0
does not have the feeling of cheating. Between theory and practice, there is a
gap that can be filled by good measures of education and prevention.
It is therefore essential to create a relationship between the managers and the
stakeholders of the sporting show. This seems obvious, and yet again the reality is
often more complex because the barriers - geographical, cultural, motivational and
generational - are numerous between the president of an international federation and its
champions. Developing good practices in order to educate a sporting discipline on the
risks related to integrity, entails the prior determination of a number of procedures that
will allow this relationship. Thus, a system has to be set up so that information can be
conveyed to all those concerned within a reasonable time, then, that this information be
assimilated and accepted especially by sports stakeholders. Experience shows that an
athlete who is aware of the risk of being approached in order to manipulate a
competition or to commit doping offences, but also of the risk of receiving an illegal offer
from an agent, is less likely to fall into the trap. All the actions enumerated above
demonstrate that the process is underway: the sports movement and the public
authorities have grasped the importance of this phenomenon. The hardest part is to set
up an initial action plan. Afterwards, it is sufficient to simply renew, adapt, or modify, if
necessary, the programme in order to make it more efficient.
Finally, the sports movement and States declared war on criminal
organisations. This analysis can be concluded with the precepts dictated by Sun Tzu:
"He who excels at resolving difficulties does so before they arise. He who excels in
conquering his enemies triumphs before threats materialise". Prevention and education
with regard to sport integrity is particularly illustrative of the first part of this maxim.
The following five recommendations result from the research presented above
and aim at optimising the implementation of prevention and education actions related to
sport integrity.
a. Recommendation number 1: At the National Level, Ensuring Good Cooperation
between Public Authorities, the Sporting Movement and Betting Operators.
Note: This recommendation enables sports organisations to conduct education
and prevention actions in good conditions. They must:
43
§ be able to disseminate – beyond a simple warning – clear and
solid legal rules to all sports stakeholders;
§ have sufficient expertise in the sports betting field.
Targets: States – National sports organisations – sports betting operators
holding an authorisation on the territory of the concerned State.
Tools:
§ depending on the degree of autonomy granted to the national sporting
movement, ensuring the establishment of a minimum set of sporting rules
(whether through national legislation, direct accountability of the sporting
movement or any other intermediate means adapted to the local cultural
9
context ):
o
o
o
o
o
o
banning sports stakeholders from betting on the competitions in which
they participate – even in their sporting discipline;
banning sports stakeholders from disclosing inside information not
known to the general public, especially for betting purposes;
banning the stakeholders of a competition to change the course of a
sporting event;
requiring a sports stakeholder to report any suspicious approach related
to the manipulation of an event or of facts of sporting bets;
banning a sports stakeholder from holding shares in a betting operator;
etc.
§ ensuring minimum cooperation between nationally licensed betting operators
and organisers of sports competitions taking place on the territory of the State
concerned:
o
o
o
establishment of a contractual relationship – not necessarily subject to
financial obligations – between betting operators and sports competition
organisers, prior to any betting offer on the said competition;
transfer of information by betting operators in case of irregular bets, that
is to say, bets that may be associated with the manipulation of a sports
competition;
transfer of expertise between betting operators and competition
organisers on the subject of sporting bets (available data on the market,
the players, the offer of bets, etc.).
b. Recommendation number 2: Getting Sports Managers to Anticipate the Risks
Related to sport integrity.
Targets: sports managers.
9
For instance, in Australia with the national sport integrity unit.
44
Tools:
§ awareness-raising – through the public authorities: law enforcement, regulators
in charge of money laundering, sporting bets, and the media – for managers on
the new risks associated with sporting bets, match-fixing, money laundering,
etc.;
§ creating best practices in sports governance (see Module B4 - Sorbonne/ICSS).
For sports organisations receiving public subsidies, it would be desirable to
require the establishment of procedures and actions promoting the sustainable
development of sporting bodies;
§ communicating on best practices relating to sport integrity.
c. Recommendation number 3: For each sports organisation, a process for the
exchange of information on sport integrity should be determined in order to
reach all sports stakeholders (managers, officials, referees, agents, coaches,
players, etc.).
Targets: All sports organisations (international and national sports federations,
national Olympic committees, professional leagues, clubs, etc.).
Tools:
§ designating an "integrity" officer (or coordinator) in every sports organisation
and training him so that he can fulfil his mission in an appropriate manner. In
some bodies, especially the large ones, multiple "integrity" officer can be hired
or even an entire department. For example, one specialising in doping, the
other in the manipulation of sports competitions and sporting bets, the third in
the fight against crime and money laundering, and finally a fourth in charge of
general ethical issues. The training of officers may be accomplished by seeking
the necessary skills from outside (organised crime, sporting bets, doping,
corruption, etc.) then by ensuring a progressive transfer of expertise to the
supervisors;
§ ensuring that each lower level has clearly defined the responsibilities
guaranteeing optimal national network coverage.
The example of Italian football:
o UEFA asked each of its 54 member States to appoint an "Integrity
Officer". The Italian Football Federation therefore designated an integrity
officer;
o The professional Italian football league – Lega Pro – created an office
dedicated to integrity and is comprising three integrity officers;
o The Lega Pro then set up a territorial network of officers in the different
regions of Italy. They must report any suspicions of fraud and participate
in trainings on the ground. Face- to-face training programmes in all clubs
in the first 5 Italian divisions were already launched;
o Finally, it should be ensured that the Lega Pro has a clearly identified
interlocutor in each of these clubs.
45
In some countries such as France, the national Olympic committee (CNOSF)
requires the national sports federations affected by issues related to sporting bets to
designate an integrity supervisor.
d. Recommendation number 4: For each sports organisation, defining the targets
to train and educate in the field of integrity of sport, adapting the content of
education and prevention programmes as well as the best way to convey
messages.
N.B: The government could proceed in a similar way in order to ensure a
sufficient level of competence of the Ministry of Sports, the regulator of sporting bets, as
well as the police and justice authorities concerned with integrity issues.
Targets: Sports organisations.
Tools:
As indicated above, it is not desirable to establish "standard" models, given the
important differences between countries and sporting disciplines. Every sports
organisation faces a different level of risk and must take into account its social and
cultural context.
The chart below aims at identifying some general characteristics, to be adapted
on a case by case basis for each sports organisation:
Target
Administrators
Nature of recommended actions
§ Extensive face to face
awareness-raising
(a
minimum of 2h)
§ Detailed guide on integrity
(see the SportAccord guide)
§
§
§
§
Officials and
employees
§
§
Agents,
referees,
coaches,
educators,
medical staff,
etc.
§
§
§
Face to face awarenessraising (duration: at least 1
hour)
Integrity guide (format :
Maximum 8 pages)
Extensive face to face
awareness-raising
(duration: at least 2 hours)
Tools
(integrity
guide)
available for download on
the internet
Option: e-learning
Key Messages
Importance of integrity issues
Explanation of the risks (the
reasons
behind
this
phenomenon)
Need to anticipate risks and to
put in place a strategy and
appropriate means
Need to designate an integrity
officer
Form: empowering and adult
speech
§
§
Explanation of the risks (the
reasons
behind
this
phenomenon)
§
Available and established
tools
Form: simplicity – insisting on the
importance of every measure
§
Importance
of
integrity
questions
§
Quick explanation of risks
§
Tools implemented by the
organisation
§
Responsibilities, regulations,
actions to be taken
46
Instructors and
supervisors
§
§
Athletes
§
§
§
In-depth face to face
training (duration: 2 days)
Instructor’s detailed guide
(see French LFP guide)
Face to face awarenessraising (duration: at least 1
hour)
Integrity guide and Code of
Conduct (format: around 4
pages)
Option: e-learning
Form: simplicity – insisting on the
importance of the observance
of rules – empowering speech
–
highlighting
potential
sanctions
§
§
Explanations of the risks (the
reasons
behind
the
phenomenon)
§
Sporting
bets/Organised
crime/Corruption/doping
§
Tools established by the
organisation
§
Defining
the
supervisor’s
mission
§
Role Playing (e.g. Response
in case of approach)
Form:
pedagogy
–
ensuring
memorisation of essential
elements – allowing the
instructor to identify himself –
confidence-building
§
§
Quick explanation of risks
§
Discussion and debate
§
Rules and Code of Conduct to
be
followed
–
potential
sanctions
§
Audit questionnaire v. rules
Form: participatory – avoiding
lecturing
at
all
costs
(promoting empowerment) –
simplicity
e. Recommendation number 5: Making prevention actions known to the general
public and journalists
Note: the aim is to use media coverage in order to show criminals that they are
taking risks by trying to corrupt sport.
Targets: all organisations carrying out education and prevention programmes.
Tools: press campaigns (all media).
Chapter 2. Regulatory Instruments Applicable to Sporting Bets
The regulation of sporting bets is mainly conducted through national legislations
on sporting bets (Section 1), sporting bets national regulatory authorities (Section 2),
the tools applicable in the fight against illegal sports bets (Section 3) and, lastly, selfregulation by betting operators (Section 4).
47
Section 1. National Legislation in the Field of Sporting Bets
Before presenting a detailed census of the legislations of thirty countries
applicable to sporting bets (§ 3), it is possible to give an idea of the policies adopted by
certain countries on the subject of sporting bets (§ 1) or sport integrity (§ 2).
NOTE ON METHODOLOGY
The countries chosen here constitute a representative sample fulfilling the three main
concerns linked to a proper representation of the entities considered:
- the ability to deal with the diversity of the phenomenon,
- absence of bias or systematic errors,
- link between the size of the sample and the trust that can be attributed to the
generalisation of results.
a)
Main criteria chosen to measure the level of fighting against illegal gambling:
§
appropriate legislation (with sanctions for operators convicted for illegal bets or
illegal advertising);
§
blocking illegal sites;
§
blocking payments;
§
police action against illegal operators (offline and online).
b) Main criteria chosen to measure the general objectives of each country (consumer
protection/public order or dynamism of the market):
§
general orientation of the legislation;
§
number of operators authorised to offer sporting bets in the country;
§
level of monitoring on operators;
§
regulating the RRB (first vector of money laundering associated with sporting bets
according to the Financial Action Task Force [FATF]);
§
restrictions to betting offers (including Betting Exchanges, Live Betting,
authorised bets operators), especially to protect sport integrity;
§
regulation of bets.
48
Lu9e'contre'les'
paris'illégaux'forte'
AUSTRALIE'
CHINE'
NL'
SUISSE'
USA'
FRANCE'
BELGIQUE'
Corée'du'Sud'
ITALIE'
MEXIQUE' AFRIQUE'DU'SUD'
Priorité'au'
dynamisme'du'
marché'des'paris'
SUEDE'
FINLANDE'
UK'
CHYPRE'
ALDERNEY'
CAGAYAN'
JAPON'
ESPAGNE'
DANEMARK'
REP'TCHEQUE'
Allemagne'2013'
ILE'DE'MAN'
ANTIGUA'
COSTA'RICA'
MALTE'
CANADA'
RUSSIE'
AUTRICHE'
Priorité''à'la'
protec5on'du'
consommateur'et'de'
l’ordre'public'
POLOGNE'
PHILIPPINES'
Lu9e'contre'les'paris'
illégaux'faible'
§ 1. Classification of Countries According to their Policy on Sports Bets
Different types of countries were identified throughout this analysis:
§ countries seeking to attract operators (group 1): The goal of these countries is
(or was in the case of the United Kingdom) to create jobs and revenues
associated to the granting a large number of licences. Austria, where sporting
bets are not considered as gambling, is a special case of this group;
§ countries that opened their market to competition while regulating it (group 2):
from the most "liberal" (Denmark) to the "strictest" (Germany and France), these
States wanted a better regulation of sporting bets and chose to fight against
illegal gambling. They all apply a number of rules or even restrictions. Australia,
which is known for fiercely combating illegal bets, plays a particular role in this
group;
§ countries that strictly regulate or prohibit sporting bets and fight against illegal
gambling (Group 3): these States either set up a system of prohibition (USA) or
monopoly (China, South Korea, Netherlands, Switzerland) an implemented
various measures to fight against illegal bets, with more or less effective results;
49
§ countries that strictly control sporting bets but do not yet effectively fight against
illegal gambling (Group 4): Canada, Finland, Japan, Poland, Russia, Sweden
belong to this group. The Philippines are a special case because the country
applies a policy of strict prohibition for its citizens but must deal with the
Province of Cagayan, which provides easily accessible licences.
Characteristics of
the betting market
Number of
operators
Illegal bets
Government
revenue related to
betting
Rate of return to
players
(legal market)
Restrictions on
bets
Group 1
Group 2
Group 3
Group 4
Often numerous
More or less
limited
More or less
considerable
More or less
considerable
Small
(often 1 op.)
More or less
considerable
Generally quite
considerable
Small
(often 1 op.)
Generally
considerable
Generally quite
considerable
Average to
high
Small
Average to
small
Little to high
Average to high
Average to
high
Very limited
Low in absolute
value but generally
significant given
the size of the
country
Very high
Non-existent
§ 2. Classification of Countries According to their Policy on Sport Integrity
NOTE ON METHODOLOGY
The countries chosen here constitute a representative sample fulfilling the three main
concerns linked to a proper representation of the entities considered:
- the ability to deal with the diversity of the phenomenon,
- absence of bias or systematic errors,
- link between the size of the sample and the trust that can be attributed to the
generalisation of results.
a) Main criteria chosen to measure the level of fighting against illegal gambling:
§
appropriate legislation (with sanctions for operators convicted for illegal bets or
illegal advertising);
§
blocking illegal sites;
§
blocking payments;
§
police action against illegal operators (offline and online).
b) Main criteria chosen to measure the general objectives of each country (strong priority
given to sport integrity/weak priority given to sport integrity):
§
legislation criminalising the offence of sporting fraud;
§
prohibition of betting for the stakeholders to the sporting show;
§
restrictions on sporting bets (authorised betting types and formulas, capping RRB
and wagers);
§
communication between betting operators and the sporting movement;
§
financial contribution of betting operators to the preservation of sport integrity.
50
The previous chapters provide an inventory of the main risks to sport integrity:
Risks
Illegal bets:
1/3 of the global GGR
(Gross Gaming Revenue)
Consequences on sport integrity
§
§
§
Very considerable sums of money
wagered illegally:
over 80% of bets (hundreds of billions
of euros)
§
§
§
Particular case of illegal betting in
Asia
§
Legal and illegal operators
§
§
§
Strong growth of Live Betting:
over 70% of the GGR of main
operators
§
Strong growth of the rate of return for
bettors (RRB) (including live betting)
§
Countries trying to attract betting
operators by impelling tax schemes
and flexible regulations
§
Significant underground economy;
Impossible to detect irregularities related to
illegal betting;
Lack of revenue from these illegal bets for
States and the sporting movement.
Market (sporting bets), partially evades all
State regulation;
Sources of fraud and violation of public
order (transnational criminal organisations);
Possible links between organised crime and
sports.
Concrete examples that demonstrate the
elements
mentioned
above
with
considerable damage to sports (especially
football and cricket): loss of confidence in
sport.
Legal complexity associated with the
presence of operators (even the ones listed
on the Stock Exchange) that are considered
legal in a State, but illegal in another;
Interest for partially illegal operators not to
promote more stringent measures for sport
integrity (because this will
affect their
profitability);
Conflicts of interest (these operators
sometimes fund professional sports to gain
legitimacy. The sporting movement rarely
refuses money).
Practical
difficulties
to
follow
the
movements of the sports betting market in
real time and detect manipulations of sport
events.
Additional interest for the criminal network
(laundering money through arbitrages
allowing to come close to an RRB of
100%).
Just like tax havens have risks to the global
banking system, sporting bets havens
create risks for sport (again by attracting
crime).
Beyond their commitment to the fight against illegal bets, it seems interesting to
classify countries according to the priority given to sport integrity (laws punishing the
offence of sporting fraud, ban from betting imposed on the stakeholders of the sporting
show, limitations on sports bets: types of bets allowed, limiting RRB and wagers,
communication between operators and the sporting movement, financial contribution of
betting operators to protect sport integrity, etc.).
51
Lu6e'contre'les'
paris'illégaux'forte'
AUSTRALIE'
CHINE'
NL'
SUISSE'
USA'
FRANCE'
BELGIQUE'
ITALIE'
AFRIQUE'DU'SUD'
MEXIQUE'
Priorité'faible'
donnée'à'
l’intégrité'du'sport'
ESPAGNE'
DANEMARK'
Corée'du'Sud'
Allemagne'2013'
JAPON'
SUEDE'
REP'TCHEQUE'
RUSSIE'
CHYPRE'
CAGAYAN'
ILE'DE'MAN'
ANTIGUA'
COSTA'RICA'
ALDERNEY'
MALTE'
AUTRICHE'
PHILIPPINES'
UK'
CANADA'
FINLANDE'
Priorité'forte'donnée'
à'l’intégrité'du'sport'
POLOGNE'
Lu6e'contre'les'paris'
illégaux'faible'
Beyond certain national differences, the specificities of the classifications
identified above are generally observed:
§ except for the United Kingdom, Group 1 countries have not taken stock of the
risks relating to sport integrity;
§ Group 2 countries that strictly regulate sporting bets are also the ones that
protect sport integrity most effectively. It is important to mention Australia which
was a pioneer on many subjects;
§ Group 3 countries are generally struggling against illegal bets and trying to
preserve sport in their country;
§ Group 4 countries have not taken stock of the importance of illegal bets or risks
to sport.
52
§ 3. Summary of National Measures by Country
ANNEX 1
COUNTRY: South Africa
1. Characteristics of the Country
Name of the Country: South Africa
Continent: Africa
Political Organisation: Parliamentary
system with two houses
(President is elected by the parliament)
Total population: 51.800.000
Dominant religion: Christians (80%)
most of them Protestants
GDP 2011: 420.000 M$ (source: IMF)
GDP 2011 / per capita: 8.100 $
Official languages: English, Afrikaans and 9
other dialects
Currency: Rand (ZAR)
Area: 1.220.000 km2
10
(1 ZAR = 0,082 € )
2. Type of Regulation
TYPE OF SPORTS BETS /
Type of Regulation
DISTRIBUTION NETWORK
Lottery/Pari-mutuel bets,
Monopoly
physical network
(National Lottery
(Sports Stake)
operated by Gidani since
2007)
Pari-mutuel bets, physical
Monopoly
network & Internet
(Phumelela: 7 regions/Gold
Circle: 2 regions)
400 points of sale
Fixed-odds sporting bets
Physical network
& Internet (Only Through
Betting World)
Betting Exchanges
(stocks of Betting
Exchanges)
Spread Betting
Reference Date and
Text
National Gambling Act
1997
Regulatory
Authority
National Lottery
Board
National Gambling Act
1996 /2004
National Gambling
Board + Provincial
Gambling
Regulatory Authority
(PGRAs)
Licences (bookmakers
National Gambling Act National Gambling
operated by Phumelela and
1996/2004
Board + Provincial
Gold Circle, through Betting
Gambling
World)
More than 200 bookmakers
(PGRAs)
Prohibition
(under consideration)
-
-
Prohibition
(Not mentioned so far)
-
-
N.B: To date, online sports bets are forbidden on the national level, therefore considered illegal.
Only Phumelela and Betting World are able to offer them on this medium. However, Western
Cape Province granted local licences (31 to date) to certain bookmarkers (Intralot, Ladbrokes,
Betfair, Sportingbet, etc.). A global legislation for the whole country should clarify the situation.
10
On 30/01/2013.
53
Features of the types of online licences (not yet implemented legislative
project):
§
§
§
§
§
§
A maximum of up to 10 online licences;
Strict registration procedure (includes identification elements related to detailed
bank accounts). Also, the player has to state, under oath, that he is not in a
zone where he is not allowed to bet;
The player has to open a bank account in a South African bank specifically
designated for gambling transactions;
Limitation of amounts in gambling bank accounts (20000 Rands, approx.
1800 €);
Forbidding gambling for persons under 18 years of age;
Strict control measures against addiction.
3. Current Taxation on Sports Bets
TYPE OF SPORTS BETS/
DISTRIBUTION
NETWORK
Tax Base
Tax Level
Lottery/Pari-mutuel bets,
Bets
More than
physical networks
20% of bets
(Sports Stake)
Pari-mutuel bets,
Gross Gambling Revenue Approx. 9% of
physical network & Internet
(GGR)
GGR
Fixed-odds bets,
Physical network
& Internet
TYPE OF SPORTS
BETS / DISTRIBUTION
NETWORK
State: approx.
32.0000 €
(3,9 M Rands)
Gross Gambling Revenue
State: Approx.
(GGR)
Approx. 5% of
1,8 M€
GGR
(22,5 M Rands)
Operators
Lottery/Pari-mutuel bets, National Lottery (Gidani)
physical networks
(SportsStake)
Pari-mutuel bets,
physical network &
Internet
Assessment of
Revenues
State/
Industries
State: approx.
4,1 M€
Phumelela
Features
Assessment
of Sports Bets
Revenue and
Market share
(2011/12)
Private operator
Bets: 254 M
under strict State
Rands
control
(Approx.
21 M€)
Company
Bets: 300 M
(Shareholders:
Rands
Race companies)
(Approx.
25 M€)
Association without
lucrative purpose
(Phumelela:
95% / Gold
Circle 5%)
54
Fixed-odds bets
Physical network
& Internet
Betting World (Phumelela
Subsidiary of
+ Gold Circle)
Phumelela and of
Gold Circle
200 bookmakers
Bets: 6 663 M
Rands
(Approx.
550 M€)
Individual of point of (Phumelela:
sale
Approx. 5 % of
market)
4. Operators and Market
Market Estimation: South Africa 2011 / 2012
Wagers for pari-mutuel bets/offline lottery (revenue)
Wagers for pari-mutuel bets/not within lottery (revenue)
Wagers for fixed-odds bets/offline + online (revenue)
Sports bets TOTAL (revenue)
Rate of return for bettors on pool sports bets/offline lottery
Rate of return for bettors on pool sports bets/not within
lottery
Rate of return for bettors on odds sports bets/offline +
online
Rate of return for bettors on sports bets TOTAL
GGR pari-mutuel bets/offline lottery
(Gross Gambling Revenue)
GGR fixed-odds bets/outside lottery
GGR Foxed-odds bets/offline + online
GGR sports bets TOTAL
Share of the country in the global market (legal + illegal)
Tax pari-mutuel bets/offline lottery
Tax pari-mutuel bets/not within lottery
Tax fixed-odds bets/offline + online
Tax total for sports bets
NGR pari-mutuel bets/offline lottery
(Net Gaming Revenue)
NGR for pari-mutuel bets/outside lottery
NGR for fixed-odds bets/offline + online
TOTAL NGR for sports bets
Amount
254 M Rands (21 M€)
300 M Rands (25 M€)
6.663 M Rands
(546 M€)
7.217 M Rands
(591 M€)
50%
82%
93,8%
92%
127 M Rands (10 M€)
53 M Rands (4,3 M€)
415 M Rands (34 M€)
595 M Rands (49 M€)
0,3 %
50 M Rands (4,1 M€)
3,9 M Rands (0,32 M€)
22,5 M Rands (1,8 M€)
76,4 M Rands (6,2 M€)
77 M Rands (6,3 M€)
60% of GGR
49 M Rands (4 M€)
92% of GGR
393 M Rands (32 M€)
95% of GGR
519 M Rands (42,5 M€)
87% of GGR
55
5. Miscellaneous
a. Combating Illegal Betting
§
§
§
Advertising illegal betting websites is forbidden. The issue of knowing whether
advertisement will be authorised in case of opening the market of online
gambling, is still not answered;
Banks have taken the initiative of not paying winnings from illegal activities;
To date, Internet Service Providers (ISP) has not blocked sites.
Estimation of illegal market (South Africa / 1011/2012) :
(in GGR)
5 M€ (100 % On the
Internet)
b. Combating Money Laundering
§
§
§
§
Combating money laundering is important in South Africa, notably because of
its potential relation to terrorism. There is an intelligence acting in this area
(FIC: Financial Intelligence Centre);
The regulating authority (National Gambling Board) has to make sure that
gambling operators comply with the procedures for combating money
laundering;
Operators have to register all financial flows (above 25000 Rands, 2225 €) in
addition to declaring any suspicions if necessary;
If regulations are breached, important sanctions are provided for (up to 15
years of imprisonment and a 10 M Rands Fine).
c. Sports Constituting a Basis for Bets
§
§
Pari-mutuel bets: Football/Rugby;
Fixed-odds bets: Football/rugby/cricket/tennis/golf.
56
ANNEX 2
COUNTRY: Alderney
Name of the Country: Alderney (En.)
Continent: Europe
Political Organisation:
Parliamentary democracy, Dependency
of Guernsey
(Itself a dependency of the British Crown)
Total population: 2.400
Dominant Religions:
Church of England
GDP 2011: non-significant
Official Languages: English/French
Surface: 3 sq. Km
GDP 2011 / per capita: non-significant
Currency: Pound Sterling (GBP)
11
(1 GBP = 1,164 €)
2. Type of regulation
TYPE OF SPORTS
Type of
Date and Text of
Regulatory
BETS /
Regulation
Reference
Authority
DISTRIBUTION
NETWORK
Online Sporting Bets
System of
Gambling Law 1999 and Alderney Gaming
Pari-mutuel and fixed- eGambling licences Alderney eGambling
Control
odds bets, Betting valid for all types of Ordinance/Regulations
Commission
Exchanges, spread
games
2009
(AGCC)
betting, etc.)
N.B: non-Internet gambling (offline bets for example) is not authorised on the island of Alderney
(everything not explicitly authorised is forbidden).
Features of licence types (online):
§ Alderney is on the United Kingdom’s "white list" (Therefore licenced operators
in Alderney can advertise in the UK);
§ The Company seeking a licence should be based in Alderney (Except if it is
seeking a temporary licence);
§ There are two types of legislations on eGambling: B2C (direct relation with the
consumer) and B2B (an Internet platform used by other operators);
§ There are 3 categories of licences (cf. underneath) and 4 certificates;
§ To get a licence, the operator’s internal control system and the equipment have
to be approved by the regulatory authority (For the cost of 10.000£, respectively
5.000);
§ The price of the licences is dependent on the NGR, and therefore on the GGR
(see below);
11
On 31/01/2013.
57
§ Individuals under 18 years of age are not allowed to bet, it is also forbidden to
encourage them to bet;
§ Mandatory verification of identity and place of residence;
§ No hosting obligation (internet servers) in Alderney or Guernsey.
The three types of licences currently in force in Alderney:
§
§
§
Category 1 licences: B2C licence;
Category 2 licences: B2B licence;
Category 3 licences: temporary licence or operator benefitting from an
authorisation in another jurisdiction.
Annual Price of
Licences
Category 1
Licence B2C
Category 2
Licence B2B
First year
NGR < 1 M£
1 M£ < NGR < 5
M£
5 M£ < NGR < 7,5
M£
NGR > 7,5 M£
Initial deposit
35.000 £
35.000 £
70.000 £
35.000 £
35.000 £
35.000 £
Category 3
Temporary
Licence
10.000 £
10.000 £
10.000 £
100.000 £
35.000 £
10.000 £
140.000 £
10.000 £
35.000 £
10.000 £
10.000 £
10.000 £
Tax Base
Tax Level
No tax on online
games
-
Assessment of
Revenues
State/ Industries
0
TYPE OF SPORTS
BETS/NETWORK
OF DISTRIBUTION
Internet sports bets
(Pari-mutuel and
fixed-odds bets.
Betting exchanges
spread betting, etc.)
Since 2010, licences and related revenues (prerequisite control for acquiring
the licence) bring approx. 5M€ to the regulating authority.
Market Estimation: Alderney
Close to zero (Physical bets are
prohibited)
58
5. Miscellaneous
a. Combating illegal bets
§
§
§
§
Operators with no licence (or operators that gave wrong information to the
regulatory authority) operating within the territory of Alderney are liable to a fine
(between 10.000 and 25.000£);
Upon the request of Belgian gaming regulatory authority (stating that operators
with licences in Alderney are not allowed to offer their services to Belgian
citizens), the regulatory authority of Alderney requested licenced operators to
check the lawfulness of their gaming offer in the countries where they are
operating;
A draft agreement was signed between the AGCC (Alderney) and the
regulatory authorities of Kahnawake, Nevada, Ontario, Denmark and
Singapore;
To date, Internet Service Providers and payments of winnings are not blocked.
Illegal Market Estimation
0
b. Number of Alderney Licences on 31 December 2012: 59 (see Annex 2 – bis)
c. Combating Money Laundering
§
§
§
Every operator holding a licence is under an obligation to nominate an officer in
charge of reporting elements related to money laundering;
Certain identified risks related to money laundering (abnormal behaviour of the
consumer, a deposit of more than 3.000 £ in 24h, place of transfer of winnings
– for example Iran and North Korea, players with multiple accounts, etc.) should
(theoretically) be subject to internal control procedures and verification. In 2011,
AGCC recorded 35 declarations of suspicions by licenced operators;
Financial information service of Alderney/Guernsey (FIS) is a member of FATF
and the Egmont Group.
59
ANNEX 2 – BIS
LICENCES IN ALDERNEY ON 31/12/2012
A total of 59 Licences:
§
§
§
18 Category 1 licences;
13 Category 2 licences;
29 Category 1&2 licences.
Amaya (Alderney) Ltd (2)
Aragon Technologies
Limited (2)
Arkin Sports & Leisure
Ltd (1)
Aydogan Tourism and
Leisure Ltd (1 & 2)
Beast Gaming Limited (2)
BGO Entertainment
Limited (1&2)
Blue Square Gaming
(Alderney) Ltd (1 & 2)
Bonne Terre Ltd (1 & 2)
Boylesports Alderney
Ltd (1)
Daub Alderney Limited
(1 & 2)
Elec Games Alderney
Ltd (1 & 2)
ElectraWorks (Alderney)
Ltd (1 & 2)
Eurasia Sports (1)
Eyecon Pty Ltd (2)
Fairplay Games
Limited (1)
[http://www.chartwelltechnology.com/]
[http://www.hititbet.com ]
[http://www.bluesqcasino.com]
[http://www.meccagames.com]
[http://www.meccabingo.com]
[http://www.bluesq.com]
[http://www.bluesqpoker.com]
[http://www.apuestauniversal.com]
[http://www.grosvenorcasinos.com]
[http://www.bingouniversal.com]
[http://www.greenjokerpoker.com/]
[http://www.skybet.com]
[http://www.skybingo.com]
[http://www.Skyvegas.com]
[http://www.boylecasino.com]
[http://www.boylepoker.com]
[http://www.boylegames.com]
[http://www.boylebingo.com]
[http://www.blackbeltpoker.com]
[http://www.uncoverpoker.com]
[http://www.spinandwin.com]
[http://www.kittybingo.com]
[http://www.instadealpoker.net]
Fairplay Games Limited (1)
60
G.P.(Alderney) Limited (1)
Gala (Alderney) Limited
(1 & 2)
Game Account Alderney
Ltd (1 & 2)
Genting Alderney Ltd (1)
Global Betting Exchange
Alderney Ltd (1 & 2)
Global Sports Trading
Services Ltd (1)
Greentube Alderney
Limited (2)
IGT (Alderney 2)
Limited (1)
IGT (Alderney 4)
Limited (2)
[http://www.goldenpalace.com]
[http://www.goldenpalacepoker.com]
[http://www.24ktgoldcasino.com]
[http://www.onlinecasino.com]
[http://www.grandonline.com]
[http://www.goldenpalacepoker.com]
[http://www.flamingoclub.com]
[http://www.onlinecasinocentral.com]
[http://www.GameAccount.com]
[http://www.MoneyGaming.com]
[http://www.Casinorip.com]
[http://www.RedHotRummy.com]
[http://www.WorldGammon.com]
[http://www.Desafiame.es]
[http://www.PaddyPowerPlayer.com]
[http://www.Gamesgrid.com]
[http://casino.bizarremag.com]
[http://sanoma.casinorip.com]
[http://www.gentinggames.co.uk]
[http://play.kontraband.com]
[http://casino.monkeymag.co.uk]
[http://play.playboy.co.uk]
[http://afortunado.com]
[http://www.circuscasino.com]
[http://www.atrcasinoclub.com]
[http://www.Gentingcasino.com]
[http://www.pchprizes.co.uk]
[http://www.globalbettingexchange.com]
[http://www.globalbettingexchange.com]
[http://www.greentube.com]
[http://www.foxycasino.com]
[http://www.national-lottery.co.uk]
[http://www.stycasino.tv]
Etc.
[http://www.paddypower.com]
[http://www.24hpoker.com]
[http://www.virgingames.com]
[http:// www.eurobet.com]
[http://www.galabingo.com]
[http://www.mrgreen.com]
[http://www.bluesquare.com]
Etc.
IGT (Alderney 5)
61
Limited (1)
IGT (Alderney 7)
Limited (1)
Intellectual Property and
Software Limited (1 & 2)
Interactive Sports (C.I.)
Limited (1 & 2)
Jumpman Gaming
Limited (1 & 2)
Kambi Sports Solutions
(Alderney) Limited (2)
[http://www.kerchingcasino.com]
[http://www.bingos.co.uk]
[http://www.betuk.com]
[http://www.euro-millions.com]
Etc.
[http://www.sportingbet.com]
[http://www.miapuesta.com]
Etc.
[http://www.dafabet.com]
[http://www.interwetten.com]
[http://www.unibet.com]
Ledonford Gaming
Services (1)
Marathon Alderney
Limited (1 & 2)
Metro Play Limited (1)
Monte Carlo Limited
(1 & 2)
Net Entertainment
Alderney Limited (2)
Netplay TV Group
Limited (1 & 2)
[http://www.panbet.com]
[http://www.montecarlogame.com]
[http://www.netentertainment.com]
[http://www.jackpot247.com]
[http://www.supercasino.com]
Orinic Limited (1)
Parlay Games Ltd (1 & 2)
Pinnacle Sports Europe
Limited (1)
PKR Limited (1 & 2)
Play n Go Alderney
Limited (2)
Playtech Software
(Alderney) Ltd (2)
PostCode Lottery Alderney
Limited (1 & 2)
QSB Gaming Limited
(1 & 2)
Relax Gaming Limited (2)
[http://www.24hourbingo.com]
[http://www.astrobingo.co.uk]
[http://www.bingomania.co.uk]
[http://www.soccermillionaire.com/mirror]
Etc.
[http://www.pinnaclesports.com]
[http://www.pkr.com]
[http://www.pkrcasino.com]
[http://www.mermaidbet.dk]
[http://www.playtech.com]
[http://www.postCodelottery.com]
[http://www.lightscamerabingo.com]
[http://www.unibet.com]
[http://www.igame.com]
62
S E Asia Gaming
Limited (1)
Samvo International Ltd
(1 & 2)
SHFL Entertainment
(Alderney) Limited (2)
Small Screen Casinos
Limited (1 & 2)
Sportech Alderney
Limited (1 & 2)
SPS Betting (Alderney)
Ltd (1 & 2)
Tabletop Entertainment
Ltd (1 & 2)
Totepool Alderney
Limited (2)
Totesport Alderney
Limited (1)
Triplebet Limited (1 and 2)
VF 2011 Limited (1)
Virgin Games Alderney
Limited (1)
Virtue Fusion Alderney
Limited (1 & 2)
WMS Alderney 2
Limited (1 & 2)
[http://www.samvo.com]
[http://www.smallscreencasinos.com]
[http://www.vernons.com]
[http://www.littlewoodsgaming.com]
[http://www.eurosportbet.co.uk]
[http://bingoliner.co.uk]
[http://www.totesport.co.uk]
[http://www.matchbook.com]
[http://www.paddypower.com]
[http://www.virgingames.com/casino]
[http://www.svenskabingo.com]
[http://www.crownbingo.com]
[http://www.ladbrokes.com]
[http://www.redbingo.es]
[http://www.skybet.com]
[http://www.vernons.co.uk]
[http://www.williamhill.com]
[http://www.paddypowerbingo.com]
[http://www.crownbingo.com]
[http://www.virgingames.com]
Etc.
[http://www.jackpotparty.com]
63
ANNEX 3
COUNTRY: Germany
Country Name: Germany
Continent: Europe
Federal Republic (16 Länder).
Parliamentary Democracy.
Total Population: 81.300.000
Dominant Religions:
No religion, Catholics, Evangelists,
Muslims
Surface: 357.026 km2
GDP 2011: 4 530 000 M$ (source: IMF)
GDP 2011/per capita: 55.700 $
Official languages: German
Currency: Euro (EUR)
TYPE OF SPORTS
BETS / DISTRIBUTION Type of Regulation
NETWORK
Pari-mutuel bets,
Until 2012: Offline
physical network
Monopolies and online
&
prohibition
Internet
Lottery monopoly
(online and offline):
starting in 2013
Date and Text of
Reference
Regulating Authority
Interstate treaty on
Council of Gambling
gambling (June 2012) Games (Hesse/with one
member per state)
+ Federal law "Lottery
and horseracing bets"
(December 2012)
Advertising: Regulator
of State of North
Rhine-Westphalia
Blocking of payments:
regulator of Lower
Saxony
Fixed-odds bets,
physical network &
Internet
Until 2012: Offline
Monopoly and Online
prohibition
Interstate treaty on
gambling (June 2012)
Project: Council of
Gambling Games
(Hesse / with one
member per state)
Licence System
(20 licences starting
2013)
+ Federal law "Lottery Advertising : Regulator
and horserace betting"
of State of North
(December 2012)
Rhine-Westphalia
Licence issue: regulator
of Hesse
Blocking of payments:
regulator of Lower
Saxony
N.B: (1) The inter-federal treaty was only temporary approved by the European Commission that
keeps the right to review its judgment after a period of two years;
(2) Decisions of Council of Gambling Games are taken with a majority of 13 votes (over 16).
64
Characteristics of the Types of Licences:
§ The law on sports bets is valid for 7 years (this also applies to licences);
§ The number of licences for sports bets are limited to 20 (offline and online);
§ The number of points of sale is determined by each State (Land). Some States
have set a maximum number of points of sale (between 60 in Saarland and
2.400 in Lower Saxony) others a number of points of sale per operator
(between 3 and 65 per licenced operator);
§ The process for granting licences (that started in August 2012) is a two steps
process: the first step enables the selection of companies that provide evidence
of their competence and expertise. The final decision to grant a licence was
scheduled for the beginning of 2013. The regulating authority of the State of
Hesse is in charge of managing the process of granting licences (for the 15
States outside of Schleswig-Holstein);
§ Since online and offline lottery games remain under a monopoly regime (State
by State), the interstate treaty does not allow monopolies to offer lottery games
and sports bets under the same Internet domain name;
§ Sports bets cannot be offered at the same place as a casino or slot machines;
§ By sports bets, Germany means exclusively fixed-odds sports bets (Pari-mutuel
bets are under the monopoly of Lotteries). Live betting is allowed but it is only
possible to bet on the result of a sporting event;
§ Gambling and betting are not allowed for minors (under the age of 18 in
Germany);
§ Advertising sports bets is not allowed before and during sports events
broadcasted live on TV;
§ The law does not mention any precisions concerning the localisation of Internet
servers;
§ Security and verification procedures (especially age) are serious and a physical
verification might be necessary with a presence at the police station or its
equivalent. Besides, for every game session, the consumer will have to use a
personal access code;
§ The law limits monthly bets to 1.000 €.
The annual cost of licences is provided in the following chart
Cost of
Licences
Per year
Bets < 30 M€
30 M€ < Bets
<50 M€
0,1% of
30.000 €
Minimum Bets: + 0,08% of bets
50 €
(for the share
exceeding
30 M€)
50 M€ < Bets
<100 M€
46.000 €
+ 0,05% Of
bets
(for the
exceeding
50 M€)
Bets >
100 M€
71.000 €
+ 0,03% Of
bets
(for the share
exceeding
50 M€)
N.B: Online casinos are prohibited by the inter-federal treaty.
65
TYPES OF SPORTS
Tax Base
BETS /
DISTRIBUTION
NETWORK
Pari-mutuel bets,
Wagers (Revenue)
physical network &
Internet
(Pool and odds
sports bets)
Pari-mutuel bets,
Wagers (Revenue)
physical network &
Internet
Tax Level
Assessment of
Revenues State /
Industries
20% of wagers
(minus tax)
Approx. 9 M€ (2011)
5% of wagers
(starting in 2013)
Approx. 30 M€ in
2011 (20 % of
wagers)
N.B.: Illegal online operators that target the German market are also subjected to a 5% tax on
bets.
TYPES OF
SPORTS BETS /
NETWORK OF
DISTRIBUTION
Operators
Characteristics
Sports Bets
Physical network
(pari-mutuel and
fixed-odds bets)
Pari-mutuel Bets:
Deutscher Loto-und
Totoblock (DLTB)
Association of
Lotteries of each
State with rotating
presidency
Legal Market Estimation 2011:
Germany
Sports bets TOTAL (revenue)
§ including pari-mutuel bets (revenue)
§ including fixed-odds sports bets
(revenue)
Rate of return for bettors (sports bets)
TOTAL
§ Including pari-mutuel RRB
§ including fixed-odds bets RRB
GGR sports bets TOTAL
§ including pari-mutuel bets GGR
(revenue)
§ Including
fixed-odds
bets
GGR
(revenue)
Share of the country in the global market
(legal + illegal)
Assessment of
Sports Bets
Revenue and
Market share
(2011)
Approx. 200 M€
(bets)
(100% offline)
Amount
200 M€
45 M€
155 M€
54%
50%
55%
93 M€
23 M€
70 M€
1,7%
66
NGR from sports bets TOTAL
(net proceeds)
54 M€ (58% of net proceeds)
5. Miscellaneous
§
§
Advertising illegal bets is not allowed. It is subject to imprisonment (up to 1
year) and a fine;
Measures for combating illegal bets with blocking Internet Service Providers
(ISP) were removed from the last version of the inter-State treaty. However, the
treaty presents measures on blocking illegal earnings.
Illegal Market Estimation (Germany 2011/GGR)
Between 150 and 200 M€
Illegal German Market:
§
§
§
§
4 companies had a licence in East Germany and they were trying to assert the
legality of these licences: Sportwetten Gera, Sportdata / Pfennigwerth (bwin).
Goldesel/Hobiger, DSG (Interwetten).
There are up to 6000 illegal points of sale in Germany.
Some numbers concerning “illegal” operators in 2011 (GGR):
a. Bwin: Approx. 60 M€;
b. MyBet (ex.: Jaxx): close to 25 M€, 45% online, 55% offline with 275
points of sale, rate of return of approx. 83%);
c. Interwetten: Approx. 15 M€;
d. Bet-at-Home: Approx., 10 M€ (Rate of return of 94%);
e. Sportingbet: Approx., 10 M€;
f. Betfair: Approx., 6 M€;
g. Tipp24 ended their activity in Germany in 2009 to comply with the
legislation.
§ Sports bets are not considered as games of luck; therefore they are not subject
to rather strict traditional laws. Links between operators and the money
laundering regulating authority (Federal Financial Supervisory Authority) will be
of an indirect nature because operators are supposed to monitor suspicious
transactions, and if applicable, report suspicions. Besides, Germany is a
member of FATF;
§ In October 2012, Germany announced its will to toughen its fight against money
laundering, especially with its opposition to illegal bets (the number of cases of
money laundering – 13.000 investigations in 2011 – are at their peak since the
promulgation of the law in 1993);
67
§ Politicians launched the bill that will complete the law against money laundering
(Geldwäschegesetz). The law will include, for the first time, online gambling in
its scope of application. The amendment will not allow any non-transparent way
of payment such as prepaid cards and will require that online gambling
companies undergo the same KYC (Know Your Customer) test as banks, when
opening an account. According to FATF reports of 2010, between 40 and 60
billion Euros are laundered each year throughout the country.
6. The Specific Case of the State of Schleswig Holstein
In 2011, the State of Schleswig Holstein detached itself from the other States,
and created its own policy on gambling, especially online gambling (by opening the
market of sports bets to competition starting on 1 January 2012).
Main Differences:
§
§
§
§
The type of authorised games: The State of Schleswig Holstein authorised in
2011 casinos and online poker (around 20 licences were to be issued);
Level of tax proposed (20% of GGR against 5% of bets for fixed-odds sports
bets);
All of the data is registered on a secured server located in Schleswig Holstein;
Licenced operators have to provide a minimum bank guarantee of 1 M€.
In 2012, licences were granted to sports betting operators. Then, in December,
some licences were granted to casinos and online poker operators (Bet-at-home,
Betfair, Bwin, Bet365, Cashpoint, Ladbrokes, Mybet, Online Casino Germany,
Pokerstars, Skill on Net, Tipico, 888). Especially at the end of 2012, Schleswig Holstein
apprehended the idea of being sued by operators when it started issuing licences.
However, this "dissident" State ratified the inter-State treaty in November 2012.
This decision was approved in January 2013 by the European Commission.
68
ANNEX 4
COUNTRY: Antigua & Barbuda
Name of the Country:
Antigua and Barbuda
Political organisation:
Constitutional Monarchy
(Commonwealth).
The Queen of the United Kingdom is
represented by a general governor.
Total Population: 88.000
Continent: America
Dominant religions:
Christians
(Mainly : Church of England)
Area: 442 km2
GDP 2011: 1.310 M$
GDP 2011 per capita: 14.890 $
Official languages: English
Currency: East Caribbean Dollar(XCD)
12
(1 XCD = 0,273 €)
TYPE OF SPORTS
BETS /
DISTRIBUTION
NETWORK
Internet Sports bets
(pari-mutuel and fixedodds bets, Betting
Exchanges, spread
betting, etc.)
Type of
Regulation
Date and Text of
Reference
Regulating
Authority
eGambling
Licences system
available for all
types of games
Interactive Gaming
and Interactive
Wagering (IGIWR)
2001
FSRC
(Financial Services
Regulatory
Commission)
Gaming Division
N.B.: (1) Gambling Operators are classified as financial institutions.
(2) Off-Internet gambling (such as offline sports bets) are not allowed in Antigua and
Barbuda (everything not explicitly authorised is forbidden).
Features of licence types (online):
§ Antigua and Barbuda is on the "white list" of the United Kingdom since 2008
(Therefore, operators licenced in Antigua and Barbuda can advertise in the
United Kingdom);
§ The company applying for the licence should be based in Antigua and Barbuda
(with the physical presence of at least one director);
§ The primary server (The server that contains all of the information related to
players and the gambling history) should be in Antigua and Barbuda;
§ There are two types of licences: “Interactive gaming” and “interactive wagering”;
12
On 31/12/2013
69
§ The cost of an "interactive wagering" licence in 75.000 US$ per year (initial
filing costs: 15.000US$ / costs of renewal of licence: 5.000 US$, less expensive
than an “interactive gaming licence” (100.000 US$);
§ Individuals under 18 years of age are not allowed to bet, it is also forbidden to
encourage them to bet (offence);
§ Causing gambling addiction is banned (offence);
§ Operators deposit a minimum amount of 100.000 US$ to cover the risks of nonpayment of winnings to players.
TYPE OF SPORTS
Tax Base
BETTING/DISTRIBUTION
NETWORK
Internet sports bets
No tax on
(Pari-mutuel and fixedonline games
odds bets, Betting
Exchanges, spread
betting, etc.)
Assessment of
Revenues
State/Industries
0
Tax Level
-
Annual revenues (2012) related to licences and to associated revenues can be
estimated around 2M US$.
Market Estimation:
Antigua and Barbuda
Close to zero (physical bets are
prohibited)
5. Miscellaneous
a. Combating illegal bets
§ Nothing is provided in this regard.
Estimation of illegal market:
0
b. Number of "interactive wagering” licences Antigua and Barbuda (31 December
2012)
This concerns:
§ Continental Ventures Ltd;
§ Coolidge sports Ltd;
§ Gaming Ventures Ltd;
§ Global Entertainment Ltd (Unibet.net);
§ Imperial E-Club Ltd.
70
c. Combating money laundering
§ Every operator should comply with the procedures of the Money Laundering
Prevention Act (MLPA);
§ Operators are subject to the rules of FATF (Caribbean Section);
§ Each operator has to describe, in its regulation system presented to the
authorities, the procedures used to combat money laundering;
§ Office of National Drug and Money Laundering Control Policy, the Financial
13
Sector Regulatory Commission and Eastern Caribbean Central Bank.
13
See: [http://www.antigua-barbuda.com/business_politics/cfatf_evaluation.asp].
71
ANNEX 5
COUNTRY: Australia
Name of the Country: Australia
Continent: Oceania
Parliamentary Monarchy
(Federal and State elections – 8 States)
Total population: 22 607 000
Dominant Religions:
Catholics, no religion, Anglican
GDP 2011: 1 507 402 M$ (source: IMF)
Official languages: English
Currency: Australian Dollar (AUD)
14
(1 AUD = 0.79 € )
Area: 7.686.850 km2
2. Type of regulation
TYPE OF SPORTS
Type of Regulation
BETS /
DISTRIBUTION
NETWORK
Sports bets in physical
Monopolies
network & on the
Internet
(Pari-mutuel bets)
Sports bets in physical
Licence system
network & on the
(bookmakers)
Internet
(Fixed-odds bets)
Live Betting
Prohibition
(Fixed-odds bets)
Date and Text of
Reference
Law of each State
States
(Each State has its
Regulatory authority)
Law of each State
States
(Each State has its
Regulatory authority)
Interactive Gambling
Act (2001)
Federal State
N.B.1: Traditionally, the 8 Australian States are each responsible of their own regulation on
gambling. However, over the last years (especially since the advent of Internet betting), many
discussions are taking place on the federal level.
N.B.2: Regarding the Internet, Australia has chosen a general regime of prohibition (Interactive
Gambling Act 2001). On 1 January 2013, there are no legal casinos or online poker operators in
Australia. However, lottery and betting operators are not subject to this prohibition. The
Productivity Commission has recently prepared several analyses and reports (the 2009 report is
particularly significant) regarding gambling on the federal level (especially on the social and
economic impact of bets).
N.B.3: In 2012, a federal report proposed the prohibition of "micro betting" (betting for example on
every point of a tennis or cricket match) but to review the position regarding “Live betting” and to
suggest limiting advertising for odds during live TV broadcasts of sports events
14
On 10/01/2013
72
a. Australian Capital Territory (ACT – Canberra – 350.000 inhabitants)
§ Text of reference for money games: Gambling and Racing control Act (1999)
§ Text of reference for bets: Race and Sports Bookmaking Act 2001.
§ Regulating authority for gambling: The ACT Gambling and Racing Commission
(GRC).
§ Betting operators (companies) with a licence in this State can offer their
services on the Internet in all Australia (with a favourable taxation regime). The
list of operators authorised to exercise their activity in all Australia is included in
Annex 1.
§ "Spread Betting" is authorised.
§ On 31/12/2012, there were three active operators with a licence for sports bets:
15
ACTTAB (State-owned, organises pari-mutuel and fixed-odds sporting bets)
with its content provider Centrebet (acquired by Sportingbet in 2011) and
BetWorks (ex-Megasports).
§ Sports bookmakers (individuals, syndicates or companies), authorised to offer
odds bets have to pay an annual licence fee of 12.000 A$.
§ There are two lotteries (subject to the Lotteries Act – 1964) with an
authorisation to organise pool sports bets in the state ACT: Tatts (based in the
state of Victoria) and NSW Lotteries (based in the state of NSW). Both of which
are the property of the Group Tattersall Sweeps Pty Ltd (Victoria).
New South Wales (NSW – Sydney – 7.2 M Inhabitants):
§ Reference texts for bets: The Racing Administration Act (1998), The Totalisator
Act (1997) and the Unlawful Gambling Act (1998).
§ Regulating authority for money games: The office of Liquor Gaming and Racing
(OLGR).
§ On 31/12/2012, there was one operator holding a sports betting licence: TAB
(property of TABCORP, which organises pari-mutuel and odds bets). Note that
fixed-odds bookmakers are authorised in race tracks: 5 of these had the right to
permanently offer sporting bets, and 39 on certain occasions.
§ There is a lottery (subject to Lotteries Act – 1964) holding an authorisation to
organise pari-mutuel bets in the State of NSW: NSW Lotteries (property of
Tatterstall Sweeps Pty Ltd/Victoria).
Northern Territory (NT-Darwin – 230.000 inhabitants):
§ Texts of reference for bets: The Gaming Control Act (2005), The Racing and
Betting Act (2004), The Soccer Football Pools Act (2004), The Totalisator
Licensing and Regulation Act (2004) and the Unlawful Betting Act (2004).
§ Gambling regulating authority: The Licensing Regulation and Alcohol Strategy
(LRAS).
§ On 31/12/2012, there was one operator with a sports betting licence: NT TAB
(Tatt’s Group). The operator organises pari-mutuel and fixed-odds sports bets.
NT TAB is member of TAB organised by Victoria.
15
TAB: Totalisator Agency Board.
73
§ The Northern Territory State applies a particularly encouraging tax policy for
sports betting operators (especially online operators). Betchoice, Betezy,
Betstar, Centrebet, Luxbet, MyBetchoice, NT TAB, Sportbetting, Sportsbet
(PassyPower), Sportingbet, Tom Waterhouse NT and Weather lottery have
licences in this state.
§ One lottery is authorised to organise pari-mutuel bets in the state of NT: Tatts
Lotteries Northern Territory (property of the Tattersall Sweeps Pty Ltd / Victoria
Group).
b. Queensland: (QSL – Brisbane – 4.5 M inhabitants)
§ Reference texts for bets: The Wagering Act (1998).
§ Regulating Authority for bets: The Office of Liquor and Gaming Regulation.
§ On 31/12/2012, one operator (monopoly) had a licence for sports bets: UNITAB
(property of the Group Tattersall Sweeps Pty Ltd/Victoria). This operator
organised pari-mutuel and fixed-odds sports bets. Unlike the majority of the
other Australian States, bookmakers do not offer sports bets in Queensland.
§ East lottery operator, The Golden Casket Corporation Limited (property of the
Group Tattersall Sweeps Pty Ltd/Victoria).
c. South Australia (SA – Adelaide – 1.6 M inhabitants)
§ Reference texts for bets: The Authorised Betting Operations Act (200), The
Lottery and Gaming Regulations (2008).
§ Regulatory Authority of gambling: The Independent Gambling Authority.
§ On 31/12/2012, one operator held a sports betting licence: SA TAB (property of
the Tattershall Sweeps Pty Ltd/Victoria Group) which organises pari-mutuel and
fixed-odds sporting bets. Note that bookmakers for fixed-odds sporting bets are
also authorised: in 2012, there were 28 bookmakers and 66 agents (11 of which
were authorised to take bets by phone).
§ The lottery operator is South Australian Lottery (directly attached to the
government via the Lotteries Commission, privatised at the end of 2012 for the
benefit of Tatts).
d. Tasmania (TAS - Hobart – 510.000 inhabitants)
§ Reference texts for bets: The Gaming Control Act (1993)
§ Regulating authority for money games: The Tasmanian Gaming Commission.
§ On 31/12/2012, one operator held a sports betting licence: TOTE Tasmania
(former property of the government and now property of the Tatts Group), which
organises pari-mutuel and fixed-odds sports bets. TOTE Tasmania is member
of the TAB organised by Victoria. Unlike all other Australian States, bookmakers
do not offer bets in Tasmania.
§ Betfair has a Betting Exchange licence in Tasmania.
§ There is no specific operator in Tasmania. However the games offered by the
two lotteries of Victoria (Tatts and Intralot) and the lottery of NSW (NSW
Lotteries) are authorised.
74
e. Victoria (VIC - Melbourne – 5.5 M inhabitants)
§ Reference texts for bets: The Gambling Regulation Act (2003).
§ Gambling regulating authority: The Victorian Commission for Gambling
Regulation (VCGR).
§ Betting Exchanges are authorised in the state of Victoria.
§ On 31/12/2012, one operator held a sports betting licence: TAB (TABCORP
Group), which organises pari-mutuel and fixed-odds sporting bets. Note that
bookmakers are also authorised: on 1/1/2013, there were 5 bookmakers in a
commercial company, 40 syndicates and 179 individual bookmakers.
§ There are two lotteries with an authorisation to organise pari-mutuel bets in the
state of NSW: Tattersall’s Sweeps Pty Ltd and Intralot Australia Pty Ltd.
f. Western Australia (WA – Perth – 2.2 M inhabitants)
§ Reference texts for bets: The Racing and Wagering West Australia Act (2003).
§ Gambling regulating authority (3): The Department of Racing Gaming and
Liquor, the Gaming and Wagering Commission; The Lotteries Commission.
§ The State of Western Australia has a more restrictive approach to gambling.
§ On 31/12/2012, one operator held a licence for sports bets: TAB (Racing and
Wagering West Australia), which organises pari-mutuel and fixed-odds sporting
bets (member of TAB common of Victoria). It should be noted that bookmakers
are also authorised marginally. The lottery operator directly attached to the
Lotteries Commission, isLotterywest.
3. Taxation on Current Sporting Bets
Tax Base
Tax Level
Sporting Bets: Physical
network and Internet
(pari-mutuel and fixed-odds
sporting bets)
ACT: Bets
ACT:
§
Fixed-odds
bets: 0,25 to 1%
(Bets)
§
Spread
betting: 6,75% of
bets
§
Pari-mutuel
bets: 6% of bets
§
ACTTAB:
4,5% of bets
NSW: GGR
NSW:
§
Fixed-odds
bets: 10,91% of
GGR
§
Pari-mutuel
bets: 19,11% of
GGR Pool bets
Lotteries: 66,1%
GGR
Assessment of
Revenues State /
Industries
ACT: 240.000 €
NSW: 6,9 M€
75
NT: GGR
NT:
NT: 150.000€
§
Australian
bettor: 0 (GST
only)
§
Bettor outside
of Australia: 10%
GGR (max. of
255.000 A$/an)
§
Pool bets
lotteries: 57,52%
GGR
QLD: GGR
SA: Bet
QLD :
§
All bets : 20%
of GGR
§
Pool bets
lotteries: 59% GGR
SA :
QLD: 1,3 M€
SA: 350.000 €
§
All bets: 6% of
GGR
§
Pari-mutuel
bets lotteries: 41%
GGR
TAS: -
VIC: GGR
TAS:
§
Internet: 15 to
20% of GGR
(4% for operations
outside of
Australia)
§
Betting
Exchange: 5% of
GGR
TAS: 540.000 €
VIC:
VIC: 7 M€
§
Fixed-odds
bets: 10,91% of
GGR
§
Pari-mutuel
Bets: 19,11% of
GGR
§
Betting
Exchanges: 10% of
GGR
§
Pool Bets
lotteries: 57 to
68% GGR
WA: Bets
WA:
WA: 1,8 M€
§
On the
racetrack : 0,5%
§
At the venue of
a sporting event:
1,5%
76
§
Pool bets: 5%
bets
§
Pool bets
lotteries: 67,5%
GGR
N.B.1: Concerning bets (horseracing and sporting bets); many operators opposed the tax system
based on bets. Taking into account their economic model, they preferred a system based on
GGR. To date, current models (Especially in New South Wales and Queensland, based on bets)
were not modified.
4. Operators & Market
TYPE OF SPORTS BETS
/ DISTRIBUTION
NETWORK
Operators
Sporting Bets: Physical
(Pari-mutuel bets)
ACT:
§ Tatts – NSW
Lotteries
§ ACTTAB
NSW:
§ NSW
Lotteries
§ TABCORP
Characteristics
Assessment of
Sporting Bets
Revenue and
Market Share
(2010)
§ Tattersall’s
Group
§ State
Group:
150.000 €
Group
§ Tabcorp
Group
Group: 1,2 M€
§ TAB:
11,4 M€
Group
§
Group
§ 2,6 M€
§ UNITAB:
2,3 M€
NT:
§ Tatts NT –
NT TAB
QLD:
§ Golden
Casket
§ UNITAB
SA:
§ SA Lottery
§ SA TAB
§ State
Group
40.000 €
§ 525.000 €
TAS:
§
§
§
TOTE TAS
NSW – Tatt
Intralot
Group
Group
§ Private
§ 190.000 €
VIC:
•
•
•
Tattersall’s
Intralot
TABCORP
Group
§ Private
§ Tabcorp
Group
+ Intralot:
1,7 M€
§ TABCORP:
8,6 M€
77
WA:
§
§
LotteryWest
TAB
§
State
§ LotteryWest
: 1,4M€
§ TAB:
1,7 M€
TOTAL: 32 M€
Sports Bets Physical
(Fixed-odds Bets)
ACT:
§
§
§
ACTTAB
BetWork
Tatts
§ State
§ Private
Group
§ ACTTAB:
12 M€
§ Books:
70 M€
§ Tabcorp
Group
§ Private
§ TABCORP:
508 M€
§ Books:
80 M€
NTTAB
Bookmakers
Group
§ Private
§ Books:
1.006 M€
UNITAB
Group
§ UNITAB :
116 M€
SA Tab
Bookmakers
Group
§ Private
§ TAB :
39 M€
§ Books :
2,5 M€
TAS:
§
§
TOTE TA
Betfair
Group
§ Private
§ TAB :
26 M€
VIC:
§
§
TABCORP
Bookmakers
§ Tabcorp
Group
§ Private
§ TAB :
517 M€
§ Books :
57 M€
WA:
§
§
TA
Bookmakers
§
State
§
Private
§ TAB :
131 M€
§ Books :
1,1 M€
NSW:
§ TABCORP
§ Bookmakers
NT:
§
§
QLD:
§
SA:
§
§
TOTAL : 2.568 M€
78
Estimation of illegal market: Australia
2010
sporting bets TOTAL
(Revenues)
Rate of return for bettors, sporting bets
TOTAL
GGR, sporting bets TOTAL
Share of the country in the world market
(legal + illegal)
TOTAL NGR from sporting bets (Net
Gambling Revenue)
Amount
2.600 M€
89%
285 M€
1,9%
265 M€ (93% of GGR)
5. Miscellaneous
a. Combating Illegal Bets
§ The law of online gambling (Interactive Gambling Act) requires ISPs to
implement filtering procedures for illegal sites. The regulating authority
(Australian Communications and Media Authority) should notify the police about
the sites identified as illegal and hosted outside Australia. Then, the authority
should notify the ISP;
§ To date, Australia is the only Western democracy to go so far in the fight
against illegal content on the Internet (centralised filtering and determination of
a blacklist of banned sites). Other countries having implemented similar
measures are Saudi Arabia, China, Russia, Thailand and Vietnam. In 2012, the
black list included a dozen forbidden gambling websites.
Estimation of illegal Market:
(Australia/2010/rate of return for bettors)
15 M€
Main illegal operators in Australia: Bet 365
b. Combating money laundering
§ In one of its reports, the CCA indicates that online gambling is a clearly
identified risk of money laundering (because it is hard to identify, with certainty,
the source of the deposit for the bets).
§ Australia is a member of the FATF since 1990 However, in a 2005 report; the
FATF found that Australian law on money laundering was deficient. This led to
the promulgation of a new legislative framework in 2006.
§ Australia created a specific authority for money laundering called Austrac; it is
in charge of regulating operators of pari-mutuel bets (TAB) and bookmakers.
§ The measures to which companies regulated by Austrac are subject include the
identification of shareholders, reporting the flow of international funds and
suspicious activities.
§ Betting operators should know their players, therefore they are asked to:
o Identify bettors who wagered or won more than A$ 10,000.
o Identify customers changing over A$ 500.
79
c. Combating the manipulation of sporting events
In 2011, the Australian Ministry of Sports decided to implement national
measures:
§ Contractual agreement and an agreement on sport integritys between sports
betting operators and event organisers (including an exchange of information –
adopting a common standard starting July 2012 – prohibiting certain types and
financial contributions for sports).
§ Creating a national agency for sport integritys (which beyond coordination,
provides “integrity” services for minor sports).
§ Verifying the implementation of certain measures related to sport integritys by
sports organisations.
§ Reducing advertising related to sports events (especially during live broadcast
on TV).
80
ANNEX 5 – BIS
List of betting operators authorised in all States (AUS)
(Number: 26 as of 31/12/2012):
§ ACT TAB Limited
§ Betchoice Corporation Pty Ltd
§ Betezy.Com.Au Pty Ltd
§ Betfair Pty Ltd
§ Betworks
§ Bookmaker.com.au Pty Ltd
§ Centrebet Pty Ltd
§ Cricketbet
§ Eskander’s Betstar Pty Ltd
§ Hillside (Australia New Media) Pty Ltd
§ Luxbet Pty Ltd
§ Merlehan Bookmaking Pty Ltd
§ NT TAB Pty Ltd (CentreRacing)
§ Placeabet
§ Racing and Wagering Western Australia
§ Sportingbet Pty Ltd
§ Sportsbet Pty Ltd
§ Sportsbetting.com.au Pty Ltd
§ Sports Alive Pty Ltd
§ Tab Limited
§ Tabcorp Holdings Limited
§ TattsBet Limited
§ Tom Waterhouse
§ Tom Waterhouse NT Pty Ltd
§ Topbetta Pty Ltd
§ Tote Tasmania Pty Ltd
81
ANNEX 6
COUNTRY: Austria
Name of the Country: Austria
Continent: Europe
Political Organisation: Federal Republic
(9 regions) parliamentary (2 houses)
Dominant religions: Catholics (75%),
Lutheran protestants (5%), Muslims (4%)
Area: 84.000 km2
GDP 2011: 425.100 M $ (estimation)
Official Languages: German
Currency: Euro
TYPE OF SPORTS BETS
Type of
Date and Text of Regulatory Authority
/ DISTRIBUTION
Regulation
Reference
NETWORK
Sports bets physical
Licence System
Regional laws not
Regions (Länder) +
network & Internet
(bookmakers) covered by the law on Federal Government
(Pari-mutuel bets and
games of luck and
fixed-odds sporting bets)
gambling
“Glückspielgesetz”
Features of Types of Licences:
§ Most regions accept betting operators as long as they have a licence within the
EU or the EEA. However, there are some exceptions because the regions of
Carinthia, Salzburg and Vorarlberg require a local licence.
§ In fact, an operator with a licence in the EU can offer its services through the
internet to the Austrian bettors (however, given the laws on gambling, it cannot
offer online casino and lottery services to the same consumers).
TYPE OF SPORTS BETS
/ DISTRIBUTION
NETWORK
network & Internet
fixed-odds sports bets)
Tax Base
Tax Level
Wagers
(revenues)
2% of Wagers
+ in certain local tax
Assessment of
Revenues
State/Industries
17,5 M€
82
TYPE OF SPORTS
BETS /
DISTRIBUTION
NETWORK
Operators
network
(Pari-mutuel bets
and fixed-odds
sports bets)
Pari-mutuel bets:
Österreischsche
Lotterien
(Pari-mutuel bets)
Features
Assessment of
Sports Bets
Revenue and
Market share
(2011)
11 M€ (100%)
§
State
Lottery
§
Private
operators
besides
Tipp3
(subsidiary
of
State Lottery)
Fixed-Odds bets :
§
Bwin
§
Admiral
Sportwetten
§
Tipp3
§
Wettpunkt
§
Bet-at-home
§
William Hill
§
Cashpoint
§
Kajot
§
Interwetten
§
Others
350 M€ (41%)
156 M€ (18%)
54 M€ (6.3%)
28 M€ (3.3%)
47 M€ (5.5%)
23 M€ (2.7%)
14 M€ (1.6%)
10 M€ (1.1%)
11 M€ (1.3%)
160 M€ (18.7%)
TOTAL : 853 M€
TOTAL : 864 M€
Legal market estimation : Austria (2011)
TOTAL wagers (sports bets) (revenue)
§
including Wagers on Pari-mutuel bets
(revenue)
§
including Wagers on fixed odds bets
(revenue)
TOTAL Rate of return of sports bets
§
including rate of return on pool bets
§
including rate of return on fixed odds
bets
TOTAL GGR sports bets
§
including sports bets GGR (revenue)
§
including fixed odds bets GGR (revenue)
(legal + illegal)
TOTAL NGR of sports bets
(net gaming revenue)
Amount
864 M€
11 M€
853 M€
86%
55%
86%
121 M€
5 M€
116 M€
0,8%
104 M€ (86% of net proceeds)
83
5. Miscellaneous
Laws concerning the fight against illegal gambling are marginal concerning sports bets,
given the special status of this type of gambling (see above).
Illegal market estimation (Austria/GGR/2011):
4 M€
Sports bets are not considered as games of luck, they are not subject to the
rather strict traditional rules of casinos or financial institutions (described in the Banking
Act). Links with the regulatory authority of money laundering (Sicherheitspolizeigesetz SPG) are therefore not natural.
84
ANNEX 7
COUNTRY: Belgium
Name of the country: Belgium
(Kingdom of Belgium)
Political organisation:
Federal State
Constitutional monarchy
(with a bicameral parliamentary regime)
Total population: 11.116.243
Continent: Europe
Dominant religions:
Catholics (43%), Muslims (12%), agnostics
(10%)
GDP 2011 : 529.046 M$ (source IMF)
GDP 2011 per capita : 42.630 $
Official languages: French, Dutch, German
Currency: Euro
Area: 30.528 km2
TYPE OF SPORTS BETS
Type of
Date and Text of
Regulatory
/ DISTRIBUTION
Regulation
Reference
Authority
NETWORK
Licence System Law of 7 May 1999
Gambling
amended by the Law Commission (under
(Pari-mutuel bets and fixed
of 10 January 2010
the authority of
odds bets)
(entry in force 1
Ministry of Justice)
January2011)
Characteristics of the Types of Licences:
§ Operating betting businesses is generally prohibited, except for those holding a
licence issued by the Belgian Gaming Commission.
§ There are three types of licences for sports bets:
o Licences to operate offline bets (F1).
o Licence to operate online bets (F1+).
o Licences to carry out physical betting activities in specific
establishments, called "betting agencies", which can be mobile or fixed
(F2).
§ The holders of F1 and F2 licences may be legal or natural persons.
§ Possessing an offline licence (F1) is required to obtain and hold an online
licence (F1 +) i.e. "the offline requirement".
§ Numerus Clausus:
o 35 offline (F1) and online (F1+) licences, one of which was attributed to
the Belgian National Lottery by a specific Royal decree.
o 1000 licences for betting agencies (F2).
85
§ Scope of application: the F1+ licence allows the holder to offer, poker, sports
and horse racing bets as well as online casino services.
§ The servers of the websites offering sports bets must be based within the
Belgian territory.
§ Duration of licences: F1 - 9 years, renewable, F1+ - 5 years, renewable, F2 - 3
years, renewable.
§ Cost of licences:
• F1: 10,180 €
• F1+: 10,180 €
§ Technical standards required to offer online bets.
§ Individuals under 18 years of age are not allowed to bet.
§ Online players must register and cannot play unless they have received a
validation code from the operator and Gaming Commission via email. Data is
retained during a 5-year period.
§ To protect punters, losses are capped: 600 €/24hours for sports bets.
§ The regulatory authority has the power to block illegal operators and payments.
TYPE OF SPORTS BETS
Tax Base
/ DISTRIBUTION
NETWORK
Wagers network
Revenue
fixed-odds bets)
Online sports bets
Gross gaming
(pool and fixed-odds bets)
revenue
(GGR)
Tax Level
32% (Wallonia)
15% (Brussels)
11% of GGR
(Wallonia)
15% of GGR
(Brussels)
Assessment of
Revenues State /
Industries
Regions
0 in 2011 (Wallonia)
0 in 2011 (Brussels)
Regions
0 in 2011 (Wallonia)
0 in 2011 (Brussels)
TYPE OF SPORTS
BETS /
DISTRIBUTION
NETWORK
Sports Bets, Physical
Network
F1 and F+
Operators
F1 Licences
(34 F1 licences and 7
F1+ licences on 4/7/12):
§ National Lottery
§ Ladbrokes (2)
§ SGS Betting
§ Betcenter
§ SJ Bet
§
Stanleybet
§
DH Bet (Sagevas)
Assessment of
Sporting Bets
Features
Revenue and
Market Share
(2011)
State-owned TOTAL revenues:
and private
0 M€
betting operators (Effective opening
(bookmakers)
of the market in
2012)
(+ F1+)
86
§
Viage Betting
§
Unifoot
(Unibet)
(+ F1+)
§ PMU
§
§
§
PMU FR
Bingoal / WFA
Play N Bet
§
Efor Bet
§ Casino de Spa
§ Play and win /
Ambassador
§ Play and win /
Ambassador / EX Live
§ Leader Bet
§ Vincennes Tiercé
(+ F1+)
§ Eurotiercé
(+ F1+)
§ PMU (+ F1+)
§ Sportbet 2009
§ Cash Win
§ Betting
SPRL
§ Mybet
Service
§ Wedwinkel
Sportweddenschappen
§ Circus Leisure
§ Circus Belgium
§ Mybestodds
§ GP.WIN
(Stargames) (+F1+)
§ Dunya SPRL
§ Mystery
Games
(+ F1+)
§ Planet Win 365
Market Estimation, Belgium,
2011
TOTAL wagers (sports bets) (revenue)
TOTAL Sports bets Rate of Return to
Bettors
(Gross gaming revenue)
(legal + illegal)
TOTAL NGR sports bets (Net
Gaming Revenue)
Amount
0 (opening of the market in 2012)
0
0,3%
0
87
5. Miscellaneous
§ The 2011 law aims not only to protect the consumer but also to fight against
fraud and illegal bets. Requiring a physical bets licence in order to be allowed to
offer bets on the Internet is specifically designed to prevent the development of
illegal gambling. However, partnership agreements were signed between online
betting operators and casino operators holding an F1 licence to circumvent this
obligation;
§ A blacklist of illegal sites is published and regularly updated (NB: Bwin is on this
list);
§ The Gambling Commission can block illegal sites and payments;
§ Advertising for betting sites is prohibited;
§ The Gambling Commission has repressive powers: it can impose, in addition to
administrative penalties, fines against licence holders as well as players, when
the prosecutor decides not to prosecute the perpetrators;
§ Criminal penalties are provided:
o When operating an unauthorised game: 6 months to 5 years in prison
and a fine of up to 100,000 €;
o In case of participation in an unauthorised game, the player incurs a
penalty of imprisonment of one month to three years and / or a fine of
25 € to 25,000 €.
§ Every person that might have a direct influence on the outcome of a sporting
event is not allowed to bet.
(Belgium/2011/GGR)
30 to 50 M€ (100% on the Internet)
b. Number of Licences Issued as of 1 January 2013
§
§
35 offline and online licences (F1 and F1+): 9 years
1000 organisation licences (F2): 3 years.
§
§
§
Operators must report any suspicion of money laundering to the Unit for
Processing Financial Information (CTIF).
Belgium is a member of FATF since 1990.
The law of 11 January 1993 on the prevention of the use of the financial system
for money laundering purposes grants the Commission a role of monitoring and
detecting laundering operations.
d. Miscellaneous
§ The Gambling Commission is a member of GREF (Gaming Regulators
European Forum). GREF brings together 28 European regulators, their purpose
is to discuss the policy to be pursued in terms of gambling and how to fight
against linked abuses.
88
ANNEX 8
COUNTRY: Canada
Name of the Country: Canada
Continent: America
Constitutional Monarchy, Parliamentary
Democracy
Total Population: 33 476 000
Dominant Religions:
Catholics, protestants
GDP 2011: 1 758 680 M$ (source: IMF)
Official Languages: English, French
Currency: Canadian Dollar (CAD) (CAD =
16
0.756 € )
Area: 9.984.670 km2
TYPE OF SPORTS
BETS / DISTRIBUTION
NETWORK
Sports bets
(Bets on one event are
not allowed in Canada)
Type of
Regulation
Reference Date and
Text
Regulatory
Authority
Monopoly by
Province
On the national level:
Criminal Code
(Section 204: general
principles on sports
bets)
By province
(see chart below)
(Particular case of
Provinces: each
Kahnawake –
province has the
subject to
responsibility of
aboriginal law:
regulating gambling
Licence system)
16
Province
Alberta
Regulator
Alberta Gaming and Liquor
Commission (AGLC)
Sports Bets Operators
§
Western Canadian
Lottery
Corporation
(WCLC)
§
Interprovincial
Lottery Corporation (ILC)
British Colombia
Gaming Policy and
Enforcement Branch
§
Atlantic
Lottery
Corporation (ALC)
§
Interprovincial
Lottery Corporation (ILC)
On 10/01/2013.
89
Prince Edward Island
PEI Lotteries Commission,
under the office of the
Deputy Provincial
Treasurer
Manitoba
Manitoba Gaming Control
Commission (MGCC)
New Brunswick
Gaming Control Branch
(GCB / linked to the
Department of Public
Safety)
Nova Scotia
Alcohol and Gaming
Division (AGD / Linked to
the Department of
Environment and Labour)
Ontario
Alcohol and Gaming
Commission of Ontario
(AGCO / Linked to the
Ministry of Government
Service)
Quebec
Ministry of Finances
Saskatchewan
Saskatchewan Liquor and
Gaming Authority (SLGA)
Newfoundland and
Labrador
§ British Columbia
Lottery Corporation
(BCLC)
§ Interprovincial
Lottery Corporation
(ILC)
§ Western Canadian
Lottery Corporation
(WCLC)
Lottery Corporation
(ILC)
§ Manitoba Lottery
Corporation (MLC):
Distribution of WCLC
games
§ Atlantic Lottery
Corporation (ALC)
Lottery Corporation
(ILC)
Corporation (ALC)
Lottery Corporation
(ILC)
§ Ontario Lottery and
Gaming Corporation
(OLG – Ministry of
Finances)
Lottery Corporation
(ILC)
§ Loto-Québec
(Ministry of Finances)
Lottery Corporation
(ILC)
§ Western Canadian
Lottery
Corporation
(WCLC)
Lottery Corporation
(ILC)
Corporation (ALC)
Lottery Corporation
(ILC)
90
Particular Case of
Kahnawakee
Kahnawake Gaming
Commission
TYPE OF SPORTS
BETS / DISTRIBUTION
NETWORK
Sports Bets physical
(Pari-mutuel and Fixedodds sports bets
Tax Base
Tax Level
All earnings are
paid to the State
60% to 80% of the
GGR go back to the
State
Assessment of
Revenues
State/Industries
55 M€
TYPE OF SPORTS
BETS / DISTRIBUTION
NETWORK
(Pari-mutuel and Fixedodds sports bets)
Operators
§
§
§
§
Assessment of
Sports Bets Revenue
and Market Share
(2011)
Lotteries
controlled
45
M€
(Wagers)
ALC
by the State
53 M€ (Wagers)
BCLC
39 M€ (Wagers)
Loto-Québec
65 M€ (Wagers)
WCLC
Estimation of legal market: Canada
2011
TOTAL wagers
(sports bets)(Revenue)
TOTAL Rate of Return for Bettors
TOTAL sports bets GGR
(legal + illegal)
TOTAL NGR sports bets
Features
Amount
202 M€
60%
81 M€
1,1%
26 M€ (32% of GGR)
5. Miscellaneous
§ To date, Canada does not seem to be truly combating illegal bets. However,
there have been some high impact operations undertaken by the police,
especially in Ontario.
(Canada / 2011 / GGR)
50 to 150 M€
Main Illegal Operators in Canada: Bet365, Bodog, etc.
91
§
§
Given the restrictions that focus on offering legal bets in Canada (operators
under strictly controlled State monopolies, limited rate of return for bettors and
impossibility to bet on a single game), risks of money laundering are very low.
However, Canada seems to have become an important target for illegal betting
operators. Given the non-existence of a fight against illegal bets, the risks of
money laundering seem to be highly significant on the Internet, especially since
Canada could serve as a country used to launder (by the movement of capital
between several countries, which is not easily traceable) dirty money.
The situation in Kahnawake accentuates this phenomenon.
c. Particular Case of Kahnawake
Kahnawake is a Mohawk territory. Kahnawake decreed that in conformity with
aboriginal laws (very old), this province can organise gambling games within its territory.
This territory has put in place regulations that attracted forty online gambling operators
(on 15/01/2013). Most of them are casinos or poker operators but one should also
mention unibet.net, sportsbook.ag, youwin.com, etc. Some sites are imitations of other,
more famous websites.
92
ANNEX 9
COUNTRY: China
Name of the Country: China
Continent: Asia
Republic, single party rule (communist)
Dominant Religions:
no religion, Buddhist practices, few
Catholics / Muslims
Area: 9.597.000 km2
Total Population: 1.344.000.000
GDP 2011: 7.298.000 M$
(source: IMF)
Official Languages: Mandarin Chinese
Currency: Yuan (CNY)
17
(1 CNY = 0,123 € )
TYPE OF SPORTS
BETS /
DISTRIBUTION
NETWORK
(since 2010)
(Hong-Kong and
Macao not included)
Type of
Regulation
Monopoly
(China Sports
Lottery)
Reference Date and
Text
Regulatory
Authority
Criminal Law (1979, Ministry of Finances
amendments in 1987
(Sports Lottery
and 1997) +
Administration Centre
Internet Regulation
+
(2010)
provincial
supervision/State
Council
(authorisation for new
games)
N.B: Gambling games are subject to a general prohibition regime. Only products offered by the
two lotteries are not subject to prohibition. The China Welfare Lottery Issuance Centre does not
offer sports bets, only classic lottery products (draw games and scratching).
Characteristics of the Current Monopoly:
§ Exclusive rights (monopolies) granted to the China Sports Lottery (CSL) for
sports bet;
§ Monopoly operators are directly controlled by the State. Their goal is to
participate to the public interest and particularly finance Sport (CSL was
established to help fund the 11th Asian Games and more recently the Beijing
Olympics;
§ Minors are not allowed to bet (since the new regulation of 2009).
17
On 10/01/2013.
93
TYPE OF SPORTS
BETS / DISTRIBUTION
NETWORK
(Pari-mutuel and Fixedodds sports bets)
Tax Base
Tax Level
Wagers
22% of Wagers
(regulation 2006)
Assessment of
Revenues
State/Industries
Approximately
350 M€
Possible decrease
N.B.: China Sports Lottery should offer a minimum rate of return to bettors equivalent to 65% for
odds bets. In addition, its operating costs should not exceed 13%.
TYPE OF SPORTS
BETS /
DISTRIBUTION
NETWORK
(Pari-mutuel and
Fixed-odds sports bets)
Features
Operators
China Sports
Lottery
State Lottery
Assessment of
Sports Bets
Revenue and
Market Share
(2011)
TOTAL Wagers :
Approx. 1.600 M€
GGR: Approx.
550 M€
Internet Share: low
(Less than 10%)
N.B.: Both Chinese monopolies sometimes cooperated with foreign partners to benefit from their
expertise (French Games, IGT, etc.)
Estimation of legal market: China 2011
TOTAL wagers (sports bets) (Revenue)
(legal + illegal)
Amount
1.600 M€
Approx. 65%
550 M€
8,4%
200 M€ (36% of GGR)
94
5. Miscellaneous
§ Illegal gambling activities in China are subject to severe prosecution
(imprisonment of up to 3 years). In 2004, thousands of people were arrested
and prosecuted for breaching Chinese law (illegal gambling, corruption, various
frauds). Some prison sentences of up to 13 years were particularly severe. In
2005, a record 347,000 arrests or prosecutions and fines against more than
one million people or operators constituted an absolute record in the repression
of illegal gambling ($ 3.6 billion Yuan - about € 44 million - were seized on that
occasion). Note that the rate of return for bettors offered by illegal lotteries
(between 80 and 90%) is much higher than the one offered by State lotteries
(50%). Illegal bets are particularly numerous in the Guangdong Province (close
to Macao and Hong Kong), where 80,000 people participate in the activity
(operating as a sponsorship system, which is a gateway to a syndicate of
bettors who bet by phone - to avoid the police - with their bookmaker and are
paid 2 to 3 days later);
§ Advertising for any form of online gambling is prohibited. Therefore it is
controlled both by the administration in charge of audio-visual content and
police in charge of illegal advertising. Finally, since 2010, measures to prevent
underage gambling, especially on the Internet, have been strengthened;
§ China has set up a procedure for blocking (filtering) illegal online gambling.
Given the fact that these procedures can be circumvented, the State is trying to
acquire a technological edge through a new more efficient system (this software
is installed on all new computers sold);
§ Many payment methods are available allowing the Chinese to play online
(especially because credit cards are rarely used - 30 million, as opposed to
using regional debit cards - 1 billion). Mere payment of an illegal bet in China
can lead to prison sentences of five days (or even 10 to 15 days in the case of
electronic payment) and a fine of 500 Yuan (or 3,000 Yuan) per payment.
N.B.: Certain operators (such as Asian Logic Limited / ALL or Biafeng) offer free online games
from Hong Kong, where you virtual money is used for games. However, it is possible to exchange
e-points against money, which is currently attracting the attention of authorities. The authorities
have also banned the principle in 2009. In 2010, new regulations regarding online gaming
address the issue of virtual currencies and the registration of players under their true identity
(related to an identified bank account).
Illegal market estimation: (China /
2011 / GGR)
Between 300 and 1.300 M€
(of which 100 to 400 M€ Internet)
Main illegal operators in China: SBOBet, 188Bet, IBCBet, Betfair.
§
Money laundering is the subject of specific provisions in the Chinese Criminal
Law (regulation applied since 2007). It is explicitly stated that the recycling of
dirty money through lotteries constitutes a money laundering offence. Similarly,
the payment of earnings gained through illegal websites is punishable under the
offense of money laundering;
95
§ In addition, Chinese citizens have no right to transfer more than 50,000 USD
abroad without reporting it to a bank with an appropriate procedure (with identity
registration). The People's Bank of China is responsible for monitoring financial
flows abroad (companies operating payments abroad - similar to Click2Pay must abide by Chinese regulation procedures against money laundering).
However, many Chinese citizens launder crime proceeds through Macao,
where the rule of 50,000 US $ does not apply, and where gains can be paid in
offshore accounts;
§ China has been a member of FATF since 2007. It created a special unit to fight
money laundering (China Anti-Money Laundering Monitoring and Analysis
Centre [AMLMAC]), linked to the People's Bank of China;
§ A FATF report outlines the efforts made by China to combat money laundering
and illegal gambling, but it also notes that it had helped create a large
underground banking economy. It also notes that lottery operations should also
be subject to the procedures of fighting against money laundering, even though
no cases have been detected so far;
§ In 2007, a study (University of Trier) indicated that the proceeds from criminal
operations in China can be estimated between 30 and 50 billion USD.
HONG-KONG
Hong Kong (like Macau) benefits from a special legal framework and has its own
legislation on gambling. Macau is the land of casinos and Hong Kong is the land
of bets (horse racing first, and sports in recent years).
Main market Indicators:
§ Monopoly operators (physical and internet bets): Hong-Kong Jockey-Club
§ The Hong Kong Jockey Club is a company without shareholders whose profits
go directly to the State and to general interest causes.
§ Sports bets (football) are allowed since 2003.
§ Turnover 2011/2012: HK $ 47,285 million (€ 4.480 million).
§ Rate of return for bettors: 83.3%.
§ GGR: € 746 million.
§ Taxes related to sport for the State and good causes: € 373 million (50% of
GGR).
§ Illegal bets in Hong Kong from 20 to 50% of the total.
§ Share of Hong Kong in the global GGR (legal + illegal): 6.9%.
96
ANNEX 10
COUNTRY: Republic of Cyprus
Republic of Cyprus
Parliamentary Democracy with a
presidential tendency
Continent:
Europe
Dominant Religions:
Greek orthodox (majority 80%), Muslims
for the Turkish (approx. 20% of the
population)
Area: 9.250 km2
GDP 2011: 26000 M$ (estimation)
Official Languages: Greek/Turkish
Currency: Euro
TYPE OF SPORTS
BETS / DISTRIBUTION
NETWORK
(Pari-mutuel and odds
sports bets)
Betting Exchanges
Spread Betting
Type of
Regulation
Licence system
(bookmakers)
Reference Date and
Text
Regulatory
Authority
§ Law
of Ministry of Finances
betting
houses
(statute laws of
National Betting
Cyprus)
Authority
§ + Collective
(since 2013)
Bets (1997/1998)
§ + Betting Act
(07/2012)
Prohibition
Prohibition
-
-
-
-
Features of the types of licences:
§ The new legislation (currently being developed) provides two types of licences:
o Class A: physical network.
o Class B: Internet (no licences issued to date).
§ The company applying for a licence must have a physical presence in Cyprus,
a minima through a subsidiary. The share capital of companies (through
shares) should amount to € 500,000 at least; the company must also submit a
bank guarantee of € 550,000.
§ The licence, issued by the "National Betting Authority", is valid for a period of
one or two years. The cost is € 3,000 for a one-year licence and € 5,500 for a
two-year licence.
97
TYPE OF SPORTS
BETS /
DISTRIBUTION
NETWORK
sports bets)
Tax Base
Tax Level
Assessment of
Revenues State /
Industries
GGR
13% of GGR
(since 2012)
(project of tax on
earnings up to 20%)
7 to 10 M€ in 2013
(estimation)
Operators
Features
TYPE OF SPORTS
BETS /
DISTRIBUTION
NETWORK
sports bets)
OPAP
(in collaboration
with the Cyprus
Lottery)
Assessment of
Sports Bets
Revenue and
Market Share (2011)
Cyprus Subsidiary of
135 M€ (68%)
the private Greek
(No Internet)
operator under State
monopoly
Bookmakers
(approx. 70
identified, including
Eurogoal and
StanleyBet)
Estimation of legal market:
Cyprus 2011
TOTAL sports bets wagers (Revenue)
- including Wagers on pari-mutuel bets
(revenue)
- including Wagers on fixed odds bets
(revenue)
- including the rate of return on parimutuel bets
- including the rate of return on fixed odds
bets
- of which GGR Pari-Mutuel bets
(revenue)
- of which GGR fixed odds bets (revenue)
Share of the country in the global
market (legal + illegal)
TOTAL NGR for sports bets
65 M€ (32%)
No Internet)
Amount
200 M€
75 M€
125 M€
75%
70%
76%
50 M€
20 M€
30 M€
0,4%
Approx. 44 M€ (87% of GGR)
98
5. Miscellaneous
§ With the law coming into force in 2012, the fight against illegal gambling has
now been severely toughened (up to 5 years in prison and a fine of € 300,000).
§ It is also prohibited to advertise for illegal operators (punishable with up to one
year in prison and a € 50,000 fine).
Estimation of illegal market (GGR):
10 to 30 M€ (Internet)
In Cyprus, there is a law on money laundering and a surveillance authority: the
Central Bank of Cyprus, Insurance Control Service and Securities and Exchange.
Certain provisions of the law relate to gambling (verifying the identity of shareholders
and consumers, recording information about consumers for a minimum of 5 years,
trainings on the subject of money laundering, etc.).
99
ANNEX 11
COUNTRY: South Korea
South Korea
Political Organisation: Constitutional
Republic (parliamentary regime with a
presidential tendency)
Continent: Asia
Dominant Religions: Christians (26 % Majority of protestants) – Buddhism
(23 %)
Area: 99.300 km2
GDP 2011: 1.120.000 M$ (source: IMF)
Official Language: Korean
Currency: Won (KRW)
(1 KRW = 0,00068 €)
18
TYPE OF SPORTS Type of Regulation Reference Date and
Regulatory
BETS /
Text
Authority
DISTRIBUTION
NETWORK
Sports Bets, Physical
Monopoly
Criminal Act (General Ministry of Culture,
Network
prohibition regime) Sports and Tourism
(Only products offered
Korea Sports
(With the Foundation
by the operator under a
Promotion Act
for the promotion of
monopolistic scheme:
Korean Sports)
in 2012, pari-mutuel
and fixed-odds bets)
Internet Sports Bets
Prohibition
Criminal Act (General
(SportsToto not
prohibition regime)
included)
§ Exclusive right (monopoly) granted to Sports Toto for sports bets. Sports Toto
operates on pari-mutuel bets (football, basketball, baseball, golf) and fixed-odds
bets. Locally, the Foundation for the promotion of sports also manages bets on
cycling and boating.
§ The monopolistic operator is subject to strict monitoring by the public
authorities.
§ The purpose of the regulation is to protect consumers by limiting the risks to
public and social order.
§ Minors (under the age of 19) are not allowed to gamble.
18
On 31/01/2013.
100
TYPE OF SPORTS
Tax Base
Tax Level
Assessment of
BETS /
Revenues State /
DISTRIBUTION
Industries
NETWORK
Sports Bets physical All profits made by Approx. 400 M€ in
Approx. 400 M€ in
network
Sports Toto go to
2011
2011
(Pari-mutuel and fixedthe State
(approx. 2/3 of GGR) (approx. 2/3 of GGR)
odds sports bets)
TYPE OF SPORTS
BETS / DISTRIBUTION
NETWORK
Operators
Features
Sports Bets
sports bets)
Sports Toto
Lottery company
controlled by the
State
19
South Korea 2012
TOTAL sports betting wagers
(Revenue)
§ part of Wagers on Parimutuel bets (revenue)
§ part of Wagers on fixed odds
bets (revenue)
TOTAL
(Rate of Return for Bettors)
§ part of rate of return on Parimutuel bets
§ part of rate of return on fixedodds bets
§ part of GGR Pari-Mutuel bets
(revenues)
§ part of GGR fixed odds bets
(revenue)
(legal + illegal)
19
Assessment of
Sports Bets
Revenue and
Market Share (2011)
TOTAL Revenue:
Approx. 1.600 M€
Amount
2.031 M€
484 M€
1.567 M€
57%
50%
60%
873 M€
242 M€
631 M€
8,8%
Approx. 250 M€ (29% du PBJ)
Source: Korean Lottery (Sportstoto).
101
5. Miscellaneous
§ Fighting against illegal sites (a 2001 order allows filtering illegal content,
particularly concerning gambling). The "information and communication" ethics
committee has the power to block illegal sites (nearly 300 sites were blocked in
2007 upon the request of the National Police Agency).
Estimation of illegal market: (South Korea/2011/GGR)
highest rank in internet access in the world / 35% of the
population plays online)
Between 400 and
700 M€
Main illegal operators in South Korea: SBOBet, IBCBet, 188Bet, Bet365.
§ Money laundering is the subject of specific provisions in the Korean Criminal
Code. Concerning gambling, casinos should perform certain verification
procedures (the report also highlights the need to do the same for horse
racing).
§ South Korea is a member of FATF. The 2009 FATF report indicates that the
country does not have organised crime unions but rather families that operate
primarily in online games, usurious loan, extortion and prostitution (the report
cites a case where individuals who had created an illegal gambling site then
stole identities to launder dirty money were sentenced to one year of prison).
Sums confiscated because of illegal gambling are by far the most numerous in
volume, quantity and value, far ahead of corruption and sex trafficking.
§ The regulatory authority is KoFIU "Korean Financial Intelligence Unit".
c. Marketing Data
§ 35 % of the population uses Gambling websites.
102
ANNEX 12
COUNTRY: Costa Rica
Costa Rica
Continent: America
Dominant Religions:
Catholics (75%),
Evangelical Christians (10%)
Area: 51.100 km2
GDP 2011: 40.000 M$
20
Official Languages: Spanish
Currency: Colon (CRC)
= 0,00147€)
(1 CRC
BETS /
Text
DISTRIBUTION
NETWORK
Sports Bets
Monopoly
Reglemento de la Ley
(Physical Network and (La Junta Lottery)
de Juegos (1974)
Internet)
Not exploited to
Law 9050/2012
date
(casino + online
(1/1/2013)
gambling)
Regulatory
Authority
Government
(Ministry of Public
Security)
N.B.: (1) Costa Rica was classified as a "non-cooperative tax haven" by the OECD in 2009. This
classification pushed Costa Rica to pass a law in 2012: the "Casino and Betting Call Centres for
Electronic Tax Law";
(2) Beyond casinos and lottery games (managed by the Junta de Protección Social, which is not
part of the WLA, the World Lottery Association); offering gambling activities to the citizens of
Costa Rica remains prohibited. Online Operators that have their servers based in Costa Rica are
therefore not considered as Costa Rican operators.
Gambling (including sports betting activities) operators with servers in Costa Rica:
o Internet gambling is prohibited (except for lotteries) but operators are
allowed to install their servers in Costa Rica. Online games therefore
constitute a "tolerated" activity in Costa Rica as long as the operator
blocks all access to its site to the citizens of Costa Rica (IP blocking
required) and opens an "offshore" bank account for transactions related
to gambling.
20
On 31/01/2013.
103
Annual Cost of Tax
related to servers /
call centres based
in Costa Rica
(since 2012)
Annual Cost:
N/A
< 50 employees
Between 51 and 99
employees
More than 100
employees
Approx.
41.000 US $
Approx.
61.500US $
Approx.
82.000US $
TYPE OF SPORTS
Tax Base
Tax Level
BETS/
DISTRIBUTION
NETWORK
Sports Bets
Lottery profits paid to Approx. 25% of GGR
(Physical Network
the State
for lottery games
and Internet)
Assessment of
Revenues
State / Industries
0 in 2012
(no sports betting
operations to date)
Market Estimation: Costa Rica
0
In 2013, sports bets could be offered by "La Junta" following the agreement
concluded between the lottery and Gtech Boldt (Lottomatica Group) for online games.
For several years, the lottery tried, unsuccessfully, to offer sports bets (technical and
organisational difficulties, relations with local football, etc.).
5. Miscellaneous
a. Combating Illegal Betting: non-existent to date
Estimation of illegal market: (in revenues)
100% online
1 M€
b. Number of "Call Centres" Associated with Online Gambling
There are no official statistics. According to various sources, the number of
operators who installed their game servers in Costa Rica is estimated between 250 and
500 including 5Dimes (very famous), BetAnySports, Betmania, BetUS, ChineseBookie,
CRIS, DiamondSports, JustBet, Sportbet, VietBet, WagerBet, YouWager.
§ Combating money laundering appears to be a major problem in Costa Rica,
whose legislation remains below international standards.
104
§ In terms of gambling, Costa Rica has been criticised particularly when some
betting operators who offered their products in the USA were arrested
(BetonSport Sportingbet PLC) and accused of violating American law. It should
be noted that Costa Rica, unlike its neighbour Antigua and Barbuda, is not on
the "white list" of the UK.
§ There is now an intelligence agency responsible for the fight against money
laundering (FIA: Financial Intelligence Unit), but the gambling industry is not
subject to its rules.
§ A FATF report highlights the current weaknesses of Costa Rica on the risks of
gambling. It recommends that betting operators report all transactions
exceeding 3,000 USD, and they identify their shareholders to make sure that
they are not related to criminal activity.
105
ANNEX 13
COUNTRY: Denmark
Name of the Country: Denmark
(Kingdom of Denmark)
Constitutional Monarchy. Parliamentary
Democracy
Continent: Europe
Dominant Religions:
Lutherans (84%), Catholics, Jehovah's
Witnesses, Muslims.
Area: 43.098 km2
GDP 2011: 349.121 M$ (source: IMF)
GDP per capita 2011: 59.709 $
Official Language: Danish
Currency: Danish Krone (DKK)
(1 DKK = 0,13 €)
TYPE OF SPORTS
Type of
Reference Date and
Regulatory
BETS /
Regulation
Text
Authority
DISTRIBUTION
NETWORK
Sports Bets Physical Licences System Act on Gaming 2012 Spillemyndigheden
Network
and Pool Betting
(Danish Gambling
(Pari-Mutuel and fixedAct 1948
Authority)
odds bets)
(consolidated in
2008)
Sports Bets Internet
Licence System Act on Gaming 2012 Spillemyndigheden
(Pari-Mutuel and odds,
(Danish Gambling
Live betting and Betting
Authority)
Exchange)
Characteristics of the types of online licences
§ No numerus clausus;
§ Cost of licences: 250,000 DKK (€ 33,000 approx.). With a share paid annually
and determined according to GGR, between 50,000 DKK and 1,500,000 DKK
(€ 200,000);
§ Validity: 5 years;
§ Technical Standards (defined in an annex to the Act on Gaming);
§ Licence holders are natural persons or legal entities. They are distinguished by
a label, allowing the player to identify legal operators. In 2012, 12 illegal
operators were blocked, including an operator offering sports bet (bet-athome.com);
106
§ Hiring a manager for a bets point of sale must be approved by the regulatory
authority before final hiring when this potential manager does not hold a licence;
§ Online players must register and provide personal information to be verified by
the operators.
§ Information is retained 5 years after the closure of the account;
§ Individuals under the age of 18 are not allowed to gamble;
§ Measures for fighting against addiction (including the possibility of selfexclusion = ROFUS Programme: Register of Voluntarily Excluded Players);
§ Regulatory authority has the power to block illegal operators and payments;
§ Control of advertising for licenced operators;
§ Non-licenced operators are not allowed to advertise, while sponsorship by
unlicensed operators is strictly regulated by the Act on Gaming.
TYPE OF SPORTS
BETS /
DISTRIBUTION
NETWORK
Sports Bets
Physical Network and
Internet
(Pari-Mutuel and odds
bets and Betting
Exchange)
Tax Base
Tax Level
Assessment of
Revenues State /
Industries
Gross gaming
revenue (GGR)
20% of GGR
State:
219 M DKK
(29 M€)
Features
Assessment of
Sports Bets
Revenue and Market
Share (2012)
TYPE OF SPORTS
BETS /
DISTRIBUTION
NETWORK
Sports Bets
§
Internet
§
§
§
§
§
§
§
§
§
§
§
§
§
§
Operators
Danske
Spil State operators and TOTAL REVENUE:
(State)
private bets operators
7 300 M DKK
Betfair
(bookmakers)
(980 M€)
Betsson
Bonnies Gaming
Leader:
Bwin
Danske Spil
Bet365
(more than 80% of
Sportingbet
market)
Ladbrokes
Mermaidbet
4 operators have
Nordicbet
revenues of more
Stanleybet
than 25 M€
Tipico
Tonybet
Unibet
Fertet
(limited
licence)
107
Estimation of market 2012
TOTAL wagers, sports bets (Revenue)
(legal + illegal)
Amount
7.300 M DKK (980 M€)
85%
1.095 M DKK (147 M€)
0,9%
876 M DKK (118 M€) (80% of GGR)
5. Miscellaneous
§ Blocking illegal operators;
§ Organising illegal bets is criminally punishable by a fine and/or imprisonment of
up to six months.
(Denmark / 2011/ GGR)
5 M€ (100% on the Internet)
b. Number of Licences issued until March 31 2012
§ General licences for all games (5 years): 55 issued to 33 operators;
§ Sports betting licences: 19, including 3 limited licences (1 year).
§ No supervision or notification procedure is provided for.
108
ANNEX 14
COUNTRY: Spain
Name of the Country: Spain
Continent: Europe
Constitutional Monarchy with a
parliamentary democracy system
Political Organisation: 46 754 000
Dominant Religions:
Catholics
GDP 2011: 1 536 500 M$ (source: IMF)
Official Language: Castilian
Currency: Euro (EUR)
Area: 505.900 km2
Regulatory
BETS /
Text
Authority
DISTRIBUTION
NETWORK
Sports Bets Physical National monopoly
LAE:
LAE:
Network
(LAE) + local
Royal Decrees
Ministry of Economy
(Pari-mutuel bets)
licences
13/2010, 352/2011
and Finances
(autonomous
and law n°26/2009)
21
communities )
Local licences
Law of autonomous
Autonomous
Network
(Autonomous
communities
communities (regions)
(Pari-mutuel and fixedcommunities)
Ex: Madrid (most Ex: Madrid: Direccion
odds bets)
advanced legislation): General de Tributos y
law 6/2001 Decree Ordenacion y Gestion
106/2006 (Bets)
del Juego
Online sports bets Licence system with
Law 13/2011
Comision Nacional de
(Pari-mutuel and fixedno limitation in
(online games)
Juego
odds bets, Live betting
number
(Ministry of Interior)
and Betting Exchange)
(licence on
Currently:
31/12/2012)
Ordenacion des
Juego
21
In 2006 Spain transferred an important part of its power of regulation on gambling to the 17 autonomous
communities. Some of those communities included gambling in their statutes (Andalusia, Catalonia, Galicia,
Madrid, Basque Country) others did not.
109
Region of Madrid
§ Since 2006, Madrid was the first region to allow sports bets (exclusively within
the region). Its rules were copied by other regions later on.
Characteristics of the Law on Online Games
§ The law on online games is valid throughout the Spanish territory. However,
a law passed by an autonomous community concerning the Internet is still valid,
as long as the game offer is restricted only to the citizens of that community;
§ Games authorised by Law No. 13/2011 are: lotteries (only LAE and ONCE),
bets (Pari-Mutuel and fixed-odds bets, Betting Exchanges), various casino
games (including poker, roulette and bingo), social games, etc.;
§ Each type of game requires a licence and a different type of guarantee
(for fixed-odds bets, the operator must submit a bank guarantee of 6.5% of the
GGR of the previous year; for pari-mutuel bets, it amounts to 1.5% of GGR;
§ For fixed-odds bets, live betting is allowed. However, once the event has
begun, the bettor cannot deposit money on his account and bet on the event;
§ Online licences are generally valid for 10 years (5 years for pari-mutuel bets);
§ Advertising for Internet games is prohibited if the operator does not have a
licence in Spain;
§ An operator with a national licence for online gambling can have points of sale
provided he holds an express authorisation from concerned autonomous
communities;
§ Licences issued in other EEA countries are not valid in Spain;
§ Technically, operators must register all gambling operations on a central server.
Servers do not have to be based in Spain but the regulator must be able to
access the data at any time;
§ In addition to game-related tax, the cost of a licence is € 10,000;
§ Approved operators are required to operate on a ".es” Internet site;
§ Advertising is regulated especially to prevent underage gambling.
TYPE OF SPORTS
BETS /
DISTRIBUTION
NETWORK
At the national level:
Sports Bets
Internet
(Pari-Mutuel bets)
Internet Sports Bets
(Fixed-odds bets and
Betting Exchanges)
Tax Base
Tax Level
Assessment of
Revenues State /
Industries
Wagers
22%
99 M€
GGR
25%
20 M€
110
At the regional level:
Sports Bets
Internet
Madrid: GGR
10%
9 M€
TYPE OF SPORTS
BETS /
DISTRIBUTION
NETWORK
Operators
Features
Assessment of
Sports Bets
Revenue and
Market Share (2011)
Sports Bets
Internet
(Pari-Mutuel bets)
Online Sports Bets
(Fixed-odds bets and
Betting Exchanges)
LAE
State
Wagers 2011:
391 M€
(GGR: 169 M€)
At the regional level:
Sports Bets
Internet
List of licenced
Private Operators
operators is in
Annex 1
(it is still too early
to display market
shares)
Ex. of Madrid:
Private Companies
§ Sportium
(Cirsa/Ladb
rokes)
§ Victoria
(Codere)
§ Intralot
iberia
§ W1nners
§ Betplus
Estimation of legal market: Spain 2011
Wagers, Pari-Mutuels sports bets – National
Wagers, Internet sports bets – National
(current legislation)
Sports bets wagers – Regional communities
TOTAL of sports bets wagers (Revenue)
Rate of return for bettors, Pari-mutuel
sports bets – National
Rate of return for bettors, internet sports bets –
National (current legislation)
Rate of Return for Bettors – Regional
communities
GGR Pari-Mutuel bets - National
Opening of the
market in June 2012
(June to December
2012:
GGR sports bets =
43,5 M€)
Madrid:
Wagers 2011 =
150 M€
Other Regions:
Wagers 2011:
350 M€
Amount
391 M€
800 M€
500 M€
1.691 M€
57%
90%
82%
80%
169 M€
111
GGR Online Pari-Mutuel bets – National
GGR Sports bets – Regional Communities
TOTAL GGR Sports bets (Gross gaming revenue)
(legal + illegal)
NGR Pari-Mutuel bets - National
NGR internet sports bets – National
NGR sports bets – Regional communities
TOTAL NGR sports bets (Net Gaming Revenue)
80 M€
90 M€
339 M€
2,2%
70 M€
60 M€
81 M€
211 M€ (62% of GGR)
5. Miscellaneous
§ The law on online gambling provides that the regulator may require from ISPs
to block illegal sites;
§ An earlier law (LISI / 2007) indicates that it is also possible to block payments
related to illegal operators.
Estimation of illegal market: (Spain/2011/ GGR)
(Market currently in legislation in 2011)
10 M€
Main illegal operators in Spain: Bet365, Betsson, etc.
§ Spain is a member of the FATF. Money laundering is managed by a regulatory
authority: Comision de Prevencion de Blanqueo Dinero e Infracciones
Monetarias (established under an Law of 1993);
§ Following an order of the Court of Justice (ECJ), Spain has introduced new
legislation on money laundering (Law No. 10/2010);
§ Obtaining an online gaming licence is subject to the establishment of
procedures to fight money laundering;
§ Operators of online gambling are required to identify their customers and to
declare any suspicions if necessary.
112
ANNEX 14 - BIS
List of Operators with a sports betting licence
22
(28 on 15/01/2013 ):
§ 888 Spain, PLC
§ Apuesta Ganador Online, SA
§ Banegras Unión, SA
§ Betfair International, PLC
§ Cirsa Digital, SAU
§ Codere Online, SAU
§ Comar Inversiones, SA
§ Desarrollo Online Juegos Regulados, SA
§ Electraworks, PLC
§ Esgaming, SAU
§ Eurojuego Star, SA
§ Formulas y Soluciones, SA
§ G2 Gaming Spain, SA
§ Golden Park Games, SA
§ Hillside Spain New Media, PLC
§ Interwetten España, PLC
§ Juego Online, EAD
§ Kambi Spain, PLC
§ Luckia, SA
§ Ladbrokes International, PLC
§ Paf-Consulting, ABP
§ Première Megaplex, SA
§ Sociedad Estatal Loterías, (Selae)
§ Spread Your Wings, PLC
§ Suertia Interactiva, SA
§ Tele Apostuak, SA
§ Unidad Editorial Juegos, SA
§ Whg Spain, PLC
22
On all games, 53 companies have a licence in Spain. 27 of which are located in Spain.
113
ANNEX 15
COUNTRY: Finland
Name of the Country: Finland
Parliamentary Republic
(with an unicameral parliamentary
system)
GDP 2011: 270 600 M$ (source: IMF)
Official Language: Finnish
Continent: Europe
Dominant Religions:
Christians – Lutheran Protestant Church
(85% of the population)
Area: 338.145 km2
Currency: Euro
BETS /
Text
DISTRIBUTION
NETWORK
Monopoly
Lotteries Act 2001
Network and Internet (Internet also) since
(Last major
(only products offered
2012
amendment - First
by the operator with the
January 2012)
monopoly: in 2012,
pari-mutuel and fixedodds bets)
Regulatory
Authority
Government
(Finnish Ministry of
Interior)
§ The reform of the "Lotteries Act" came into force on 1 January 2012. It gave an
exclusive right (legal monopoly) for an unlimited time, to Veikkaus for sports
bets in the physical network, online games and lottery (N.B.: Slot machines and
online poker are operated exclusively by RAY, and pari-mutuel horserace bets
are operated by FINTOTO);
§ Veikkaus is a limited company wholly owned by the Finnish state;
§ The purpose of the regulation is to protect consumers by limiting social and
public risks as well as preventing criminal activity in connection with the games;
§ The Ministry of Education and Culture is in charge of allocating the funds
generated by the games of Veikkaus to social actions for the development of
arts, sports, science and social and educational activities;
§ Individuals under 18 years of age are not allowed to bet since 2010;
§ Players are required to have a loyalty card (Veikkaus card) with a registration
procedure that allows playing online or at points of sale (related objective:
minimise the risk of gambling addiction).
114
TYPE OF SPORTS
Tax Base
BETS /
DISTRIBUTION
NETWORK
Sports Bets
All profits generated
by Veikkaus are
Internet
paid to the State
(Pari-mutuel and fixedodds bets)
Tax Level
Assessment of
Revenues State /
Industries
470 M€ in 2011
(i.e. 57% of GGR)
470 M€ in 2011
(i.e. 57% of GGR)
Bets: approx. 50 M€
TYPE OF SPORTS
BETS /
DISTRIBUTION
NETWORK
Sports Bets
online
Operator(s)
Veikkaus
Features
Assessment of
Sports Bets
Revenue and Market
Share (2011)
Lottery
TOTAL REVENUE:
Company controlled
346,6 M€
by the State
§
including Parimutuel
bets: 177,6 M€
§
including
fixed-odds
bets: 169 M€
Internet share: 52%
(182 M€)
Estimation of legal market: Finland 2011
Wagers, sports bets, Pari-mutuel (Revenue)
Wagers, sports bets, fixed-odds bets (Revenue)
GGR sports bets, Pari-mutuel
GGR sports bets, Fixed-odds bets
Online sports bets GGR
(legal + illegal)
TOTAL NGR sports bets (Net Gaming Revenue)
Amount
226 M€
169 M€
395 M€
77,8%
68 M€
20 M€
39 M€
88 M€
0,6%
38 M€ (43% of GGR)
115
5. Miscellaneous
The legislation on games and bets, issued from the Lotteries Act of 2001, was
the subject to a major reform resulting from a dispute initiated in 2005 before the
Supreme Administrative Court (KHO) by Ladbrokes operator for a refusal of licence
from the Ministry of the Interior. The reform, which began in 2007, culminated in March
2011 and came into force in January 2012.
§ The law does not cover blocking illegal sites;
§ Since 2010, direct and indirect advertising (without logo) proposed by illegal
sites in Finland (Metropoli, a free magazine was sued in 2009) are banned
which makes it difficult to implement illegal operators (Ladbrokes closed its
website in the Finnish language);
§ Monitoring betting operations is entrusted to the National Police;
§ Establishment of electronic surveillance systems by betting operations;
§ Following the reform of January First 2012, an advisory committee was created
for bets and games;
§ Organising illegal gambling or manipulating a bet is criminally punishable by a
fine and imprisonment of up to two years;
§ Actions were taken against illegal gambling sites (especially in 2008) and their
operators were prosecuted;
§ To date, blocking payments is not considered.
Estimation of illegal market: (Finland/2012/GGR)
Estimation: 10 M€
(100% on the Internet)
Main illegal operators in Finland: Unibet
§ Finland is a member of the Financial Action Task Force (FATF);
§ Money laundering is the subject of specific provisions in a directive on the
prevention and fight against money laundering ("Act on Preventing and Clearing
money laundering"), which combine with the penalties implemented in the
Finnish Criminal Law;
§ The supervisory authority is MLCH "Money Laundering Clearing House",
located within the National Bureau of Investigation;
§ Operators must report to the National Bureau of Investigation any suspicious
transactions that point towards money laundering activities and, if necessary,
suspend the transaction.
c. Marketing Data
§ 3300 points of sale in 2011;
§ 1,368 M registered players, including 1,278 holders of Veikkaus Card.
116
ANNEX 16
COUNTRY: France
Name of the Country: France
Continent: Europe
Constitutional republic
(Parliamentary system with a presidential
tendency
Dominant Religions:
Catholics
(more than 50% of the population)
Area: 632.000 km2 (all departments)
GDP 2011: 2.800.000 M$ (source: IMF)
Official language: French
Currency: Euro
Regulatory
BETS /
Text
Authority
DISTRIBUTION
NETWORK
Monopoly
29 December 1984
Government
Network
(law °84-1208)
(Pari-mutuel and fixedodds sports bets)
Online sports bets
Licence system
May 12 2012
ARJEL
(Pari-mutuel and fixed- without limitation in (Law No. 2010 – 476) (Regulatory authority
odds bets, including
number)
for online games)
live betting)
(9 licences on
31/01/2013)
Betting Exchanges
Prohibition
Spread Betting
Prohibition
-
-
Features of the types of licences:
§ Licences are issued for a period of 5 years (renewable). Cost of a licence for
sports bets: € 5,000;
§ Headquarters not necessarily located in France (excluding "tax havens");
§ The person in charge of licenced operators must have an address in France;
§ (.fr) server must be located in France;
§ Software monitored and audited in France;
§ Strict procedure for registering players by operators (check name, age - 18
years or more, address, bank details);
117
§ Only one bank account per player to collect his winnings;
§ ARJEL registers and archives all transactions related to bets;
§ Minors are banned from betting, it is also not allowed to target minors through
advertising.
TYPE OF SPORTS
Tax Base
Tax Level
BETS /
DISTRIBUTION
NETWORK
Sports Bets physical Revenues (wagers) 7,5% of wagers: State
network
1,8% of wagers: Sport
(Pari-mutuel and fixed(CNDS)
odds sports bets)
Total: 9,3% of wagers
Online sports bets
Revenues (wagers) 7,5% of wagers: State
(Pari-mutuel and fixed1,8% of wagers: Sport
(CNDS)
Live betting)
Total: 9,3% of wagers
Assessment of
Revenues State /
Industries
State: 103 M€
Sport: 25 M€
State: 53 M€
Sport: 12,7 M€
TYPE OF SPORTS
Operators
BETS /
DISTRIBUTION
NETWORK
Française des
Network
Jeux
(Pari-Mutuel and fixedodds bets)
Online sports bets
§ Betclic
(Pari-mutuel and fixed- § PMU
Live Betting)
§ Bwin
Features
Assessment of
Sports Bets
Revenue and
Market Share (2011)
Lottery
TOTAL offline
Semi-public company
REVENUE:
(State 72%)
1.370 M€ (100%)
Private
EIG (Economic
Interest Group)
Private racing
company
des Public (State: 72%)
§ Française
Jeux
§ Unibet/Eurosport
bet
§ Others (France
Pari,
Netbet,
betkup, FranceParis-sportifs,
Chilipari, Joa On
Line)
260 M€ (37%)
169 M€ (24%)
155 M€ (22%)
70 M€ (10%)
Private
42 M€ (6%)
Private
9 M€ (1%)
TOTAL online
REVENUE:
705 M€ (100%)
118
Estimation of legal market: France 2012
Offline wagers, sports bets (revenue)
Online wagers, sports bets (revenue)
TOTAL wagers, sports bets (revenue)
Rate of return of offline sports bets
Rate of return of online sports bets
GGR offline sports bets
GGR online sports bets
(legal + illegal)
NGR offline sports bets
NGR online sports bets
Amount
1.370 M€
705 M€
2.075 M€
76%
81%
78,5%
330 M€
115 M€
445 M€
2,9%
202 M€ (61% of GGR)
49 M€ (43% of GGR)
251 M€ (56% of GGR)
5. Miscellaneous
a. The “Right to Consent to Bets”
§ Recognition of the right to operate for organisers of French sports events
applied to the organisation of bets on these competitions (Code of Sports);
§ Marketing of this right of exploitation (not exclusively) by the organisers of
sporting events to all the operators licensed by ARJEL;
§ Goal of legislator: to allow sports organisers to establish contractual
relationships (with funding) with licensed betting operators to be able to
preserve the integrity of their events (especially through an exchange of
information with the operators);
§ The amount of the “right to consent to bets”: approximately (because the
amount is determined by each organiser) 1% of wagers (revenue).
2012, amount estimated to: € 4.5 million.
b. Combating Illegal Betting
§ Possibility of blocking access to illegal sites upon request from ARJEL through
ISP (who should take all necessary measures);
§ Criminal penalties against illegal operators (up to 3 years in prison and a
€ 90,000 fine, 7 years and € 300,000 if the offense is committed by an
organised group);
§ Illegal Advertising liable to fines (from 100,000 to 400,000 €).
Illegal market estimation:
(France/2012 GGR)
119
§ Duty of care imposed on betting operators, it is also required of them to declare
any anomalies or suspect activities (declaration of suspicion) to Tracfin:
§ Keeping a record for significant earnings.
d. Pending Legal Matters
§ Stanleybet believes that restrictions on the offline French betting market are not
justified.
e. Sports Serving as a Basis for Bets (Online sales figures)
Marketing Data (online sales):
§ Approximately 100.000 active player accounts per week;
§ Approximately 400.000 active player accounts per week;
§ Approximately 1% of accounts place 40% of wagers;
§ Approximately 10% of accounts place 79% of wagers.
120
ANNEX 17
COUNTRY: Isle of Man
Name of the Country: Isle of Man
Continent: Europe
democracy a dependency of the British
Crown
Dominant Religions:
Church of England, Catholics
GDP 2011: 2.800 M$ (estimation)
Official Language: English/Manx
Currency: Manx pound (GBP)
Area: 572 km2
(1 GBP = 1,16€)
23
BETS /
Text
DISTRIBUTION
NETWORK
Licence System
Gambling, Betting
Network
(bookmakers)
and Lotteries Act
(Pari-mutuel and fixed(1988)
odds sports bets)
Online sports bets
Licence System
Online Gambling
(all bets except spread
Regulation Act
betting)
(OGRA - 2001)
Spread Betting
Regulation of
financial markets
Texts: Financial
Supervision
Commission
Regulatory
Authority
Isle of Man Gambling
Supervision
Commission (GSC)
Isle of Man Gambling
Supervision
Commission (GSC)
Financial Supervision
Commission
§ The Isle of Man is on the "white list" of the United Kingdom (therefore operators
with licences on the Isle of Man can advertise in the UK);
§ The company applying for a licence must have a significant presence in the Isle
of Man (A physical presence of at least two directors on the island. It should
appoint a resident of the island as an official correspondent with the regulatory
authority. The servers used for betting transactions should be on the Isle of Man
and the bank accounts related to betting transactions should be located in a
local bank);
23
On 31/01/2013.
121
§ The licence issued under the rules of OGRA for a period of five years includes
all types of games: Bets, Betting Exchanges, casinos, poker, etc.;
§ Operators (even those not located on the Isle of Man) working exclusively with
an OGRA licensee (a B2B licensee or a poker network for instance) are
required to hold a sub-licence. The annual price of a sub-licence is 5.000 £;
§ The gambling operators holding a licence on the Isle of Man cannot offer their
services to minors under 18 years of age (with a mandatory mention on the
website);
§ A process of registration of players is available through OGRA without any
particular constraint;
§ To date, the regulatory authority has signed two cooperation agreements with
Denmark and Malta (with the goal of exchanging information);
§ The cost of licences is as follows:
o Licence application: £ 5,000.
o Online licence (all games): £ 35,000.
o Online network licence (all games): £ 50,000.
TYPE OF SPORTS
BETS /
DISTRIBUTION
NETWORK
Pari-mutuel sports bets
exploited on the Isle of
Man
(offline + online)
Other sports bets
(offline + online)
Tax Base
Tax Level
Assessment of
Revenues State /
Industries
GGR
15% of GGR
Non-Significant
GGR
GGR < 20 M £: 1,5%
of GGR
20 M £ < GGR < 40
M £: 0,5%
GGR > 40 M £: 0,1%
Approx. 1,7 M£
(source GSC)
Assessment of
Sports Bets
Revenue and
Market Share
(2010/11)
A total of 9 sales
points (including 5
for Jennings) and a
GGR of less than 2
M£
Non-significant
local activity
TYPE OF
SPORTS BETS /
DISTRIBUTION
NETWORK
Operators
Features
Sports Bets
Physical Network
(Pari-mutuel and
fixed-odds bets)
§ Joe Jenning (IOM)
Ltd
§ Willstan (IOC) Ltd
§ Bet a Bet Ltd
William Hill, online
+ offline
bookmaker
(Termination of
activity?)
Online sports bets
(all bets except
spread betting)
See list in Annex
122
Market estimation (GGR): Isle of Man
A total 2,3 M€
5. Miscellaneous
§ No specific legislation on ISP blocking or payment of earnings to date.
0
b. Number of online licences in the Isle of Man on 1 January 2013: 46 (see. Annex)
§ Some risks identified and linked to money laundering should be subject to
internal monitoring and audit procedures by the operators;
§ The identity of a player must be verified before payment of earnings of more
than 3,000 € (anonymity is not allowed);
§ The Isle of Man is not a member of the FATF;
§ The number of reports of suspicious transactions regarding online gambling
sites increased sharply between 2006 and 2008 (less than 10 per year until
2007, 47 in 2007/2008 – according to an IMF report);
§ After the US lawsuit against PokerStars (for money laundering, but also for
bank fraud and illegal gambling), the Isle of man regulatory authority considered
that the Company did not violate the local rules and did not withdraw its licence.
After the acquisition of Full Tilt Poker by PokerStars, PokerStars agreed to pay
a fine in order for the USA to drop the money laundering charges against Full
Tilt Poker.
123
ANNEX 17 - BIS
46 online licences Isle of man (on 1/1/2013)
Annexio Limited
Asian BGE (Isle of Man) Limited
BlackBird Gaming Limited
Bonobo Plc
Boylesports (IOM) Ltd
Cash Ball Ltd
Camasino Limited
Celton Manx Ltd
Cladstone Limited
Cozy Games Management Limited
Cube Ltd
Edict Egaming IOM Limited
Goaldash Limited
Golden Boys Bet Limited
HoGaming Limited
Keen Ocean Entertainment (IOM)
Limited
Knockout Gaming Limited
Locus Gaming Isle of Man Limited
Mahjong Logic Limited
Mandalay Gaming Holdings Limited
Market Bet Global Limited
Marketstheworld Limited
Novigroup Limited
NYX Interactive Network IOM Ltd
Oneworks Network Limited
Pacific Sea Invests SA (Europe)
Limited
Paddy Power Holdings Limited
Pariplay Limited
Pearl Aces Limited
Phumelela Gold International
Limited
Premier Gateway International
Limited
Quinella Games Limited
Rational Entertainment Enterprises
Ltd
Rational FT Enterprises Limited
Regent Markets (IOM) Ltd
SpaceMiles IOM Ltd
Sun.Gaming IOM Limited
www.bigfatlottos.com
www.sbobet.com
www.casino.sbobet.com
www.188bet.com
www.12bet.com
www.betab.com
www.betab.uk.com
www.pokerstars.com
www.pokerstars.eu
www.pokerstars.net
www.pokerstars.co.uk
www.fulltiltpoker.com
124
Tradagames (Isle of Man) Limited
TWLV Gaming Limited
Velocity Wagering Limited
Viaden Gaming Limited
Vuetec (IOM) Ltd
Watchmore Limited
Webis Holdings plc
Welton Holdings Limited
TGP Europe Limited
www.jenningsbet.com
wwww.mcbookie.co.uk
www.180bets.com
www.setantabet.com
www.sportsbarcasino.com
wwww.apollobet.com
www.wilsonbet.com
www.777bets.co.uk
Xela Limited
125
ANNEX 18
COUNTRY: Italy
Name of the Country: Italy
Continent: Europe
Parliamentary republic
Dominant Religions:
Catholics (90% of the population)
Area: 301.340 km2
GDP 2011: 1.580.221 M€ (source: IMF)
GDP 2011 per capita: 26.064 €
Official Language: Italian
Currency: Euro
TYPE OF SPORTS
Type of
Reference Date and
BETS / DISTRIBUTION
Regulation
Text
NETWORK
Licence System
July 15 2011
Network
(limited number) Manovra Law n°111
Online sports bets (Pari- Licence System
July 15 2011
mutuel and fixed-odds (Call for tenders Manovra Law n°111
bets, including Live
with a limited
Betting)
number)
Betting Exchanges
Opening expected
end of 2012
Regulatory
Authority
AAMS
(Amministrazione
Autonoma Dei
Monopoli Di Stato)
AAMS
AAMS
§ Licence for online bets: issued for 9 years, cost 350 000 € before tax;
§ Licence for physical bets: issued for 40 months, cost 11 000 € before tax.
Specific requirements:
§ An experience in legal sports bets in Italy or in one of the countries of the
European Economic Area (a minimum annual turnover of 2M€ during the two
years preceding the request);
§ Bank guarantees of two years, for minimum of 1,5M€;
§ Headquarters necessarily located in Italy or in a country of the European
Economic Area;
§ Server hosted in Italy or in one of the countries of the EEA;
§ Website with suffix ".it";
§ AAMS provides operators with its data verification system;
§ Social Security Number required for the registration of each player.
126
network
(Pari-mutuel and fixed-odds
sports bets)
Online sports bets
(Pari-mutuel and fixed-odds
bets, including live betting)
Tax Base
Tax Level
Wagers
2% (simple bets) to 5%
(multiple)
Wagers
2% (simple bets) to 5%
(multiple)
Betting Exchanges
(authorisation expected for
the end 2012)
GGR
20%
Operators (all private)
SNAI
Lottomatica (member WLA/EL)
Match Point / SISAL (member WLA/EL)
Microgame
Intralot
Brickagent
Cogetech
Bwin Italia
Planeta Scommesse
Leonardo Service Provider
Totointernet
Others
Numbers AAMS: Italy 2011
Offline wagers (sports bets)
Online wagers (revenue)
(legal + illegal)
Market share (fixed-odds bets:
98% of total sports bets)
32,92%
21,28%
12,11%
6,78%
6,58%
5,82%
4,70%
2,99%
1,39%
1,24%
1,23%
1,96%
Amount
2.824 M€
1.100 M€
3.924 M€
76,8%
911 M€
7,9%
775 M€ (85% of GGR)
127
5. Miscellaneous
a. Physical stores “Punto di commerzializzonne” (PDC) to support online bets
In addition to sports bets physical networks, Italian law authorises the opening
of PDC stores that allow bettors to register on online betting sites and to deposit money
on their accounts and make bets on the Internet. The operation of these PDCs is
controlled by an AAMS general decree of June 2007.
b. Combating Illegal Betting
§ Ability to block access through ISPs (which shall take all necessary measures,
otherwise they will be required to pay fines of up to € 180,000) to illegal sites
upon request from AAMS;
§ No blocking procedure for payments, but financial and payment institutions
must provide information (under penalty) on transactions with unauthorised
sites;
§ Criminal penalties (up to 3 years in prison) against illegal operators;
§ Criminal penalties (up to 3 years in prison) or fines (up to 5000 €) against
licensed operators offering prohibited bets.
Estimation of illegal market (Italy / GGR/2011):
Number of prohibited websites
(List AAMS – August 2012)
200 to 500 M€
(90% offline)
4118
§ Duty of care for betting operators, with obligation to report anomalies or
suspicious activities (declaration of suspicion), especially for transactions above
3 000 €;
§ It is not allowed to accept cash payments of more than 1 000 €.
d. Pending Legal Matters
§ Stanleybet believes that restrictions on the Italian market are not justified
(pending decisions from Italian courts and the CJEU);
§ Stanleybet also disputes the terms of the 2012 call for tenders for physical
licences (pending decision from the European Commission).
128
e. Sports Subject to Bets (fixed-odds bets, 2011)
129
ANNEX 19
Country: Japan
Name of the Country: Japan
Continent: Asia
Dominant Religions:
Shintoism (84% of the population),
Buddhism (71%), Christians (3%), others
(8%)
Area: 377.835 km2
GDP 2011: 5 855 000 M$ (source: IMF)
GDP 2011 per capita: 45 870 $
Official Language: Japanese
Currency: Yen (JPY) (1 JPY = 0,0081 €)
24
TYPE OF SPORTS
BETS /
DISTRIBUTION
NETWORK
Network and Internet
(Pari-mutuel Bets)
Spread Betting
Type of
Regulation
Reference Date and Regulatory Authority
Text
Monopoly
Racing Law 1951
Football 2001
Regulation of
financial markets
2010
Government + JKA
Foundation
(since 2008)
Financial Services
Authority (FSAJ)
Financial Services
Authority (FSAJ)
Main Characteristics of the regulation
§ In accordance with the Japanese Criminal Code, bets are prohibited in theory.
However, certain legal exceptions are provided for;
§ Pari-mutuel bets on the four "public sports" are legal since 1951: Horse racing
(majority), cycling (Keirin), motorcycle and boat (Kyotei). Given their
organisation;
§ The bets are exclusively offered by the competition organisers (Japan Racing
Association, Japan Motorboat Association, etc.), they are made through the
purchase of tickets (from the few points of sale) or, since 2001, through the
Internet;
§ Bets on the first division of professional football (J-League) are available since
2001, exclusively through the system of National Lottery (TOTO). They may
also be made through the purchase of tickets (from the few points sale) or on
the Internet. Their Rate of Return for Bettors is 50%;
24
On 31/01/2013.
130
§ The "JKA Foundation" is the regulatory authority for pari-mutuel bets organised
for Keirin and motorcycle races: the RRB is around 75%. As for the remaining
25%, 3% of those are assigned to the "Nippon Foundation" and the rest to the
national government, to the local governments and to the organisers;
TYPE OF SPORTS
BETS /
DISTRIBUTION
NETWORK
Sports Bets
Internet
(Pari-mutuel bets)
Spread Betting
Tax Base
Tax Level
Assessment of
Revenues
State/Industries
All generated
profits are paid to
local governments
and organisers of
races
Approx. 250 M€ in
2011
(Toto – foot)
Approx. 250 M€ in
2011
(Toto – foot)
All generated
profits are paid to
local governments
and organisers of
races
Not released
Not released
TYPE OF SPORTS
BETS /
DISTRIBUTION
NETWORK
Sports Bets
Internet
(Pari-mutuel bets)
Operators
Assessment of
Sports Bets
Revenue and Market
Share (2011)
§ Toto
Lottery and
TOTAL REVENUE
§ Japan Racing companies controlled
(football):
Association
by the State
Approx. 720 M€
§ Japan
Motorboat
Association
Features
Amount (Estimations)
25
Japan 2011
(legal + illegal)
Approx. 720 M€
50%
Approx. 360 M€
3,5%
25
Bets related to cycling (Keirin), racing bikes and boats, are very important in Japan but they are not
included because they are part of a logic identical to that of horse racing (the existence of bets is the primary
funding source of industries).
131
110 M€ (30% of GGR)
5. Miscellaneous
§ Organising illegal bet is punishable under the Penal Code. Fines of up to 500
000 JPY (4,500€) and prison sentences of up to 3 years (in case of recidivism);
§ Athletes who are found guilty of manipulating results related to bets are subject
to criminal penalties under the Criminal Law of Japan;
§ Japan is faced with the issue of manipulating results related to sports bets by
criminal groups. The professional football league seems to be affected. In 2011,
Sumo athletes having admitted rigging fights that resulted in illegal bets were
prosecuted;
§ The Japanese Football League put in place a special telephone number for
stakeholders in football to detect suspicious activity. The Federation established
relations with Early Warning System GmbH;
§ The monitoring of betting operations is entrusted to the National Police;
§ A task force against illegal bets was established in 2002 in collaboration with
the Japan Race Association, involving the National Police and the Ministry of
the Interior;
§ The Law does not cover blocking illegal sites.
(Japan/2011/GGR)
Estimation: 100 to 300 M€
§ Japan is member of the Financial Action Task Force (FATF) and one of the
founding members of the APG (Asia-Pacific Group on Money Laundering);
§ The efficient fight against money laundering is conducted by a Financial
Intelligence Office (Japan Financial Intelligence Centre - JAFIC), the national
police, financial services and the Ministry of Finance; However, the penalties
provided are mild and are not very dissuasive;
§ The PACHINKO (traditional slot machine) generates the most laundering
operations related to bets.
132
ANNEX 20
COUNTRY: Malta
Name of the Country: Malta
Continent: Europe
Parliamentary democracy
Dominant Religions:
Catholics (97%)
Area: 316 km2
GDP 2011: 9.331 M $
Official Language: Maltese/ English
Currency: Euro
TYPE OF SPORTS
BETS /
DISTRIBUTION
NETWORK
Network
(Fixed-odds bets)
Online sports bets,
including Live betting
and Betting Exchanges
Type of
Regulation
Reference Date and
Text
Exclusive licence § Lotteries
and
valid for 10 years
Other Games Act
– 2001
Licence System
§ Remote Gambling
Regulations
–
2004, amended in
2011
Regulatory
Authority
Malta Lotteries and
Gambling Authority
(LGA)
Malta Lotteries and
Gambling Authority
(LGA)
§ An exclusive licence was granted and later renewed to MALTCO. The licence is
valid until 2022 for the national lottery and physical bets. In this context,
MALTCO offers fixed-odds sports bets in Malta ("U-Bet");
§ With the exception of this form of physical bets, which only concerns about
400,000 inhabitants in Malta, almost the entire market of sports bets is online;
§ Malta hosts the headquarters of many betting operators (about 10% of
operators in Malta Smart City). This is due to tax advantages and accessibility
of websites for players from all around the world (except those in countries such
as France, which blocks access to foreign sites that do not have a local branch
and are considered illegal);
§ The C2 category of operators concerns sports bets (1 January 2013, 86
companies are hold a C2 licensed );
§ The company applying for a licence must be based in Malta;
133
§ To support the licence application, the applicant must provide legal and
financial documents demonstrating the legality of its business, its solvency, and
its compliance with technical conditions imposed by regulatory measures;
§ Regular verifications, including compliance with technical standards, can be
performed by an inspector appointed by the regulatory authority.
§ The licences have a fixed inexpensive annual cost (see table below);
§ Validity of C2 licences: 5 renewable years;
§ The licences are not transferable, unless specifically authorised by LGA;
§ Prohibition to bet for those under 18;
§ Players must be registered to bet; identity and place of residence are checked;
§ A wager may be placed by a player only if his account contains the amount of
the bet; cash payment is not authorised;
§ Advertising is regulated: thus, it is forbidden to broadcast messages touting the
benefits of online game on the social and financial situation of individuals, or to
present a personality saying he was successful because of gambling.
Annual Cost of Licences
Initial deposit
Acquiring the licence
Renewal
Approval of contracts
Fix monthly tax
Category 2
Online Sports Bets
2.330 €
8.500 €/year
1.500 €
70 € à 30.000 € (depends on time)
4.660 € for the first six months, then
7.000 €
In 2011, the various types of licences and associated revenues generated
approximately € 4 million to the LGA regulatory authority.
TYPE OF SPORTS
BETS /
DISTRIBUTION
NETWORK
Network
Tax Base
Tax Level
Assessment of
Revenues State /
Industries
Revenues
Approx. 5% of
Revenue
700000 €
Wagers
0.5% of wagers
47 M€
(offline + online)
Earnings
0.5% of winnings
Online sports bets:
§ Pari-mutuel
and
fixed-odds bets +
spread betting
§ Betting
Exchanges
The maximum annual amount of taxes paid by a company holding a licence
(fixed and variable on wagers or earnings) cannot exceed € 466,000 (tax shield).
134
TYPE OF SPORTS
BETS /
DISTRIBUTION
NETWORK
Sports Bets
§
Physical Network
(fixed-odds sports bets)
Operators
Online sports bets
(pari-mutuel and fixedodds sports bets,
including Live Betting
and Betting Exchange)
70 licenced
operators
Bet at home
Betfair
Betclic
Interwetten
Partouche
Stanleybet
Tipico
Unibet
Others…
Maltco
Lotteries Ltd
§
§
§
§
§
§
§
§
§
Estimation of Legal Market: Malta 2011
(legal + illegal)
Features
Assessment of
Sports Bets
Revenue and
Market Share (2011)
Limited company
TOTAL OFFLINE
(Intralot Ltd: 73%,
REVENUES:
Maltese corporations
14 M€
“High Profile Maltese
Businessmen”
according to the
operator’s website
27%)
Private companies §
Bet at home 53
(bookmakers)
M€
§
Betfair 180 M€
§
Interwetten
74M€
§
Partouche 0 M€
§
Unibet 61 M€
TOTAL ONLINE
REVENUES
(In Malta):
(estimation: 16 M€)
Amount (Estimations)
30 M€
83%
5 M€
N/A
4,3 M€ (86% of GGR)
5. Miscellaneous
§ Any infringement of legal provisions on lotteries and gaming applicable in Malta,
including infringing the principal of offering bets on the Internet without a
licence, is liable to a fine of 6,988 € to 232,937 €. For repeat offenses, the fine
can reach 350,000 € and prison sentences are between 6 months and 3 years;
§ No blocking of ISP or payments of earnings;
135
§ Maltese authorities have criticised the regulations adopted in a number of other
European Union countries (including France and Poland), citing incompatibility
with the EU principle of free movement of services;
§ Similarly, Maltese authorities have a vision of the concept of illegal gambling
that is at odds with what is accepted in other Member States: in Malta, an
operator can legally operate in Europe if it holds a licence from one of the
members of the European Union (mutual recognition);
§ Malta opposed the adoption of a common definition of illegal offer proposed at
the meeting of the Council of 27 which took place in September 2012.
0
b. Number of C2 licences in Malta on 31 December 2012: 70
c. Cooperation
LGA signed cooperation agreements (Memorandums of Understanding) with
the regulatory authorities in Denmark, Canada, Kahnawake, as well as FIFA and the
IOC.
d. Combating Money Laundering
§ Malta is member of MONEYVAL (Council of Europe). The goal of MONEYVAL
is to ensure that Member States have put in place an effective system to fight
against money laundering. MONEYVAL is member of FATF, it adheres to the
recommendations of this organisation since 2006;
§ Several texts organise the fight against money laundering in Malta: "Prevention
of money laundering act" (1994) and "Prevention of money laundering
regulations" (2003), "Cash control regulation" (2002);
§ Penalties of up to 14 years in prison and a fine of € 2,187,860 are planned for
violations of anti-money laundering provisions;
§ Operators must implement systems to detect money-laundering operations and
are generally subject to a duty of care concerning this issue. They must provide
the MFSA (Malta Financial Services Authority) with any suspicious acts they are
aware of.
136
ANNEX 20 – BIS
LICENCES IN MALTA ON 31/12/2012
A total of 86 C2 licences (sports bets)
B2B Gaming Services
BCL Gaming
Bet 90 Ltd
Bet-at-home.com Internet Ltd
Betfair Counterparty Services Ltd
Betpoint Ltd
Betsi Ltd
BetSolution4U Ltd
Betspodd Ltd
Betting and Gaming Ltd
BML Group Ltd
Cashpoint Malta Ltd
CenturionBet Ltd
Conglomerate Ltd
Delta Gaming Ltd
Dorobet
DOXX Bet Ltd
Easy World Ltd
Eden Gaming Ltd
Eurofootball Ltd
Eurogoal Global Bet Ltd
Evobet Ltd
Fenplay Ltd
Fortunawin Gaming Ltd
Gatebet Ltd
Getwin Ltd
Giamax Gaming Ltd
Global Entertainment Ltd
GVC New Ltd
Happi Group Ltd (Globalwon)
IBA Entertainment Ltd
IGT Interactive Operation Malta Ltd
Interwetten Gaming Ltd
Intouch Casino Ltd
Jennings Bet (Malta) Ltd
LB Group Ltd
LB Group Ltd
Luckystream Ltd
Mangas Gaming Malta Ltd
Meridian Gaming Ltd
Mistral Leisure Ltd
NetX Betting Ltd
Oring Ltd
Panavik Betting Ltd
Partouche
Personal Exchange International Ltd
Playbay Malta Ltd
Playmatch Ltd
Pocasport Ltd
Pokerinvenice Ltd
Primebet Int Ltd
Racebets International Gaming Ltd
Rebels Gaming Ltd
Redbet Gaming Ltd
Regent Markets (Malta) Ltd
Remote Gaming Solutions
Safepay Malta Ltd
Sailboats Ltd
Scandic Bookmakers Ltd
Scorebet Ltd
Soft Bet Ltd
Sogno di Tolosa Ltd
SP Bet Ltd
Stanleybet Malta Ltd
Sunderland International Ltd
Tipico Co. Ltd
Tipwin Ltd
Topgoal Malta Ltd
Topsportwetten Ltd
Touchbet Ltd
Townview Trading Ltd
Trustfulgames.com Ltd
Unibet International Ltd
Unibet International Ltd
Uniq Group Ltd
Unomania Ltd
Up and Down Marketing Ltd
Wettpunkt
Winunited Ltd
World of Sportsbetting Ltd
World-of-Bets.EU Europe Ltd
Zetotesystem Ltd
Maraobet Ltd
Suspended Licences
137
New Network Ltd
Nordic Odds Ltd
Odds Matrix Ltd
Gold Victory Ltd
Stryyke Entertainment Ltd
138
ANNEX 21
COUNTRY: Mexico
Name of the Country: Mexico
Continent: America
Federal State (with parliamentary system)
Dominant Religions:
Catholics (88%) – Protestants (6%)
Area: 1.972.000 km2
GDP 2011: 1.180.000 M$ (source: IMF)
Official Language: Spanish
Currency: Mexican Peso (MXN)
(1 MXN = 0,05992 €)
Regulatory
BETS /
Text
Authority
DISTRIBUTION
NETWORK
Sports Bets
Licence System
Federal Gaming
Secretaria de
and Raffles Law 1947
Gobernacion
Internet
+ Regulation 2004 + (SEGOB) / Direccion
Amendment
General de Juegos y
proposals
Sorteos
(adoption in progress)
Characteristics of Licences (new regulation currently being established):
§ An online licence is valid for all types of games, however, it is only granted to
operators on the physical network. Furthermore, a company that wishes to
obtain a licence must have a physical representation on the Mexican territory;
§ Licenced operators are required to pay earnings exclusively in the local
currency (Mexican Peso);
§ In the future, licences could be granted for a period of 10 years, extendable to
25 years;
§ Licensed operators (offering their games on the Internet) are required to
register banking accounts and information about the identity of the player;
139
TYPE OF SPORTS
Tax Base
Tax Level
BETS /
DISTRIBUTION
NETWORK
Sports Bets
GGR and Wagers 30% of GGR + 1% of
wagers
Internet
(national and
(Pari-mutuel and fixedinternational sports
odds bets)
events)
Assessment of
Revenues State /
Industries
Approx. 40 M€
N.B.: The lottery "pronosticos deportivos para la asistencia social" transfers its profits to the State.
But to date, profits are rare and therefore the contribution to civil society is modest.
TYPE OF SPORTS
Operators
BETS /
DISTRIBUTION
NETWORK
Sports Bets
§ Pronosticos
Deportivos para la
Internet
Asistencia Social
(Pari-mutuel and
fixed-odds bets)
§ Approx. 25 private
operators holding
a licence (see list
in annex) propose
sports
bets
(border
with
California is highly
active)
Features
National Lottery
Controlled by the
State
Assessment of
Sports Bets
Revenue and
Market Share (2011)
Wagers: 470 M€
GGR: 260 M€
GGR: 80 M€
N.B.: there are many associations of operators in Mexico (APJSAC, Permisionarios y
Proveedores de Juegos y Sorteos, Permisionarios Operadores y Proveedores de la Industria del
Entretenimiento y Juegos de Apuestas en México).
Legal Market Estimation: Mexico 2011
TOTAL sports betting wagers (Revenue)
(legal + illegal)
Amount
970 M€
Approx. 65%
340 M€
2,5%
300 M€ (88% of GGR)
140
5. Miscellaneous
§ Until 2012, Mexico had not really tried to block illegal websites or attempted not
to pay the earnings;
§ In November 2012, the Ministry of Interior, associations of operators with
licences and banking associations decided to block earnings coming from illegal
gambling.
Estimation of illegal market: (Mexico/2011/GGR)
50 to 100 M€
§ To date, gambling is not subject to specific obligations related to money
laundering, even though a FATF report makes it clear that this is one of the
sensitive areas (this is why some decision makers in the country suggested to
amend the legislation on gambling, considering that the gaming sector was too
closely linked to criminal activities, and that the "Secretaría de Gobernación" –
SEGOB – was partially corrupted);
§ In 2012, provisions were enacted, requiring gambling operators to present new
statements about their income and their clients (including reporting suspicious
transactions of more than 40,000 Pesos and issuing restrictions for players who
have filed more than 16,000 US $ in one day);
§ Mexico is a member of GAFISUD (South American branch).
141
LIST OF LICENCED OPERATORS IN MEXICO (November 2012)
Company
Group
1 Espectáculos
Deportivos
Fronton México
(Basque Pelota)
2 Hipodromo de
Agua Caliente
Validity of Actual
Licence/Year of the
Original Licence
Unlimited
(Licence since 19531958)
Number of Theoretical
Sports Bets
Institutions/Operational
1/1
Group
Caliente
2014
(licence since 19701976)
2023
2021/2022
2015
2016
2016
2016 / 2017
2017
2017
2017
2018
2018
2018
Unlimited/22
3 Petolof
4 Cesta - Punta
Deportes Ltd
5 Libros
Foraneos
Caliente
Group
6 Operadora de
Apuestas
Caliente
7 Divertimex
Caliente
Group
8 Espectaculos
Deportivos de
Cancun
9 Atracciones y
Emociones
Vallarta
10 Espectaculos
Latinoamericanos
Deportivos
11 Operadora de
Espectaculos
Deportivos
12 Impulsadora
Géminis
Caliente
Group
Caliente
Group
Caliente
Group
13 Operadora
Cantabria
Group
14 Grupo Oceano
Haman
Caliente
Group
7/4
9/0
18/17
4/2
7/7
4/no physical point of
sale
41/26
5/2
3/3
3/2
25/24
10/3
142
15 Promociones
e Inversiones de
Guerrero
16 Espectaculos
Deportivos de
Occidente
17 Cia Operadora
Megasport
18
Administradora
Mexicana de
Hipodromo
19 Comercial de
Juegos de la
Frontera
20 Mio Games
CIE – Codere
21 Juega y Juega
22 Promojuegos
de Mexico
23 Eventos
Festivos de
México
24
Entretenimiento
de Mexico
25 Apuestas
Internacionales
26 El Palacio de
los Numeros
27 Comercializa
dora de
Entretenimiento
de Chihuahua,
27 Juegos y
Sorteos de
Jalisco
28 Producciones
Móviles
30 Exciting
Games S. de RL.
Codere
Televisa
2018-2030
2019
2022
58/25
4/0
Unlimited
Unlimited
2030
2030
2030
2030
2030
2031
65/53
18/
0/0
18/5
10/8
0/0
50/15
65/24
18/12
143
31 Recreativos
Marina
N.B.: In total, 31 licenced companies are able to operate 710 establishments. To date, 349
establishments (including all games) are open, 361 establishments are awaiting a local notice or
non-operational. In 2012, four new licences were issued (No. 28-31 above). 58 illegal settlements
have been taken into account by the regulatory authority.
144
ANNEX 22
COUNTRY: The Netherlands
The Netherlands
Political Organisation: constitutional
monarchy with a parliamentary system
Continent: Europe
Dominant Religions:
Catholics (30% of population),
Protestants (20%)
Area: 41.543 km2
GDP 2011: 780.719 M€ (source: IMF)
GDP 2011 per capita: 35.552 €
Official Language: Dutch
Currency: Euro
Regulatory
BETS /
Text
Authority
DISTRIBUTION
NETWORK
Sports Bets
Monopoly (De Lotto)
Law of 1964 on
Dutch Authority for
Physical Network
games of luck
Gambling
(Pari-mutuel and fixed(Kansspelautoriteit)
odds bets)
(Since 1 April 2012)
Online sports bets Monopoly (De Lotto)
Law of 1964 on
Dutch Authority for
gambling + 2010 ECJ
Gambling
Decision
Features of the types of licences
De Lotto’s licence is renewed every five years since 1961, except in 2009 when
it was granted a renewal for two months, then for two years in 2010.
§
Current Taxation of Sports Bets
Tax Base
Tax Level
Sports Bets physical network De Lotto’s Profits are paid to De Lotto’s Profits are paid to
the State
the State
+ 29% Tax on earnings
+ 29% Tax on earnings
above 454 €
above 454 €
Online sports bets
GGR
29%
N.B: The Netherlands has chosen to tax gains from illegal operators up to 29% of the amount of
the gains.
145
TYPE OF SPORTS
BETS /
DISTRIBUTION
NETWORK
(Pari-mutuel and
Fixed-odds sports
bets)
Operators
De Lotto
Features
Assessment of
Sports Bets
Revenue and
Market Share (2011)
Lottery controlled by TOTAL REVENUE:
the State
40 M€
§
including
Parimutuel: 2 M€
§
including Fixedodds
bets:
38 M€
Estimation of Legal Market: The
Netherlands 2011
Wagers, offline Pari-Mutuels sports bets
(Revenue)
Wagers, offline Fixed-odds bets
(Revenue)
GGR offline Pari-Mutuel bets
GGR offline fixed-odds sports bets
(legal + illegal)
Amount
38 M€
2 M€
40 M€
65%
1 M€
13 M€
2,3 M€
14 M€
0,2%
7 M€ (50%of GGR)
5. Miscellaneous
a. Plans of Opening the Market Currently on Hold
In March 2011 the Dutch government announced its intention to liberalise the
market of online games. The process of negotiation and preparation was temporarily
suspended after the resignation of the government in April 2012. The new government,
elected in September 2012 (led by same Prime Minister Mark Rutte) announced on 30
October 2012 the resumption of the negotiations for the regulation of sports bets.
Licences for online bets should be issued starting the end of 2013.
146
b. New Regulatory Authority
The new “Dutch Authority for Gambling" became operational on 1 April 2012
and is mandated to grant, supervise, monitor and revoke all licences related to
gambling in the Netherlands. This authority is also involved in the fight against illegal
bets. It will have the power to issue administrative orders, assign fines, confiscate
property and enter and seal buildings.
c. Combating Illegal Bets
In 2010, a report issued by the "Jansen" government commission estimated
that the Dutch were betting on illegal sites "in large quantities". The Dutch Authority for
Gambling takes on the responsibility of fighting against non-licenced sites. Since June
8, 2012 unlicensed sites are banned from financing advertising campaigns in the
Netherlands, having a “.nl” site or using the Dutch language on their website.
Already in March 2008, a blacklist of 30 illegal operators was distributed by the
Dutch government that prohibited financial institutions from authorising payments to
these illegal sites.
(The Netherlands/2012/GGR)
d. Resolution of Legal Cases
§ On 3 June 2010, the ECJ delivered two judgments after being seized by private
operators Betfair and Ladbrokes who challenged the monopoly of the public
operator De Lotto. The judgments were rendered in favour of the existence of
national monopolies on gambling, thus referring the complaints to the Dutch
jurisdiction.
§ In March 2011, the Dutch Council of State invalidated the licence of operator De
Lotto arguing that the operator was not under strict government control.
However, in February 2012, the Dutch Supreme Court rejected all complaints
presented by Ladbrokes estimating that the Dutch authorities were following a
consistent and coherent gaming policy, bringing to an end nine years of legal
conflict between Ladbrokes and De Lotto.
§ The Netherlands introduced a new law on money laundering in 2008, in order to
implement the Third EU Directive.
147
ANNEX 23
COUNTRY: Philippines
Name of the Country: Philippines
Continent: Asia
Constitutional presidential republic
(bicameral)
Dominant Religions:
Catholics
GDP 2011: 216.000 M$
Official Language: Filipino/English
Currency: Philippines Peso (PHP)
Area: 300.400 km2
26
(1PHP = 0,0187 € )
TYPE OF SPORTS
BETS /
DISTRIBUTION
NETWORK
Sports Bets
(Physical Network and
Internet)
Type of
Regulation
Prohibition
The monopoly
granted to
27
PAGCOR allows
only some lotteries
for sports
Online sports bets for Licences System
operators located in the (operators cannot
Cagayan zone
offer their products
to the citizens of
the Philippines)
26
27
Reference Date and
Text
Regulatory
Authority
§ Penal
Code
Pagcor
(System
of (100% controlled by
prohibition)
the State)
§ +
Presidential
decree
(1067– A – 1977)
§ + Pagcor Charter
First Cagayan
§ Interactive
Leisure and Resort
Gambling
Act
Corporation
(2003)
(FCLRC)
§ Interactive
(subsidiary of Leisure
Gaming Rules
and Resort
and Regulations
Corporation,
(IGRR - 2004)
A private company
publically traded on
the stock exchange
in the Philippines)
On 10/01/2013.
Pagcor is allowed to deliver franchises to private companies.
148
Offshore gambling Operators (including sports bets) with a licence in the
Cagayan Province:
§ FCLRC ("Master Licensor") signed a licence agreement (2006-2030) with the
authority of the Cagayan Economic Zone (CEZA), in order to develop the free
zone for the sector of online gaming. This is then a private company that aims
at regulating the market of online gambling in this area;
§ Operating an online gambling activity without a licence in the area is liable to a
fine of up to 1,000,000 USD. However, a foreign investor wishing to establish
himself in the Province of Cagayan may reside there permanently provided he
keeps a minimum capital investment of 150,000 USD;
§ There are two types of licences granted by the FCLRC: a licence valid for all
types of gambling (lotteries, casinos, sports bets, bingo), and a licence only
valid for sports bets;
§ Licences issued by FCLRC are valid for 7 years:
o The annual cost of global licences is 40,000 USD for the licence to be
operational (the original application also costs 40,000 USD, including a
part that can be recovered).
o The annual cost of a sports betting licence is 26,000 $US. The licence
is valid for bets on football and baseball as well as two other sports.
§ Citizens of the following countries must be blocked by licensed operators:
Bulgaria, Cyprus, Estonia, Hong Kong, Israel, and USA. The licensees cannot
offer their products to citizens of the Philippines or offer bets on sports events
taking place in the Philippines;
§ Licensed operators are not allowed to offer online games to minors under the
age of 18 years;
§ Licensees must have a bank account in the Philippines, which should also be
used for transactions related to gaming services;
§ Software used for transactions related to gambling services along with the
control system of the operator must be approved by the regulator;
§ Each licenced operator must keep the records related to gambling transactions
for a period of 5 years.
N.B.: There is a latent conflict between the national prerogatives of Pagcor (system of prohibition
and monopoly) and those of the Province of Cagayan (even though the operators with a licence in
Cagayan are targeting the Chinese, Korean and Taiwanese markets).
TYPE OF SPORTS
BETS /
DISTRIBUTION
NETWORK
Online sports bets
(Cagayan Province)
Tax Base
GGR
Tax Level
Assessment of
Revenues State /
Industries
5% of GGR
Approx. 10M€
(2% government, 1% (8 M€ of GGR profit
Cagayan Province,
and 2 M€ of
0,5% host
licences)
municipality, 1,5%
CEZA authority)
149
N.B.: 8 M€ of the annual income related to GGR could correspond to a global GGR for all of the
operators of 600 M€ (with the rate of 1.5%)
Estimation of Legal Market: Philippines
0
5. Miscellaneous
§ Several police operations (112) have been conducted since 2010 to fight
against illegal gambling in the Philippines (mainly Jueteng, a popular game of
numbers that does not respect the legislation). More than 200 persons were
arrested and several winnings were confiscated;
§ Advertising illegal online gambling websites can lead to (intermediate included)
imprisonment and fines.
Estimation of illegal market: (Philippines/GGR/2001)
50 M€
(100% online)
b. Number of Licences Issued by FLRLC (on 10 January 2013:
69 (60 are operational)
§ The Philippines have been part of the FATF since 2001, following pressure from
the USA. This was followed by a law to fight against money laundering (2001,
amended in 2002), and the creation of a specific authority: Anti-Money
Laundering Council (AMLC) to monitor banks and suspicious activities;
§ To date, the legislation does not cover casinos and online games. A 2009 report
issued by the Asia Pacific Group against Money Laundering recommended a
change concerning this issue.
150
ANNEX 23 - BIS
List of licenced operators with (Cagayan Province)
Name of Licenced Operator
Site
Action Great Limited/Connect 88,
Inc.
Arendia Global Limited/Oakleigh
HYPERLINK
Capital Limited
“[http://www.mansion88.
com/]”
www.mansion88.com
www.bet678.com
Asi Global Ventures Limited/Donjo
International Support International
Services, Inc.
Asiawide Online Limited/Panasia
www.anobet.com
Online Services Inc.
Aspen Ridge Global
www.aspenbet.com
Limited/Caspo Incorporated
Barossa Trading
Limited/Gamepark Interactive
Entertainment Solution, Inc.
Baylight International Inc./Sports
Bookie Online Inc.
Bayview Technologies
www.dafagames.com
Limited/Bayview Technologies,
www.dafapoker.com
Inc
www.dafa888.com
www.dafabet.com
www.zipangcasino.com
www.777baby.com
Bright Ray International
www.sun988.com
Limited/Sky Arrow Technology
Inc.
Bright Solutions Global
Limited/Sports Bookie Online Inc.
Carlo Vista International
Limited/Monaco1 International Inc.
Cool Japan, Inc./Boingo Services
Inc.
Crown Tactic Limited/Crowntech
www.live228.com
Entertainment
Cyberland Global Corporation/Cg
World Services, Inc.
Double Joy International
www.8dice.com
Limited/Tremendous Luck
www.cc898.com
Technologies Inc
Date
Operational
01/02/2006
yes
20/12/2006
yes
02/03/2012
no
07/09/2011
yes
29/06/2010
yes
07/09/2011
No
21/05/2010
yes
07/11/2004
no
11/09/2009
yes
21/05/2010
yes
25/02/2011
yes
27/09/2012
no
16/07/2007
25/07/2008
06/05/2009
yes
151
Dragon Sun International
Limited/Centro Servico Inc.
HYPERLINK
15/12/2011
"[http://www.888asia88.c
om/" \t "_blank]"
www.888asia88.com
www.Sclubpoker.com
Eastern Hawaii Leisure Company
HYPERLINK
19/07/2006
Limited
"[http://www.996avia.co
m/" \t "_blank]"
www.996avia.com
www.997avia.com
Elite King Global Limited/Capital
02 2011
Power Global Limited
Entex Global Group Limited/First
05/07/2012
Million Services, Inc.
Finalist Corporation/Cg World
www.finalistcasino.com 29/12/2005
Services, Inc.
Firstright Developments,
www.ibcbet.com
10/08/2006
Limited/Gwi Business Solutions,
Inc.
Giant Winner Holdings
HYPERLINK
04/11/2010
Limited/G.W. International
"[http://www.nstar88.co
Management Inc.
m/" \t "_blank]"
www.nstar88.com
www.wowin88.com
www.livv88.com
Globalstar International
02/06/2009
Enterprises Investment
Limited/Wealth Access
International Holding Limited
Glorious Fame Enterprises
16/04/2012
Limited/Famous Glory 888 Inc.
Gold Deluxe Limited/Gold Deluxe
12/02/2010
Phils Ltd. Co., Inc.
Haifa Holdings Limited/Woodsale
www.uz888.com
06/11/2007
Ventures, Inc.
Haydock Sports Limited/Novenix
24/07/2007
Corp
Hobbywing Solutions Inc.
www.hygaming.com
19/07/2006
www.88zlong.com
www.zl555.com
www.99gew.com
Joint Forces Group
HYPERLINK
16/09/2011
Limited/Wantong Systems
"[http://www.hsbbet.com/
Services, Inc.
" \t "_blank]"
www.hsbbet.com
www.hsb8888.com
Jr Global Limited/Oktagon
29/05/2011
Solution Corp.
Jusicco Ltd/Trinko, Inc
14/03/2012
no
yes
yes
yes
yes
yes
yes
yes
yes
yes
yes
yes
yes
yes
no
yes
152
Keen Ocean Technology
Limited/Intevalue Services Inc.
HYPERLINK
15/08/2008
"[http://www.kashbet.co
m/" \t "_blank]"
www.kashbet.com
www.cf88.com
www.18luck.com
11/07/2011
yes
05/07/2006
yes
20/12/2010
yes
Long Carrier Digital
Limited/Longshare Star Intl. Corp.
Lucky City Group Limited/Lucky
www.e8casino.com
City Group, Inc.
Lucky Star Entertainment
www.99gew.com
Limited/Hao Ying Solutions Inc.
Market Dimension
www.marketLimited/Huaguoxian International
dimension.com
Trade Inc.
Mystic Group Hill
www.ibe247.com
Limited/Interactive Business
Network Alliance Inc.
Neil Alexander Entertainment
Limited/Global B2b Consultancy
Inc.
Oak Tree Services Limited/Yew
www.ISN88.com
Tree Services Inc.
Ocean Miles Investment
Limited/Wealth Access
International Holding Limited
Ole Group International
Limited/Ole Group Philippines Inc.
Pacific Prospect Reef
Limited/Ninetynine Technology
Inc.
Pacific Sea Invests S.A./Pacific
HYPERLINK
Sea Bpo Services Inc.
"[http://www.12bet.com/"
\t "_blank]"
www.12bet.com
www.12betcasino.com
Paragon International Customer
Care Limited/Paragon
International Customer Care
Limited
Parklane Enterprise Ltd./Elmfield
Solutions, Inc.
Prestige International
HYPERLINK
Limited/Caspo Incorporated
"[http://www.188bet.com
/" \t "_blank]"
www.188bet.com
www.v9betvn.com
Prowell Data Systems
www.prowellstars.com
Limited/Sports Bookie online Inc.
yes
25/07/2008
09/11/2007
yes
01/06/2008
yes
28/03/2011
yes
15/10/2012
yes
06/07/2010
yes
26/08/2011
15/11/2007
yes
10/05/2006
yes
09/12/2011
yes
15/08/2005
yes
09/09/2010
yes
153
Ragnarok Corporation
www.pinnaclesports.co
N.V./Nacoma Services, Inc.
m
Reece Projects Limited/Opus
Gaming Software Limited
Richwell Ventures Limited/Sports
www.sbobet.com
Bookie online Inc.
Rio Entertainment Inc./Sokka
Technical Services Inc.
Rtg Holdings Limited/Rtg Studio
HYPERLINK
Inc.
"[http://www.silversandc
asino.jp/" \t "_blank]"
www.silversandcasino.jp
www.realtimegamingasi
a.com
S-Tech Limited/St-Tech Limited
www.streamingtech.com
Sempris Investments
Limited/Verostar Services Inc.
Set Asia Limited/Ai Technology
Sports Solutions Inc.
Skyplus Global Capital Investment
Limited/Falcontek Corp.
Sports 888 Corporation/Top
Amusement Technology
International Corp.
Succeed Asia Pacific Investment
Limited/Succeed Asia Ventures
Inc.
Sun Ventures Development
HYPERLINK
Limited/Cheuk Wah Technology "[http://www.suncity888.
Inc.
com/" \t "_blank]"
www.suncity888.com
www.suncity8.com
www.suncity668.com
Swindon Securities Limited/Grid
Palm Corp.
Top Horizon Limited/Goldrichs
www.78gold.com
Global Gaming Inc.
Totedaddy Limited/otedaddy Inc.
Ts Technology Limited/Jiu Zhou
Technologies International Inc.
Winherld Entertainment World
Limited/W.E.W. Resource
Management Inc.
14/01/2009
yes
24/03/2010
yes
15/08/2005
yes
08/02/2009
yes
18/11/2011
no
25/04/2006
yes
16/07/2012
no
01/02/2011
yes
10/08/2011
yes
04/01/2007
yes
22/09/2009
yes
05/07/2006
yes
03/03/2011
yes
07/02/2008
yes
25/07/2008
yes
www.ts8899.net
28/03/2011
yes
-
07/12/2007
yes
154
Winner Mayfair Limited/Mayfair
International Technologies Inc.
HYPERLINK
26/05/2008
"[http://www.asia16.net/"
\t "_blank]"
www.asia16.net
www.abab16.com
www.bvi16.com
www.bet16.net
www.bet16.com
www.55bet.com
www.gobet16.com
etc.
yes
14/03/2012
yes
Wise Knight Limited/Wise
21/05/2012
Technology Inc.
Wong Lai International
www.casino.sbobet.com 02/01/2007
Limited/Leekie Enterprises Inc.
Inc. Xin Tian Di Entertainment
19/11/2010
Limited/Goldenluck Technologies
Inc.
yes
Wise Elite Development Ltd.
www.happy1668.com
www.heji333.com
-
yes
yes
155
ANNEX 24
COUNTRY: Poland
Name of the Country: Poland
Continent: Europe
Parliamentary Democracy
Dominant Religions:
Catholics
Area: 312.679 km2
GDP 2011: 531.758 M$ (source: IMF)
Official Language: Polish
Currency: Zloty (PLN)
(1 PLN = 0, 242 €)
TYPE OF SPORTS
BETS /
DISTRIBUTION
NETWORK
Bets Physical Network
Bets Physical Network
Type of
Regulation
Reference Date and
Text
Regulatory
Authority
Licence system
Law on Gambling
Games
2009
Amended in July
2011
Law on Gambling
Games
2009
Amended in July
2011
Licence system
Characteristics of the Licence system:
§ Offline and online sports bets require holding a licence issued by the Polish
Ministry of Finance;
§ Polish law does not allow online gambling, with the exception of bets, including
sporting bets;
§ Offline and online sports betting operators must be organised as stock
companies or limited liability companies with a minimum capital of 2M PLN
(480,000€), based in Poland or with a subsidiary in the country;
§ Licenced operators must obtain permission from the competition organisers and
the Ministry of Sports to use sports scores as the basis of bets (no financial
compensation is legally provided such as the gambling tax in France);
§ Operators must provide financial guarantees:
156
• Offline operators: 4000 PLN (980 €) x number of points of sale (By
multiples of 10);
• Online operators: 480 000 PLN (approximately 115,000 €);
§ Cost of licences:
• Offline: 2000% of a core index determined each year on the basis of the
average wage in the sector (approx. 160,000 €) + 50% of the index per
point of sale;
• Online: 2000% of a core index set each year on the basis of the average
wage in the sector (around 160,000 €) + 5000% of this index per website;
§ Validity of offline and online licences: 6 years;
"Mutual betting points" (this term is not accurate because pari-mutuel and fixedodds bets can be offered. NB: To date, seven operators hold an offline licence;
they share 2,174 points of sale in the country (there is no fixed ceiling).
N.B.:
(1) the first licence was granted to Fortuna, in 24 January 2012, leaving little feedback to assess
the state of the online sports betting market in Poland).
(2) The high taxes (see § 2) explain the small number of physical gambling operators, like online
operators, licensed in Poland;
(3) The websites of online sports betting operators must be registered in Poland but their servers
can be located in one of the countries of the European Union;
(4) They must keep all gaming data from the past 5 years on a server located in Poland (Decree
of 25 May 2012);
(5) The players must register in order to play online;
(6) Individuals under the age of 18 are not allowed to bet;
(7) General prohibition on advertising gambling, with the exception of bets;
(8) Sponsorship is limited to operators only offering sports bets, which excludes international
operators who offer all types of gambling.
TYPE OF SPORTS
Tax Base
BETS /
DISTRIBUTION
NETWORK
Sports Bets Physical Wagers - Revenue
Network and Internet
Tax Level
Assessment of
Revenues State /
Industries
12%
79 M PLN
(19 M€)
TYPE OF SPORTS
BETS /
DISTRIBUTION
NETWORK
Network
(Pari-mutuel and
fixed-odds Bets)
Operators with a
Licence
§ Fortuna
§ Star Typ Sport
§ Totolotek
(Intralot)
§ Millenium
§ Others
Features
Assessment of
Sports Bets
Revenue and
Market Share (2012)
Private companies
42,2 M€ (29%)
41,9 M€ (29%)
39,1 M€ (27%)
14,5 M€ (10%)
7,2 M€ (5%)
157
Online sports bets
(Pari-mutuel and
fixed-odds bets)
§ Fortuna
§ Star Typ Sport
§ Millenium
Private companies
TOTAL OFFLINE
REVENUES:
145 M€
6,4 M€
TOTAL ONLINE
REVENUES:
Approx. 12 M€
(Estimation)
Licences issued in
2012
Market Estimation: Poland 2012
Offline wagers (sports bets) (revenue)
Online wagers (sports bets) (revenue)
Offline GGR sports bets
Online GGR sports bets
(legal + illegal)
Offline NGR sports bets
Online NGR sports bets
Amount
145 M€
12 M€
157 M€
63%
54 M€
4 M€
58 M€
0,5%
36,5M€ (67,5% of GGR)
2,5M€ (62,5% of GGR)
39 M€ (67% of GGR)
5. Miscellaneous
§ Before the 2009 gaming law came into effect, it was observed that many Polish
punters were betting online illegally: BetClick indicated that in 2008, Polish
bettors were the 3rd most numerous visitors on their sites;
§ The law of 2009 amended the Tax Code to provide that an administrative fine
may be imposed by the Customs Chief:
• For operators with no licence: 100% of proceeds from illegal gambling;
• For punters betting on illegal sites: 100% of their winnings;
§ Criminal penalties are also provided by the Polish Penal Code:
• Organisation of illegal bets: 720 times the daily fine and / or imprisonment
of up to 3 years;
• Participation in illegal bets: 120 times the daily fine;
§ The customs service can freeze the bank accounts of illegal operators.
Estimation of illegal market: (Poland/2011/GGR)
20 to 30 M€ (100% Internet)
158
Main illegal operators in Poland: Bet365, Pinnacle sports.
§ Poland is a member of MONEYVAL (Council of Europe). The goal of
MONEYVAL is to ensure that Member States have put in place an effective
system to fight against money laundering. MONEYVAL is a member of FATF, it
adheres to the recommendations of this organisation since 2006;
§ Money laundering is an offense under the Polish Criminal Code;
§ Poland adopted a legislation on the fight against money laundering and
financing terrorism (Law of 16 November 2000);
§ Operators of sports bets are required to have the necessary means to identify
money laundering operations, to conduct surveillance and to report any
suspicious transaction;
§ Compelling operators to keep the game data for 5 years (see § 1.1) aims to
improve the fight against money laundering;
§ Monitoring operators concerning the respect of their obligations in this regard is
provided by the General Inspectorate of Financial Reporting.
c. Marketing Data
§ Totolotek is the operator with the largest number of points of sale
(approximately 600 out of 2174).
§ On 31 December 2012, the operator Fortuna had over 31,000 registered
players, which made it the leader of online sports bets in Poland.
159
ANNEX 25
COUNTRY: Czech Republic
Name of the Country: Czech Republic
Continent: Europe
Republic
Dominant Religions: Catholics (27%)
GDP 2011: 220 335 M$ (source: IMF)
Official Language: Czech
Currency: Czech Koruna (CZK)
Area: 78.870 km2
28
(1 CZK = 0, 039 € )
Regulatory
BETS /
Text
Authority
DISTRIBUTION
NETWORK
Licence system
Act n°202-1990
Network
On lotteries and
(Pari-mutuel and
similar games
fixed-odds sports
bets)
Online sports bets
Licence system
Act n°202-1990
(Pari-mutuel and
On lotteries and
fixed-odds bets)
similar games
Authorisation for
online games
January 2008
Features of licences:
§ Offline and online sports bets require holding a licence issued by the Czech
§ Sports betting operators should be organised as stock companies registered
with a minimum capital of 100 million CZK (approximately 4 million €);
§ Validity of offline licences: 10 years maximum;
§ Cost of licences: zero, however, a deposit of 10 M CZN (about € 400,000) must
be put down in order to obtain the licence;
§ Offline bets are available in places adapted to this purpose: betting agencies,
bars and restaurants, supermarkets and gas stations (Tipsport is the operator
having the largest number of betting franchises in the country: about 1000);
28
On 10/01/2013.
160
§ In order to obtain an online licence, operators must have a network of betting
agencies;
§ On 31 December 2012, nine operators had an online licence (see list § 3);
§ Players must go to physical betting outlets to register before being able to bet
online;
§ Betting outlets are allowed to open every day between 5am and midnight,
except for days of national mourning;
§ Operators of offline and online sports bets must have their headquarters in the
country;
§ Illegal sites and payments are not blocked to date (a change is expected: a text
adopted on first reading by the lower house provides for this possibility);
§ The servers of the websites of operators of online sports bets must be located
in the Czech Republic and the software used must be authorised by the
competent authority;
§ Advertising bets is allowed but can only be done by operators that are duly
licensed in the country;
§ Individuals under the age of 18 are not allowed to bet.
TYPE OF SPORTS
BETS /
DISTRIBUTION
NETWORK
Sports Bets
Physical Network
and Internet
(Pari-mutuel and
fixed-odds bets)
Tax Base
Tax Level
Assessment of
Revenues State /
Industries
Gross Gaming
Revenue
20% of GGR
800 M CZN
(Estimation 30 M€)
TYPE OF SPORTS
BETS /
DISTRIBUTION
NETWORK
Network
(Pari-mutuel and
Fixed-odds bets)
Operators
§
§
§
§
§
§
§
§
Tipsport
Fortuna
Chance
SYNOT TYP
SAZKA
Maxi Tip
Victoria Tip
Others
(Toto
CZ, Live Tip,
etc.)
Features
Assessment of
Sports Bets
Revenue and
Market Share (2011)
Private Companies
148 M€ (39%)
114 M€ (30%)
53 M€ (14%)
30 M€ (8%)
Others
35 M€ (9%)
TOTAL OFFLINE
REVENUES
estimation
9 700 M CZK
(380 M€)
161
Online Sports Bets 9 licenced operators
(Pari-mutuel and § Fortuna Game
Fixed-odds bets) § SYNOT TYP
§ Chance
§ TIPSPORT 02
§ Tipsport.Net
§ Net and Games
§ SAZKA
§ Slot Group
§ Victoria Tip
Private Companies
Dominant operator:
Fortuna Game
101 M€ (31%)
TOTAL ONLINE
REVENUES
estimation
8 500 M CZK
(330 M€)
In 2011, physical sports bets represented about 7% of the total market in the
country and online sports bets about 5.7%.
Estimation of legal market: Czech
Republic 2011
Offline wagers,
sports bets (revenue)
Online wagers, sports bets (revenue)
(legal + illegal)
Amount
380 M€
330 M€
710 M€
80%
76 M€
66 M€
142 M€
1,4%
60,8 M€
52,8 M€
113,6 M€ (80% of GGR)
5. Miscellaneous
§ The Czech Republic faces a high level of illegal gambling, both in the physical
network and the Internet. To date, the regulation has not been very effective in
stopping illegal gambling;
§ No truly coercive measure is provided by the legislation on games (besides the
ban of advertising imposed on unlicensed operators) or the Penal Code;
§ A law is being prepared (taking effect in 2013), it should empower the regulator
to block illegal sites and payments as well as setting a fixed fine of CZK 10
million (390,000€) for the illegal organisation of bets.
162
Illegal market estimation: (Czech Republic/2011/GGR)
50 to 100 M€
Main illegal operators in Czech Republic: bwin.party, Sportingbet, Expect,
Worldbet, Bettsson, Eurobet and Betfair.
§ The Czech Republic is a member of MONEYVAL (Council of Europe). The goal
of MONEYVAL is to verify that Member States have put in place an effective
system to fight against money laundering. MONEYVAL is a member of FATF, it
adheres to the recommendations of this organisation since 2006;
§ In 2008, the Czech Republic adopted a law on the measures necessary for the
fight against the laundering of capitals of organised crime and financing
terrorism, including the establishment of the Financial Intelligence Unit in the
§ The Ministry of Finance and the Czech National Bank are the authorities that
coordinate the policy for the detection of laundering;
§ Only casinos are required to report suspicious money laundering transactions;
§ Despite these measures, the activities aiming at money laundering reach a very
high level in the Czech Republic.
c. Marketing Data
§ There is approximately one Betting Machine per 200 inhabitants;
§ 2,300 betting outlets approx. (Tipsport: 1000; Fortuna: 685; Chance: 286; Synot
Type: 180; others: 150);
§ 20,000 players are registered with the Fortuna online betting operator.
163
ANNEX 26
COUNTRY: Russia
Name of the Country: Russia
Continent: Asia
Federal State, Semi-Presidential system,
Republic, Constitutional republic
Dominant Religions:
Orthodox Christians, Muslims, Buddhists,
Jews, Protestants
(more than 70 religions)
Area: 17.098.242 km2
GDP 2011: 1 884 903 M$ (source: IMF)
Official Language: Russian and official
local languages
Currency: Ruble (RUB)
29
(1 RUB = 0.0247€ )
Regulatory
BETS /
Text
Authority
DISTRIBUTION
NETWORK
Licence system
Law n°244-FZ (2006)
Ministry for the
Network
(bookmakers)
+
Economic
Law on the technical Development of the
organisation of
Federation of Russia
sports bets (2011)
Online sports bets
Prohibition
Law n°244-FZ
(2006)
N.B.:
(1) The 2006 Act is a global prohibition law with some exceptions, including 4 zones suitable for
hosting casinos. .
(2) Decree No. 225 of the State Committee on Physical Culture and Sport clearly defines the
concept of sport in Russia.
29
On 10/01/2013.
164
TYPE OF SPORTS
BETS /
DISTRIBUTION
NETWORK
Sports Bets
Physical Network
and Internet
(Pari-mutuel and
fixed-odds bets)
Tax Base
Tax Level
Assessment of
Revenues State /
Industries
Points of sale
125.000 Rub per
month and per point
of sale
Approx. 50 M€
Operators
Features
TYPE OF SPORTS
BETS /
DISTRIBUTION
NETWORK
Sports Bets
•
Physical Network
(Pari-mutuel and
fixed-odds bets)
•
•
Assessment of
Sports Bets
Revenue and
Market Share (2011)
Bookmakers
Wagers:
13 to 18 licences
according
to (FIBC: 260 points of Approx. 1.400 M€
sale)
some sources
Fonbet (n°1)
FIBC
(First
International
Betting
Company) (n°2)
N.B.:
(1) In 2010, FIBC signed a 5 year agreement with Sportingbet to operate online sports bets on the
Russian territory. The operator (joint venture) is called Liga Stavok.
(2) Russian bookmakers are grouped in the NBA (National Bookmakers Association).
(3) Despite prohibiting online gaming, "Internet cafes" flourish in Russia. It is possible to play
provided an operator with a licence in Russia is associated with the gaming system, the bettor
can bet though a Web-Money, Money Yandex or OSMP payment system.
Estimation of legal market: Russia
2011
(legal + illegal)
Amount
1.400 M€
80%
280 M€
1,9%
230 M€
165
5. Miscellaneous
§ Since 2011, illegal gambling is explicitly considered a crime in Russia. The
amendment of 6 July 2011 increases fines for both citizens and companies
involved in illegal gambling, the offense may also be punished by six years of
imprisonment;
§ There are no blocking measures for financial transactions in Russia or any
other procedures to block illegal operators through ISPs;
§ Russian laws limit the opportunities to advertise gambling in Russia (especially
through timing restrictions).
Estimation of illegal market: (Russia/2011/GGR)
70 M€
(100% illegal)
The fight against money laundering remains below the required standards, even
though the FATF removed Russia from its blacklist in 2011.
166
ANNEX 27
COUNTRY: Sweden
Name of the Country: Sweden
Continent: Europe
(with a unicameral parliamentary system)
Dominant Religions:
Christians – Lutheran Church (more than
80% of the population)
Area: 441.000 km2
GDP 2011: 572.000 M$ (source: IMF)
Official Language: Swedish
Currency: Swedish Krona (SEK)
30
(1 SEK = 0,116 € )
Regulatory
BETS /
Text
Authority
DISTRIBUTION
NETWORK
Monopoly
Lotteries Act 1994
Government
network and Internet (including Internet –
(Ministries of Finance
(only products
since 2003)
and Health and
offered by operator
Social Affairs)
with monopoly: in
“The Gaming Board
2012, pari-mutuel
for Sweden”
and fixed odds
sports bets)
§ Exclusive right (monopoly) is granted to Svenska Spel for sports bets until
December 31, 2013 (NB: Svenska Spel also operates lotteries, slot machines
(VLTs), bingo, casino games and online poker);
§ The monopolistic operator is subject to strict control from the government;
§ The purpose of the regulation is to protect consumers by limiting public and
social risks;
§ Individuals under the age of 18 are not allowed to bet;
§ Consumers are bound to hold a loyalty card (with a registration procedure) in
order to play on the Internet (related goal: minimising the risk of gambling
addiction).
NB: Svenska Spel established an efficient auto-exclusion "Playscan" system.
30
On 31/01/2013.
167
TYPE OF SPORTS
Tax Base
Tax Level
BETS /
DISTRIBUTION
NETWORK
Sports Bets
All profits generated Approximately 5.000
Physical Network by Svenska Spel are M SEK (580 M€) in
and Internet
paid to the State
2011
(Pari-mutuel and
(78% of GGR)
fixed-odds bets)
Assessment of
Revenues
State / Industries
Approximately
5.000 M SEK
(580 M€) in 2011
(78% of GGR)
TYPE OF SPORTS
BETS /
DISTRIBUTION
NETWORK
Sports Bets
Physical Network
and online
(Pari-mutuel and
fixed-odds bets)
Operators
Svenska Spel
Features
Assessment of
Sports Bets
Revenue and
Market Share (2011)
Lottery
TOTAL REVENUE:
Company controlled
480 M€
by the State
(4.300 M SEK)
§ including
parimutuel: 201 M€
§ including
fixedodds bets: 280 M€
Internet Share: 22%
(106 M€)
Estimation of legal market: Sweden 2011
Wagers, Pari-Mutuels sports bets
(Revenue)
Wagers, Fixed-odds bets (Revenue)
GGR Pari-Mutuel sports bets
GGR fixed-odds sports bets
(legal + illegal)
Amount
280 M€
200 M€
480 M€
66%
99 M€
64 M€
37 M€
163 M€
1,3%
36 M€ (22% of GGR)
168
5. Miscellaneous
§ Fight against advertising offered by illegal sites in Sweden (various newspapers
and magazines have been prosecuted), which is a criminal offense (penalties:
fines and imprisonment up to 6 months maximum);
§ The law does not cover blocking illegal sites;
§ Blocking payments is not contemplated to date.
Estimation of illegal market: (Sweden/2011/GGR)
Main illegal operators in Sweden: Unibet, Betsson.
§ Money laundering is the subject of specific provisions in the Swedish Penal
Code;
§ The regulatory authority is the FIPO "Swedish Financial Supervisory Authority",
an intelligence unit that is part of the "National Criminal Investigation
Department."
c. Marketing Data
§ 1.758 points of sale in 2011.
169
ANNEX 28
COUNTRY: Switzerland
Name of the Country: Switzerland
(Swiss Confederation)
Federal State (parliamentary system)
Continent: Europe
Dominant religions:
Catholics (40%) – Reformed Church
(30%)
Area: 41.000 km2
GDP 2011: 666.000 M$ (source: IMF)
Official Language: German – French –
Italian - Romansh
Currency: Swiss Franc (CHF)
31
(1 CHF = 0,81 € )
Regulatory
BETS /
Text
Authority
DISTRIBUTION
NETWORK
Sports Bets
Monopolies (Internet Law on lotteries and Lottery and Betting
Physical Network
Also)
bets (LLP): 1923
Board (COMLOT)
and online
+ Concordat 2005
(inter-cantonal)
(only for the products
proposed by the
operator with the
monopoly: in 2012,
pari-mutuel and fixed
odds sports bets)
Internet operators remain illegal in Switzerland. Only the Loterie Romande and
Swisslos can offer their customers their products through this distribution channel.
Characteristics of the Current Monopolies:
§ Exclusive rights (monopolies) granted to the Loterie Romande (Frenchspeaking Switzerland) and to Swisslos (German-speaking and Italian-speaking
Switzerland) for lotteries (lottery games and scratch cards) and sports bets (NB:
In Swiss Romande, horserace are organised by Loterie Romande in
collaboration with the French PMU);
§ Monopoly operators are subject to a strict control by the public authorities
(Comlot);
31
On 31/01/2013.
170
§ The purpose of the regulation is to protect consumers by limiting public and
social risks;
§ Individuals under the age of 18 are not allowed to bet.
TYPE OF SPORTS
BETS /
DISTRIBUTION
NETWORK
Sports Bets
Physical Network
and Internet
(Pari-mutuel and
fixed-odds bets)
Tax Base
Tax Level
Assessment of
Revenues State /
Industries
All profits generated Approximately 560 M Approximately 560 M
by the Romand and
CHF (460 M€) in
CHF (460 M€) in
Swisslos lottery are 2011 (62% of GGR) 2011 (62% of GGR)
paid to the cantons
for public utility use
Sports bets:
(especially cultural,
Approximately 25 M€
social and sports).
Moreover, winnings of more than 50 CHF are taxed in most Cantons with a rate
of 35%. Finally, a tax of 0.5% of lottery wagers is paid directly to the Cantons to fight
against the problems of gambling addiction.
TYPE OF SPORTS
BETS /
DISTRIBUTION
NETWORK
Operators
Features
Sports Bets
Physical Network
and online
(Pari-mutuel and
fixed-odds bets)
§ Romande Lottery
Association with
leader members
chosen from the
Eastern Cantons
Cooperatives with
Cantons as
members
§ Swisslos
Assessment of
Sports Bets
Revenue and
Market Share
(2011)
TOTAL GGR:
16 M€
(20 M CHF)
§ approx.
Swisslos
§ approx.
LORO
§
85%
15%
Estimation of
Revenue:
Approx. 100 M€
Internet Share: low
(less than 10%)
171
Switzerland 2011
(legal + illegal)
Amount
100 M€
Approx. 60%
40 M€
0,3%
15 M€ (38% of GGR)
5. Miscellaneous
§ Illegal online betting activities (and also the financial transactions related to
illegal gambling and advertising, direct or indirect) are subject to prosecution
(initiated by the COMLOT or FGB - Houses of Federal Game Board - that
manages casinos). However, there is a difference between the FGB and
COMLOT because FGB can prosecute and impose penalties. It is important to
note that the reporting of illegal gambling operators is possible through the
COMLOT website;
§ In Switzerland, players who bet on an illegal sites risk the confiscation of their
bets and winnings (but do not incur criminal liability);
§ Since 2010, all gaming operators with a domain name ending in “.ch” must have
a mailing address in Switzerland. If, following a request from the COMLOT, this
address is not provided within 30 days, the domain name is disabled.
(Switzerland/2011/ GGR)
10 M€ (100% on Internet)
Main illegal operators in Switzerland: Bwin, Interwetten
§ The regulatory authority is the Money Laundering Reporting Office (MROS),
which is part of the Federal Police (FedPol). The regulatory authority receives
eventual statements of suspicion;
§ The statements of suspicions are mandatorily for casinos, but not for lotteries.
172
ANNEX 29
COUNTRY: United Kingdom
Name of the Country: United Kingdom
Continent: Europe
Constitutional Monarchy, Parliamentary
democracy
Dominant religions:
Anglican (35%), Catholics (9%)
GDP 2011: 2.400.000 M$ (source: IMF)
Official Language: English
Currency: Sterling Pound (GBP)
Area: 243.000 km2
32
(1 GBP = 1,17 € )
TYPE OF SPORTS Type of Regulation
BETS /
DISTRIBUTION
NETWORK
Sports Bets
Licence system
Physical Network
(Pari-mutuel and
fixed-odds bets)
Reference Date and
Text
Regulatory
Authority
2005 Gambling Act +
Betting and Duties Act
1981
UK Gambling
Commission
Gambling (licencing and
advertising) 2014 Act
Online Sports Bets 2005 Act (reminder):
2005 Gambling Act +
(Pari-mutuel and
System of
fixed-odds bets
authorisation
1981
including Live
(operator with a
Betting)
licence in a country Gambling (licencing and
on the “White List“)
advertising) 2014 Act
2014 Act: Deletion of
the White List
Betting Exchanges
System of
authorisation
“White List”
Spread Betting
32
UK Gambling
Commission
2005 Gambling Act +
1981
2014 Act: Deletion of
the White List
Regulation of financial Financial Services and
market
Markets Act 2000
UK Gambling
Commission
Financial Services
and Markets
On 31/01/2013.
173
Features of Types of Licences (Online + Offline):
§ Cost of licenses based on GGR (up to £ 155.425 per year);
§ Financial criteria (information on shareholders holding more than 3% of capital);
§ Technical Standards (specifications determined by the Gambling Commission);
§ No selling on credit;
§ It is mandatory to report suspicions in order to report a fraud or a case of sports
corruption;
§ Regulation measures against addiction (including self-exclusion option);
§ Advertising not allowed for operators outside the EEA or outside of the
countries of the white list;
§ Individual licences required (administrative and operational).
TYPE OF SPORTS
Tax Base
BETS /
DISTRIBUTION
NETWORK
Sports Bets
Gross Gaming
Physical Network
Revenue (GGR)
(Pari-mutuel and
fixed-odds bets)
Online Sports Bets
Gross Gaming
(Pari-mutuel and
Revenue (GGR)
fixed-odds bets
including Live
betting)
Betting Exchanges Commission of the
operator
Spread Betting
Gross Gaming
Revenue (GGR)
Tax Level
Assessment of
Revenues
State/Industries
15% of GGR
State:
less than 50 M£
15% of GGR
State:
less than 90 M£
15% Commission of
the operator
Less than 10 M£
13% of GGR
Less than 10 M£
TYPE OF SPORTS
BETS /
DISTRIBUTION
NETWORK
Sports Bets
Physical Network
(Pari-mutuel: 3%
and fixed-odds bet:
97%)
Operators
§
§
§
§
§
William Hill
Ladbrokes
Gala Coral
Betfred Tote
Others
Features
Private betting
operators
(bookmakers)
Assessment of
Sports Bets
Revenue and
Market Share (2011)
413 M£ (25%)
380 M£ (23%)
313 M£ (19%)
248 M£ (15%)
296 M£ (18%)
174
Online Sports bets
(Fixed-odds sports
bets, including Live
Betting:
83 % &Betting
Exchanges: 17 %)
§
§
§
§
§
§
§
§
§
§
§
§
§
Betfair
Bet365
William Hill
Paddy Power
Ladbrokes
SkyBet
BetVictor
Coral
Betfred / Tote
Stan James
Blue Square
Sportingbet
Others
(12Bet, 188Bet,
Bodog, SBOBet,
bwin, Pinnacle,
Unibet, Betsson,
Betdaq, etc.)
Estimation of market:
UK 2010 / 2011
Offline wagers sports bets (Revenue)
Online wagers sports bets
TOTAL wagers sports bets
Offline Rate of Return for Bettors
Online Rate of Return for Bettors
(legal + illegal)
Private bets
operators
(bookmakers)
TOTAL OFFLINE
REVENUES:
1.650 M£ (100%)
TOTAL GGR offline:
345 M£ (100%)
140 M£ (21%)
125 M£ (19%)
100 M£ (15%)
80 M£ (12%)
50 M£ (7,5%)
25 M£ (4%)
25 M£ (4%)
17 M£ (2,5%)
16 M£ (2,5%)
14 M£ (2%)
9,5 M£ (1,5%)
7 M£ (1%)
51,5 M£ (8%)
TOTAL GGR online:
660 M£ (100%)
Amount
1.650 M£
11.000 M£
12.650 M£ (14.800 M€)
80%
94%
92%
335 M£
660 M£
995 M£ (1.164 M€)
7,3%
285 M£ (85% of GGR)
560 M£ (85% of GGR)
845 M£ (989 M€)
175
5. Miscellaneous
§ The UK accepts licensed operators in the European Economic Area, as well as
those found on the "white list" (Alderney, Antigua & Barbuda, Gibraltar, Isle of
Man, Tasmania);
§ No blocking ISP or payments of earnings to date.
Estimation of illegal market: (UK/2011/GGR)
(1,5 % of GGR, 10 M£)
10 M£ (11,7 M€)
b. Number of UK Licences on March 31 2012
§ General licences all bets: 549 offline and 69 online (55 on non-virtual events);
§ Limited licences all bets: 649 offline;
§ Licences limited to phones (all bets): 36;
§ Licences pari-mutuel bets (all bets): 24 offline and 45 online.
§ Betting operators are required to be vigilant (Proceeds of Crime Act 2002) with
the need to report suspicious activities (report of suspicions) to the Gambling
Commission.
d. Sports Serving as a Basis for Bets: (Source: Gambling Commission)
§ Football: 70% offline/48%online;
§ Other Sports: 30% offline/70% online.
e. Marketing Data (October 2012)
§ 2.9% of adults in the UK report having gambled online in 2012 (about 1.3 million
persons);
§ 2.2% of adults in the UK report having gambled offline with a bookmaker in
2012;
§ 2.2% of adults in the UK report having gambled offline in pari-mutuel betting in
2012;
§ 1.1% of adults in the UK report having gambled online in Betting Exchanges in
2012 (about 500,000 persons);
§ 0.5% of adults in the UK report having gambled in spread betting in 2012
(200,000 persons).
176
FOCUS ON GIBRALTAR
N.B.: Gibraltar is a British territory that is part of the European Union. However, some laws are
not applicable there (especially VAT exemption). Gibraltar has approximately 60,000 inhabitants;
the gambling industry employs more than 2,000 people.
Regulatory
BETS /
Text
Authority
DISTRIBUTION
NETWORK
Online Sports Bets
Licence system
Gambling Act 2005 Gibraltar Regulatory
(Pari-mutuel and (on March 1 2012, 14
+
Authority (GRA)
fixed-odds bets, licences of fixed-odds Betting and Duties
2011:
Betting Exchanges)
sports bets and 1
Act 1981
Ministry of Finance
Betting Exchange
(Gambling Division)
licence)
Features of Types of Licences (Online):
§ Cost of Internet licenses: 10,000 £;
§ Financial and technical criteria, and criteria on fighting against fraud and basic
laundering activities;
§ Measures to fight against addiction (including self-exclusion option).
TYPE OF SPORTS
BETS /
DISTRIBUTION
NETWORK
Online Sports Bets
(Pari-mutuel and
fixed-odds bets,
Betting Exchanges)
Tax Base
Tax Level
Assessment of
Revenues
State / Industries
Revenue (wagers)
1% of wagers (capped
at 425.000 £)
Minimum: 85.000£
State: 11 M£
3. Miscellaneous
a. Number of Online Licences in Gibraltar on March 31 2012
§ 14 fixed-odds bets licences: Ladbrokes (2), Victor Chandler (1), Stan James (1),
bwin.party (1), 32Red (1) 888 (1), William Hill (2) Digibet (1) Betfred (1),
Gamesys (1) BetClick Everest (1) International Gala (1);
§ 1 Betting Exchanges licence : Betfair.
177
§ Gibraltar is not member of the FATF.
178
ANNEX 30
COUNTRY: USA
Name of the Country: USA
Continent: USA
Political Organisation: Federal Republic
with presidential system
Dominant Religions: Protestants,
Catholics, no religion, Jews, Buddhists,
Muslims, Hindus
Area: 9.629.048 km2
GDP 2011: 15 075 675 M$ (source: IMF)
Official language: English
Currency: American Dollar (USD)
33
(1 USA = 0,748€ )
BETS /
Text
DISTRIBUTION
NETWORK
Sports Bets
Prohibition in most On the Federal level:
Physical Network
States.
Federal Wire Act
(Pari-mutuel and
(1961) does not
fixed-odds bets)
allow bets by phone.
In 2013, only one US On the State level:
State had a
Each state has the
significant sports
power to regulate
betting activity:
gambling.
Nevada.
Regulatory
Authority
Nevada: Nevada
Gaming Control
Board
California: California
Gambling Control
Commission
Oregon: Oregon
State Police Gaming Division
Some States allow PASPA (Professional
sports bets either
and Amateur Sports Montana: Gambling
under extremely
Protection Act 1992): Control Division –
limited
prohibition of sports
Department of
circumstances
bets in all States
Justice
(Montana, Oregon) where bets were not
or very recently
allowed before (only New-Jersey: New(California, or in
four States are
Jersey Casino
casinos and
concerned:
Control Commission
racetracks in New Delaware, Montana,
Jersey)
Nevada, Oregon)
33
On 10/01/2013.
179
Online Sports Bets
(Pari-mutuel and
fixed-odds bets)
Prohibition in most
States (Nevada,
Delaware and
California are the
exceptions)
34
UIGEA (2006) : it is
illegal for financial
institutions to
transfer funds
towards illegal sites
TYPE OF SPORTS
BETS /
DISTRIBUTION
NETWORK
Sports Bets
Physical Network
and Internet
(Pari-mutuel and
fixed-odds bets)
Tax Base
Tax Level
Assessment of
Revenues
State / Industries
GGR
Depends on each
State
(6,75% in Nevada)
Less than 10 M€ in
total
TYPE OF SPORTS
BETS /
DISTRIBUTION
NETWORK
Sports Bets
online
(Pari-mutuel and
fixed-odds bets)
Operators
Features
§ Nevada Casinos
§ Other States
Private
Estimation of legal market: USA 2011
TOTAL GGR sports bets (Gross Gaming Revenue)
(legal + illegal)
Assessment of
Sports Bets
Revenue and
Market Share (2011)
GGR: 106 M€
GGR: < 5 M€
Amount
2.250 M€
95,1%
110 M€
5,3%
100 M€
5. Miscellaneous
§ The United States chose to fight against illegal bets particularly through several
highly advertised actions (arrests, seizures of property and money, etc.). These
actions are directed against both illegal websites (Bet On Sports for example)
and against "street bookmakers" who have no legal existence (and whose
34
UIGEA: Unlawful Internet Gambling Enforcement Act.
180
income does not, in any way, enter into the gambling economy). The main
charge is related to the violation of the laws on gambling which grant regulatory
prerogatives to the States. In the USA, the offence of illegal gambling was
characterised by the violation of State gambling laws, committed by at least 5
people and reaping over 2,000 USD per day.
§ Beyond the UIGEA (which helped persuade many sites not offer their products
to American citizens), the USA did not establish, to date, any policy of blocking
illegal gambling websites (only two States, Minnesota and Kentucky, required
ISPs to block illegal betting websites in their States).
§ However, on the basis of UIGEA, the USA repeatedly prosecuted payment
companies (such as NETeller, for example), on charges of money laundering
and bank fraud. Finally, the USA initiated actions against ISPs (with high fines
for Microsoft, Yahoo! and Google) for having advertised illegal gambling
websites.
(USA/2011/GGR)
Internet: between 100 and 300 M€
Bookmakers: between 200 and 700 M€
Total: between 300 and 1.000 M€
Main illegal operators in the USA: Large number (especially websites based in
Central America and illegal street bookmakers).
§ The UIGEA prevents banks from feeding the accounts in online gaming
companies based outside of the national territory. One of the arguments
presented for voting the law is money laundering: casinos and online games are
particularly exposed to suspicious financial transactions. Indeed, at the time of
voting the bill, the legislators pointed out the inherent vulnerabilities of online
games to money laundering: the online payment system allows launderers to
hide the origin of the money, and also to use online games to wager small
amounts on low-risk bets and retrieve the laundered money.
§ The US Immigration and Customs Enforcement department introduced several
initiatives aiming at analysing the movement of illegal cash.
§ Several reports draw attention to the risks of money laundering in casinos
located in "tribal" areas. In fact, their separate status and complex regulatory
structure (grey area between federal, state and tribal level) create additional
risks.
To date, sports bets have not been the subject of specific measures, simply
because this gaming sector remains marginal compared to the overall gambling
industry.
c. Sports used as the Basis for Bets in Las Vegas
The three main sports used for bets are basketball (35%), football (31%) and
baseball (14%).
181
Section 2. National Regulatory Authorities for Sports Bets, Some Examples
The examples of France (§ 1), the United Kingdom (§ 2), Belgium (§ 3) and
Australia (§ 4), represent the different options that can be adopted by a country wishing
to regulate the sporting bets sector. Each option has advantages and disadvantages,
although, of course, there is no doubt in the choice of supporters of a strong regulation
for sports bets.
§ 1. Regulation of Online Gaming in France: ARJEL
When opening the market of online sports bets to competition, France opted for
a strong regulatory system designed to ensure that this opening did not come at the
expense of public order (A). This framework is supposed to include the fight against
manipulation of sports competitions in connection with bets taken from the French
territory (B).
A. Overview of the Regulatory Framework for Online Gambling in France
In France, the legal framework for gambling and betting, including sports bets
was based on an exclusive rights system, granting exclusive rights, on the one hand, to
the Paris Mutuel Urbain (horseracing bets) and the Française des Jeux (sports bets)
and on the other hand, to casinos (circle games). Two elements led to the evolution of
this framework. European Union law seemed, as interpreted by the European
Commission, hostile to maintaining monopoly systems. The compatibility with the
principle of freedom to provide services within the Union was difficult to justify by the
35
desire to preserve public order and the health of consumers. The supply for online
illegal bets grew strongly, capturing up to 75% of the market.
The legislator stepped in with a certain urgency to reform the legal framework
before the 2010 Football World Cup. Law No. 2010-476 of 12 May 2010 aimed at
opening to competition and regulating the online gaming and gambling sector, the
physical network remaining subject to a system of exclusive rights. This law opens the
sector to competition while ensuring a "strict regulation to preserve public order, public
safety and the protection of health and minors” (Article 1).
35
The Commission issued a reasoned opinion asking France to liberalise its laws on sports bets in June 27,
2007 (IP release/07/909). French authorities did not wait for the ECJ, whose jurisprudence was not totally
fixed (see ECJ September 8, 2009, No. C-42/07, Santa Casa da Misericordia de Lisboa), to decide
(see subsequent ECJ, June 30, 2011, C-212/08, Zeturf admitting, under certain conditions related to the will
to fight against crime and fraud, to maintain a monopoly).
182
The goal is to enable the development of a legal framework in order to:
§
§
§
§
marginalise the illegal offer and the offences accompanying it (Article 3
cites fraudulent or criminal activities, money laundering and the financing
of terrorism);
protect consumers by ensuring the safety and fairness of gaming
operations;
prevent gambling addictions and particularly protect vulnerable
populations (minors);
establish a balanced economic system, in particular to maintain tax
resources and provide profits to the sports movement.
For this purpose, the law provides the possibility for licensed operators to offer
sports bets in a regulated framework (1). The establishment of an independent
administrative authority, the Regulatory Authority of online games, must ensure the
effectiveness of the system (2).
1. Regulating the Offer of Legal Bets
In order to be able to offer a range of bets, operators must meet certain
conditions that are monitored through a system that allows to "verifying, a priori, that
applicants provide the adequate guarantees, and a posteriori once approved, that they
36
meet their obligations".
A first set of conditions aims at ensuring the applicability of French law. On the
one hand, any operator wishing to offer sports bets in France must be approved for that
purpose by the French authorities. The legislator had excluded, despite the reservations
expressed by the European Commission, any mutual recognition that would have
allowed a licensed operator, certified by another member of the Union, to offer bets in
France. On the other hand, although the legislators did not require that these operators
37
have their headquarters in France, they only opened the market to operators with their
headquarters located in a Member State of the European Union or in a State of the
European Economic Area linked to France by a convention to fight against fraud and
tax evasion. These operators have a tax representative in France and are not
38
established in a non-cooperative State or controlled by a company established in such
a State (Article 21).
36
V. LASSERRE-KIESOW, P. LE MORE, “Jeux en ligne. Nouvelle régulation sectorielle”, Dalloz, 2011,
p. 1495.
37
It was considered by the Durieux report that was at the origin of the law (B. DURIEUX, L’ouverture du
marché des jeux d’argent et de hasard, 2008, p. 23).
38
The states are mentioned in Article 238-0 A of the French Tax Code, i.e. "on January 1, 2010, States and
territories that are not members of the European Community and situation regarding the transparency and the
exchange of information in tax matters has been the subject of a review by the Organisation for economic
Cooperation and development and that, to date, have not signed with France an administrative assistance
agreement for the exchange of any necessary information for the application of the tax law, or signed with at
least twelve states or territories such agreement”. The list of these States and territories is fixed by a decree
of the Ministers of Economy and Foreign Affairs that mentions, as non-cooperative States, on 1 January 2014,
Botswana, Brunei, Guatemala, the Marshall Islands, the British Virgin Islands , Montserrat, Nauru and Niue
(Decree of 14 January 2014).
183
39
Other conditions, detailed in dense specifications, are intended to identify the
operator and its functioning method (Articles 15 and 16), to ensure the safety of bets
and the fight against fraud (Articles 17 to 20, Article 32 (conflicts of interest), to fight
against money laundering (Articles 22-25) and excessive or pathological gambling
(Articles 7, 26 to 30), or to protect minors (Article 5). In this perspective, betting
operators must provide ARJEL with the identification data of each player, the account
40
information of each player, including bank references and his betting activity, or
information concerning the evolution of the equipment used (Article 38). Operators are
thus required to establish front servers, which are used for collecting information on all
the transactions, encrypting and archiving them for a period of five years in a digital
41
"safe" which ARJEL can permanently access. Although some of this information
(related to betting activities) is required to be stored, in real time, on hardware located in
France, the Law of 12 May 2010 did not extend this requirement to all information
42
related player accounts, in such a way that ARJEL cannot impose it on operators.
Moreover, the law is aimed at regulating the relationships between federations,
competition organisers, the regulatory authority and bets operators. First, it provides,
that the exploitation rights for competitions held by federations and organisers of
competitions extends to the right to consent to the organisation of bets on these
competitions (Article 63, Article L. 333-1-1 CS). This betting right allows operators to
offer bets on competition not only upon ARJEL approval (which allows operators to
enter the market) but also the establishment of an agreement, subject to the opinion of
ARJEL, with federations and organisers (Article 63, L. 333-1-2 CS). The provisions
have a double purpose. First, they provide for "the obligations of online betting
operators concerning the detection and prevention of fraud, including any exchange of
information with the sports federation or the organiser of the event" (id.). They give the
possibility to the sport movement to draw profit from the organisation of bets on the
competitions, even if the relevant provisions only mention “remuneration taking into
43
account the costs incurred for the detection and prevention of fraud" (id.). In fact, the
financial benefits to the federations and organisers can be threefold: in addition to the
44
betting rights that constitute an extension, unsuccessfully challenged by operators, to
operating rights granted to the organisers, there are the tax levies allocated to the
sports sector through the National Centre for the development of Sport (Article 51) and
45
the indirect benefits from the investments of operators in advertising and sponsorship.
39
Decree of 17 May 2010 approving the specification applicable on online operators, Journal official JOFR,
18 May 2010, p. 9165.
The payment account of the player must be open with a provider of payment services established in a State
member of the European Community or a State party to the Agreement on the European Economic Area
which has concluded with France an agreement containing an administrative assistance clause to combat
fraud and tax evasion.
41
Articles 27 and 38 of the Law of 2010, Decree No. 2010-509 of May, 18 2012 related to the obligations
imposed to licenced gambling operators or online sports bets operators to control the date of games by the
regulatory authority of online games, Article 8.
42
Council of State, 20 November 2012, req. No. 351.163.
43
See B. GRIMONPREZ, “Le droit au paris”, Cahiers de droit du sport, 2013, No. 33, p. 94.
44
Ibid. See also Council of State, 13 October 2010 No. 342.142, Betclic enterprises ltd; Council of State,
23 December 2011, No. 344.711, Association européenne des jeux et paris en ligne, (European association
for online games and bets)rejecting the appeal against the decision of Prime Minister of refusing to revoke the
decree stating the applicable system of the right to bet on the ground that this right is not an imposition under
article 34 of Constitution and it does not constitute a disproportionate interference to the freedom of offering
services in the sense of UE law.
45
ARJEL report 2012, p. 24.
40
184
An independent administrative authority, ARJEL is responsible for insuring the
implementation of the system.
2. Establishment of ARJEL
To ensure the implementation of the system, the legislator provided for the
establishment of a regulatory authority, ARJEL, with the status of independent
administrative authority (a). This institution has significant powers to carry out its
duties (b).
a. Status
ARJEL is an independent administrative authority (quasi-autonomous nongovernmental organisation (AAI)). Therefore, it does not have a legal personality
separate from the State, even if it benefits from a certain procedural capacity, dedicated
staff (65 full-time employees) and its own budget from the general State budget (which
46
amounted in 2012 to 8,200,000 euros).
With a president appointed by Presidential decree, it is made up of a college, a
47
disciplinary committee and other specialised committees (Article 35). The college has
seven members, who are appointed, as is commonly practiced concerning independent
administrative authorities, by the French President (three members, including the
chairman) and the two legislative assemblies (two members each), whose mandate is
irrevocable and non-renewable to ensure their independence. It delivers the licences to
online gambling operators and refers matters concerning sanctions for breaches of
obligations by operators to the Sanctions Commission. The latter is made up equally of
members of the Council of State, the Court of Cassation and the Court of Auditors who
enjoy a functional independence to ensure a separation of functions between the
regulator and the judge. This independence is so advanced that the president of ARJEL
48
may seize the Council of State to challenge the decisions of the sanctions committee.
b. Duties and Powers
ARJEL is responsible for enforcing the policy objectives for games and online
bets, monitoring gaming operations or online bets and participate in the fight against
illegal sites and against fraud (Article 34, I, Para. 2 and 3).
ARJEL is in particular responsible for monitoring operators and their compliance
with their obligations, first before issuing a licence, then, during the certification period.
Thus, it has the power to investigate, allowing it to request information, ask for the
holding of hearings and access business premises (Article 42). Investigations are
conducted on site as well and on files to ensure that operators comply with the
49
specifications.
46
ARJEL report 2012, p. 80.
ARJEL established five specialised committees, dedicated to "the impact of opening the online market to
demand and in particular to vulnerable populations", "the impact of the introduction of competition in the
sector of online gaming on the balance of sectors (horseracing, sports and casinos)", "the adaptation of
existing regulatory instruments", "ethical issues and the attractiveness of the offer of sports bets" and
"regulatory issues related to new technologies".
48
For an example, see J.-B. VILA, “Le Conseil d’État et l’articulation des sanctions prononcées par l’ARJEL”,
AJDA, 2013, p. 799.
49
Decree No. 2010-481 of 12 May 2010 on the organisation and functioning of the regulatory authority of
online games, Article 23 et seq.
47
185
In case of an offence committed by the operator, the investigator shall prepare
a report that it presents to the ARJEL College. The finding of a breach may result in the
adoption of administrative penalties, including the withdrawal of the licence (Article 43)
under the control of the administrative judge (Article 44, II), or financial penalties by the
Sanctions Commission of ARJEL, in addition to criminal penalties. ARJEL must then
provide the prosecutor with the information in its possession (Article 44, IV). It has been
suggested that the length of the sanction procedure, reasonable in itself, was excessive
for effective regulation of the sector, since six months may elapse between the finding
of misconduct by an investigator and the decision of the Sanctions Commission, a
period that might extended to three years if appealed before the Council of State, or
even that maintaining, within ARJEL, a Sanctions Commission that is functionally
independent was likely to confuse, when viewed from the outside, the position of the
50
institution.
But ARJEL’s mission is not limited to monitoring and implementing the
regulation apparatus applicable to the legal offer. More generally, it needs to enforce
the goals of the gaming and online betting policy and contribute to the fight against the
illegal offer of bets. Thus, its mandate is extensive. It allows it, among other things, to
contribute to the fight against the manipulation of sports competitions.
B. Regulating Online Games and Combating the Manipulation of Sports
Competitions
The fight against the manipulation of sports competitions related to sports bets
is not the sole purpose of the legislative framework for the offer of online bets. However,
it is a central concern. Several provisions allow, primarily or secondarily, to strengthen
this fight, whether by regulating the legal offer (1) or by fighting against illegal offer (2).
1. Regulating the Legal Offer
Part of the provisions regulating legal bets tends to limit the risks of fraud, and
particularly the manipulation sports competitions related to the betting activity (a). They
can lead to the implementation of disciplinary or criminal penalties (b).
a. Relevant Provisions
The regulation of online games in France is accompanied by provisions mainly
aimed at preventing the manipulation of sports competitions (i) and, secondarily, to
enable the gathering and exchange of information that allow the detection of any
possible manipulations (ii).
i. Preventive Measures
As a precaution, the legal framework includes measures related to the
regulation of the offer of bets and the prevention of conflicts of interest, which tend to
limit the risk of manipulation.
50
J.-B. VILA, op. cit., propose the creation of a penalty commission independent and not integrated in ARJEL
but linked to one of the orders of jurisdiction.
186
The former provide for the authorised types of bets (pari-mutuel or fixed-odds)
and entrust ARJEL with identifying the competitions, results and aspects of games that
can be subject to betting (Article 12). This "reduces the risk of sports fraud by refusing
to organise bets on a category of competition or types of results with a significant risk of
51
manipulation". The sports movement is associated with this identification, on the one
hand because the sports federations concerned are consulted by ARJEL before
52
identifying authorised bets, and on the other hand because it can, through contracts
with operators concerning the betting right, determine which bets can be made.
ARJEL’s College determined, for over forty different sports ranging from football to
skeleton, the competitions and types of results (final result, score at half-time, scorers...)
that may provide support to online sports bets. It restricted this category by excluding
meetings involving at least one team whose ranking cannot change significantly, after
noting that most anomalies concerned meetings with low sporting stakes taking place at
the end of a championship, even if this measure could be perceived as a hardening of
the regulation, linked to the will to respond to the case of suspicious bets in French
53
handball, which were not related to online betting.
Provisions related to conflicts of interest are also important in the context of
fighting against manipulation. The Law of 2012 places obligations on betting operators,
whose managers and staff are not allowed to bet on the bets they offer, who must
report to ARJEL any involvement (partnership, advertising) in a competition in which
they offer bets and cannot control, directly or indirectly, an organiser or an actor in a
competition on which they organise bets and vice versa (Section 32). But it also
contains provisions concerning the players of the competition, sport federations and
organisers of competitions that should include, in their disciplinary codes or their
regulations, provisions designed to prevent them from engaging, directly or indirectly,
in any wagers on these events or to communicate to third parties insider information
(Article 32). These provisions were strengthened by Law No. 2012-158 of 1 February
2012 aiming at strengthening sport ethics and the rights of athletes, which extends the
provisions relating to conflicts of interest to situations where an athlete offers predictions
about a competition in which they are involved. However, their effective implementation
can be delicate, especially with regard to determining between betting operators and
54
federations, which are in the best position to identify conflicts of interest.
ii. Provisions Allowing the Gathering of Information
The second set of measures allowing fighting against the manipulation of sports
competitions includes provisions requiring licenced operators to provide information to
ARJEL. The Law of 12 May 2010 also subjects operators to a set of obligations allowing
the identification of bettors and tracking of the evolution of bets and requires them to
preserve all data for a period of five years and provide ARJEL with permanent access.
51
J.-F. VILOTTE, Préserver l’intégrité et la sincérité des compétitions sportives face au développement des
paris sportifs en ligne, report of 17 March 2011, § 61.
Decree No. 2010-483 of May 12 2010 related to sports competitions and types of sports results defined by
the regulatory authority of online games, Article 2.
53
ARJEL, 14 December 2012, No. 2012-103.
54
M. BEHAR-TOUCHAIS, J. ROCHFELD, A. DE GUILLENCHMIDT-GUIGNOT, Les jeux en ligne en France
et en Europe : quelles réformes trois ans après l’ouverture du marché, Paris, Société de législation comparée,
2013, pp. 179 et seq.
52
187
Moreover, contracts concluded within the framework of betting rights between
federations and organisers on the one hand, and operators on the other hand, may
include provisions related to "the terms of the exchange of information with the sports
federation or the organiser of this sporting event " (Article 63). The betting right can be
seen as a way to recall the responsibility of organisers in the fight against fraud and
55
impose contractual obligations of transparency on operators. The Law of 1 February
2012 to strengthen sports ethics and the rights of athletes seeks to strengthen the
cooperation between federations and operators by providing that federations may, as
part of a disciplinary procedure, contact ARJEL to obtain personal information recorded
by betting operators, under conditions set by a decree currently under review (Article 8,
L. 113-16-1 CS).
On this basis, the ARJEL exerts constant control over the offer of online bets,
generally or through targeted actions, to detect any abnormalities that may highlight a
possible manipulation. The alert system is twofold. On the one hand, ARJEL receives
alerts from operators, federations, organisers, foreign regulators, individuals or the
56
media (via the [email protected] email address). It also monitors gambling operations,
which allows it to detect anomalies, for example through the MASCOTE (Moteur
d’Analyse et de Suivi des Cotes – Odds Analysis and Monitoring Engine) monitoring
tool. This tool allows it to monitor the fluctuations of the odds offered to players by all
57
licenced operators. Communications with operators, which can be called to place the
offer of bets under close supervision, organisers, who can provide analytical elements
on the conduct of competitions, including under agreements with operators on betting
rights, other departments (the Ministry of Interior’s Central service of racing and
gambling), or other national regulators, through agreements with ARJEL, should allow
58
the processing of such alerts. ARJEL can then proceed to an a posteriori analysis of
the situation, by comparing the frontal servers of operators with information received
from other sources.
Although ARJEL issued alerts on anomalies observed in certain football
59
matches, where in some cases licenced operators were led to suspending these bets,
specific devices implemented during the Olympic Games in London or the 2012 Euro
60
did not reveal any inexplicable anomaly. During the Olympic Games in Sochi, ARJEL
signed a cooperation agreement with the IOC, under which the first transmits to the
second any anomalies detected by the automated monitoring system of bets so that the
61
data can be compared to those from other national markets.
b. Sanctions
When the investigation reveals an abnormality or a breach of the provisions
related to conflicts of interest, ARJEL, which is unable to take action on its own, may
transfer the information it holds to disciplinary or criminal bodies.
55
VILOTTE Report, op. cit., § 75.
ARJEL Report 2012, p. 40.
Ibid and pp. 33-34.
58
Ibid.
59
See [http://www.lemonde.fr/sport/article/2014/01/10/football-le-match-entre-la-cayolle-et-ile-rousse-etait-iltruque_4346218_3242.html].
60
ARJEL Report 2012, p. 40.
61
Press release of February 7, 2014, available at [www.arjel.fr].
56
57
188
On the disciplinary level, Law No. 2010-476 of May 12, 2010 requires
federations to enact "rules designed to prohibit the actors participating in sports
competitions [...] from engaging, directly or through an intermediary, in the placement of
wagers based on competitions in which they participate" or "to offer forecasting services
on these competitions when these competition stakeholders are contractually tied to a
betting operator holding the required licence" (Article L. 131-16). This provision is not
restricted to online bets, since it also applies to bets made on the physical network,
even if the context of its adoption led to certain hesitations during the transposition
62
process.
ARJEL intends to expand its powers in this regard as soon as the device
allowing it to transfer information to the federations provided for by the Law of
1 February 2012 is operational, and particularly following the expected publication, of an
63
implementation decree. However, it has already seized the League of Professional
Football when a player who offered predictions on the site of an operator, which led to
64
his suspension for a period of three months with reprieve.
On the criminal level, manipulating sports competitions related to bets can fall
under several violations. It can be dealt with under the general criminal law, in an
indirect manner when the financial movements involved are likely to fall within the
65
definition of laundering (Article 324-1 of the Penal Code), or directly when the
manipulation can be qualified as fraud, which covers "acts either through the use of a
false name or false capacity, through the abuse of a true quality, or through the use of
fraudulent manoeuvres, of misleading a natural or legal person and leading it, to his
prejudice or to the prejudice of a third party, to transfer funds, securities or any property,
to provide a service or to consent to an act establishing an obligation or providing for a
66
discharge". But a specific offence has also been introduced by Law No. 2012-158 of
February 1, 2012 to strengthen sport ethics and the rights of athletes. This specific
offence is corruption, whether active or passive, of the stakeholders of an athletic
competition. Thus, articles 445-1-1 and 445-2-1 of the Penal Code provide that "the
penalties provided for in Article 445-1 [corruption of individuals not in the public service]
are applicable to any person who promises or offers, unduly, at any time, directly or
indirectly, gifts, donations or any benefit on his [her] own behalf, or on behalf of a third
party, to an actor of a sporting event constituting a basis for sports bets, in order to
obtain from this actor, the manipulation, by act or forbearance, of the normal and fair
conduct of the event."
62
See the case of suspicious bets in handball, disciplinary rules of FFHB and LNH that only targeted online
bets.
The difficulties concerned the determination of specific terms for this exchanges G. LEBON, “Éthique et
paris sportifs: une combinaison gagnante ?”, Cahiers de droit du sport, 2012, pp. 63-64.
64
Disciplinary Commission for the Professionnal Football League, decision of March 14, 2013, Jérôme
Rothen, available at [http://www.lfp.fr/corporate/article/les-decisions-du-14-mars-2013.htm].
65
VILOTTE Report op. cit., § 165; Ministry of Sports Instruction No. DS/DSB1/2013/76 of February 28, 2013
relative to the fight against illegal sports bets, p. 31.
66
Article 313-1 of the Penal Code.
63
189
The new offence only applies to competitions constituting a basis of sports
bets
but covers "all actors" of these competitions without providing more
specifications, which suggests that the legislator intended to include "all actors in the
68
sports chain with a capacity to influence the outcome of a sporting event.”
67
However, one may question the added value of this new offence, which is
69
sometimes perceived as a display text. Previously, the manipulation of sports
competition was likely to be dealt with through the offence of the corruption of persons
not acting within the public service. Since this offence only covers persons who
"exercise, as part of a social or professional activity, management functions or work for
a natural or legal person or any organisation" (Article 445-1), it was likely to cover
70
corruption cases involving professional actors but it was not certain that it would cover
71
amateur actors.
2. Combating Illegal Bets
French law does not stop at operating a strict monitoring of the legal market.
It also has several provisions aimed at strengthening the fight against illegal bets, which
are also a way of combating the manipulation of competitions. ARJEL is responsible for
monitoring the activities of unauthorised sites. It can be difficult to determine the stage
at which an operator enters into the scope of application of French law. On this point,
Article 24, Para. 2 of the Law of 2010 states that this law applies to "connections [...]
originating from hardware located on the French territory, or through logging into the
website by using the account of a player residing in France.” These criteria are so
broadly defined that in practice, the activity of ARJEL determines whether a site targets
the French territory and, therefore, falls under the scope of French law. Indeed,
investigators are allowed, since 2012, to play anonymously on these sites and find that
72
an offer of bets is accessible from the French territory. On this basis, ARJEL can issue
formal notices to operators whose sites do not comply with the French legislation.
These notices may be followed by other measures, since the operator is making its offer
73
inaccessible to French players through various mechanisms. Otherwise, the operator
74
is considered engaged in targeting the French public "by omission". ARJEL has
several courses of action, some of which are of extraterritorial nature.
67
VILOTTE Report proposed to cover all competitions, because when a competition resulted in sports bets it
was seen as an aggravating circumstance or as an element that promotes detection.
P. BELLOIR, “La corruption de paris sportifs”, AJ Pénal, 2013, p. 314. The VILOTTE report offered an
illustrative list (not exhaustive) of these players: "For the purposes of the preceding paragraph, are involved in
sports competitions organisers, coaches, athletes regardless of the legal nature of their relationship with
organisers, sports agents, officials, leaders of national and international sports federations, sports
associations or companies and generally any person whose responsibilities allow them to influence the
course of a sporting event or competition."
69
G. LEBON, op. cit., p. 65, who sees it as a text that serves as an example in the context of current
international negotiations regarding the protection of sport integrity.
70
See Douai Court of Appeal, 28 November 1995, condemning the president of Olympique de Marseille with
active corruption of employees (article 152-6 du Labour Code), cited by J.-F. VILOTTE, op. cit, § 171.
71
Id.
72
Law No. 2012-354 of 14 March 2012 of supplementary budget for 2012, Article 21 modifying article L. 563-2
of Monetary and Financial Code.
73
They can remove France from the countries listed in the drop down menu on the registration form on the
site; prevent French players to access their platforms of bets and games or certain pages of their sites (geoblocking), they can also prevent from enrolling or supplying their account.
74
M. BEHAR-TOUCHAIS, J. ROCHFELD, A. DE GUILLENCHMIDT-GUIGNOT, op. cit., p. 155.
68
190
On the criminal level, the Law of 2010 increased the penalties for those offering
(Article 56) or advertising (Article 57) illegal bets. ARJEL sent 245 alerts regarding
offences of offering bets without approval or advertising for unauthorised sites to the
prosecutor between June 2010 and late 2012 and a first conviction was imposed on this
basis by the Correctional Tribunal of Paris. Offering a range of bets in French without
filing an application for approval, the British company Globet International Sports
Betting had been put on notice by ARJEL to stop offering bets on the French market.
However, it pursued its activity, claiming not to be subject to the French licensing
system, which led ARJEL to reporting this situation to the prosecutor. The Correctional
Tribunal ordered the company to pay a fine of 200,000 Euros for illegally offering bets
75
through an organised structure on the basis of Article 56 of the Law of 12 May 2010.
However, there are several obstacles to the effective implementation of this criminal
policy against illegal online bets. Such obstacles can concern the difficulty of locating
the sites of the companies operating the websites concerned but also obtaining the
cooperation of the States in which they are established, especially when they are
76
licenced in those countries.
This is why it may seem more effective and efficient to focus on actions that can
77
be carried out on the French territory. These actions can be of a civil or administrative
nature.
Among the possible civil actions, ARJEL may seize the President of the Paris
Tribunal de Grande Instance petitioning him to order, provisionally, web hosts or
internet service providers to block access to the service in question and/or order any
78
measure to stop the website from being suggested by search engines (Article 61).
On the administrative level, ARJEL may petition the Minister of the Budget to
issue an order blocking financial flows originating from and/or destined towards
accounts held by an illegal operator, for a maximum period of six months (Article 62).
The measure may be particularly deterrent insofar as it prevents the player from
receiving the winnings from his bets.
Although France has finally opened the online gaming sector to competition,
this measure was accompanied by a strict framework to ensure compliance with certain
public policy goals, including the protection of the integrity of competitions and the fight
against manipulation. To this end, ARJEL was endowed with significant powers. It plays
a significant role as an interface between authorised operators and the sporting
movement and serves to coordinate the fight against the offer of illegal bets, although
the power to impose sanctions is shared between several authorities. On these two
points, the emergency device established in 2010 was progressively refined, with the
Law of 1 February 2012 aiming at strengthening sports ethics and enabling, when fully
implemented, to fill certain gaps.
75
[http://www.01net.com/editorial/604156/un-site-britannique-condamne-en-france-pour-offre-illegale-deparis].
ARJEL, 2012 report p. 30 and M. BEHAR-TOUCHAIS, J. ROCHFELD, A. de GUILLENCHMIDT-GUIGNOT,
op. cit., p. 163.
77
M. BEHAR-TOUCHAIS, J. ROCHFELD, A. de GUILLENCHMIDT-GUIGNOT, op. cit., p.168.
78
The blocking method by DNS is used, the related costs for operators to be borne by ARJEL (Decree
No. 2011-2122 of 30 December 2011). End of 2012, 33 blocking injunctions had been issued, including 25 for
the single year of 2012 (ARJEL Report 2012, p. 30).
76
191
The goal is to channel the offer of bets towards the legal offer and to monitor it
in order to detect any evidence of manipulation. However, the protection granted by this
mechanism is not complete. The offer of bets on the physical network is not included in
this framework, and new mechanisms should be introduced by La Française des Jeux,
whose monopoly was not challenged. Secondly, and most importantly, ARJEL
constantly reminds that it guarantees sport integritys bets taken on the French territory,
79
and not that of the competitions organised in France, which may still be subject to bets
taken abroad. The action of ARJEL must be coordinated with its counterparts in order to
establish an effective system for detecting abnormalities in the offer of legal bets.
§ 2. Regulation of Online Gambling in Belgium: Belgian Gaming Commission
While gradually opening the market to gambling, especially sports bets,
Belgium has developed an enhanced regulatory system designed to ensure that the
opening does not come at the expense of public order. The purpose of this system is
not only to develop a market as much as ensure its safety and protect consumers in
particular. Belgium has sought to establish a relevant mechanism of regulation, on the
basis of its objectives, effective, through mechanisms that allow ensuring compliance,
efficient, through an optimum allocation of resources in accordance with the goals
pursued, and economical, since its costs are borne by the operators (A).
This framework can contribute to the fight against the manipulation of sports
competitions related to bets taken on the Belgian territory (B).
A. Overview of the Regulatory Framework of Sports Betting Regulation in
Belgium
In Belgium, the legal framework for gambling and betting, including sports bets
is based on a system of prohibition tempered by exceptions.
Initially, sports bets were excluded from the general framework established by
the Law of 7 May 1999 concerning games of luck, gambling establishments and the
protection of players. It had significantly improved the Belgian landscape of gambling
and ended a chaotic situation by giving control to a single regulatory body, the
Gambling Commission. However, the need to update the law was felt due to four
decisive factors.
First, an important part of gambling games was not included in the scope of this
law. Thus, bets on sporting events and horse races were excluded and dealt with by
80
other provisions in a disorderly manner. It therefore seemed appropriate to put all bets
in the system of licences established by the law on gambling.
Second, the legislator had not considered the large development of
communication tools, especially the Internet. Games using these means were simply
banned because they were not among the exceptions of the law. However, operators
and especially operators established abroad considered that they were not concerned
by the ban and offered massive games.
79
Ibid., p. 70.
Law of June 26 1963 related to encouraging physical education, sports practice in addition to controlling
companies organising bets competition on results of sports rounds, Moniteur Belge, 25 December 1963; Article 6667 CIAIR.
80
192
81
Some fines were imposed but prosecutions remained rare. These games
were offered without considering basic measures meant to protect the players that are
the main concern of the Belgian legislator, and were responsible of fraud, in particular
82
related to tax.
Third, although the supervisory body could sanction licenced operators, it was
helpless against illegal gambling, since prosecutions in the criminal court were not
systematic. A system of fines applicable to licensees but also to other offenders
seemed essential for cases where the prosecution did not consider it appropriate to
carry on with the proceedings.
Finally, the government, genuinely concerned about the consequences of
excessive gambling, wanted to strengthen the protection of players and their families by
providing a better support for the most vulnerable.
The government introduced a bill in 2006 that led to the Law of 10 January
83
2010 validated by the Constitutional Court without finding it necessary to request a
84
preliminary ruling from the ECJ. This text is non-discriminatory; it treats operators
equally regardless of their nationality. The government-owned corporation, which has a
monopoly for lotteries but also offers bets on physical and online networks, is subject to
85
this system and not to the law applicable to government-owned corporations.
Significant limitations on accessing the Belgian market are imposed. However, they are
considered necessary to meet overriding reasons of general interest (such as the fight
against fraud, player protection, the fight against addiction to games and the
indebtedness of citizens, the fight against fraud or crime, and money laundering) and
proportionate to those goals. Its entry into force was progressive, but still is imperfect,
with the publication of Royal Decrees of implementation.
Bets, media games, games of luck with the usage of information technology
remain strictly regulated. The principle of prohibition was preserved, however, a
licensing system is organised to channel players towards a legal offer (1). The gaming
commission is responsible for the implementation of the system (2).
1. Regulating the Legal Offer of Bets
Under Article 4 § 1 of the Belgian Law of 1999 as amended in 2010, "it is
forbidden for anyone to operate a gambling game or a gambling establishment, under
any form, in any place, whether directly or indirectly, without a licence previously
granted by the Gambling Commission in accordance with this law and subject to the
exceptions provided by the law.”
81
Bill with the various provisions (II), Doc. Parl. Chamber, 2006-07, No. 51-2761/001, 60.
D. REYNDERS, “Financial and tax aspects of gambling” in: N.HOEKX, A.VERBEKE (eds.), Kansspelen in
België. Les jeux de hazard en Belgique, Bruxelles, Larcier, 2009, p. 181.
83
Moniteur Belge 1 February 2010, p. 4309.
84
Constitutional Court, 14 July 2011, No. 128/2011. RG 4929-5011 [http://www.const-court.be/cgi/].
85
Council of State, 18 March 2012, A 206.588/XI-19262, Sagevas and cts/Etat belge/Loterie nationale SA.
However the government published a new disputed Royal Decree, with retroactive effect that allows the
th
beneficiary to have a 35 licence not included in the general law system provided by the Law of 10 January
2010.
82
193
Therefore, the regulatory mechanism for sports bets is based on a system of
licences granted under certain conditions with a limited number, according to the idea
that limiting the number of operators increases the effectiveness of the mechanism. For
the sake of coherence, the system for online games was aligned with that in force for
games in the physical network.
Games on the Physical Network. The Belgian legislator intended to impose a
clear separation between manufacturers, distributors of bets and operators in direct
contact with the players in addition to allocating to each category specific obligations.
The distributors and the manufacturers are responsible for the implementation of the
standards applicable to games, the operator in direct contact with the player is
responsible for compliance with the legislation on the protection of players (age,
verification with EPIS bank, listing of excluded persons). The distributor cannot have
direct or indirect legal control over the operator. Therefore, several types of licences can
be issued.
To be able to organise bets, an operator must hold an F1 licence
(Article 43.3, § 1), which allows operating bets for a period of nine years, renewable
(Article 25.6). Candidates who want to obtain and keep this licence must meet the
requirements that are substantially similar to those set for casinos and gambling halls
and that are aimed at ensuring the financial transparency, fairness and solvency of the
86
operator. The number of F1 licences is limited to 34. If a licence becomes available
(after renunciation or withdrawal) after the maximum number of licences was granted;
this licence is published in the Belgian Official Gazette and on the website of the
Gambling Commission. The latter then issues the licence on the basis of the fulfilment
of the criteria of "reliability" and "expertise" by the applicant.
Bets on the physical network are then taken on behalf of operators holding a F1
licence through Class IV gambling establishments, whose number is also limited
(to 1000). They must hold an F2 licence (Article 43.4) which imposes many obligations
on them, including having a LAN (local area network) connected with that of the holder
of the F1 licence for whom they work and with the one belonging to the Gambling
Commission, having a CCTV system, and register all bets with winnings exceeding
1,000 Euros. This registration system not only helps protect the bettors, but also helps
detect those among them who are interested in betting on a fixed event.
Online Games. The offer of online bets increases the risks to public order,
especially when it is offered from States that do not regulate bets: it is not always
genuine, does not always take into account the protection of players and can be subject
to false advertising. To overcome the risks, the Belgian legislator has, remarkably,
coupled online games to those available in the real world. This mechanism ensures a
coherent policy, regardless of the type of games, and also allows taking advantage of
the experience acquired in the real world, but most importantly, to have better control
over the offer of online games, especially when offered from abroad. Thus, only
licensees in the real network can obtain a F1+ licence allowing them to offer online
games (Article 43.8, § 1).
86
Royal Decree of 22 December 2010 related to the maximum number of bets organisers and to the
procedure of treating licence request when a licence is release after withdrawal or disclaimer, Moniteur Belge,
29 December 2010, p. 9988.
194
The operators of online bets are very well-known, their servers and their
financial flows are monitored in Belgium and they comply with Belgian law.
This mechanism allows an effective regulation of the offer of online bets. In fact, in the
case of a breach of the licencing conditions on the internet, the operator may lose its
right to operate physical bets, its investment as well as the trust of the authorities and
the public. In addition, the conditions applied to physical bets can be transposed, for the
most part, to online games. They relate, in the case of operators, to their
professionalism, financial transparency, solvency and fairness of their games and, in
87
the case of bettors, to their age, their registration and their average hourly losses.
These obligations could be perceived as a significant restriction on access to
the market of online bets in Belgium. The European Commission questioned the clarity
of the system of granting F1+ licences, especially in anticipation of the publication of the
88
Royal Decrees for implementation. However, according to Belgium, the system is
sufficiently clear and known in its current state and it was important to implement it as
soon as possible in order to respond to the evolution of the betting offer, including the
illegal offers, and of the techniques. More fundamentally, the Commission expressed
doubts about the requirement for the operator to have a server located in Belgium.
Stressing that, first of all, given the lack of a structured cooperation between States for
the regulation of gambling, it is up to the State to take necessary measures, Belgian
authorities consider that it is the only way to ensure the effectiveness of the regulatory
system. The presence of the operator’s main server in Belgium can ensure an optimal
protection of the bettor in an automated manner through specific communication
procedures (web service for the database of excluded persons (EPIS), age, hourly
losses ...). Therefore, the server in Belgium must contain all the information in real time
about the game and the related financial transactions, and operators must keep a
number of records and allow the Gambling Commission to access them (access,
closing reports on wagers and earnings of Belgian players, gambling transactions of
Belgian players, etc.). This enables legal and regulatory authorities to act immediately
at the site where the player gets access, because this is where the game takes place.
This system did not prevent international operators from investing in Belgium in
the framework of an association with traditional operators. The result is that players now
have a national interlocutor (their complaints are taken into account), the funds are in
Belgium, the game is known in Belgium, the age requirements of players are met,
hourly losses can be set, requests of exclusion are respected, and the servers are on
the national territory…
Belgian legislation consistently tends to strike a balance between the legal
operation that must remain profitable and the protection of bettors and public order,
which lead to necessary restrictions, including technical restrictions. The Gambling
Commission is responsible for the implementation of the system.
87
N. HOEKX, É. MARIQUE, Actualité et perspectives des jeux de hasard réels et en ligne, Revue de droit
pénal et de criminologie 2012, p. 745.
É. MARIQUE, “Procédure d'infraction de la Commission européenne à l'égard de la Belgique: un non-sens”,
in: F. PERALDI-LENEUF (dir.), Quel cadre juridique européen pour les jeux en ligne?, Bruxelles, LARCIER,
to be released.
88
195
2. The Gambling Commission
To ensure the implementation of the system, the legislator created, in 1999, a
Gambling Commission, that has significant powers to carry out the tasks entrusted to it.
Status. The Gambling Commission is attached to the Federal Public Service of
Justice, headed by the Minister of Justice. It is presided by a magistrate, Etienne
Marique, surrounded by representatives (in each case, one Dutch speaking and one
French speaking) and six ministers. Following criticisms of the commission in the press
89
in 2012, an audit led by the Court of Auditors concluded that a. the law on gambling
should be implemented in its entirety, so that the Commission may have a conclusive
legal basis to perform its tasks; b. the budget funds of the Gambling Commission must
be optimally used to meet its needs in staff and computers; c. all income and
expenditure related to the law on gambling and its implementing regulations should be
listed in a single budget fund and should group all the staff involved in the
administration of the Commission to increase transparency and efficiency. This audit
90
has strengthened the position of the Commission. From an institutional point of view,
two main points are still debated.
The first is the Commission’s lack of legal personality. Without legal personality,
the Commission cannot enter into legal agreements, only the Minister being able to act
on behalf of the State (See below), and does not have its own budget, the funds
collected from the sector of the games being divided between two funds concerning
gambling (one with the Federal Justice service and the other at the Economy public
service). To increase its efficiency, it is advisable that the regulator has a legal
personality under public law and its proper funds. The monitoring of this personified
institution could then be entrusted to the Parliament.
The second difficulty concerns the question of whether, in view of its powers,
including its prerogatives concerning sanctions and civil penalties, the Commission
would not be considered a court within the meaning of the European Convention for the
Protection of Human Rights and fundamental freedoms and thus bound by the rules of
fair trial, including the requirement to separate the functions of prosecution,
91
investigation and trial. For the moment, inspection measures, the decision to initiate
sanction proceedings, and the imposition of the sanction are carried out by a single
instance. While the law did not specify whether the Commission could be regarded as a
92
jurisdiction, and since the preparatory work hardly shed light on the issue, the Court of
Cassation and the Belgian Council of State perceived it after a period of confusion, as
an administrative authority. According to the Court of Cassation, the Commission is not
responsible for resolving a dispute but only to issue a decision, positive or negative, on
licence requests presented to it.
89
S. LIEVEN, J. DE BEULE, Bellen is tellen Hoe onafhankelijk is de Kansspelcommissie?,
[www.standaard.be/artikel/detail.aspx ?artikelid=DMF201207].
Court of Accounts, Report to the Federal Parliament, Fucntionning of the Commission of gambling, 30 May
2012. [www.courdes comptes.be].
91
ECHR, 11 June 2009, Dubus v. France, No. 5242/04.
92
As a first step, Secretary of State qualified the Commission as “an administrative authority that practices a
jurisdictional competence” (Chamber, Doc. Parl. 52, 1992, p.35) and insisted on its ”administrative authority”
(pp. 37 and 56).
90
196
It acts as an administrative authority and not as a jurisdiction, even if the
application is made by an applicant authorised to continue its operations pending the
93
decision of the Commission . According to the Council of State, it is also an
administrative authority; the existence of the appeal to the Council of State allows a full
94
review of legality and thus a fair trial.
Duties and Powers. Besides providing advice on the development of issues
95
related to gambling. the main task of the committee is to decide upon the granting
various types of licences. However, its mission is not only related to this task. It not only
issues licences but also monitors compliance with the conditions imposed on licensees.
It may impose a range of penalties ranging from a reprimand to a suspension or a
revocation of the licence through the prohibition from operating machines…
The law of 2012 also provided for the ability of the Commission to impose
administrative fines on licensees who are in breach but also to all those who violate the
law and whose prosecution is not considered a priority and thus not initiated. If within
six months of receiving the original notice of infraction, the King’s prosecutor does not
issue any communication to the Commission or informs it, without casting doubt on the
existence of the offence, the issue will not be pursued, and the Commission may
impose a fine (Article 1.15, §§2 and 3) within five years of becoming aware of the
offense. This time limit cannot be extended. A decision imposing a civil penalty
excludes criminal proceedings.
An appeal against the fines may be brought before the Court of first instance,
while the Council of State has jurisdiction over other types of sanctions.
The Belgian system tends to allow authorised operators to offer games in order
to channel the market towards this tightly regulated framework. Meanwhile, resources
are being used to drain the offer of illegal bets. In both aspects, the Belgian system can
help fight against the manipulation of competitions.
B. Regulation of Gambling Activities and Fighting Against the Manipulation of
Sports Competitions
The fight against the manipulation of sports competitions in connection with
sports bets is not the sole purpose of the legislative framework of games in Belgium. It
is mainly directed towards the protection of bettors, but the issue of manipulation related
to bets is a concern nonetheless. Several provisions allow strengthening this fight,
whether in the management of the legal offer (1) or in the fight against illegal offers (2).
93
Court of Cassation, 15 June 2012,case No. C.120231.F/1.
Council of State, 14 July 2012, XI RG 19064 et seq.
Regarding this issue, the Commission of Gambling stated that, in order to face future challenges, initiative
and creativity should remain the motive to develop the domain of gambling. To this effect, it is necessary to
have a solid foundation, especially with scientific studies that would supply the policy that should be followed.
In the same context, many scientific studies have been requested, especially concerning monitoring (mapping
of money flow, analysis of costs-profit, and concerning the impact of gambling on criminality and the danger of
gambling regarding the threshold and the protection of the player. Abandoning such plans for budgetary
reasons would be similar to mortgaging the future.
94
95
197
1. Regulating the Legal Offer
Part of the provisions regulating the offer of legal bets tends to limit the risks of
fraud, particularly the risks of manipulating sports competitions related to the betting
activity.
Belgium does not specifically incriminate corruption in sport. The provisions of
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general law apply, including those related to private corruption, misuse of company
assets, extortion, threats, fraud or laundering. Sports federations also have disciplinary
97
powers, but only over their licensees.
Although mandatory membership of a
professional athlete to his federation does not collide with the negative freedom of
association provided that the federation is seen as a public authority within the meaning
98
of the ECHR, this mechanism is not sufficient.
The law on gambling and its implementing regulations also contain provisions
useful for the fight against manipulation. It thus provides that no person shall take part
in any game of luck if that person might have a direct influence on the result
(Article 4 § 3 of the law on gambling); it is forbidden to organise bets on an event or
activity contrary to public order or morality; it is forbidden to organise bets on events or
facts where the result is already known or whose uncertain facts have already occurred
(Article 43/1 of the law on gambling); the licensee must ensure, at all times, the fairness
of the bets organised and the regularity of their functioning (Article 3 of the Royal
Decree of 22 December 2010); the operator of the gambling establishment must
ensure, at all times, the sincerity of bets and the regularity of their operation
(Article 10 of the Royal Decree of 22 December 2010).
These provisions justify the investment of the Committee of Gambling in the
fight against manipulation of competitions. On this basis, it may exercise its powers of
sanction and imposing administrative fines in the service of the fight against
manipulation. It is also expressed its commitment to a proactive approach in 2012, for
the Olympic Games and the Euro, by concluding with the police, betting operators and
sports organisations a protocol defining the procedures to be followed in cases of
99
suspected fraud in sport. A structured network of communication has emerged and
allowed all three actors (regulator, sports organisations and betting operators) to
harmonise the steps to be taken in case of suspected sports fraud. The Commission is
responsible of notifying the protocol to all holders of Belgian licences. These licensees
are then required to comply with its requirements, this criterion being taken into account
within sanctioning policy in case of violation.
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Article 504 bis of the Criminal Code: “1. The fact of private passive corruption is established when a person
with the status of administrator or manager of a corporation or individual requests or accepts, directly or
through other persons, an offer, a promise or an advantage of any nature, for themselves or for a third party,
acting or refraining from acting within his function, without the knowledge or authorisation, and depending on
the case, of the Board of Directors or General Assembly of the principal or of the employer.” Para. 2 targets
private active corruption.
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The Belgian Court of Cassation confirms this point of view in its judgement of 30 May 2011: “A non-profit
organisation, such as Vlaams Doping Tribunaal, has no disciplinary power over elite athletes affiliated to a
federation that has given it the task of imposing disciplinary sanctions, does not have the competence to
render obligatory decisions concerning third parties and therefore cannot be considered as an administrative
authority within the meaning of article 14 of the coordinated laws on the Council of State” (Court of Cassation,
30 May 2011, J.T., 2012, No. 6464,71).
98
ECHR., 23 June 1981, Le Compte et al. v. Belgium C.A., 6 October 1999, No. 104/99; Court of Cassation,
3 May 1974, Pas., I, p. 911.
99
“La Commission des Jeux de Hasard mise sur un été sportif intègre”, Rapport annuel 2012 du SPF Justice,
p. 35 [www.justice.belgium.be/fr/presse/contact/].
198
This is undoubtedly a step in the right direction. However, without legal
personality, the Commission cannot conclude legally binding agreements. With no real
legal force, such a protocol cannot be sufficient to implement a serious and effective
policy.
2. Fighting Against Illegal Bets
However, Belgian law is not limited to providing strict oversight of the legal
market. It also contains several provisions to strengthen the fight against illegal bets in
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order to channel the market towards the legal offer. This fight against illegal bets can
also be seen as a way of fighting against the manipulation of competitions. In fact, not
only does the development of an unregulated market increase the risks of manipulation,
but also, this offer is by definition excluded from detection mechanisms.
The law provides that a bettor can be prosecuted while participating in a
gambling activity he knows is illegal (Article 4, § 2). But the criminal liability of
intermediaries such as hosts, ISPs, financial institutions or advertisers can also be held
liable if they contribute to the functioning of a site that they know offers illegal gambling
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services. This clear language implies the need to identify the legal operators but also
to educate bettors, hosts, Internet service providers, advertisers, and financial
intermediaries on the existence of illegal sites in order to allow the former to comply with
the law avoiding the latter. For this reason, in addition to the white list enumerating the
licenced operators, the Gambling Commission officially published a blacklist of sites
which have are subject to open criminal investigations. The police services attached to
the Commission establish a written record of the violation, valid until proven otherwise,
which is communicated to the prosecutor who has the power to search and confiscate
assets of access providers. At the same time, for the sake of transparency, the
Gambling Commission publishes the list of illegal "url’s".
This black list produces several effects.
The first is that, to avoid being seen as perpetrators, conspirators or
accomplices in crime, ISPs block access by redirecting to a blank page in order to stop
those who seek to connect to these sites. By blacklisting nearly one hundred illegal
"url’s", in 2013, 430,000 players who used to bet on illegal websites were redirected to
the legal market within two years.
However, being on a blacklist may have more indirect consequences.
First, financial markets are sensitive to the fact that an operator is using "url’s" blocked
by a country, which may affect the price of the shares on the stock market. In addition,
other regulators may be sensitive to this listing. Thus, the regulator of Nevada in Las
Vegas, takes particular care when examining applications for operators with "url’s" on
the black list drawn up by the Belgian authority. This way of regulation is clearly not the
best way and is left to the discretion of a very powerful regulator driven by its own
interests.
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Tax issues play an important role concerning this channeling. By not only taxing legal betting operators but
also winnings on the legal market, Belgian authorities take the risk of shifting them to the illegal market to the
benefits of the illegal offer.
101
Contrary point of view of the auditor A. VAN STEENBERGHE before the Council of State 5 March 2014
A/A 207.946/VII-38752 Gamepoint case.
199
In addition, it is all but certain that other regulators will give the same
102
consideration to the findings of the Belgian regulator. On 7 March 2011, a few weeks
after the entry into force of the law of 10 January 2010, Belgium wrote to the regulators
of Alderney and Gibraltar requesting them to ban their licensees from providing their
services in Belgium. However, these regulators ignored this request.
The gambling sector, including the sports bets sector, remains strictly regulated
in Belgium. The law of 1999 had already organised the chaos of the gaming world for a
part of this sector. The law of 10 January 2010 brings more consistency by applying the
same philosophy that supported the previous reform. The fragmented landscape of the
public policy on gambling is now framed by the same values: transparency of operators,
fairness of the game, financial solvency.
The Belgian system is characterised by a global approach to all gambling
activities and by an assimilation of the system applicable to online games to the one
regulating games of the physical network. It tends to channel the offer of bets towards
the legal market and monitor it. This system is primarily directed to the protection of the
consumer. But it can help detect signs of possible manipulations.
However, the protection offered by this mechanism is not complete. In fact, the
Gambling Commission only regulates bets on the Belgian territory. Its action must be
coordinated with that of its counterparts to establish an effective system for detecting
anomalies in the offer of legal bets. It is therefore important to have a pattern of
preference establishing, in each country, a regulator with similar powers and similar
goals. Among its powers, the fight against the manipulation of competitions with a view
of placing bets should be retained.
§ 3. The Regulation of Online Gaming in the United Kingdom: the Gambling
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Commission
In the United Kingdom, gambling is controlled by the 2005 Gambling Act (A).
The Gambling Commission is responsible for implementing its contents (B), and the
Sport Betting Integrity Group ensures a better cooperation of stakeholders in the sector
of bets (C). Two other texts were added since, to strengthen the coherence of this
device: The Gambling Bill of 2013 (D) ant the Bribery Act of 2012 (E).
A. The Gambling Act 2005
The primary piece of legislation relating to gambling is the 2005 Gambling Act
which essentially seeks to regulate gambling via a licensing system overseen by the
Gambling Commission.
The licencing objectives are to:
102
Journal of Casinos, 11 March 2011.
The developments presented in this paragraph were written in English by Rick Parry (former general
director, Liverpool Football Club; former president, FA Premier League, honorary doctorate, United Kingdom).
103
200
§
§
§
Prevent gambling from being a source of crime;
Ensure that gambling is conducted in a fair and honest way;
Protect children and other vulnerable persons.
The definition of gambling is very broad and includes gaming, betting and
lotteries. Thus, casinos, slot machines and bingo are covered.
Curiously, spread betting (which is very relevant to sport) is not. This is covered
by the Financial Services and Markets Act of 2000 as it is an activity which had its
origins in the City.
The Gambling Act 2005 is divided into different missions of public order. It
includes the fight against the manipulation of fixed bets (1), the fight against illegal
operators (2) and the protection of personal information (3). Consequently, it provides
for the possibility of cancelling bets violating the law (4). Finally, it provides detailed
conditions for granting licences to online operators that want to offer bets on the British
territory.
1. Cheating at Gambling (Section 42)
The Act created the criminal offence of Cheating at Gambling.
The definition is very broad and simply provides that a person commits an
offence if he:
§ Cheats at gambling or;
§ Does anything to enable or assist another person to cheat at gambling.
It is irrelevant whether the person improves their chances of winning or, indeed,
wins anything.
On conviction a person may be imprisoned for a maximum of two years and
fined.
2. Foreign Gambling (Section 331)
A person commits an offence if he advertises foreign gambling.
This includes remote gambling none of the arrangements for which are subject
to the laws of an EEA State.
So sports teams, or events, sponsored by Asian bookmakers could be caught
by this provision.
Maximum penalties are a year’s imprisonment and a fine.
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3. Data Protection (Section 352)
Nothing in the Act authorises any disclosure which contravenes the Data
Protection Act 1998.
This has been quoted as a limitation on the ability, for example, of betting
operators to supply information to sports governing bodies on activities of individual
gamblers.
4. Power to Void Bets (Section 336)
The Commission has the power to void bets (which means any contract is void
and any money paid by way of stake or winnings must be repaid) when it considers that
a bet is “substantially unfair”.
This means that:
§ Either party supplied false or misleading information or.
§ Either party believed a race, competition or event would be conducted in
contravention of industry rules or.
§ Either party believed a Section 42 (Cheating at Gambling) offence had been or
was likely to be committed.
This is an extremely useful tool as it can be applied quickly and is essentially a
form of disruption.
5. Operating Licences (Part 5)
The Commission is empowered to issue Operating Licences to betting
operators.
In particular Remote Operating Licences are specifically defined as licences
issued to operators of remote gambling – which is essentially gambling carried out by
telephone or online as opposed to in fixed premises.
Crucially, however, the Act only applies to remote gambling equipment that is
situated in Great Britain.
Operating Licences must specify:
§ The person to whom they are issued;
§ The period for which they are issued;
§ Any conditions attached by the Commission.
The Commission has the power to attach conditions to licences. These may be:
§ General conditions applied to each licence, or class of licence;
§ Individual conditions applied to a particular licensee. Conditions may refer to the
nature of the licensed activities, the circumstances in which the activities are
carried out or the circumstances of the licensee.
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They may restrict the methods of communication that may be used in relation to
remote gambling, they may impose financial conditions on licensees and they may
restrict the way in which gambling services are advertised.
They may also make provisions for establishing, and recording, the identity of
users.
The Commission has wide ranging regulatory powers in relation to Operating
Licences and may:
§ Issue warnings to licence holders;
§ Attach additional individual conditions to a licence;
§ Suspend a licence;
§ Revoke a licence;
§ Impose a financial penalty.
The Commission has wide ranging powers to obtain information from licensees.
This includes written or electronic records of licensed activities.
B. The Gambling Commission
The Gambling Commission has different prerogatives that ensure the efficiency
of the Gambling Act 2005 (1). Furthermore, it has adopted various guidance documents
on ethical behaviours that operators should follow (2) and in order to raise awareness
on the emergent risks related to live bets (3). Also, the Gambling Commission specified
that the sponsorship by foreign operators is covered by the provisions of the
Gambling Act (4).
1. Prerogatives
The Act provided for the establishment of the Gambling Commission, a body
corporate set up to replace the Gaming Board which has existed since 1968;
Because the Commission is central to gambling regulation in Great Britain, it is
worth examining it in more detail.
It was finally established in September 2007 as an independent Non
Departmental Public Body; as such it is neither an agent nor a servant of the Crown.
Based in Birmingham, it is overseen by ten Commissioners including a
Chairman and Chief Executive and employs some 200 staff. Of these, over thirty are
compliance and enforcement officers.
The Commission is funded by fees collected from all licence holders at a level
set by the Department of Culture, Media and Sport.
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Its principal functions are:
§ Pursue the licensing objectives;
§ Permit gambling in a manner consistent with the pursuit of
those objectives.
The Commission is required to publish, and update from time to time:
§ A statement of principles setting out how it will exercise its
functions under the Act;
§ Codes of practice describing how facilities for gambling are to
be provided.
The principal duties of the Commission are to:
§ License gambling operators. The Commission has wide powers to set licence
conditions;
§ Advise the Secretary of State (for Culture, Media and Sport) on the manner in
which gambling is carried out, the effects of gambling and the regulation of
gambling;
§ Secure compliance with the provisions of the Act;
§ Investigate and prosecute offences under the Act;
§ Provide information to Sports Governing Bodies listed in Schedule 6 to the Act
(originally the domestic bodies governing horseracing, football, cricket, rugby,
tennis, golf and athletics) to assist them in exercising their own governance
functions;
§ Provide information to Sports Governing Bodies listed in Schedule 6 to the Act
(originally the domestic bodies governing horseracing, football, cricket, rugby,
tennis, golf and athletics) to assist them in exercising their own governance
functions.
Sections of the Act which are particularly relevant for sports betting, and hence
for match fixing, include Cheating at Gambling (Section 42), Operating Licences, (Part
5), Foreign Gambling (Section 331), Power to Void Bets (Section 336) and Data
Protection (Section 352).
It has wide powers of inquiry. Licence holders are required to supply information
that the Commission requests and enforcement officers appointed by the Commission
may enter premises, apply for search warrants, question people and take copies of
records.
As previously noted, the Commission has the power to attach conditions to
licences, of particular relevance to sports betting is licence condition 15.1 which
essentially states that:
§ Licensees must provide the Commission with information that they know or
suspect may relate to the commission of an offence under the Act;
§ Licensees must provide those Sports Governing Bodies listed in Schedule 6.
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To the Act with information they suspect may:
§ Lead the Commission to consider voiding a bet;
§ Relate to a breach of the rules of one of those Governing Bodies.
From time to time the Commission publishes reports and papers. Three of
these are particularly interesting.
2. Betting Integrity: Position Paper, March 2009
The Commission recognised the importance of addressing the issue of betting
integrity. In doing so it met two of its key objectives, namely ensuring gambling is fair
and keeping crime out of gambling.
The Commission said it had been addressing six key areas:
§ Working with Sports Governing Bodies - essentially this meant developing and
signing MoU’s with governing bodies, the aim being to define how the
Commission and the governing bodies will work together, especially in relation
to the reporting of suspicious betting patterns;
§ Rules -the Commission had been taking a particular interest in Sports
Governing Bodies’ rules and was trying to encourage those bodies to share
best practice with each other;
§ Information sharing – since September 2007 the Commission had received
some 50 reports of suspicious activity under licence condition 15.1. It was
apparent that there were different degrees of “suspicious” and there was a need
to secure greater consistency of reporting between operators. The Commission
was aware that organisations such as the British Horseracing Authority were
collecting information on betting patterns in real time but saw no reason why it
should follow this path. The Commission had been able to clarify with the
Information Commissioner that provided information sharing under condition
15.1 could be justified breaches of the Data Protection Act would not occur;
§ Specific bets and terms and conditions - the Commission recognised that it had
the power to RESTRICT the types of bet offered and to PREVENT betting on a
sport (where, for example, the rules on betting were not adequate). However
the Commission was not persuaded that such action was either warranted or
likely to be effective in Great Britain;
§ Investigation and prosecution - the Commission recognised that it had powers
to take action in relation to cheating (Section 42), to obtain information ( section
88) and to void bets (Section 336). However it still envisaged handing most
investigations to the police as they have greater investigative powers (for
example the ability to investigate bank accounts) and are better equipped to
undertake complex investigations. It also recognised that Governing Bodies
were able to move quickly (not least because in the UK they judge cases with
the civil “balance of probabilities” test which is less onerous than the criminal
“beyond all reasonable doubt” standard) and that their ability to damage
participants’ career prospects (through the imposition of lengthy suspensions)
was a powerful deterrent;
§ In- running betting - see below.
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3. In-Running Betting: Position Paper, March 2009
In-running (or in-play) betting is defined as betting while an event is taking place
and it is mainly transacted online (although this could be via terminals in betting shops).
Having studied and consulted on the topic for some eighteen months, the
Commission had concluded that it was a popular and legitimate form of betting.
It was recognised that there were two potential issues:
§ The integrity of the betting and the subject of the betting could be compromised;
§ There was a risk to the fairness and the openness to the betting as a result of
people taking advantage of technology to gain better information (for example
through timing differences).
However the Commission had seen no evidence to suggest that any special
measures were necessary. Nothing suggested there had been an increase in match
fixing or the misuse of inside information.
4. Sponsorship Of British Sports Clubs By Foreign Gambling Operators: Advice
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Note September 2009
Section 331 of the Act relates to Foreign Advertising. The Commission
confirmed that sponsorship of clubs or events fell within the meaning of Advertising for
the purposes of the Act.
The Commission stated that any operator advertising in Great Britain had to be
licensed or regulated in one of the EEA States (which include Gibraltar for the purposes
of the Act) OR in one of the States approved by the Department for Culture, Media and
Sport on the Government’s so called White List. The White List included Antigua and
Barbuda, Alderney, the Isle of Man and Tasmania.
At least two Asian bookmakers wanting to sponsor Premier League football
clubs obtained licences in the Isle of Man.
C. The Sports Betting Integrity Panel and the Sports Betting Group
In order to reinforce the Gambling Act’s public order rules, the Government
created the Sport Betting Integrity Panel that has the goal of ensuring cooperation
between the stakeholders of the gambling sector (1). To this end, the Panel has
adopted a code of conduct (2) and promoted educational programmes for future players
to raise awareness to the risks of gambling (3). Finally, the Panel recommended the
creation of operational services in charge of efficiently combating illegal bets (4). The
Sports Bettig Integrity Panel no longer exists. It is the Sports Betting Group that is trying
to secure better cooperation between agencies (5).
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Opinion of the 2009 Gambling Commission.
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1. Overview
Despite the fact that the Act was comprehensive and that the Gambling
Commission had just produced its position paper on betting integrity, in the summer of
2009 the Minister for Sport announced the creation of the Sports Betting Integrity Panel.
This was to comprise representatives of the major Sports Governing Bodies
(horseracing and football), the leading bookmakers, the Gambling Commission and the
police.
The objective was to produce a plan of action that would enable the bodies
represented to work more effectively together.
It is believed that the Minister was concerned that:
§ There had been no prosecutions for the offence of Cheating at Gambling;
§ Despite 50 reports of suspicious activity under Licence Condition 15.1 there
was no evidence that any sports governing body had taken disciplinary action.
There was a perception amongst others that the Gambling Commission gave
sports betting a low priority and was more comfortable regulating lotteries and gaming
machines.
The report of the Panel has been circulated on a number of occasions and
there is no need to do anything here other than to summarise its principal conclusions
very briefly.
In essence the recommendations fell into three main sections
2. Rules
The Panel produced a Code of Conduct for Sports Governing Bodies to adhere
to.
This set out a framework for a minimum level of rules to be adopted by every
sport, a commitment to enforce those rules and a commitment to apply proportionate
but robust sanctions to offenders. It was recognised by the Panel that:
§ Every sport is different and needs the flexibility to adapt rules to its own
circumstances. For example the Panel said that every sport must have rules
that define who is allowed to bet, but left it to individual sports to make
decisions on who that should be;
§ Sports Governing Bodies are keen to retain sovereignty. Each sport must retain
responsibility for maintaining and enforcing its own rule book. In effect the rule
book binds participants through contract law (at least this is the position in the
UK) and it is not possible to delegate this to another authority.
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Nor is it desirable to do so.
The Panel also proposed the creation of a Sports Betting Group comprising
representatives of Governing bodies. Its function was to monitor the progress of the
Code of conduct, to provide advice to Governing Bodies and to liaise with Government.
3. Education
The Panel recognised that education of all participants is of fundamental
importance and that Governing Bodies should work alongside Player Associations to
deliver comprehensive education programmes.
4. Pan Sport integrity Unit
Sports that had experienced serious betting integrity issues (notably
horseracing, cricket and tennis) had established integrity units with substantial
intelligence gathering and investigative capability.
The Panel recommended the creation of a Pan Sport integrity Unit that would
service the needs of all sports in the UK. This would be a cost effective use of resource
and facilitate greater cooperation and information sharing between sports. Its role would
be to gather and disseminate intelligence and to assist Governing Bodies with the
investigation of alleged offences. It would not, however, prosecute offences, it being
clear that this would remain the responsibility of the Governing Bodies in accordance
with their established disciplinary procedures.
After careful deliberation the Panel recommended that such a Unit should be
situated within the Gambling Commission. The logic behind this being that the
Commission has significant powers of inquiry and prosecution, it has the ability to void
bets, to restrict the type of bet and even to prevent bets being placed on particular
sports. And that betting operators are obliged to report suspicious activity through the
licence conditions. No other Unit, wherever situated, would have such powers. None of
the Units operated by individual Sports Governing Bodies has remotely similar powers
and has to rely on the Sport’s rulebook to establish its remit. It was also felt that giving
the Commission responsibility for the Unit would ensure that sports betting would
receive a higher level of priority than previously.
Certain other miscellaneous, but nevertheless important, recommendations
were made:
§ The Government should review as a matter of urgency the maximum penalty;
§ For the offence of Cheating at Gambling (two years imprisonment). This was
felt to be inadequate as a deterrent and as an incentive for police forces to
undertake lengthy and complex investigations;
§ Some panel members believed that the definition of Cheating in the Act was too
broad and should be much tighter. The Government’s response was that it had
been made broad deliberately to enable as many offences as possible to be
caught;
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§ The definition of suspicious activity under Licence Condition 15.1 needed to be
refined and steps taken to ensure that betting operators applied greater
consistency in reporting;
§ The betting operators should vary their terms and conditions so that
contravention of Sports Governing Bodies’ rules would be a breach of the
operators’ own terms and conditions and enable them to refuse to pay out on
such bets;
§ The Panel was concerned that serious jurisdictional issues arose from remote
betting operators abroad who were outside of the Gambling Commission’s
licensing net. The Panel was assured that the Government would be
addressing this issue.
Since the Panel reported in February 2010 some tangible progress has been made.
In particular:
§ The Gambling Commission has established the Sports Betting Intelligence Unit.
This is described more fully in a Commission document attached as an
Appendix;
§ The Sports Betting Group has been established and continues to meet on a
regular basis;
§ There has also been one prosecution for the offence of Conspiring to Cheat at
Gambling;
§ This involved the three Pakistani cricketers who in early 2010 were the victims
of a News of the World sting operation that saw them bowl “no-balls” at agreed
times in a Test match in England;
§ The nature of the operation meant that no bets were placed so the new betting
intelligence systems were not tested. And nor could it be said that anyone had
cheated at gambling;
§ Significantly they were also charged with conspiring to accept corrupt payments
under the Prevention of Corruption Act of 1906.
§ All three were found guilty and one was jailed for three years - a greater penalty
than he could have received under the Gambling Act.
5. The Sports Betting Group
As outlined above, the Sports Bettig Integrity Panel no longer exists. It is the
Sports Betting Group that is trying to secure better cooperation between agencies.
The Sports Betting Group was formed in 2010 following the publication of
the Report of the Sports Betting Integrity Panel.
According to its website:
"The Sports Betting Group was subsequently formed with the Sports and Recreation
Alliance (SRA) providing its secretariat (…) The SBG holds regular meetings and works
on a number of issues such as making policy submissions to Government and the
Gambling Commission, holding seminars for the sports sector and promoting best
practice in education and communication on betting issues. This work is set out in more
detail on this website.
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The SBG has also just published a sports betting code as specifically recommended by
Parry. It covers six key areas that all sports bodies are encouraged to review and act
upon as part of their risk assessment of sports betting. The Sports Betting Group has
had specific input from the sports of cricket, football and horseracing and from a range of
bodies including NGBs, competition organisers and representatives of player
federations, as well as other sports stakeholders and integrity bodies (…).
The Sports Betting Group provides co-ordinated responses to the DCMS, Gambling
Commission and other regulatory bodies on the future regulatory framework and policy
decisions on sports betting issues (…).
One of the core aims of the Sports Betting Group is to provide help and support to all
sports bodies on how to most effectively tackle sports betting issues. Our priority is to
share best-practice and intelligence information across the sporting world and offer
support and assistance to those who might not have the resources or infrastructure to
address the issue alone."
D. The Gambling (Licensing and Advertising) Bill 2013
As noted above, the Sports Betting Integrity Panel raised the issue of overseas
operators of remote betting being outside the regulatory net.
In 2009, leading operators William Hill and Ladbrokes moved their online
(remote betting) operations from the UK to Gibraltar. They were closely followed by
Betfair (the Betting Exchange) and other British bookmakers Victor Chandler, Stan
James and Betfred.
It must be outlined that the betting duty in Great Britain is 15% of net stake
receipts (essentially gross profit). The equivalent in Gibraltar is 1% of turnover with a
cap of £425,000.
It has been suggested that they made the move to escape the regulatory net
but there is no reason to believe this to be the case:
§ William Hill, Ladbrokes and Betfair were supportive members of the Sports
Betting Integrity Panel.
§ The licensing conditions are not onerous for well managed companies who
guard their reputations carefully and recognise that integrity contributes to
customer retention.
§ William Hill and Ladbrokes maintain substantial estates of betting shops in the
UK and these remain subject to Gambling Commission licences. This is hardly
a position the companies are going to jeopardize.
§ There is now a new Act to make provision about the licensing and advertising of
gambling (Licensing and Advertising) Act 2014 (14th May 2014) that amended
the Gambling Act 2005 so that instead of remote operators being licensed at
the point of supply, they will be licensed at the point of consumption.
This will be achieved by amending the wording that refers to “machines based
in Great Britain” to “machines capable of being used in Great Britain, wherever they
may be situated”.
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This has been achieved by amending the wording that refers to “equipment
situated in Great Britain” to “no such equipment is situated in Great Britain but the
facilities are used there”. More precisely, the amendments are the following ones:
“1
Licensing of remote gambling
(1) In section 33 of the Gambling Act 2005 (provision of facilities for gambling), after
subsection (3) insert–
'(3A) Section 36(3A) limits the application of this section in cases involving the
use in Great Britain of certain facilities for remote gambling.'
(2) In section 36 of that Act (territorial application: provision of facilities for gambling),
for subsection (3) substitute–
'(3) Section 33 applies to the provision of facilities for remote gambling only if–
(a) at least one piece of remote gambling equipment used in the
provision of the facilities is situated in Great Britain, or
(b) no such equipment is situated in Great Britain but the facilities are
used there.
(3A) In a case within subsection (3)(b), the person providing the facilities commits an
offence under section 33 only if the person knows or should know that the facilities
are being used, or are likely to be used, in Great Britain.”
Every operator offering bets to the British market - whether they be based in
Europe or Asia - will be required to hold a Gambling Commission licence.
A by product is that the offence of “foreign advertising” goes. Licensed
operators are able to advertise, and engage in sponsorship; unlicensed operators are
not. There is no more dual standards involving White Listed countries. The ability to
regulate sponsorship contracts is potentially a very powerful tool that has largely been
ignored to date.
The Government has said that it estimates that the additional tax revenues will
be approximately £300 million each year.
But the effect will certainly be to bring many more operators within the licensing
regime. The Department of Culture, Media and Sport Select Committee examined the
Bill earlier in 2013 and concluded that “the regulation of overseas based remote
gambling operators selling products in Great Britain is not working as well as intended
and has become unsustainable”.
In its presentation to the Committee the Gambling Commission estimated that
80% of online gambling by consumers in the UK takes place with operators outside the
UK licensing regime (although only 5% is on the unlicensed, unregulated Asian
markets).
It is fair to say that the Bill has created controversy. The gambling operators are
lobbying against it strongly and this may result in a compromise on the tax rates.
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And others have suggested that that it might not be compatible with European
law.
But at the moment it is expected to become law some time in 2014.
E. The Bribery Act 2010
In 2010 the Bribery Act came into force in the UK. It is primarily intended to
catch companies or individuals using bribery to gain a commercial advantage but it is
worth examining its principal provisions to see whether it has any relevance to match
fixing.
In brief a person commits an offence of bribing another person if he:
§ Offers, gives or promises a financial or other advantage to another person and;
§ Intends that advantage to induce the other person to perform improperly a
relevant function.
A relevant function is one of a public nature, or in the course of employment,
and where it is expected to be performed in good faith, or impartially, or the person is in
a position of trust by virtue of performing it.
And where it is expected to be performed in good faith, or impartially, or the
person is in a position of trust by virtue of performing it.
The test of improper performance is simply to consider what a reasonable
person in the UK would expect.
There is a corresponding offence of receiving a bribe.
On the face of it paying a sportsman to fix a match AND receiving a payment to
fix a match COULD both be caught.
An attraction of the Bribery Act, compared to the Gambling Act, is that the
maximum penalty is 10 years imprisonment.
However prosecutions can only be brought with the consent of the Director of
Public Prosecutions and it is not known whether any view has been expressed by the
Director on the applicability to match fixing.
And the sponsoring Department is the Home Office, rather than the department
of Culture, Media and Sport. There is no evidence that there has been any dialogue
between the two departments.
105
§ 4. The Regulation of Online Gambling in Australia
105
See above Australia, Title 1, Chapter 1, Section 1, § 2.
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Section 3. Tools Applicable to the Fight against Illegal Sports Bets
Throughout the report, the risks of illegal sports bets were discussed. Illegal bets
represent over 80% of the global wagers.
Illegal sports bets remain a particularly sensitive issue given the following:
§ The definition of an operator or an illegal bet remains controversial and is the
subject of heated debates;
§ There is a lot of confusion between legal operators, licenced operators and
operators functioning in a “regulated” market of sports bets. Some do not
hesitate to talk about a "grey" market, going beyond any notion of law on the
national and international levels;
§ Once they have obtained a licence in a country, operators consider themselves
to be "legal". This self-qualification is often challenged by the countries where
the consumers are located and to whom they offer bets without having explicit
permission.
The issue of illegal bets is particularly complex within the European Union, where
advocates of the principle of mutual recognition would not hesitate to go to court when
some countries introduce restrictions on the offer of bets.(for example, Stanley Bet in
Italy, Betfair…).
§ 1. Definition of Illegal Bets
The definition we will be using is the one that has been chosen during the last
meeting of the drafting group of the Draft Convention against the Manipulation of Sports
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Competitions
and ultimately chosen in the 18 September 2014 version of the
Convention submitted to the approval of the States finally retained with the version of 18
September 2014 of the convention proposed at the signature of States. It indicates that
"illegal sports bet" means any sports bet whose type or operator are not authorised,
under the applicable law, in the jurisdiction where the consumer is located.
This issue was heavily debated within the Sorbonne-ICSS Programme, which
prepared a note on this subject addressed to the Council of Europe and to which we
107
refer.
This issue was subject to many debates at the professorship that drafted a note
concerning this issue to the Council of Europe to which we can refer (see above, part 2,
Title 3, Chapter 2, Section 1, Para. 1, B, 2 d).
This definition is widely recognised throughout the world, except for jurisdictions
that have transformed sports bets into an important vehicle of their economy. It is
generally a haven for online games, thanks to an attractive tax regulation and,
sometimes, a low level of regulation, designed to attract betting operators of bets in a
way that boosts their GDP and creates jobs.
106
107
27 January 2014 – EPAS..
See above Part 2, Title 3, Chapter 2, Section 1, Para. 1, B, 2, d.
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The definition resulting from the negotiations of the PEAS Convention is
consistent with that proposed by the Council of Europe in May 2010 (Report No.
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9495/10 issued by the Spanish Presidency ). In this report, it is stated that gambling
activities operated without a licence, or in violation of the laws of the country involved,
may be considered illegal. Therefore, operators must adapt to the national laws of the
countries where they are offering their services, and these laws must be compatible
with the terms of the Treaty.
Similarly, according to the Court of Justice of the European Union, a legal
operator in a Member State should not automatically be considered legal in another
Member State. If an operator does not comply with the rules of that Member State, it
may be considered illegal.
§ 2. Illegal Bets and Organised Crime Are Frequently Related
Organised crime and gambling have symbiotic links. A report entitled "Gambling
and organised crime" confirms that transnational organised crime has undoubtedly
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shifted from physical outlets to the Internet.
Online bets allow criminal networks to
move money between many countries, including tax havens, in an unregulated manner.
Illegal bets often involve other crimes, such as identity theft, intimidation, abusive loans,
fraud, extortion, physical threats, etc.
Moreover, illegal online bets help launder dirty money and fix sports
competitions: players bet on poorly regulated sites, transfer earnings to bank accounts
in "respectable" countries, and are thus in possession evidence that allow them to
justify the origin of the money. In Germany, a report published in November 2012 by the
Federal Criminal Police Office (BKA) shows that the proceeds from illegal bets no
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constitute a target in the fight against money laundering.
As indicated by the Iris White Book on Money laundering: the Latest Threat to
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Sports Betting?, illegal online sports bets have become a threat to State sovereignty.
Indeed, it is difficult to track financial flows circulating between cooperative and
uncooperative States within the meaning of FATF. For the police, it is almost impossible
to achieve investigations in such complex an international environment.
§ 3. The Different Types of Operators
If an operator is by definition in either a legal or illegal situation, it is always
possible to try to determine several categories of stakeholders:
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[http://register.consilium.europa.eu/doc/srv?l=EN&t=PDF&gc=true&sc=false&f=ST+9495+2010+INIT].
P. FERENTZY, M. TURNER, “Gambling and Organised Crime”, Journal of Gambling Issues, issue 23,
2009, pp. 111-155.
110
Research Conferences on Organised Crime at the Bundeskriminalamt in Germany - Organised Crime –
Research and Practice in Western and Northern Europe.
111
C. KALB, P. VERSCHUUREN, Blanchiment d’argent: un nouveau fléau pour les paris sportifs ?, op. cit.,
2013.
109
214
An individual offering bets
without any legal status
100% illegal
A company offering bets
without holding any betting
licence (regardless of the
location)
Offline
(physical points of sale)
Online
(Internet)
(A) Example: Bookmakers
taking bets in the street
(China, India, USA, etc.)
(B) Example: an individual
who has created a nonregistered website (rare)
(C) Example: Points of sale
selling sports bets without a
licence (Italy, etc.)
(D) Example: a company with
an online activity, legally
registered without any
apparent link with sports bets,
but offering sports bets to
citizens of other countries
(Costa Rica, etc.)
(F) Example: Operator of
Sports Bets with a licence in
country A offering its products
in country B without
authorisation (sometimes
challenging the legislation of
country B) (legal sports bets
websites in Malta or Cagayan
(Philippines) but illegal in
Finland, Italy, Switzerland,
etc.)
(F) Example: Operator of
sports bets practising its
activity on the internet and
only offering its service in
countries where it has an
explicit authorisation (France,
Italy, United Kingdom, etc.)
100% illegal
A company holding a licence
for sports bets but illegally
operating a part of its activity
Partially legal and partially
illegal (improperly called “grey
operator”)
Company with a sports betting
licence in all countries where it
offers its services
100% legal
(E) Example: An operator of
sports bets licensed in country
A and offering its products in a
country B without having an
authorisation (and usually
challenging the legislation of
country B) (legal points of sale
of sports bets in the United
Kingdom, but illegal in
Germany, Italy, etc.)
(E) Example: Operator with a
monopoly for offline sports
bets in a given country (Brazil.
China, Sweden, etc.)
Therefore, the notion of illegality remains complex. However, an operator is or
is not illegal at a given point in time in a given jurisdiction. Of course, the law of that
jurisdiction is likely to change, particularly as a result of an infringement procedure
launched by the European Commission. Therefore, an operator often considered as
illegal calls itself "legal", simply because that infringement procedure is on-going and
that the law could change. Beyond the fact that they do not comply with current national
legislations, the operators of this type have an army of "lobbyists" in Brussels, who aim
at bringing the Commission to express doubts about the restrictions imposed by States
regarding gambling, especially online gambling.
However, it is important to distinguish between the different categories of
illegals. A partially illegal operator, but with several national licences, listed on the stock
exchange, has nothing to do with an individual who practices "wild bookmaking", sales
on credit, and threatening persons at the exit of a casino in Macao. Bwin.party is
typically part of the first category: the company has an authorisation to operate in
Austria, France, Gibraltar, Italy, the United Kingdom, etc., but remains illegal in many
other countries.
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§ 4. The Issue of the Timeliness of the Fight against Illegal Bets
It might seem vain to want to fight against illegal bets, especially online bets.
The reason is that, regardless of the technology or the legal means in place, there is
always a way to circumvent these measures. This is true: it is not possible to fully
overcome this complex issue. However, then should this stop us from fighting against
illegal bets?
Three factors help answer this question:
§ First, gambling, and sports bets in particular, are an extremely sensitive sector.
They represent a particularly regulated economic activity, creating public and
social risks for the States. Not fighting against illegal bets allows crime to
flourish and develop one way or another.
§ In addition, States fighting against illegal online bets obtain probative results.
The Belgian, French, Italian and American (USA) examples can attest to this
fact. These States do not completely eradicate the phenomenon but manage to
limit it. A percentage of 5 to 10% of illegality is generally considered a success.
To circumvent established measures, bettors must "disguise" their IP address,
open an account abroad, provide a false home address, etc. Such an
undertaking is possible but requires skills that a recreational bettor would rarely
want to develop. To be clear, those circumventing the systems against illegal
gambling are primarily the criminals themselves, but also professional bettors
who chose this activity because it is less regulated than financial markets.
§ Finally, it is not because a goal cannot be fully achieved that the public
authorities should abandon it. It is not possible to identify and charge all
murderers; but does this mean that we do not try? Similarly, eliminating doping
from sport is impossible because cheaters always find new undetectable
products. Should we stop the fight against the manipulation of sports results?
The willingness and ability of national public authorities to combat illegal
gambling are absolutely essential to establish their regulation model for the sports
betting market.
This statement is valid regardless of the regulatory model adopted: prohibition,
monopoly or licencing. Only a general authorisation system, like the one currently in
force in the UK, does not, in theory, need to fight against illegal gambling as the country
accepts, by definition, all online operators, provided that they are licenced
"somewhere". Yet, this is not quite true: let us take, for instance, a company is
registered in Costa Rica as a website selling advertising. It does not have a licence for
sports bets. If the company decides to offer sports bets everywhere except to Costa
Rican citizens, Costa Rica will not start any proceedings against it. It is therefore
possible for British citizens to place bets with an illegal operator!
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§ 5. The Different Ways of Fighting Against Illegal Bets on the National Level
There are several measures that can be implemented by public authorities to
fight against illegal bets: issuing an injunction to illegal sites (A), creating a black list of
illegal operators (B) blocking illegal sites (C), blocking the payment of earnings acquired
from an illegal operator (D), banning advertising for illegal operators (E), introducing an
offense for illegal betting (G), raising awareness for hosts and ISPs (H). However, these
instruments remain perfectible. Also, after presenting its synthesis, the Chair provides
recommendations allowing fighting against illegal bets in a more effective manner (I.).
A. Injunction Addressed to Illegal Sites
It is the simplest measure, but it is often forgotten. If the authority in charge of
the fight against illegal bets identifies such activities and sends the illegal operator a
letter requiring him to stop targeting nationals, it usually obtains good results. In fact,
many large global operators of online bets believe that some markets are not
"regulated" and claim to be respectable; therefore, they do not want to be considered as
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chronic outlaws by not respecting the national rules. In these circumstances, the fact
of receiving the injunction to cease the targeting of local citizens is often successful (in
some cases, it may trigger an angry reaction of operators who file a complaint
concerning restrictions they consider unjustified)
.
France (directly sends a letter to illegal operators) and Poland (sends a letter to
the regulatory authorities) have done so. The French authorities state that 95% of the
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illegal online gambling sites that have been contacted complied with their injunction.
B. Creating a Blacklist of Illegal Operators
A blacklist of illegal operators is a register containing the names and Internet
addresses of illegal betting sites, that is to say, sites with no explicit authorisation in the
country that establishes the blacklist. This list can be public or confidential: if it is public,
there is a risk that potential bettors would consult it and register on illegal sites, known
to offer more attractive odds. The authority in charge of establishing the blacklist can
be, for example, a department in charge of cybercrime, customs, or the regulatory
authority for online games.
As a corollary, a white list usually identifies the operators with explicit
authorisation in the jurisdiction where the consumer is, or those who are allowed to
advertise their services in the country.
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In 2014, Almost all national markets have a regulation for online bets (prohibition is a type of regulation).
ARJEL indicates in its report of activity for 2013: “After three years of combating illegal websites, the
number of new gambling sites listed in 2013 is less than the previous years. The internal database of ARJEL
counted, on 31 December 2013, more than 2400 sites offering sports bets, horse race bets, poker or casinos
games online. From this total, more than 2100 sites proved to be in compliance with the French legislation,
comprising: Approximately 1200, practically 60% were in “spontaneous” compliance, which means from the
identification (essentially offering free games); Approximately 850, practically more than 40% became in
compliance after dunning from ARJEL. Experience shows that ARJEL is efficient, since the majority of illegal
offer was quickly non accessible to French Players”, p. 40.
113
217
The United Kingdom has set a white list of operators authorised to advertise to
British citizens. It includes all operators with a license in one of the 28 countries of the
European Union, or in the following territories: Alderney, Antigua and Barbuda,
Gibraltar, Isle of Man and Tasmania (Australia).
Among the countries that have established a blacklist of illegal online bets
operators: Belgium (64 sites on the black list in March 2013, 78 in March 2014),
Bosnia, Cyprus (456 sites in March 2013, 490 in March 2014), Estonia (680 sites in
March 2013, more than 900 sites in March 2014) and Italy (4296 sites in March
114
2013). Denmark is one of the countries that have established a blacklist but includes
on the white list operators holding an authorisation. Other countries in Europe
(Germany, Bulgaria, Denmark, Spain, Greece, Finland, France, Norway, Netherlands,
Portugal, United Kingdom, Slovenia, and Sweden) and in the world (for example
Australia and the USA) have included in their national legislation the concept of blacklist
or white list.
Some Examples:
Belgium: considered as having one of the best practices in the fight against
illegal bets, Belgium has established a blacklist of online bets operators. The Belgian
Gambling Commission is responsible for its establishment. In March 2014, 78 operators
were considered illegal in Belgium, some of which are leaders of the international
market. Among them are, for example, Bet365, Betfair, Ladbrokes and Unibet.
Denmark: to establish its blacklist, the Danish regulatory gaming authority
considers the following factors: online gambling site translated in Danish, option to pay
in local currency (Danish krone), customer service available to Danish nationals. The
Danish regulator of online gaming considers that currently, thanks to the blacklist, less
115
than 5% of betting market remains illegal.
Greece: the Greek Committee for the supervision and regulation of games
established, in July 2013, a blacklist of 901 illegal operators of online gambling.
A State that establishes a blacklist of operators must take into account two
factors:
§ It is not possible to have a completely exhaustive list, even at a given time. In
fact, illegal operators frequently change the web address to avoid being
blocked. States that establish blacklists should, therefore, only target the largest
illegal operators to obtain efficient results. Within the European Union, when a
State does not target exhaustively all illegal sites (because it is impossible in
practical terms), it must be able to justify its choices in a transparent and
rational way.
114
Gambling
Compliance
Study/Gambling
Data
(March
2013)
(see
[http://www.qedcommunication.eu/files/Korpi.pdf]).
115
[http://calvinayre.com/2013/03/23/business/danske-spil-controls-60-percent-danish-online-gamblingmarket].
218
§ In fact, an operator mentioned on the blacklist could theoretically seize to the
Commission or national courts, in order to contest the fact that the country in
question is acting in a discriminatory manner. In Italy, the High Administrative
Court, however, confirmed the validity of the blacklist. It is the same in Belgium,
where the complaint of bwin.party was rejected by the Brussels Court of First
Instance in June 2012.
C. Blocking Illegal Sites (via Internet Service Providers)
The establishment of a blacklist of illegal operators is a legal measure that must
necessarily be accompanied by a technical measure to become effective. Blocking sites
through ISPs is one of the most widely used methods nowadays. This consists in
blocking access to sites mentioned on the blacklist so that the citizens of the country
concerned cannot access it. Specifically, ISPs are asked to block the IP addresses of
identified illegal sites.
According to security experts in the field of online games, a full filtering of the
sites is impossible. Through the use of address changes and other tricks, opportunities
for eluding the rules are real and every repressive measure seems to be circumvented:
Blocking the DNS (Domain Name System), i.e. the name of the site, can be
circumvented by downloading a programme available on gambling sites. They help
overcome this issue by connecting directly through the IP address. In Italy, in 2009, only
cover pages of the sites were blocked, but it was enough to download such
programmes on forums in order to be able to play.
Blocking the IP address: illegal sites can develop a programme of dynamic
change of their IP addresses every second. They can disguise their IP addresses.
"Mirror" sites can pool the DNS address and the IP address and make it
impossible to block the websites. On the Web, a mirror site is an exact copy of another
site. Mirror sites are used, primarily, to provide multiple copies of the same information,
particularly for large downloads, thus distributing the load generated by high traffic
across multiple servers and completely separate sites.
Finally, the identification of players can be difficult because the user can always
create several e-mail addresses. It is also possible to render an IP address anonymous
by using proxy servers, which no longer allow the operator to identify the player. This
technique is also used in Italy to circumvent the ban on the illegal sites mentioned on a
list.
However, as explained earlier, the technique of blocking sites is generally used
to deny access to the websites of the largest illegal operators, which are sometimes
publically traded.
219
Some Examples:
§ Belgium: In accordance with the law of 1 January 2012, Belgium proceeded to
this type of blocking techniques. ISPs are subject to penalties if they do not
comply with the law (up to 3 years in prison). In this country, a citizen that tries
to access blocked sites is redirected to a page with the “Stop” sign, a warning
from the police, and the indication that the website is no longer accessible due
to legal reasons.
§ Bulgaria: The country established a blacklist (its content is unknown) then
requested ISPs to block 170 sites. Among these sites are several leaders of
world market in online bets: Bet365, Betfair, Ladbrokes and William Hill for
example.
§ Cyprus: The Cyprus Regulatory Authority of bets required ISPs to block all
identified blacklisted sites, within 72 hours of notification. Non-compliance with
this request may lead to the imposition of a fine of up to € 30,000.
§ Denmark: After notification, ISPs have 14 days to block access to the illegal
sites identified by the regulatory authority. The method used is DNS blocking
(Domain Name System), thus targeting the name of the site.
§ Estonia: the Tax and Customs Council established a blacklist containing more
than 900 names of illegal sites and required ISPs to block these sites.
§ France: Blocking illegal sites is achieved through collaboration with the “Cybercustoms” service, inaugurated in February 2010, and whose powers are made
available to ARJEL (Regulatory Authority for online games). Its agents,
specialists of the fight against cybercrime, are in particular responsible of
tracking down illegal sites and advertisements promoting these sites.
The Cyber-customs service has a special software to help conduct this hunt.
In France, ARJEL has the ability to request the court (the Tribunal de Grande
Instance of Paris) to ban access to identified illegal sites via Internet service
providers (ISPs). However, ARJEL addresses, in advance, to identified illegal
operators, an injunction to block access to the French market. According to
116
ARJEL, a significant proportion of targeted sites comply with such a request .
§ Greece, Hungary: The regulatory authority of games requests ISPs to deny
access to identified illegal sites to Greek citizens. In Hungary, the government
implements a similar injunction.
§ Slovenia: The law requires ISPs to identify and block access to illegal betting
sites in the country (DNS blocking). It seems that access to the main sites is no
longer possible, but a multitude of small operators still elude the measure.
D. Blocking the Payment of Winnings Acquired from an Illegal Operator
This measure seems to provide good results on the technical level, but it
requires cooperation with a third party, the banking sector. Therefore, it is normal that
blocking payments still remains relatively little used, because such cooperation often
requires long discussions. The American example (USA), however, deserves special
attention because of its effectiveness: the government transferred the responsibility of
blocking sites to illegal gambling to the financial sector, which is under an obligation to
provide results.
116
See abovementioned ARJEL Report, 2013, pp. 38-40.
220
Belgium: The Gambling Commission and the Belgian Financial Sector
Federation (Febelfin) signed a protocol in the context of the fight against illegal betting
sites not authorised by the Commission. This protocol defines a framework with the
procedures and responsibilities regarding the fight against illegal betting sites. Febelfin
is responsible for communicating the blacklist of illegal operators to its members. The
list must include the date of creation, name, legal form, address and business number
(or any other unique identifier similar) of unauthorised betting sites. The scope of
application of the fight against unauthorised betting sites primarily consists in the
adoption, by the banks, of measures against new clients mentioned on the blacklist. In
March 2014, the blocking of payments did not seem to be fully operational in Belgium,
but financial institutions and payment providers planned not to conclude agreement with
illegal operators.
Denmark: The gaming legislation specifically mentions that it is forbidden for
providers of payment methods and electronic services, to “transfer the payment of
wagers and winnings to and from the bank account of an illegal operator". This measure
has not yet been implemented; the Danish regulatory authority is still negotiating with
the banks.
Spain, Estonia, and Hungary: blocking payments of illegal earnings is possible
from a legal point of view, especially because financial institutions do not have the right
to establish trade relations with illegal operators, but the measure is not operational yet.
France: ARJEL can block the payment of earnings without the need for a
specific judicial decision (as opposed to blocking illegal sites through ISP). An article in
the Financial and Monetary Code allows such action, which can be performed by the
Ministry of Budget after consulting ARJEL. To date, this possibility has not been used.
Greece: The regulatory authority can communicate its blacklist to the "Bank of
Greece" to block the payment of illegal funds. Such measure was concretely
implemented in July 2013. The Bank of Greece may also, as provided by the legislation,
seek help in the fight against illegal payments by police authorities. Financial institutions
and providers of payment means may be sanctioned if they carry out transactions linked
to illegal betting operators (hefty fines of up to € 500 million).
Norway: This country directly uses the technique of blocking illegal winnings.
Financial institutions do not have the right, since 2010, to pay earnings linked to
unauthorised operators in Norway, which means "foreign" gambling operators. In 2012,
117
a study indicated that this technique had a success rate of 48%.
Several areas of improvement were highlighted in the report of the gaming
authority:
117
Annual
Report
of
the
regulatory
authority
[https://lottstift.no/lotteritilsynet/files/2013/03/Fjernspillrapporten-engelsk.pdf].
of
gambling:
221
§
§
§
§
Improved cooperation with the banking sector;
Access to the National Register of customs and exchange activities;
Cancelling transactions linked to the name of the betting operator;
Reporting obligation for banks.
The Netherlands: The regulatory authority of games is in charge of providing,
on a regular basis, the blacklist of illegal operators to the association of banks in the
Netherlands, so that banks do not complete the transactions linked to these operators.
At least two banks have already blocked payments in 2009: RBS (Royal Bank of
Scotland), who acquired the Dutch bank ABN AMRO, and Barclays.
USA: Following the enactment of the American law on online games (UIGEA:
Unlawful Internet Gambling Enforcement Act), the United States published a white list of
providers of payment methods, with whom banks can work in serenely within gambling
sector.
Due to a strong mobilisation of financial institutions, the United States were able
118
to block more than 90% of payments of winnings from illegal sites. For this purpose,
the USA used an indirect strategy, transferring the responsibility of the effectiveness of
the measures to the financial sector. Therefore, the financial sector bears the task of
finding expertise and implementing the appropriate means, including the means to
identify and address the various circumvention techniques set up by illegal operators.
119
The financial sector has an obligation to provide results, not just make best efforts.
Finally, there are other countries that can block payments of illegal earnings:
Austria, Israel, Poland, and Russia. Israel seems to be at the forefront in this area and
could, like the USA, be cited as one of the best practices. Since 2007, the implemented
financial blocking methods prohibit Israeli banks from cooperate with operators of illegal
online gambling. In 2010, 28 persons were also arrested by the police. They were
accused of staging an illegal circuit of prepaid cards allowing users to circumvent the
Israeli financial block.
E. Banning Advertising for Illegal Operators
Many countries have adopted a similar measure, which, when it is successful,
can limit media exposure, and therefore the commercial potential of illegal operators:
Denmark, Finland (without a published list of illegal operators to date), France, the
Netherlands, the United Kingdom (the licensed operators in a country that is not on the
white list of the UK cannot advertise in the UK). In fact, few countries, like Italy, have not
taken action, in one way or another, against advertising for operators of illegal
gambling.
In certain countries like Belgium, advertising or recruiting bettors for illegal
betting sites can even lead to imprisonment in case of conviction (up to 3 years).
118
Gunnar EWALD presentation (Loto Hamburg, March 2014) - Interview Dr. Ingo Fiedler, University of
Hamburg, 27 February 2014.
119
[http://www.fdic.gov/news/news/financial/2010/fil10035a.pdf].
222
Two items seem interesting to study and retain:
§ Taking direct action against the media operators (including online media) who
agree to sell an advertising spot to illegal operators. A similar measure is
currently in force in France, where the media can be condemned to pay an
important fine (from 100,000€ to 4 times the amount of advertising spent by
illegal operators);
§ Operators that do not comply with the ban of advertising in a country can be
banned from applying for an online betting licence in the future. The
Netherlands, for example, have established a similar restriction.
F. The Principle of Mutual Exclusion
In certain cases, public authorities in charge of the regulation of bets can decide
not to grant a national licence to an operator not complying with the regulations
elsewhere. They can also decide to revoke a licence from an operator that might be
operating illegally in another country.
In other jurisdictions, like New-Jersey for example, the regulatory authority of
online games stated that it will not grant a licence to a European operator that violated
the American legislation between 2006 and 2013.
Such measures are particularly effective. For instance, an operator that would
risk losing its licence in Malta because Sweden has listed it on the black list, would,
certainly think twice about its “illegal” strategy.
G. Illegal Betting Offence
120
Betting on an illegal site is criminally sanctioned in Belgium.
Therefore,
individuals are responsible for identifying illegal/legal sites and abstain from gambling
on an illegal site.
This measure is often considered as severe and unjustifiable, especially
because it is delicate to require an individual to have knowledge, in real time, of the list
of legal and illegal operators.
H. Implication of Search Engines in the Fight against Illegal Bets
This measure has been recently discussed (March 2014) by the German expert
Gunnar Ewald of Loto Hamburg (eponymous State lottery). The goal would be to
request from search engines to remove all links to illegal operators featured on a
nationally-established blacklist. Many other sectors have already adopted a similar
strategy and rely on the ethical responsibility of search engines to achieve their goals. It
seems that Google has already played a pioneering role in this field, having accepted to
delete links to many sites violating intellectual property rights.
120
Article 4 § 2 of the Law of 7 May 1999 on games of luck, bets, establishments of games of luck and
protection of players, M.B. December 1999.
223
I. Synthesis and Recommendations
Concerning the best practices regarding the fight against illegal bets, it is
necessary to refer to Belgium, Israel and the USA. These countries have established
effective arrangements, even if it meant taking legal risks. In fact, the ECJ is judging two
cases where the freedom to undertake economic activity of ISPs may, in some cases,
limit the blocking procedures recommended by the public authorities.
121
All other countries mentioned in the summary table below, have also achieved
significant results. These examples demonstrate, if necessary, that repressive
measures and potential sanctions limit the share of illegal gambling. This assumption is
valid regardless of the type of regulation in place (prohibition: USA; monopoly: Israel;
licences: Norway). This finding is important because it clearly answers the classic
arguments of illegal operators. They claim, that since no blocking measure provides
100% successful results, States would do better to allow all operators, provided they
have a licence "somewhere" (even in a tax or gambling haven).
Measures of
fighting
against
illegal bets
Blocking
sites
Blocking
earnings
Banning
Advertising
Offense of
illegal
betting
Principle of
Illegality
Belgium
YES
(possible
criminal
penalty to
ISP)
In progress
YES
(Possible
criminal
penalty)
YES
NO
Cyprus
YES
Planned
YES
(Not used to
date)
NO
NO
Denmark
YES
YES
NO
NO
Estonia
YES
YES
NO
NO
France
YES
YES
NO
NO
Greece
YES
YES
NO
NO
Israel
Italy
Norway
Netherlands
Poland
YES
YES
NO
NO
NO
YES
(Not used to
date)
YES
NO
YES
YES
YES
YES
NO
YES
YES
YES
NO
YES
NO
NO
NO
USA
NO
YES
YES
NO
NO
NO
NO
NO
YES
Indirectly
(Nevada,
New-Jersey)
121
YES
(Not used to
date)
NO
YES
(Not used to
date)
Cases C-70/10 of 24 November 2011 and C-360/10 of 16 February 2012.
224
Of course, there is no technical measure that would completely eliminate illegal
operators, especially since some of them put in a lot of efforts to slip through the cracks.
The example of bwin.party is interesting in this context. The operator,
considered illegal in some markets, uses the services of a third party to manage its
client accounts (World Pay Ltd.). Under these conditions, the client registered with
bwin.party connects and bets with World Pay, which is not identified as an illegal site.
Under this scheme, World Pay, a company of electronic payment services based in
London, bets on bwin.party’s website, whereas the final customer would have been
blocked if he tried to bet directly. This case demonstrates the value of the US law, which
requires financial institutions and providers of electronic transaction services to make all
efforts to counter, by themselves, the tricks of the operators!
The following document summarises the situation:
In conclusion, it is recommended for the States that truly wish to fight against
illegal online gambling adopt legislations and simultaneously establish simultaneously a
set of technical measures. Individually, each measure will lead to more or less tangible
results. Together, they will greatly limit (95% success rate is a realistic goal) the market
share of illegal bets. In fact, for illegal operators who wish to continue to violate national
laws, the path will be "more complex, more expensive (which means less attractive) and
122
more risky from a legal point of view."
The recommendations that currently seem to produce the best effects are,
by order of priority, the following:
§ The principle of mutual exclusion (a regulator of sports bets may decide to grant
licences only to operators not featured on any blacklist of the countries it has
concluded an agreement with);
122
Gunnar EWALD (Loto Hamburg expert).
225
§ Blocking payments through an indirect approach like the USA (result obligations
are imposed on financial and related institutions);
§ Establishing a blacklist (non-public) of illegal operators and blocking their sites;
§ Banning advertising for illegal operators, coupled with significant fines for the
media who accept to sell them advertisement space.
§ 6.
Means for Fighting against Illegal Bets on the International Level
Since the concept of illegality is linked to a particular jurisdiction, it is natural
that national authorities treat this issue as a priority. However, given the transnational
nature of the transactions related to online bets, cooperation between countries sharing
the same goals is recommended. Moreover, in 2014, illegal bets represent an amount
estimated to hundreds of billions of Euros of wagers and, beyond sports corruption, they
promote money laundering and the development of organised crime.
For these reasons, the Convention of the Council of Europe on the manipulation
of sports competitions provides for "information exchange, in good time, with other
competent authorities or the national platform on illegal, atypical or suspicious sports
bets, as well as violations of regulations as mentioned or established in accordance with
123
this Convention.”
Two additional recommendations could help reduce the impact of the
phenomenon of illegal bets:
§ Establishing a list of "cooperative" States that would apply the principle of
mutual exclusion. This means that an operator featured on a black list of one of
the cooperative States would have his licence withdrawn (or a minima be
denied a future authorisation) by other States. The cooperative States could
also jointly develop a series of technical measures and coordinate to maximise
results.
§ Creating a list of "illegal" operator of bets, i.e. operators not holding a licence in
any of the jurisdictions where they offer their services. In particular, the sporting
movement would be encouraged to update such a list that would allow it to
exchange information and expertise on bets in a secure environment (with
cooperative operators).
Section 4. Self-Regulation of Betting Operators
The interests of sports organisation and betting operators are often conflicting:
§ Ever since sports bets were created, the former generally accused the latter of
using sport without giving back the fair financial return. In fact, the use of a sport
calendar and of results is free because this information is public. In the "Fixtures
124
Marketing Ltd" case, the European Court of Justice also considered that the
calendars of matches do not constitute a database protected by the directive on
databases.
123
Article 9.1.a of the Convention of the Council of Europe on the manipulation of sports competitions,
18 September 2012, available at [http://www.conventions.coe.int/Treaty/FR/Treaties/Html/ManipSports.htm].
124
European Court of Justice, 9 November 2004, case No. C-46/02, rec. 2004, l-10365.
226
§ In this context, the economic model of sports bets differs radically from
horseracing bets, which are the primary source of funding for the horse racing
industry. Professional sport became a form of entertainment since it started
being broadcasted. It is no longer based on public subsidies.
For some years now, the concern of sports organisations is enhanced by the
feeling that the future of sport is threatened by the development of sports bets,
particularly on the Internet. The development of sports bets in fact created, as seen, an
upsurge of issues concerning the manipulation of competitions. Operators are obviously
not responsible, but some of them have largely contributed, through an extensive offer
on the market, to the growth of and in some cases the birth of the phenomenon. The
first operator to offer bets on each point of a juniors tennis tournament cannot be
completely cleared this responsibility.
§ Betting operators invoke their active role in financing sport. State lotteries recall
that the mission of supporting sport is engraved in their DNA. In most cases,
regulators have allowed lotteries to offer sports bets in exchange for
contributing to the financing for sport, and most importantly sports for
everybody. The European association of lotteries (EL) specifies that in 2013 its
members contributed more than 2 billion Euros to sports, which is about 20% of
public expenses on sport (source: Eurostrategies - 2012). Other operators,
generally private, stated that they support professional sport through
sponsorship.
For several years now, the cooperation between the three main stakeholders public authorities, sports organisations and betting operators - is widely acclaimed.
Everyone agrees that cooperation is necessary to reduce criminal threats to high
performance sport and the protection of its integrity. However, again, the ambitions of
the operators do not always meet the general interest of the civil society or that of sport.
In order to reduce the risk of criminal activities, whether through sports corruption or
money laundering, the principle of precaution could lead regulators to restrict certain
types of risky bets and practical arrangements (bets that are easy to influence, sports
bets that promote financial arbitrage and speculation, and the high rate of return for
bettors allowing them to launder their dirty money, etc.). Such decisions could be costly
to operators in a situation of fierce competition, since most of them owe their financial
viability to the fact of acting "illegally" (and therefore not always being "taxed"), even if
only in a part of their activity. Even if they legitimately evoke their concern of ensuring
the sustainable future of sports, which their industry also depends on, betting operators
often tend to focus on immediate profitability. They are encouraged by some
jurisdictions that made online gambling the backbone of their economy. Profitability,
integrity of sport and the fight against crime, the equation seems very delicate to solve!
Concerning operators, the fight against fixed matches is organised around a
system of monitoring (§ 1) and the adoption of Codes of Conduct (§ 2).
§ 1. Creating a System of Coordinated Monitoring Since 1999
Monitoring systems were at first established by lotteries (A), and later by
various gambling operators (B).
227
A. By Lotteries First
Long before the explosion of match fixing affairs, some members of European
Lotteries created, in 1999, a group called "Match Info". The goal of the group was to
exchange information on sports games offered by each operator and to identify
potential risky matches, especially towards the end of the championship. In fact, even at
that time, when some teams had nothing to win or lose; certain results were subject to
suspicion.
At that time, very few lotteries offered a range of fixed-odds sports bets.
Scandinavian countries since 1986, Germany and Greece in 1999 were in the
vanguard. Match Info aimed at sharing sports information and managing counterparty
risks inherent to fixed-odds bets. In fact, a fixed match can cost a lot of money to an
operator if he is not aware of it in time, simply because the operator will have to pay
winnings to bettors who can know the result in advance.
Over the years, Match Info defined its structure, added new members
(19 in 2013) and eventually became "ELMS" (European Lotteries' Monitoring System).
Currently, the entity is hosted by the Danish lottery (Danske Spil). Two employees work
full time for ELMS and a dozen other employees work on a part-time basis. The goal of
ELMS is to monitor the global market of sports bets, detect suspicious movements of
bets on the market and then trigger the appropriate alarms. In fact, when a warning
level is reached, ELMS warns all the members and sports organisations it has signed a
Memorandum of Understanding with (UEFA, FIFA, IOC, professional football
leagues, etc.).
Today, the World Lottery Association is studying the possibility of extending
ELMS globally.
B. By a Group of Private Operator Creating ESSA in 2005
A few years after the creation of Match Info in 2005, other operators (traditional
bookmakers or newly created online betting operators), who previously managed,
125
individually, the risks associated to sports bets, joined forces and created ESSA
(the European Association for the Security and Integrity of Sport). Based in Brussels,
126
ESSA is a non-profit organisation that has (March 2014) 18 members: Association of
British Bookmakers (ABB) Bet365, Bet-at-home, BetClick, Bwin.party, Betvictor, Digibet,
Expekt, GoldBet, Hong Kong Jockey Club, Interwetten, Ladbrokes, Paddy Power,
Sportingbet, Stanjames Stanleybet, Unibet and William Hill.
Similarly to ELMS, ESSA uses a system of verification of bets movements on
two levels to help its members determine if fraudulent activities or market manipulation
are occurring. The first level is an internal monitoring system proper to each member of
ESSA. The second is an early warning system EWS, primarily operating through the
contribution of its members.
125
126
Sport Betting Integrity.
See [http://www.eu-ssa.org/fr/nos_membres].
228
At first glance, this system seems particularly effective due to the global
geographic distribution of the members of ESSA, and due to the number sports events
monitored (hundreds of thousands), but especially due to its ability to access classified
information (volume of wagers, geographical distribution of bettors, identity, etc.). In this
regard, the systems of betting operators have a considerable advantage over other
monitoring tools such as Sportradar for example. The BFDS (system for detecting fraud
linked to bets) of SportRadar monitors, primarily, the movements of the suspicious odds
of the major operators with sophisticated mathematical algorithms. It is considered a
global reference in the field.
However, the low number of alerts qualified as suspicious by ESSA (six in
2012, eight in 2011 – source: 2013 ESSA Integrity Report) raises some questions,
given the high number of confirmed cases of manipulation of competitions. This means
that either the ESSA system is not so effective in practice, or that some alerts are
deliberately not transmitted to the sports movement. By comparison, the number of
alerts sent by ELMS to UEFA and FIFA was significantly higher (between 40 and 80 per
year, a total of 20,000 monitored matches).
Recommendation: it seems necessary to improve the effectiveness of the
monitoring systems of betting operators, and primarily the quantity and quality of alerts.
Taking into account the previous elements, and also because organised crime
has come to know and master these monitoring systems (like a doped athlete seeking
to circumvent anti-doping tests), it seems necessary to implement new measures in this
field. Of course, monitoring systems of operators allow them, in the first place, to
manage the risk of financial return, but they should be used to protect sport integrity.
In this matter, there are two main ways to improve tools for fighting against
manipulation:
§ The first would be transferring the responsibility of managing alerts to the
national regulators of sports bets. This is already being done in France and Italy
where ARJEL and AAMS have direct access to data stored by operators, which
is a necessary prerequisite.
§ Another solution would be to impose very specific rules to operators and to put
in place appropriate controls, at the level of public authorities. These rules
would include a requirement of transferring an alert to public and/or sports
authorities in the context of clearly identified changes (e.g. a change in the
volume of bets of more than 30% compared to the average of a competition, a
geographical distribution of suspicious bets, etc.).
§ 2. The Adoption of Codes of Conduct
The adoption of a first code of conduct by lottery operators dates back to
2007 (A). This tool was used, later on, by private operators (B).
229
A. The Signing of the First Code of Conduct in 2007
In 2007, 48 EL lotteries signed a Code of Conduct on sports bets.
The President of La Française des jeux (Christophe Blanchard-Dignac), later joined by
the president of Veikkaus, the Finnish lottery (Risto Nieminen), was the instigator. With
their joint leadership, the first discussions on the subject of sport integrity were
conducted with public authorities, the sports movement and the Council of Europe
(EPES).
The initial goals of the Code of Conduct of EL (source: EL) are:
§ Demonstrating that lottery operators are fulfilling their mission of general
interest regarding sports forecasts even beyond sport funding;
§ Proving that lottery operators who share the same vision for their industry are
developing practical tools in the areas of combating the manipulation of sports
events, responsible gambling, limiting money laundering opportunities, and
security.
This code includes a set of commitments that are resumed below. A new,
stricter version of the Code should be published in May 2014.
In addition to this Code of Conduct, EL adopted, successively, a Sport
127
128
Charter
(2012) and an action plan on sport integrity
(2013). In these documents,
EL members recall, that in matters of sports, they pursue a mission of general interests
for the benefit of sport and bettors and they invite public authorities to implement
concrete measures to protect civil society and sports. They also state that they manage
their sports betting activities in a way allowing them to offer recreational products with
low risks to sport integrity and to "reasonable" bettors.
Finally, they list the risks associated with the existence of a significant illegal
market, while confirming that all EL members operate exclusively when they are
explicitly authorised to offer bets in the consumer’s jurisdiction.
B. The Adoption of a Code of Conduct by Private Operators
Different categories of private operators resorted to the use of soft law
instruments: codes of conduct. This mechanism was adopted in the framework of
ESSA (1), the Remote Gambling Association (2), EGBA (3) and other types of
associations (4).
1. In the Framework of ESSA
129
A few years after EL, the members of ESSA adopted a Code of Conduct.
Some of them immediately changed their behaviour in this perspective (for example, an
ESSA member used to offer bets on athletes of a professional team it controlled, for
which it was frequently blamed).
127
[https://www.european-lotteries.org/sport-charter].
[https://www.european-lotteries.org/sports-integrity-action-plan].
[http://www.eu-ssa.org/essa_wp/wpcontent/uploads/2013/06/ESSACode_of_Conduct_Draft_Amended.pdf].
128
129
230
This Code of Conduct has 7 themes detailed in § 4:
§
§
§
§
§
§
§
§
Participating in the ESSA monitoring system;
Preventing conflicts of interest;
Establishing internal monitoring procedures and tools;
Cooperating with sports regulators, sports federations and public authorities;
Promoting responsible gambling;
Protecting minors and vulnerable populations;
Respecting the privacy of the consumer and protecting data;
Applying the rules and disciplinary actions.
Most of the commitments do not directly affect sport integrity. Another
130
document ("12 myths about sports bets" ) explicitly states some of the ideas of ESSA
members, designed to counterbalance the risks associated to sports bets:
§
§
§
Sports bets do not promote corruption, "the only people capable of
distorting the result of a match are those who participate, i.e. players or
officials";
Fixed-odds bets are no more dangerous than pari-mutuel bets;
Live Betting is no more exposed to the risk fraud that bets made before the
match.
2. In the Context of the Remote Gambling Association
RGA is a non-profit organisation bringing together several betting operators that
conduct their business on the Internet. Several members of RGA are also members of
ESSA.
As of 1 March 2014, RGA had 25 members: 888, bet365, Betfair, Gala Coral,
Gamesys, IGT, Ladbrokes, Microgaming, Meridian, Netplaytv, Openbet, Paddy Power,
Playtech, Poker Stars, RankGroup, SBOBET, Scientific Games, Skybet, Sportingbet,
Sportech, Stan James, Stanleybet International, Tombola, Unibet and William Hill. It is
important to note that some of these operators conduct the largest part of their activity
without an authorisation from the consumer’s jurisdiction. They are therefore considered
illegal and are sometimes also locally prosecuted.
The RGA did not establish a Code of Conduct to protect sport integrity.
However, it expressed numerous recommendations concerning the fight against money
131
laundering and good practices for the industry.
132
Furthermore, in a study dedicated to sports bets and sport integrity , RGA
indicates that operators with a licence (without specifying the country of origin) are
doing everything they can to protect sport and their activity (§ 7.3 and 7.4). The
association specifies (§ 7.5) that, to date, there is no evidence that suggests that sports
bets of its members create risks for sport.
130
131
132
[http://www.eu-ssa.org/wp-content/uploads/12-mythes-sur-les-paris-sportifs.pdf].
[http://www.rga.eu.com/data/files/rga_technical_guidelines.pdf].
[http://www.rga.eu.com/data/files/Pressrelease/sports_betting_web.pdf].
231
3. EGBA (European Gaming and Betting Association)
133
All members of EGBA are also members of ESSA.
EGBA did not create a
134
Code of Conduct, but it established written standards (February 2011). The goals of
EGBA are:
§ "Ensuring that the trust of the customers and stakeholders of the industry is preserved;
§ Asking members of EGBA to operate in compliance with the defined practices and
regulatory standards;
§ Address the concerns of countries where a formal regulatory framework does not exist,
and where only monopolies operate;
§ Proving the respect of the commitments by accepting to undergo a rigorous and
independent annual assessment."
4. Miscellaneous
§ The WLA (World Lottery Association) is the global association for lotteries. The
members of WLA, coming from different continents, share almost unanimously
the positions upheld by EL. On 1 March 2014, the President of the association
(Jean-Luc Moner-Banet) was the instigator of the drafting of the Sports Charter
by EL in 2012. The WLA developed several documents of reference, in
135
particular in terms of responsible betting and security. The standards of the
security controls are also considered as a good practice in the area of
gambling. The WLA also prepares its own standard of recommendations in
matters of sports bets and integrity of sport. It should be adopted during 2014.
§ The ABB (Association of British Bookmakers) did not develop a Code on sports
bets and integrity of sport. However, it has been involved, for a long time, in
various reflections coordinated in the UK (including Sport integrity Panel) and
has drafted a Code of Conduct on responsible gambling.
Content of the EL/ESSA Codes of Conduct (factors related to sport integrity):
EL
ESSA
Legality
Operators acting only with an
explicit authorisation in the
jurisdiction of the consumer
Selecting/limiting bets
offered to the public
YES
(no betting on championships,
sports events or matches with
a risk of corruption, trivial
financial issues, or in a
position of being influenced in
an obvious way)
Operators holding a licence
but not necessarily operating
with an explicit authorisation in
the jurisdiction of the
consumer
NO
133
On 1 March 2014, ESSA had 6 members: Bet-at-Home, Betclic, Bwin.party, Digibet, Expekt, Unibet.
[http://www.egba.eu/pdf/EGBA-Standards-October-2011.pdf].
For example WLA Security Control Standard. Lottery and Gaming Security and Integrity Standard for
Operation, September 2012, has specific provision on sports bets particularly on detecting fraud and money
laundering (Annex B, L. 7).
134
135
232
Conflicts of Interests
No controlling interests in a
club/athlete
Sports bets personnel: not
involved in odds sports
(player, referee, director)
Sports bets personnel:
prohibition of betting on
their own fixed-odds bets
Sports Organisations:
Betting operators are not
controlled:
Alerts and monitoring:
Monitoring of sports bets:
Alerts generated to the
sport movement in case of
abnormal movements:
No more bets are taken in
case of high level anomaly:
Fight against money
laundering:
Detecting anomalies and
declaring suspicions:
Limiting odds:
YES
(Exception: if the operator
does not of bets on the
club/athlete)
YES
NO
YES
NO
NO
YES
Yes
(through ELMS)
Not mandatory for the
signatories of the Code
YES
Yes
(through ESSA)
Mandatory for all members of
ESSA
YES
YES
YES but not mandatory
YES
YES
(but operator not necessarily
operating with an explicit
authorisation in the jurisdiction
of the consumer)
NO
YES but in theory
(commitment to offer
responsible odds)
NO
Conclusion of Title 1
This analysis of the means of prevention aiming at combating the manipulation
of sport competitions gives a rather contrasted landscape, from a spatial, temporal and
material point of view.
It shows that despite considerable progress, the most efficient solutions have
not yet been adopted by the majority of the parties concerned, which explains the
propositions presented.
233
Title 2. Instruments of Suppression
On their own, preventive devices cannot be sufficient to preserve sport integrity
competitions. Integrity can only be ensured by the implementation, in parallel, of
repressive instruments that would dissuade athletes, their surroundings, and third
parties from manipulating competitions, and, if this deterrence does not succeed,
wrongdoers should be sanctioned, in order to temporarily or permanently remove them
from the world of sport and/or reach them through other means to prevent recurrence.
The primary function of the sporting movement is to preserve sport integrity.
Therefore, sports organisations have to develop their own repressive system to detect,
prosecute and punish the perpetrators of fraud, provided that these perpetrators fall
within their power to sanction. This is the goal of the disciplinary power of sports
organisations, which will be discussed in Chapter 1.
Other private actors can economically sanction violations of sport integrity.
Particularly, sponsors and athletes, can, through sponsorship deals, protect themselves
against a breach of integrity committed by their co-contractors, which means that it is
possible to stipulate that such a breach will have economic consequences for the
offender. These repressive instruments, in the large sense of the term, may deter those
who might be tempted to manipulate competitions, or at worst prevent wrongdoers from
continuing to benefit from the income and other advantages of their contracts. These
issues will be discussed in Chapter 2.
The disciplinary power of sports organisations does not have affect persons
who are not organically or contractually linked to them, in one way or another.
Increasingly, persons who are not subject to this power, especially members of criminal
organisations, are involved in the manipulation of competitions, and cannot go
unpunished. Even for persons subject to disciplinary authority, the sanctions that can be
imposed may not be sufficient to ensure a deterrent or repressive effect (e.g. director of
a sports club who does not care if he can no longer practice his activity; athlete close to
retirement, etc.). In addition, the procedural instruments available to sports
organisations often fail to detect and prosecute fraud in sport, and only the means
exclusively available to the State, such as telephone tapping, may truly affect the
authors. Therefore, it is necessary for the manipulation of sport events to be criminally
prosecuted, which must be ensured by substantive criminal laws and adequate
procedural instruments. This will be the subject of Chapter 3.
Chapter 1. The Primary Function of the Sporting Movement: Preserving sport
integrity
Since sport integrity is inseparable from the sporting movement, the latter has
the power to exercise a disciplinary authority that is essential to its existence. The
special position that disciplinary power has within the sport movement also explains,
136
partially, why it has an extensive
capacity for self-regulation. However, this
disciplinary power cannot be practiced without the possibility of review.
136
See supra Part 2, Title 3, Chapter 3, “Sharing responsibilities among sport institutions and public
authorities to test the manipulation of sport competition”.
234
This requirement is even more important when it comes to sport organisations
fighting against the manipulation of sport competitions since it involves undertaking
investigation procedures and even adopting sanctions that can be particularly heavy
and intrusive. The terms of this review will be discussed in the section dealing with the
general presentation of the disciplinary power of sports organisations (Section 1),
before detailing the rules and disciplinary procedures applied in the specific context of
the fight against the manipulation of sports competitions (Section 2).
Section 1. General Presentation of Disciplinary Authority
In general, sports organisations have considerable freedom in organising the
conduct of their disciplinary powers. This comes from the fact that the determination of
the disciplinary law stems from an autonomous power (§ 1). Therefore, there is no
unique institutional model for the exercise of disciplinary power. The bodies responsible
for this task are extremely varied and operate under procedures that vary from one
sport organisation to another (§ 2). Even at the stage of jurisdictional review that can be
exercised over the exercise of their disciplinary authority by sports organisations,
heterogeneity still prevails, despite a widely recognised predominant position of the
Court of Arbitration for Sport (§ 3) .
§ 1. Disciplinary Law (general)
In disciplinary matters, it is necessary to define the basis, the nature and the
purpose of the power that sports organisations can exercise according to their
autonomy. This autonomy should be defined and it is also important to consider to what
extent disciplinary proceedings may take place in parallel with criminal investigations
involving the same or related facts. Disciplinary law does not exist without specific
sources that define particular offences and applicable penalties. It must also be
interpreted in a way that does not necessarily overlap with the interpretation of the
criminal rules. These issues will be addressed first (A).
Next, the distribution of the disciplinary power will be considered (B). In fact,
sports institutions do not have the same organisation as State structures and although
they usually operate according to a pyramidal structure, the distribution of powers
between international, continental and national federations concerning the
establishment of rules and the imposition of disciplinary sanctions in individual cases is
debatable. A poor coordination between different levels of authority in the same sport,
or even between different sports, can lead to gaps in the suppression of the
manipulation of competitions. A unification or at least a harmonisation of rules in this
area is desirable. We will the ways in which this could be achieved, or imposed,
respectively, and the fields where it seems to be imposed.
The scope of application of the disciplinary rules, ratione materiae and ratione
personae (C), can sometimes cause controversies. The interests of the sports
federations, who want to apprehend, in the largest possible extent, violations of sport
integrity, are opposed to those of individuals who feel that their personal situation does
not warrant subjecting them to disciplinary authority and who also consider that there
natural limits to the material competence of disciplinary law. Therefore, it is important to
determine how far the scope of disciplinary rules may extend.
235
A. Basis, Nature and Object of the Disciplinary Law of Sport Institutions
In most States, public officials are subject to a disciplinary law. However, the
existence of such a law is not specific to the public sector. In fact, disciplinary law is
visible in any group and reflects the need to ensure an orderly group life. For private
companies, some national legislation, and even some employment contracts, provide
for a disciplinary authority of the employer over its employees. In addition, disciplinary
law generally applies to members of associations, federations and professional
137
syndicates.
In general, disciplinary law serves to maintain and, where necessary, to restore
order in a given organisation (public or private). The disciplinary authority tends to
sanction misconduct, i.e. reprehensible moral and ethical conduct attributable to a
wrongdoer. Of course, it is at the same time a power capable of having a preventive
effect, since the fear of sanctions would encourage potential recipients to behave as
they should.
Also, disciplinary law is the cornerstone of any device for the prevention and
suppression of fixed matches. In this perspective, it will be important to analyse the
legal basis of disciplinary law (1), the factors characterising its autonomy (2), its sources
(3), and the definition of offenses and sanctions under this branch of the law (4).
1. The Legal Foundation of Disciplinary Law
For the foundation of disciplinary power of sports federations, authors and
courts refer essentially to institutional theory rather than contract theory.
Competitors, coaches or officials do not adhere to their federation’s constitutive
contract of association; they are only indirectly linked to their national and international
federation through their licence and/or participation in competitions. This "does not
characterise a direct contractual relationship between licensees and sport
138
organisations" . Legal jurisprudence also goes in this direction. An English judge
wrote: ‟The rules of a body like (the Football Association) are often said to be like a
contract. So they are in legal theory. But it is a fiction – a fiction created by lawyers to
give the court’s jurisdiction. Putting the fiction aside, the truth is that the rules are
nothing more nor less than a legislative Code – a set of regulations laid down by the
governing body to be observed by all who are, or become, members of the
139
association”, The Commercial Court of Charleroi, in a case opposing a football club to
FIFA held that "in reality, it seems that when it promulgates its rules, FIFA acts rather
from a position of authority [...] than in the context of adhesion contracts with clubs,
notably because FIFA rules constitute a general corpus for the framework of the
organisation of football and of club activity. There is no certainty as to the legal basis
that legitimises this competence [...] the court is limited to noting that the rules enacted
by FIFA reflect a genuine normative authority, and they are commonly recognised and
applied as rules of law by the courts as long as they do not conflict with the provisions
of national or international public order.
137
See Lamy Droit du sport, Book 2, No. 612.50.
Ibidem.
139
Enderby Town Football Club Ltd v. The Football Association Ltd, cité par Gardiner et al., Sport Law,
th
4 Edition, p. 97
138
236
Therefore, there is no need to consider the relationships between clubs and
FIFA as contractual relationship, since clubs are simply subject to the authority of the
140
rules imposed by FIFA."
The rules adopted by the federations are the expression of a real legislative
141
power that belongs to them.
It can thus be said that disciplinary law arises from the regulatory and
jurisdictional power of sports federations.
2. The Autonomy of Disciplinary Law
The autonomy of disciplinary law is based on the autonomy of sports
organisations (a) and on the autonomy of disciplinary repression from criminal
repression (b).
a. The Autonomy of Sport Organisations
The autonomy of the sports movement in relation to the State, allows the former
to deploy and develop its activities in principle without further hindrance from the latter
outside the framework set by State law.
While some States, such as France and some southern and eastern European
countries, impose on sport organisations a relatively narrow legal and regulatory
142
framework, especially in disciplinary matters , other countries, as in the United
Kingdom and most States of Northern and Western Europe, retain a much less
interventionist approach to sport and refrain from legislating specifically to regulate
sporting activity: “legislation or other intervention is generally countenanced only as a
143
measure of last resort, in response to a pressing public interest requirement.” In the
first case, sport is seen as a public service; some tasks being delegated to accredited or
recognised federations whose autonomy is then limited to the scope defined by law
144
and/or the delegating authority.
In the second case, autonomy is original and the
State not only leaves the sport organisations to organise and manage themselves, but
sometimes even gives them the task of fully regulating the conduct of their sport,
including fundamental matters of public interest, such as the protection of minors,
145
corruption and doping.
The autonomy of the various sports organisations means that each one has its
own dispute settlement mechanisms (i.) as well as disciplinary jurisdiction (ii.).
140
st
Charleroi Commercial Tribunal, 1 chamber, 15 May 2009, RG A/05/03843, Quoted in Lamy Droit du sport,
Book 2, 612.50.
141
G. SIMON et al., Droit du sport, p. 30; J. FRITZWEILER et al., Praxishandbuch Sportrecht, 2. Auflage,
No. 173-176, pp. 175-176.
142
nd
A. LEWIS, J. TAYLOR, Sport: Law and Practice, 2 Edition, A1.7 et seq., p. 4-5; Lamy Droit du sport,
No. 612.60
143
A. LEWIS, J. TAYLOR, A1.11, op. cit., p. 6
144
A. LEWIS, J. TAYLOR, A1.7 et seq., op. cit.; Lamy Droit du sport, No. 126.65.
145
‟to regulate the entire conduct of the sport, including fundamental issues of public interest such as child
protection, corruption and anti-doping”, A. LEWIS, J. TAYLOR, A1.13, p. 6; see also D. OSWALD,
Associations, foundations and others forms of corporations at the service of sport, p. 136; for more general
considerations of the autonomy of the lex sportiva see Frank LATTY, Lex sportiva – Research on
transnational law pp. 415 et seq.
237
i. Settlement of Disputes
In order to maintain their autonomy and avoid the interference of state
authorities, which often perceived as a negative interference, sports organisations seek,
whenever possible, to settle disputes arising in the course of their activities by
themselves (‟ [...] sports governing bodies make [...] a great effort to secure their
146
autonomy in resolving internal issues [...]”), For some authors, it is also desirable that
sports organisations be allowed and even encouraged to regulate their sport, so they
can solve their problems themselves and minimise, as much as possible, the
147
intervention of State authorities in their internal affairs .
However, this point of view presents risks. It is likely to generate certain
irregularities. For instance, in France, some federations did not hesitate to impose on
their licensees, who wish to challenge the decision of a disciplinary committee, prior
148
payment of the costs of the appeal, which is illegal.
Similarly, sanctions not covered by the texts were sometimes imposed under
149
the guise of referring to the vague notion of general interest sanction.
Some federations wishing to preserve their autonomy sometimes go as far as
refusing to execute a court decision. For example, French professional basketball clubs
joined forces in order to render ineffective the decision of the Council of State rendered
150
on 23 June 1989.
According to section 80 of the Nationality Code, the Council
censored a Regulation of the French Federation of basketball establishing a quota for
foreign players, including naturalised players, likely play in professional matches. tone
may also mention the Viguier case and the judgement of the Council of State of
151
25 January 1991,
where the government commissioner recalled that it took the
intervention of the interim relief judge, who imposed a heavy sanction against the
French Federation of Weightlifting, bodybuilding and weight training, on the basis
assault, to allow the concerned athlete to participate in the French championships. More
recently, sports authorities repeatedly tried to challenge the Bosman ruling and limit its
application, before the UEFA finally gave in, at the meeting of the Executive Committee
152
of 19 February 1996, following the pressure of EU Commissioner Karel Van Miert.
Through consensus, Swiss ice hockey clubs had also deliberately limited the number of
foreign players allowed to appear simultaneously on the game sheet, in violation of the
153
criteria of the Bosman ruling .
146
J. LUKOMSKI, John Terry’s Case – “An Overlap of Criminal and Disciplinary Proceedings”,
The International Sports Law Journal, 2012/1-2, p. 63; “volonté du mouvement sportif de régler en son sein
ses propres conflits “, Lamy Droit du sport, No. 612.30.
147
M. BELOFF et al., ‟Principle that sporting bodies should, where possible, be allowed, indeed encouraged,
to regulate their sport”, No. 8.56 p. 276.
148
RJES, No. 42, page 57, “Readers’ questions”.
149
C. AMSON, Droit du sport, Vuibert, coll. “Dyna’Sup Droit”, 2010, No. 193, p. 93.
150
Bunoz, req. No. 101.894.
151
Req. No. 104.497.
152
C. AMSON, supra, No. 218, p. 101, citing the newspaper France Football on 27 February 1996, p. 35.
153
Article 1.3 Directives for the development of the championship of LNA – season 2013/14. Available on:
[http://www.nationalleague.ch/media/native/pdf/nl/handbuch/directives_deroulement_championnat_ln_a_2013
_14_f_def.pdf].
238
Finally, one can mention the FC Sion/Olympique des Alpes SA case, in which
UEFA had initially, and for practical reasons (major difficulties to change the format of
an ongoing competition, in particular, going from a four-team group to a five-team group
system), decided not to comply with an interim measure granted by a judge of the Vaud
cantonal Court, which ordered them to reintegrate into the competition a club that had
154
been excluded by a disciplinary decision.
ii. Disciplinary Jurisdiction
In general - The jurisdiction of sports organisations to decide on disciplinary
matters is a fundamental part of their autonomy. In itself, this jurisdiction is not disputed.
Besides, the European Court of Human Rights (ECHR) recognises that "conferring the
duty of adjudicating on Disciplinary trespasses on Disciplinary professional bodies Does
not infringe Article 6 (1) of the Convention. Yet this condition is satisfied only when
either the professional disciplinary bodies themselves comply with the requirements of
that Article, or when they are subject to subsequent review by a judicial body that has
155
full jurisdiction and provides the guarantees of Article 6 (1)”.
Judicial review of disciplinary decisions - The abovementioned does not imply
that sports organisations are not subject to the review of State judicial authorities when
they resolve internal disputes.
Some legal systems require that the disciplinary decisions of sport federations
should be subject to an appeal before State jurisdictions. In France, for example,
156
decisions taken by the organs of the French sport federations with delegated powers,
i.e. organs that received from the ministry of sport a delegation recognising their
monopoly for the organisation of competitions in their sport on the national territory as
well as the corresponding selections, "may have the character of administrative acts
capable of being contested in an annulment procedure before the administrative judge "
for excess of power, when taken for the accomplishment of a public service through the
157
use of public powers.
For federations that have only received a ministerial
158
approval , decisions "always constitute acts of private law against which annulment
159
proceedings are admissible before the civil judge".
Although French law recognises the importance of sport decisions, since it
requires the exhaustion of internal remedies within the sport organisation before referral
to the competent courts (Lamy Law of Sport No. 612.30), the fact remains that
disciplinary decisions are still subject to appeal to the courts. The same is true under
160
Spanish law.
154
See civil court of the Vaud Canton, provisional order of 13 September 2011, in the case CM 11.0337 Y.SA
against UEFA.
155
J. LUKOMSKI, op. cit.
156
Law No. 84-610 du 16 July 1984 relative to the organisation and promotion of physical and sport activities,
amended, JORF of 17 July 1984; Article L. 131-14 Code of Sport.
157
CE, Sect., 22 novembre 1974, Fédération des industries françaises des articles de sport, (FIFAS),
req. No. 89.828).
158
Article L. 131-9 of Code of Sport.
159
Council of State, 19 December 1988, Mme P. et al. v. Fédération française d’aérobic et de stretching,
req. No. 79.962, req No. 79.962 (sanctions against local sport associations or their managers) adde, Lamy
Droit du sport, No. 612.25.
160
European Sports Law and Policy Bulletin, International and Comparative Sports Justice, pp. 585-587,
2013.
239
Even when state law does not provide the absolute right to a judicial remedy,
a dispute cannot, in principle, escape the control of ordinary courts unless it is
submitted to another independent and impartial court, which implies, in practice,
allowing a recourse before a jurisdiction that satisfies the conditions applicable to
arbitral tribunals. The disciplinary committee and other bodies of federations, regardless
of their title, are independent and impartial arbitral tribunals, but only internal instances
whose intervention does not allow the exclusion of a subsequent appeal procedure
161
before State jurisdictions,
which refers to the jurisprudence of the Swiss Federal
Court. In fact, this court only acknowledges the CAS (Court of Arbitration for Sport) in
the sporting world as a genuine private judicial authority rendering judgments with the
162
same value as ordinary courts . In France, the Council of State does not recognise the
163
judicial nature of the disciplinary bodies of sports federations.
In the England and
Wales Cricket Board (ECB) c. Kaneria case, a British judge had to determine whether
the disciplinary procedures of the ECB constituted arbitral decisions; if so, a court could
issue an order to the effect that an important witness be compelled to appear before the
appeal authority of the ECB, on the basis of the 1996 Arbitration Act; the judge held that
the procedure was in fact an arbitration, even though the statutes and regulations of the
164
ECB did not expressly include the term arbitration.
This decision does not entail that a judicial review would be excluded.
However, the decisions rendered by internal bodies are obviously valid and can
be executed when they become final, which means in all cases where they have not
been the subject of an appeal before a State court or an arbitral tribunal, regardless of
the composition of the bodies that made the decision and the procedure – even
irregular – followed to reach the decision.
b. The Autonomy of Disciplinary Repression from Criminal Repression
Criminal repression and disciplinary repression do not serve the same purpose.
While the first takes into consideration the overall interests of morality and society, the
second only acts in consideration of the interest of the group in question and has a goal
of maintaining standards of behaviour within this group, in the interests of the latter and
the public.
Criminal and disciplinary offenses do not necessarily coincide. If, generally,
criminal offences perpetrated by an athlete, in the framework of a competition, are also
considered breaches of disciplinary law (e.g. handball player who intentionally punches
his opponent and consequently hurts him), the reverse is not true: in many cases, an
offence that may be sanctioned under disciplinary law does not constitute a criminal
offense (e.g. football player who pulls his opponent by his shirt).
161
D. OSWALD, “Associations, fondations et autres formes de personnes morales au service du sport”,
Peter Lang, 2010, p. 158.
ATF 129 III 445.
163
Council of State, 19 December 1980, Hetcher v. Groupement du football professionnel, case No. 11.320:
see also J. LUKOMSKI, p. 64.
164
See D. BAILEY, The status of sports internal disciplinary proceedings, Sports Law Administration &
Practice, June 2013, pp. 4 et seq.; C. WALSH, “The significance of the ECB/Kaneria decision”, World Sports
Law Report, July 2013, pp. 8 et seq.; The decision is published in Sweet & Maxwell’s International Sports Law
Review, 3/13, pp. 31 et seq.
162
240
In addition, disciplinary repression can only be applied when the offender is part
of the group considered or maintains with the latter a significant relationship whereas a
criminal sanction can be imposed without any precondition to any individual who has
committed a criminal offence.
Disciplinary action is independent from criminal action. In case of concurrence
between disciplinary and criminal offences, criminal authorities and disciplinary bodies
can, in principle, investigate the same facts at the same time, and their outcomes may
differ. In France, an adage states that "the criminal does not hold back the disciplinary",
meaning that the disciplinary authorities may decide to sanction an individual without
having to wait until for the outcome of the criminal proceedings.
Disciplinary repression and criminal repression are not subject to the same
165
legal regime. Therefore:
a) The rule "nulla poena sine lege", which prohibits the imposition of sanctions
that were not expressly provided for by the texts, applies strictly to criminal law, but
sometimes the disciplinary system leaves to the decision-making authorities a latitude
as to the nature and proportion of the sanctions that can be imposed (e.g. 9.15 of AIBA
Disciplinary Regulations, which provides, under the title "Other sanctions" that "The
relevant Judicial Body will have the authority to impose such other sanction(s) as it
deems appropriate in the circumstances. Notwithstanding the Guideline Sanction(s)
related to a particular offence, the relevant Judicial Body, having regard to the
circumstances of the case, will have the authority and discretion to impose a
sanction/sanctions in excess of the Guideline Sanction(s)"); However it is not certain
that the judicial authorities, or even arbitral tribunals, would recognise the imposition of
sanctions not expressly provided for in the relevant texts;
b) The rule "nullum crimen sine lege," which prohibits, in criminal law, to
establish offenses not precisely defined by law, does not necessarily apply to
disciplinary law: any breach of obligations, duties, moral, ethics or sport ethics may, in
principle, constitute a disciplinary offence and, in any event, the disciplinary rules may
include extremely wide formulations concerning punishable mistakes (e.g. "any breach
166
to the obligations of loyalty and probity") , which would be unacceptable under
criminal law;
c)
The rules on the taking of evidence are not identical and, for example,
evidence may be admissible in disciplinary proceedings whereas they would not be in
criminal proceedings;
d)
The standard of proof applied under disciplinary law may be different from
the one that applies to criminal courts.
165
See in particular G. DELLIS, “Droit pénal et Droit Administratif, l’influence des principes du droit pénal sur
le droit administratif répressif”, in: B.D.P., vol. 184, LGDJ, 1997.
166
See for instance, the disciplinary regulation of the French Boxing Federation of 25 June 2008.
241
In other words and as noted by a British court, "The purpose of disciplinary
proceedings (regulation to maintain proper standards in the profession in the best
interest of the public and the profession) is different from that served in the criminal
courts; that the standard of proof is significantly different, such that there is no
inconsistency between acquittal by a jury and a finding by a disciplinary panel that
allegations are proved [...]; that evidence admissible before a disciplinary tribunal may
differ in that different rules of evidence are likely to apply, and in part because judicial
discretions may well be differently exercised [...] generally less strictly in the disciplinary
167
context where at least the accused’s liberty is not at stake".
3. The Sources of Disciplinary Law
The corpus of disciplinary rules includes provisions that:
a) Define the behaviours (actions and omissions) required from members or
behaviours that are prohibited, i.e. conduct considered as a disciplinary
offence;
b) Regulate the disciplinary proceedings, including the composition of the
disciplinary bodies of the concerned federation;
c) Determine the penalties for offenders and the terms governing their
determination.
As to the textual basis of the subject, the rules applicable to the cases of
manipulation of sports competitions can be found in various texts such as statutes,
codes of ethics, disciplinary codes, codes of conduct, specific anti-corruption
regulations or other similar instruments.
168
Certain federations dealt with the subject within a single text
which defines
conducts constituting offences. The text establishes the procedure and provides for
penalties.
Others chose to integrate the rules within two different texts (FIFA: Code of
Ethics and Disciplinary Code, which deal with the same issues but from different angles;
FIBA: Code of Ethics included in Book 1 of the Internal Regulations ("General
Provisions"), which also include rules on sanctions and the Disciplinary Council, but
also the FIBA General Statutes, which include a chapter on “Judicial Bodies "). These
texts often implement the statutory goals set by the concerned Federation. For
example, one of the statutory objectives of FIFA is "to promote integrity, ethics and
sportsmanship to prevent all methods or practices such as corruption, doping and
manipulation of matches, not endangering the integrity of the matches, competitions,
169
players, officials and members or not creating grounds for abuses in the football.”
167
High Court of Justice Queen’s Bench Administrative Court, Bhatt v General Medical Council (2011) EWHC
783 (Admin), 1 April 2011, Para. 53.
168
Code of ethics: bobsleigh [International Federation of Bobsleigh and Toboganning.
[http://www.fibt.com/uploads/media/Code_of_ethics_E_120712.pdf]; Disciplinary Code: UEFA; Anti-Corruption
Code: cricket [International Cricket Council].
169
FIFA Statutes, July 2013, Article 2.e.
242
Similarly, under Article 7bis
UEFA members:
170
of the UEFA Statutes regarding the obligations of
"1 Member associations must:
a) Respect the principles of loyalty, integrity and sportsmanship as an expression of fair
play;”
In Field Hockey (International Hockey Federation) and netball (International
Federation of Netball Associations), the disciplinary rules are set in three different texts
(Anti-Corruption Regulations, Code of Ethics, and Code of Conduct).
In addition, the Code of Ethics of the International Olympic Committee (IOC)
applies to "Olympic parties" (i.e., International Olympic Committee and its members,
National Olympic Committees, Organising Committees for the Olympic Games,, the
cities applying for organising of the Olympic Games, candidate cities and host cities
and, as part of the Olympic Games, athletes). For their part, international federations
and recognised organisations commit to adopt a Code of ethics based on the principles
and rules of the IOC Code of Ethics or to adopt, by written declaration, the IOC Code of
171
Ethics.
Two articles of Part A (dedicated to "Dignity") of the Code prohibit bets and
the manipulation of competitions related to bets:
"5. All forms of participation in, or support for betting related to the Olympic Games, and
all forms of promotion of betting related to the Olympic Games are prohibited.
6. Also, in the context of betting, participants in the Olympic Games must not, by any
manner whatsoever, infringe the principle of fair play, show non-sporting conduct,
or attempt to influence the course or result of a competition, or any part thereof, in a
manner contrary to sporting ethics."
In part B concerning "Integrity", the Code prohibits, among other things, certain
behaviours that may influence the attribution of the organisation of games (receiving
gifts, etc.). This part applies to forms of sport corruption other than manipulating a
competition linked to bets and involves the managers of the sports society.
4. Defining Misconduct and Sanctions
In material terms, disciplinary law is primarily based on misconduct (a) and
sanctions (b), hence the importance of defining them.
a. Misconduct
Disciplinary misconduct is defined independently. This autonomy is apparent
compared to misconduct as defined in terms of civil and/or criminal responsibility. It is
evaluated according to what should have been the conduct of the individual under the
rules specific to the body (institution, group, association, etc.) to which he belongs.
170
171
UEFA Statutes, 2012.
IOC Code of Ethics, 2013, Preamble.
243
The disciplinary body considers the reality of the facts alleged against the
person concerned, decides on their legal qualification under applicable internal rules
and makes an overall assessment of the conduct of the offender. Where applicable, it
imposes disciplinary measures producing effects within the body to which the offender
172
belongs and within this body only, with the exception of doping.
b. Sanctions
The sanction is not an end by itself, and the competent body can usually
renounce sanctioning a person if, in the case at hand, it is not necessary to maintain or
restore order within the entity (including the issue of the image of the organisation
concerned towards other organisations and the public). Disciplinary law is governed by
173
the principle of opportunity.
In addition, for sport organisations and in relation to their members, disciplinary
sanctions are of more importance than criminal sanctions: the latter are not intended to
prevent the person from taking part in sport activities in a particular discipline,
regardless of the nature of these activities, even if this criminal sanction such as the
deprivation of freedom can have this effect. According to sport organisations, especially
in the field of sport fraud, the key is to remove from the sport those who may harm the
activity. It is exceptional for criminal measures to aim for this result: although a Turkish
court was able, on 25 June 2013, to provisionally ban several managers of the football
174
club Fenerbahçe from exercising any activity in the field of Football , this type of
provisional measure remains rare in practice. The sport federations therefore cannot
generally rely on criminal decisions to prevent offenders from taking part in sporting
events (except in cases where the concerned person is detained, before or after
judgment, and where they are obviously prevented from taking part in the competition).
5. Interpretation Disciplinary Rules
The interpretation of disciplinary rules does not meet the same criteria as, for
example, the rules of criminal law or labour law.
In general, it is admitted that disciplinary law can be interpreted by reference to
the sporting goals, including the necessary integrity of competitions, without allowing
strict legal or technical interpretations to hinder the legitimate pursuit of these
objectives. These principles were formulated by sports organisations: “Betting and anticorruption rules are, by their nature, competition rules governing the conditions under
which the sport […] is to be held.
172
Concerning doping, sanctions are also valid for other sports. See article 10.10.1 of the WADA Code:
“Prohibition of Participation during suspension. Every suspended athlete or person cannot, during the
suspension period participate in any competition or activity authorised or organised by a signatory, a member
of the signatory or a club or any other organisation member of a signatory (with the exception of authorised
educational or rehabilitation for anti-doping programmes). They cannot either participate in competitions
organised or authorised by a professional league or an organisation responsible of international or national
manifestations. The athlete or any person that has a suspension imposed for more than 4 years can, after the
4 years of suspension, participate to local sport event in an activity different from the one where they violated
the law of anti-doping, only when the local sport event does not happen on a level that will allow the
participant to qualify, directly or indirectly, for a national championship or an international event (or to
accumulate points for a qualification)”.
173
See for example: judgement of the Swiss Federal Court of 7 May 2009, TF 5A 112/2009, 2.2.
174
[http://www.turkish-football.com/news_read.php?id=4809].
244
They are not intended to be subjected to or limited by the requirements and
175
legal standards applicable to criminal proceedings or employment matters”. “The antiCorruption Code is to be interpreted and applied by reference to the fundamental
sporting imperatives […] This includes but is not limited to cases where an issue arises
that is not expressly addressed in the Anti-Corruption Code. Such interpretation and
application shall take precedence over any strict legal or technical interpretation of the
Anti-Corruption Code that may otherwise be proposed” (ICC Anti-Corruption Code).
Disciplinary bodies have some latitude in interpreting the regulations, which
176
should however be a correct interpretation.
B. Division of the Disciplinary Power
In most sports, competitions are mainly organised by national federations, since
international competitions are less numerous. For example, around 30.000 matches
st
nd
from the 1 and 2 divisions as well as national cups are held each year on UEFA
territory whereas competitions directly organised by the latter represent about 1900
matches per year. In other sports, competitions are almost exclusively national, as is
the case with Australian football and other typical regional sports.
This raises the question of knowing who, in the international, continental,
national or regional federation (e.g. autonomous football federations within the United
Kingdom, respectively, for England, Wales, Scotland and Northern Ireland), is
competent to enact and enforce disciplinary rules in the field of manipulation of
competitions.
The case of disciplines practiced in major professional championships in North
America (baseball, ice hockey, basketball, American football, “soccer”), is characterised
by the fact that the leagues that organise them are entirely autonomous, in the sense
that they are neither affiliated to international federations, nor to the national federations
affiliated to the latter (even if they sometimes make available teams or players in
competitions held under the auspices of international federations). They enact their own
rules, for example concerning the absence of promotion and relegation, the dimensions
of the playing fields, the length of the matches or the rules of the game. Major League
Soccer is notably not bound by the rules of football adopted by the International Football
Association Board, which apply to all national football associations affiliated to FIFA,
although it is largely inspired by these rules. Therefore, disciplinary issues, and in
particular those related to the manipulation of competitions are dealt with by the leagues
in question, independently from the decisions that may be taken by international sports
federations or their sub-associations. This should be taken into account in the search
for a comprehensive solution to the problem of manipulation of sports competitions.
These multiple prerogatives can hinder an effective fight against sports fraud
and the harmonisation and unification of the rules on the subject, since they include
those relating to the enactment of rules (1), and those relating to unification or
harmonisation procedures (2). In this regard, the Chair questioned the scope of
application of any potential provisions aiming to harmonise the disciplinary law (3).
175
Association of Summer Olympic International Federations [ASOIF] Model Rules, Ch. 12.2.
s
For examples of cases, see M. BELOFF et al., Sports Law, Second Edition, No. 7.51 et seq., pp. 203 et
seq.
176
245
1. Power to Enact Rules
International and national sports federations each have the competence to
enact rules (a), which is coordinated with the specific prerogatives of international
federations with towards national federations (b). Moreover, international federations
also have subsidiary prerogatives (c). However, the issue of the applicability of
sanctions imposed by one of them remains (d).
a. In General
The subject of the respective prerogatives of international sports federations
and affiliated entities (continental, national, and possibly even regional) is quite delicate.
In fact, some uncertainties are related to the lack of coordination between these
federations, which can lead to contradictory approaches or even contrary regulations or
177
practices.
With this in mind, it could be retained as a general rule that international sports
federations are competent to:
§ Enact disciplinary rules applicable to the competitions they organise
§ Impose disciplinary sanctions on facts that occur during competitions organised
by them, facts that are directly or indirectly related to the competitions or even
facts unrelated to these competitions (e.g. public statements of a coach that are
defamatory to the organs of the federation; corruption of an official to award a
competition to a given organising committee), extend to the international level,
sanctions - typically suspension - imposed by national federations on charges
related to national competitions (e.g. suspensions imposed against players by
Salvadoran and Ukrainian football federations for manipulating of results, which
178
were then extended globally by FIFA;
§ Temporarily or permanently exclude, from the competitions they organise, the
perpetrators of disciplinary offenses within a national framework (e.g. Turkish
clubs excluded from UEFA competitions for acts of corruption occurring in
connection with the championship in Turkey; CAS press release of 28 August
179
2013.
National and, when necessary, continental and/or regional federations can:
§ Enact disciplinary rules applicable to the competitions they organise;
§ Impose disciplinary sanctions on incidents that occur during the competitions
they organise or related to them or even unrelated to these competitions;
§ "Recognise" and apply sanctions imposed by another national federation, if the
sanctioned person intends to carry out an activity in their territory.
The respective prerogatives of national and international sports federations may
however differ from one sport to another.
177
In this regard, see A. RIGOZZI, L’arbitrage international en matière de sport, LGDJ, 2005, pp. 110 et seq.
See [http://www.fifa.com/aboutfifa/organisation/news/newsid=2227829/index.html].
179
See
[http://www.tascas.org/d2wfiles/document/6677/5048/0/Media20Release20decision20final20_English_2028.08.pdf].
178
246
For example, one characteristic of the FIFA International Sporting Code is that it
requires each national federation to settle the disputes arising in connection with
national sport, but for every dispute involving a foreign licensee, the National Appeals
Tribunal is a jurisdiction whose decisions are subject to appeal before the International
180
Court of Appeal.
This kind of solution is possible in a sport like auto racing, since
competitions are not very numerous and involve a limited number of participants.
For practical reasons, it would be difficult to apply this to football or basketball, based on
the high number of non-national players playing in different championships.
b. Prerogatives of International Federations over National Federations
An international federation may provide that it will deal with disciplinary
proceedings against a national association or even against members of their governing
bodies, even if the facts fall within the internal operations of the national federation (e.g.
refusal to apply the rules of the game decided by the international federation; licensing
an athlete suspended by the federation; refusal to apply sanctions on a club responsible
for manipulating national competitions).
In particular, this is what the FIBA intended to do, by providing that:
“Affiliated national federations can investigate alleged violations of the Code (of Ethics)
in their own respective jurisdictions in accordance with their own procedures unless the
suspected violation does not involve the affiliated national federation, in which case, the
181
matter should be reviewed by the Ethics Committee of the FIBA” ).
It is in fact quite logical for disciplinary offenses committed by a national
federation in its current form to be dealt with by the international federation: otherwise,
these breaches would go unpunished.
c. Subsidiary Prerogatives of International Federations
Some international federations reserved the right to intervene directly and even
to render decisions in cases that, in principle, fall within the national jurisdiction, when
they reckon that national authorities failed in their duties. Essentially, the issue is the
imposition of disciplinary sanctions on persons for acts related to national competitions,
in the event that the international federation finds that a national federation did not act
as it should have or if it considers that the sanctions imposed by a national federation
are inadequate or, in particular, insufficient.
Apparently, the international federations concerned concluded that in some
cases, national federations might not sanction their members adequately or not even
sanction them at all, in cases that would have called for sanctions of a certain gravity.
The idea is probably that the national federations could show weakness or excessive
indulgence toward their members, in order to protect them or to avoid internal turmoil, or
to avoid attacks against federation officials.
180
181
Article 180 of the FIA International Sports Code.
Article 55 of the 2010 FIBA Internal Regulations, Book 1.
247
The pressure may indeed be strong: in a case of manipulation involving highprofile Turkish football clubs, the UEFA called on the national federation to sanction the
clubs responsible; the Turkish federation had been slow to act and its disciplinary
bodies eventually withdrew the registration of a club - Fenerbahçe SK – to the UEFA
Champions League 2011-2012, which led to strong reactions from supporters of the
club concerned, and as a result, top federation officials had to submit their
182
resignations.
For example, the Ethics Committee of FIFA is also competent to:
“investigate and prosecute national cases if associations, confederations and other
sports organisations fail to prosecute such offences or fail to do so in accordance with
the fundamental principles of law or if no adequate judgment is given due to specific
183
circumstances.”
In other disciplinary matters, FIFA retains the prerogative to pursue and
sanction serious offences against its statutory objectives
“when associations, confederations and other organisations fail to prosecute offences
184
committed or fail to do so in accordance with the fundamental principles of law.”
The UEFA follows the same path since its disciplinary rules
“also apply to any serious violation of the statutory objectives of the UEFA, unless the
violation is subject to appropriate legal proceedings within one of the member
associations of the UEFA” (Article 2, al. 4 RD UEFA).
The FIBA has a similar statutory provision in its Code of Ethics:
“If the FIBA considers that an affiliated national federation did not conduct a lawful
investigation of the alleged violation of this Code or did not impose an appropriate
sanction when a violation is retained, it can then initiate its own investigation and/or
impose its own sanction” (Article ultimately 55 FIBA Internal Regulations 2010, Book 1).
Other international federations prefer to give national associations the fullness
of their jurisdiction, while reserving the right to inspect and intervene in national
proceedings or even appeals against decisions rendered as a result thereof. This is
particularly the case of the ICU, whose bodies may intervene in pending disciplinary
proceedings before the courts of a national federation in order to give their opinion (Ch.
263 ICU Regulations of cycling), the Steering Committee of the ICU may also initiate
before the CAS, appeal proceedings against a national decision (Ch. 330 of the same
185
Regulations ).
182
See [http://www.independent.co.uk/sport/football/european/fenerbahce-furious-over-champions-leagueban-2343950.html].
183
Section 2, Article 27.4, FIFA Code of Ethics, see
[http://fr.fifa.com/mm/document/affederation/administration/50/02/82/Codeofethics2012f.pdf].
184
Section 1. Article 70.2, FIFA Disciplinary Code [FDC],
see [http://fr.fifa.com/mm/document/affederation/administration/50/02/75/discoinhaltf.pdf].
185
CAS 2010/A/2083 UCI v. Jan Ullrich & Swiss Olympic.
248
In our opinion, and in cases of manipulation of competitions, international
federations should provide for the possibility for them to rule in the event of failure of a
national association. In fact, the general interest requires that the perpetrators of
sporting fraud be punished as adequately and as uniformly as possible, this being in
line with prevention objectives. As it has been observed, national federations can
sometimes yield to pressures in their countries, or want to avoid heavily sanctioning a
club or an important athlete for his athletic achievements, or simply because national
officials have not taken stock of the severity of a phenomenon like sporting fraud. It is
therefore important that the international federation be able to make up for the
shortcomings of national federations, which would fill the gaps in terms of repression
and also avoid glaring disparities in the treatment of similar cases by different
federations.
Particularly in the area of manipulating results, international federations are also
increasingly attentive to the handling of disciplinary cases by national federations. The
newsletters published weekly by Interpol, as part of its joint programme with FIFA, give
186
many examples of this attention.
d. Applicability of Sanctions Imposed by an International Federation
The prerogative of an international federation to sanction a national federation,
club, or athlete raises the question of the applicability of these sanctions on the national
territory.
For example, France considers that the sanctions imposed by the international
federation against a French athlete cannot be appealed for abuse of power unless they
are ratified by national federations in order for them to come into effect in internal law.
Its authorities are based on considerations of national sovereignty and on the right of a
French athlete to have the sanctions imposed on him by an international federation
reviewed by a French judge.
Therefore, French case law requires an act of transposition of the sanction
through the national federation, which, as a result, makes it possible to appeal the
187
sanction before French administrative courts.
The major negative implication of this system lies in the inability of the
international federation to ensure a harmonised and adequate suppression of
disciplinary offences, especially in the field of sporting fraud. If this system becomes
widespread, the decisions made at the international level could still be challenged by
national judges, even though the concerned athletes, clubs or federations could have
benefited from proceedings respecting their rights, or even from a possibility to appeal
before the CAS.
186
‟Interpol Integrity Weekly Media Recap”, available at
[http://www.interpol.int/Crimeareas/Corruption/Integrity-in-sport/Resources].
187
Regarding the absence of direct effect, see EC, 17 January 1990, Jeannie Longo, Appl. No. 95.943;
EC, February 2, 2006, Hosni X v. FFF; EC, 8 November 2006, Hosni X v. FFF, Appl. No. 289 702.
249
Furthermore, according to the practice of international federations, their
reactions towards the concerned National Federation cannot be excluded: an
International Federation could, for example, ban a national federation from participating
in its competitions if the suspensions decided by the former are not applied concretely
by the latter due to the intervention of a national jurisdiction. The latter would then have
no way of sanctioning this exclusion (except, perhaps, if the international federation’s
headquarters are established in the territory of the State concerned).
Therefore, States should recognise that disciplinary sanctions imposed by
international sports federations apply in the country when they result from final
decisions, according to the procedures applicable to the concerned international
federations.
2. Unification and Harmonisation Procedures
To enhance the effectiveness and coherence of combating sporting fraud, a
uniform regulation (it must be strictly identical for all federations), or at least a
harmonised one (i.e. with the same elements, or at least a minimal number of common
elements, leaving the federations with the responsibility to formulate them) should be
provided for.
The rules necessary to effectively combat sporting fraud do not depend chiefly
on the discipline practiced (e.g. the fact that an athlete or a referee manipulated the
outcome of a match or provided third parties, in return for a payment, with confidential
information, certainly cannot be tolerated in any sporting discipline).
Moreover, such a solution would guarantee greater legal certainty, insofar as
the application of the same rules by the disciplinary bodies of various sports federations
would ensure the development of an extensive case law, which would help each of the
decision-making bodies with the interpretation of applicable provisions. Another
advantage would be that the federations would not have to reinvent the wheel and could
simply adopt the necessary and appropriate commonly recognised rules.
In any case, it would be disadvantageous if the rules are not identical, or at
least very similar, in different geographic areas regarding the same sport. This could
only result in unnecessary complications when behaviours are recognised as
admissible internationally, but punishable nationally, or vice versa. Also, it seems
necessary to consider the determination and the applicability of model rules (a), of
mandatory rules imposed by international federations (b) and by the multi-sports
organisations (c) but also to make recommendations that would complement these
various instruments (d).
a. Model Rules
Sports organisations bringing together international federations, namely Sport
Accord and ASOIF, established model rules and made them available to their members.
The latter are free to include them in their own regulations, in whole or in part.
250
Although these efforts, which are certainly a move in the right direction, should
be recognised, it should be noted that, through means of this type, based on the logic of
soft law, a unification or even harmonisation can only be considered for the long term,
and only partially.
b. Mandatory Rules Imposed by International Federations
In the sense of unification of a given sport, one might consider that international
federations enact rules that are mandatory for their affiliated federations, and which
apply directly or indirectly (required inclusion of international rules into their own
regulations).
FIFA already uses this method in areas other than sporting fraud: Article 146 of
its Disciplinary Code (FDC) contains a list of rules that must be included in the
regulations of national associations, in some cases literally (e.g., associations are
bound to incorporate such provisions in their regulations on discrimination (Article 58
FDC) or on doping (Article 63 FDC), and in other cases, leaving the choice of methods
and formulation to national associations “with the objective of achieving a harmonisation
of the discipline”, as well as the clarification that it is also recommended that national
associations adopt FIFA rules.
In cricket, the ICC Anti-Corruption Code applies directly to national federations;
however, Article 1.6 of the Code provides that certain participants in international
competitions ‟may also be subject to separate anti-corruption rules of National Cricket
Federations applicable at the national level” but also that the code in question "is not
Intended to limit responsibilities of any participant under such other rules" and that no
national rule can oppose the implementation of the ICC Anti-Corruption Code.
FIBA only provided guarantees of minimal procedures in disciplinary matters, in
the sense that the rules of the zones and national federations “must provide for a
hearing by an independent court. They should also include the right of the person or
188
entity concerned, to be heard and to appeal the decision of the trial court.”
A unification imposed by an international federation can only apply to the sport
managed by it. This does not solve the problem of differences in regulations between
different federations.
c. Mandatory Rules Imposed by a Multi-Sports Organisation
An international organisation like the International Olympic Committee (IOC)
could possibly impose rules concerning sporting fraud on all recognised international
federations - Olympic and non-Olympic - as a condition for recognition and thus for
exercising specific rights, such as participation in the Olympics.
188
251
Rule 26 of the Olympic Charter, which provides that "every international sports
189
federation retains its independence and autonomy in the management of its sport ,”
does not necessarily preclude an obligation of this kind: the IOC is already setting
various conditions for the recognition of federations (e.g. organisations seeking
recognition from the IOC must comply with the Olympic Charter and their statutes are
subject to the approval of the IOC); it shall take measures against federations that do
not offer sufficient guarantees of good governance, and combating sporting fraud
seems sufficiently important for it to require from federations desiring to be recognised
that they adapt their regulations according to what is needed in this area.
The disadvantage of this solution is the fact that it would fundamentally
contradict the usual philosophy of the IOC that intends to interfere only with great
restraint in the internal affairs of recognised federations. The situation might be different
for federations seeking recognition by the IOC.
d. Recommendation
All the solutions mentioned above have advantages and disadvantages.
In our opinion, unification - or at least a very wide harmonisation – of the
regulatory provisions related to the various forms of sporting fraud requires the adoption
of a unified code, to be developed and adopted as part of a broad cooperation between
state or para-State institutions, such as governments and/or UNESCO, International
Sports federations, the IOC and organisations that aim to promote sport integritys, such
as the HCCI. In this regard, the adoption process of the World Anti-Doping Code could
be used as a model.
Means should be provided so that federations that do not comply with the
unified rules may be sanctioned. For example, these federations may be denied access
to multi-sport events (Olympic Games, Commonwealth Games, etc.) and lose the
recognition by the IOC, which could have consequences in connection with the
distribution of television rights, etc. Governments could also provide that these
federations be denied State subsidies.
It should be noted that since cases of manipulation more often involve national
competitions than those that take place at the international level, because national
competitions are more numerous and generally less monitored than international ones,
it is essential that federations, both national and regional, have adequate rules; efforts
which concern only international federations can only reach their goal partially.
Governments could also provide that the federations that do not undertake the
necessary reforms be denied State subsidies.
3. Desired Areas of Unification
Another issue is whether a harmonisation should focus on the rules defining the
disciplinary bodies (a), the behavioural norms (b), those determining the applicable
sanctions (c), but also procedural rules (d), and finally the various texts on which it was
based (e).
189
See also CAS 2000/C/255, CONI, 16 June 2000, which affirms this autonomy.
252
a. Disciplinary Bodies
Based on the diversity of cultures and habits, but also on the needs and the
number of cases to be dealt with, we do not deem it necessary to consider unique
solutions for the disciplinary bodies of different federations.
For example, some of these federations can undoubtedly settle for a single trial
where the domestic law does not require them to provide two levels of internal
jurisdiction to the federation and with a widespread exercise of the right to be heard
before the same body. Meanwhile, others, notably those dealing with a larger number of
litigation cases and/or based on the stakes, easily choose to offer the option of an
internal appeal, even if it provides a more or less brief procedure in the first trial in a
way allowing a quick deal with the mass of litigations without excessive cost (e.g. UEFA
provides for summary proceedings, without an oral hearing, before its first disciplinary
body, allowing it to settle the dozens of cases it handles every month. The right to be
heard can then, if necessary, be exercised without restriction before the court of appeal,
see section 51 of the UEFA Disciplinary Rules). In addition, the division of tasks
between international and national federations may depend on the nature of the
competitions in the sport concerned: the needs will obviously differ between football,
where the vast majority of matches are played in a national context, and Sports
managed by small international federations in which the majority of competitions are
international.
However, it should be noted that, whatever the solution adopted for the
domestic courts, an appeal against a disciplinary decision will always be possible before
the CAS or national courts.
b. Behavioural Norms
By contrast, behavioural norms must be unified, or at least harmonised to a
great extent.
Certainly, each sporting discipline has some characteristics that must be taken
into account in regulatory terms, but most importantly it should be subject to common
rules. Most of the behavioural norms in terms of sporting fraud can be applied to all
sporting disciplines, such as the prohibition of providing third parties with confidential
information.
c. Sanctions
The issue of the harmonisation of sanctions requires a nuanced response.
A suspension over several years usually sounds like the end of the career of a
gymnast, whose discipline requires extremely precise physical skills that cannot be
maintained during that period, whereas it might be considered simply as an unpleasant
interlude in the career of a dressage, curling or sailing enthusiast (in the latter case,
depending on the category under consideration). The number of competitions in which
athletes can participate each year also differs widely depending on the sport: a baseball
player in North America can play about 180 matches per season, while a boxer takes
part in only a few fights during the same period, which means that a suspension for a
given number of matches will not affect everyone the same way.
253
When it comes to fines, the level of remuneration of the athletes in each sport
must necessarily play a role: an orienteering athlete should not be exposed to the same
pecuniary fines as a multi-millionaire football player (it should also be noted that the
latter should not be treated the same way in this regard, as a footballer who plays in a
minor league, providing him with little or no remuneration).
Therefore, although it seems necessary that sporting fraud be severely
punished regardless of the concerned discipline, it does not necessarily lead to the
definition of uniformly applicable standards sanctions.
d. Rules of Procedure
Finally, the rules of procedure - the taking of evidence, the conduct of the
hearings, etc. - may differ from one sport to another or even from one level to another
within the same sport, without prejudice to the repression of sporting fraud in order to
take into account the specificities of each sport.
However, it should be guaranteed that each federation has rules that allow its
disciplinary bodies to work quickly and efficiently and to be based on the widest
possible range of available evidence (e.g. rules that allow the disciplinary bodies to take
into account all the types of evidence, of offices, or at the request of the parties and
whatever the nature of the evidence may be; rules that give disciplinary bodies the
power to make an early assessment of the evidence and reject irrelevant evidence in
order not to delay the proceedings; rules regarding the procedure in the case of a
challenge, in order to quickly dispose of disputes in this regard).
e. Corpus of Disciplinary Rules
As seen above (3. “Sources of Disciplinary Law”), the corpus of disciplinary
rules includes provisions that:
§ Define the behaviours (acts and omissions) required or prohibited for members,
namely the behaviours that constitute a disciplinary offence;
§ Govern disciplinary proceedings, including the composition of the disciplinary
bodies of the concerned federation;
§ Determine the sanctions applicable to offenders and the terms governing their
determination.
Regarding the heart of the matter, the rules applicable to cases of manipulation
of sports competitions can be found in various texts such as statutes, codes of ethics,
disciplinary codes, codes of conduct, and specific anti-corruption regulations or other
more or less similar instruments.
Some federations have treated the subject in a single text (Code of Ethics:
Bobsleigh [International Federation of Bobsleigh and Tobogganing] Disciplinary Code:
UEFA, anti-corruption Code: cricket [International Cricket Council]), which defines the
behaviours that constitute offences, establishes the procedure and provides for
190
sanctions.
190
See for example: [http://www.fibt.com/uploads/media/Code_of_ethics_E_120712.pdf].
254
Others chose to incorporate the rules in two different texts (FIFA: Code of
Ethics and Disciplinary Code, which deal with the same issues from different angles;
FIBA: Code of Ethics included in Book 1 of the internal regulations (“General
Provisions”), which also includes rules on sanctions and the disciplinary Council, as well
as the FIBA General Statutes, which include a chapter on “justice Bodies”).
In field hockey (the International Federation of field Hockey) and in netball
(International Federation of Netball Associations), the same subject is regulated in three
different texts (Anti-Corruption regulations, Code of Ethics, Code of Conduct).
In the IOC, a Code of Ethics sets the main principles, and an implementing
regulation defines in detail the behaviours constitutive of offences and the disciplinary
proceedings and the statutes provide the sanctions that may be imposed.
Several types of solutions exist in practice. As far as the regulation, considered
globally, covers the subject and the different instruments do not overlap and do not mix,
the adoption of a solution rather than another does not lend itself to criticism. At most,
one might ask whether it would be easier for users to be able to refer to a single text,
rather than having to refer to several, which could also prevent problems of
interpretation (example: the articulation is not always clear for FIFA, between the Code
of Ethics and the Disciplinary Code).
However, it seems essential that every sports organisation have a set of rules
that are:
§ Written;
§ Published (particularly on the federation’s website, with easy access);
§ Known by members (wide distribution, prevention programmes);
§ Clear;
§ Comprehensive, in order to avoid any gaps or the fact that disciplinary bodies
be forced to interpret the regulatory provisions extensively (e.g. a football
referee had failed to report to the UEFA that he had been approached by third
parties who asked him to fix a match; the regulations in force at the UEFA did
not include an express obligation in this regard; and therefore disciplinary
bodies had to retain a breach of the general obligation of loyalty in order to
191
sanction Oriekhov,
the referee in question, the UEFA regulation has since
been developed and refined; the recent scandal that hit French handball has
also led to the conclusion that the general regulations of the French Handball
Federation [FFHB] and National Handball League [NHL ] were ambiguous as to
the possibility of sanctioning players who bet on the competition in the physical
network, when it was clear that online bets were prohibited);
§ Coherent between the different levels of the same organisation;
§ Coherent, to the extent possible, across all sports organisations.
191
CAS 2010/A/2172.
255
Moreover, it should be noted that contracts - of players or other employees of
sports organisations - may also contain rules of behaviour. For example, the "Uniform
Player Contract" from Major League Baseball (MLB), which governs the relationship
between clubs and their players, provides that players must “conform to the highest
standards of personal conduct, fair play and good sportsmanship” (Article 391) and that
the violation of these principles may result in the termination of the contract, insofar as
UPC Section 7 (b) enables clubs to “terminate (the) contract upon written notice to the
Player” in case of breach of contractual rules.
C. The Scope of Application of the Disciplinary Law
The disciplinary law cannot be applied to everyone, and it cannot be applied to
all the actions and behaviours of the persons involved.
When evoking the scope of disciplinary law, it is necessary to examine the
scope of the prerogatives of the federations, regarding behaviours that may fall under
the disciplinary law, such as knowing how far these federations, whose competence to
sanction behaviours occurring in the course of the competitions they organise is not
disputed, can also deal with behaviours not directly related to these competitions
(material scope of application) (1).
It is also important to determine who is subject or who may be subject to the
disciplinary rules of a sports organisation (personal scope of application) (2).
Finally, the question of the interpretation of the disciplinary law will be
addressed (3).
1. Material scope of application
The material scope of application of disciplinary law is traditionally divided into
three categories: the general provisions directly related to the behaviour of athletes as
part of their professional activity (a), those relating to the manipulation of sports
competitions (b) and finally, those aimed at regulating the behaviour of athletes outside
their sporting activity (c). These different categories of rules are reflected in a
classification of offences (d).
a. In General
In general, the disciplinary law is primarily aimed at behaviours directly related
to sports competitions.
This is certainly the most visible part of its implementation, such as when a
sports federation suspends a player for a few matches because he insulted a referee,
attacked an opponent on the field or committed another violation of the rules of the
game.
256
Traditionally, the disciplinary law also deals with behaviours not directly related
to a specific competition, but nevertheless directly related to the activity of the
federation: For example, coaches and athletes are regularly sanctioned for issuing
disagreeable remarks about their federation or its officials when responding to
questions of journalists.
b. The Manipulation of Sports Competitions
Concerning the manipulation of competitions, disciplinary law should cover a
wide area.
It must of course be applied to behaviours that, on the playing field, tend to
tamper with the result or with particular facts of the game, but also to behaviours more
or less directly related to competitions (e.g. contacts for the purpose of manipulating;
placing bets on a competition) and even behaviours not directly related to competitions
(e.g. advertisement for a sporting betting company; holding of shares in such a
company).
It must also extend not only to the facts in relation to competitions organised by
the federations, but also to training matches involving persons subject to the sporting
jurisdiction. In fact, it is known, perhaps because of the increasingly careful monitoring
exercised on official competitions (through the systematic analysis of the changing odds
of bets on these competitions), that some criminals have begun to manipulate training
matches on which bets were or would be proposed. For example, a criminal
organisation based in Asia organised football matches in Antalya/Turkey in January
2011 and it invited four national teams; with the assistance of three referees that it
selected, then successfully manipulated the matches in question, and derived
192
significant gains from bets.
In Switzerland, at least one match between FC drive
Fribourg (third division) and FC Biel (second division) was also fixed, this time by a
criminal organisation based in Germany, which has also manipulated several other
193
matches.
Disciplinary rules should serve the repressive objectives, such as sanctioning
the author of a confirmed manipulation, but also they should serve the preventive
objectives, as with certain rules on bets.
c. Relationships with Personal Freedom
A problem can arise when federations plan to prohibit or impose on sports
stakeholders, behaviours that are not directly related to competitions, to the extent that
these prohibitions and obligations impinge on the personal freedom of those concerned.
192
See [http://www.theguardian.com/football/2011/mar/10/fifa-disciplinary-match-fixing-six-officials].
See [http://www.rts.ch/sport/football/suisse/challenge-league/1266374-le-fc-fribourg-est-soupconne-dans-laffaire-des-matchs-truques-3-decembre-le-journal-du-matin-02-12-2009.html].
193
257
The personal freedom of sports stakeholders may be limited by the particular
prohibition imposed on them regarding betting on their own sports competitions, even if
they do not directly participate in all competitions, even on competitions organised in
other sports (impediment to economic freedom), through the obligation to submit bank
statements and other personal documents to the disciplinary bodies (prohibition of the
right to data protection, or even through the prohibition from disclosing confidential
information to third parties (restriction on freedom of expression).
In our opinion, such restrictions on personal freedom are not admissible - and
will not avoid, when necessary, to censure arbitral or state jurisdictions - unless they are
based on clear legislative basis, pursue a legitimate objective and are proportionate
to it.
d. Classification of Offenses
194
For a classification of disciplinary offenses in relation to sports fraud, we refer to
the two first parts of this report.
2. Scope of Application Ratione Personae
Different characteristics help outline the scope of application of the rules that
apply to different categories of persons covered by the disciplinary law (a). Particularly
sports organisations that define the group of persons required to comply with their
disciplinary law (b), as well as the quality of natural persons (c) and legal persons (d)
subject to this law. In this regard, they may be subject to proceedings and sanctions (e).
a. General Considerations
Disciplinary law can only be applied to natural and legal persons subject to the
jurisdiction of sports or to the competence of a federation.
For this jurisdiction to be established, a legal link of some kind must exist
between the person – natural or legal - and the sports organisation holding disciplinary
power. As written by British authors: “Such a person or club, accused in disciplinary
proceedings, must necessarily have a prior legal relation of some sort with the body
exercising disciplinary jurisdiction [...] However, disciplinary jurisdiction exercisable by a
sporting body does not necessarily exist by virtue of a direct contractual relationship
between that body and the accused. The relationship might be indirect, in the sense
that the accused may have contracted with his club to submit to the jurisdiction of the
governing body within the sport concerned; and the club may in turn have contracted
with the governing body that its players will abide by the disciplinary regime established
195
by that body from time to time.”
The following principles are taken into account:
196
194
See infra Part 3, Title 2, Chapter 1, Section 2, § 1, B.
M. BELLOFF et al., op. cit., p. 189.
On these issues, see also A. LEWIS, J. TAYLOR, A2.9 et seq., pp. 58 et seq.; D. OSWALD, “Associations,
fondations, et autres formes de personnes morales au service du sport”, op. cit., pp. 157 et seq.; F. BUY
nd
et al., Droit du sport, 2 edition, op. cit., pp. 185 et seq.
195
196
258
§ The internal rules of the sports organisation must state that it has disciplinary
jurisdiction over the categories of persons;
§ The legal relationship may result from the internal rules of the sport
organisation, the rules provide that all members and if necessary, their
members must answer for their offenses;
§ It can also result from a contract between the sports organisation and the
person concerned;
§ It may exist due to the mere participation in a sporting event, as long as the
internal rules provide for this. Generally, in certain individual sports, participants
will be asked to sign a registration form providing for their submission to the
jurisdiction of the sports organisation, but even the absence of such consent
does not necessarily prevent the exercise of the sporting jurisdiction (de facto
legal link);
§ The link may be direct (e.g. a sports club which is a member of an association)
or indirect (member of a club, which is affiliated with a federation). It is therefore
possible, in a pyramidal organisational structure, that the club members be
subject to the disciplinary authority through their membership in a club, the
clubs themselves being members of a national federation (or of a league
affiliated with the national federation), which is a member of an international
federation (it is interesting to consider the issue of "double (or triple) affiliation"
of an athlete to different associations, i.e. a club, a regional association and a
197
national federation).
§ in some cases it may be based on the fact that the concerned party is part of
the entourage of a person subject to the sporting jurisdiction for the purposes of
the above (e.g. prohibition of betting that applies to the entourage of athletes,
the IOC Guidelines on sanctions applicable to members of the athletes’
entourage, ch.2.1.4); however, disciplinary action against these third parties
lead to assuming that a more formal link between them and the federation
exists, such as accreditation to access non-public spaces in competitions (e.g.
1.3 ICC Anti-corruption Code).
Therefore, disciplinary law cannot apply to persons who, without being
members of a sports organisation or involved in such an organisation in any manner
whatsoever, manipulate sports competitions, through contacts with players, coaches,
referees or officials, without falling within the sporting jurisdiction for the purposes of the
foregoing.
Current manifestations of sporting fraud are showing, more and more, that the
manipulations are not only perpetrated by persons linked to the sporting movement, but
also criminals, often organised, who have found a way to make a profit through bets on
198
manipulated sports matches.
Therefore, one must be aware that the exercise of disciplinary powers by the
federations can only have a limited impact on the manipulation of competitions, in the
sense that important participants in acts of fraud, who are very often the perpetrators,
escape the sporting jurisdiction.
197
See D. OSWALD, op. cit., pp. 84-87.
Examples: SAPINA brothers, Wilson Raj PERUMAL, Dan TAN, etc.; see particularly in this regard ‟Interpol
Integrity Weekly Media Recap”, available at: [http://www.interpol.int/Crime-areas/Corruption/Integrity-insport/Resources].
198
259
For third parties, only the application of the legislation can be considered for:
199
§ Criminal liability;
§ Civil liability: with the manipulations they organise, fraudsters can cause
damage to bettors whose chances are reduced or eradicated by fraud (loss of
wagers), as well as athletes and clubs involved in the manipulated event
(consequences on ranking, qualification, etc.). These damages, if necessary,
can be repaired financially through civil liability mechanisms. However, this
possibility remains rather theoretical, as it assumes that the fraudster is
identified, that the damage is determined, that the third party fraudster is
actually pursued without undue inconvenience (which individual bettor or
second division German or Swiss club would consider initiating civil
proceedings in Singapore or Malaysia?) and provided that the perpetrator is
200
solvent; the existence of such conditions is generally rare.
b. Persons Subject to Disciplinary Jurisdiction
Sports organisations generally define, in their texts, the ratione personae scope
of application of their disciplinary powers.
For instance, in tennis, the rules of the International Tennis Federation (ITF)
provide that:
“All Players, Related Persons, and Tournament Support Personnel shall be bound by
and shall comply with all of the provisions of this Programme and shall be deemed to
201
accept all terms set out herein ”.
“Related Person” must be understood as:
“any coach, trainer, therapist, physician, management representative, agent, family
member, tournament guest, business associate or other affiliate or associate of any
Player, or any other person who receives accreditation at an Event at the request of the
202
Player or any other Related Person.”
The rules of the Badminton World Federation (BWF) apply to "participants",
which are defined as follows:
“1.2.4 Participants: means all accredited individuals including but not limited to players,
referees, umpires, line judges, other Technical Officials, BWF and Member employees,
Member elected officials, families, the event organising committee and the entourage of
players (including but not limited to coaches, team officials, doctor and physiotherapist)
of all participants.”
In cricket, the ICC has provided the following:
199
See infra Part 3, Title 2, Chapter 1, Section 2, § 3, A.
For the case of manipulation of a Football matches by a referee and its consequences on civil law, see
Rouven
SCHWAB,
Der
Fall
Hoyzer
und
seine
zivilrechtlichen
Konsequenzen,
[http://www.betrifftjustiz.de/texte/BJ81_Schwab.pdf].
201
Article X letter C Ch. 1 of the Uniform Tennis Anti-Corruption Programme.
202
Article X letter B Ch. 21 de l’Uniform Tennis Anti-Corruption Programme.
200
260
“All Participants are automatically bound and required to comply with all of the provisions
of the Anti-Corruption Code. Accordingly, by their participation (in the case of a Player)
or assistance in a Player’s participation (in the case of a Player Support Personnel), or
appointment to officiate (in the case of an Umpire or Match Referee) or appointment to
support an Umpire or Match Referee (in the case of an Umpire Support Personnel) in an
International Match, such Participants shall be deemed to have agreed” to provide
information, to become familiar with the Code, to submit to the authority of the ICC and
203
its jurisdiction, as well as to that of the CAS.
The Disciplinary Code of the International Boxing Association (AIBA) also
defines the circle of people who are subjected to it:
“2. Application. 2.1 The Code is applicable to: (a) all AIBA Competitions (including, for
the avoidance of doubt, APB competitions); (b) the Confederations and National
Federations; (c) all persons subject to the Statutes, AIBA Bylaws, AIBA Technical &
Competition Rules, Code of Ethics and AIBA decisions; (d) all persons subject to the
statutes, bylaws and constitution of the Confederations; (e) all persons subject to the
statutes, bylaws and constitution of the National Federations; (f) all Officials; and (g) any
person representing a National Federation in any capacity at an AIBA Competition,
whether that person is officially accredited or otherwise, and includes (without limitation)
any Boxer, coach, trainer, second, team doctor or administrative official.”
In the International Basketball Federation (FIBA), the bodies of FIBA are subject
to the Code of Ethics, including their employees and members considered individually,
national federations, associations, clubs and organisations - including leagues – which
are directly or indirectly members or part of national areas or federations, directors at all
levels (including club managers, officials and staff), players, coaches, the players’
supervisory staff (including team leaders, medical staff), all the official personnel, the
players’ agents accredited by FIBA, organisations, cities, States and other entities
bidding to organise FIBA events or competitions, including the local organisation
204
committees.
The FIFA Disciplinary Code applies to associations, members of associations,
in particular the clubs, officials (“anyone, with the exception of players, performing an
activity connected with football at an association or club, regardless of his title, the type
of activity (administrative, sporting or any other) and the duration of the activity; in
particular, managers, coaches and support staff” (Article 5, Para. 6 FDC); players,
match officials, licensed match and players’ agents, match organising agents, anyone
with an authorisation from FIFA, in particular with regard to a match, competition or
other event organised by FIFA, spectators (Article 3 FDC).
The UEFA uses a more succinct definition and submits to its Disciplinary
Regulations (DR) member associations, clubs and their officials (persons appointed by
a member association or club to perform a function), referees, players and persons
205
appointed by the UEFA to perform a function.
203
Article 1.3 ICC Anti-Corruption Code; the code also defines in more detail the persons who are part of each
category.
205
Article
3,
Para.
1
UEFA
DR,
see
[http://fr.uefa.com/MultimediaFiles/Download/Tech/uefaorg/General/01/64/85/50/1648550_DOWNLOAD.pdf].
204
261
The IOC adopted “Guidelines for the Conduct of the Athlete’s Entourage”, as
well as “Guidelines for Sanctioning the Members of an Athlete’s Entourage”. These
rules particularly prohibit the “participation in, or support of, or the promotion of any form
206
of gambling, betting or match-fixing” and sanctions “violations of integrity of matches
and competitions” (Ch. 2.1.5) as well as “any other unethical behaviour” (Ch. 2.1.13)
through reprimand, withdrawal of accreditation for the sporting event at issue,
withdrawal of the agent's license, financial sanctions, temporary suspension from the
event or from the sports entity and withdrawal of educational titles and measures.
Finally, the ASOIF suggests applying the rules on sporting fraud to participants,
defined as follows:
“Participant” means any Athlete, Athlete Support Personnel, judge, referee, delegate,
commissioner, jury of appeal member, competition official, National Federation team or
delegation member and any other accredited person”.
c. Natural Persons
The internal rules of sports organisations sometimes precisely define the
categories of natural persons subject to their jurisdiction. In other cases, they use
general clauses intended for avoiding gaps.
In terms of sporting fraud, natural persons subject to the sports jurisdiction
could or should be:
§ “athletes” or “players” (according to the sport), namely the natural persons that
effectively participate in competitions organised by the association, whether
these competitions are played individually or in teams;
§ “trainers” or “coaches”, including their “assistants”, namely the persons who,
during competitions and/or outside competitions, advise athletes about the sport
and participate in their preparation;
§ Other persons who are part of the “athlete support personnel”, during
competitions and/or outside the framework of competitions, namely the medical
or paramedical staff (doctors, physiotherapists, masseurs, etc.; however, a
connection that surpasses the occasional doctor-patient relationship must exist;
for example, disciplinary law cannot be applied to a doctor that treats an athlete
outside the associative structures or the club), team managers, members of the
delegation formed for a competition, etc.;
§ “referees”, “judges”, or “competition officials” (according to the sport), namely
the persons who, on the playing field or elsewhere, manage the competition,
sanction fouls during the game, award points, determine tries, review the facts
of the game on video to inform the referee during the match, etc.;
§ Other “competition officials” or “match officials”, namely the persons that
exercise, for the sports organisation, a function during a competition, also
without any direct influence on the course of the match (example: security
delegate, delegate to the organisation, etc.);
206
Ch.
2.1.4,
Guidelines
for
the
Conduct
of
the
Athlete’s
Entourage
see
[http://www.olympic.org/Documents/Commissions_PDFfiles/Entourage/Guidelines_Conduct_of_the_Athlete_
Entourage-eng.pdf].
262
§ Other “officials” of sports associations and federations, namely all the persons
appointed by an association or federation to exercise a function at the sporting,
administrative or other level, whether or not related to a competition, such as,
for example, federation officials, members of boards and committees,
delegates to meetings and conventions, members of the associative bodies,
particularly disciplinary bodies, etc.;
§ Persons who, in law or in fact, are appointed by a club affiliated to a sports
organisation to pursue a sporting function, administrative or other, namely
officials or members of boards and committees, cashiers, equipment staff, etc.
(this category should include club employees);
§ “Players’ agents”, namely the persons that assist and represent athletes in their
relationships with their clubs, their sponsors, etc. (provided that they are
authorised or registered by a federation, otherwise, there would be no legal
207
relationship with the federation );
§ “Agents organising matches”, namely the persons that organise training
matches for the benefit of clubs or teams (same comment);
§ “Members in charge of organisation”, namely the persons who participate in
one way or another in the organisation of a sporting event, not included in the
categories mentioned above, whatever their role might be (“Tournament
Support Personnel”). However, it should be noted that the circle of persons that
are subject to the sporting jurisdiction must, in this case as well as in other
cases, be clearly defined by the rules applicable and it should not include, for
example, the volunteers that hand out fliers in town to advertise the sporting
event;
§ Other “accredited persons”. In some sports, federations and other competition
organisers use the accreditation system, some persons thus benefiting from an
accreditation that confers rights and obligations, such as authorising access to
certain areas that are closed to the public in a stadium and its surroundings,
these accreditations can be granted to the athletes' entourage (family, friends,
etc.), representatives of sponsors and partners, etc.
§ The spectators are normally not directly subject to the jurisdiction of the
Federation involved in the sporting event. However, the conditions of purchase
of the entrance ticket may specify the consequences resulting from conduct that
does not comply with the norms established by the federation such as the
immediate exclusion from the event without damages. The same goes for
“scouts” or persons who, on behalf of betting companies or organised bettors,
follow competitions on site and inform their delegates of the facts of the game,
through electronic devices. The mention, by FIFA, of spectators within the circle
of persons subject to its disciplinary code should remain without a practical
significance.
The inclusion of certain persons in one or the other of these categories can
sometimes be open to discussion. This is why sports federations have chosen broad
formulations in order to avoid gaps. For example, and as it has been observed above,
UEFA says that its rules apply in particular to all “persons appointed by a member
association or club to perform a function” and "those appointed by the UEFA to perform
a function” (Article 3 al. 1 RD UEFA).
207
For an example, see Roach v. Football Association, cited by A. LEWIS, J. TAYLOR, A2.20, p. 63.
263
FIFA, also as mentioned above, defines the term "officials" very broadly as
follows: “anyone, with the exception of players, performing an activity connected with
football at an association or club, regardless of his title, the type of activity
(administrative, sporting or any other) and the duration of the activity; in particular,
managers, coaches and support staff.” FIFA also subjects to its jurisdiction "anyone
with an authorisation from FIFA, in particular with regard to a match, competition or
other event organised by FIFA” (Article 3 FDC).
The accreditation system - widely used in some sports, such as tennis, and in
the context of certain events such as the Olympics - has the advantage of clarity. It
allows an easy determination of the circle of persons subject to the sporting jurisdiction
of a particular event. It also allows immediate and quite effective sanction on breaches
in the form of a withdrawal of the accreditation.
d. Legal Persons
Legal persons that are subject to the sports jurisdiction are, in general:
§ National and/or regional associations, members of an international federation
(example: continental confederations, in Football);
§ Sports clubs, members of a national and/or regional federation, even directly of
an international federation.
FIBA extends the circle of persons subject to its jurisdiction to “organisations,
cities, States and other entities bidding to organise FIBA events or competitions,
including the local organising committees” (Article 20 Internal Regulations 2010 FIBA,
Book 1). For its part, the International Rowing Federation (FISA) requires all persons 208
including public entities – dealing with it, to be subject to its disciplinary power. The
drive to aim high is obviously commendable insofar as representatives of cities and
States could sometimes be tempted to adopt behaviours contrary to sporting ethics in
order to achieve their ends, but the same difficulty is witnessed, in practice, when a
sports organisation imposes a disciplinary sanction on a city, State or organising
committee. However, implementing a sanction seems impossible, in the case of public
authorities or their representatives. To our knowledge, these clauses have not yet been
implemented in practice, therefore they should only be considered as theoretical
instruments.
In principle sporting jurisdiction cannot be extended to private companies,
partners or sponsors of a federation or a club. In fact, these companies are linked to
them through commercial contracts only, which are insufficient to subject these
companies to the associative jurisdiction, unless a clause could be inserted in the
contract whose validity could also be doubtful. As noted above, FISA requires from
those who deal with it - such companies included – to accept being subjected to its
disciplinary power, but in practice, it has never used this power over a private company,
therefore, once again, this possibility remains theoretical.
208
[http://www.worldrowing.com/fisa/resources/rule-books].
264
e. Disciplinary Proceedings and Sanctions before the Acquisition and after the
Loss of Membership
Disciplinary proceedings and sanctions can be tackled through specific
sanctions provided by national legislators (i), anticipated jurisdictions (ii) or after the
loss of membership created by sports federations (iii). However, these measures would
need to be supplemented by other provisions. The Chair also recommends further
provisions (iv).
i. Specific Sanctions Provided by National Legislators
A priori, disciplinary sanctions should only be imposed on persons that are still
subject to the disciplinary jurisdiction of the sports organisation, as defined in the
previous chapter.
However, the fact that sporting regulations provide for the possibility of
instituting disciplinary proceedings against a person for acts committed before the
formal acquisition of the membership, or to prosecute a person after the cessation of
membership, for acts that occurred while in possession of the membership can be
justified.
ii. Anticipated Jurisdiction
Some sports federations have provided that the person applying for a license is
already subject to their jurisdiction, from the time of application and even during the time
when the person concerned has not yet acquired membership status.
For example, this is the case of the International Cycling Union (ICU), which
states that the submission to the disciplinary jurisdiction is only possible if the person is
later granted the license. In the event that the request for a licence is refused, the
person is - retroactively - not subject to this jurisdiction:
(ICU Regulations, 1.1.004: “Anyone requesting a licence thereby undertakes to respect
the constitution and regulations of the UCI, the UCI continental confederations and the
UCI member Federations, as well as to participate in cycling events in a sporting and fair
manner. He shall undertake, in particular, to respect the obligations referred to in article
1.1.023 [...] as from the time of application for a licence and provided that the licence is
issued, the applicant is responsible for any breach of the regulations that he commits
and is subject to the jurisdiction of the disciplinary bodies”).
iii. Jurisdiction after the Loss of Membership
Recent cases have shown that, for sports organisations, there could also be a
209
need to impose sanctions against persons who have lost their membership.
This need can, for example, originate from the necessity for the organisation
concerned to preserve its image or draw the attention of its current members to the
sanctions incurred for offences.
209
Example: CAS 2010/A/2083, UCI v. Jan Ullrich & Swiss Olympic.
265
In fact, it may seem unfair and contrary to the interests of sports organisations
when an athlete, official or other member of the entourage of an athlete are able to
avoid any sanctions simply by immediately giving up their membership when they are
involved in disciplinary proceedings. The risk also exists when the concerned person
invests time to put an end to the disciplinary proceedings, in order to apply again for
admission, which may not be denied - in the absence of a suspension in progress - for
reasons related to economic freedom.
However, certain federations have provided in their regulations that the persons
subject to their jurisdiction can also be prosecuted and sanctioned after their “ordinary”
legal relationship with these federations has ended.
For example, in cycling, it is provided in ch.1.1.004 of the ICU regulations that:
“Licence holders remain subject to the jurisdiction of the relevant disciplinary bodies for
acts committed while applying for or while holding a licence, even if proceedings are
started or continued after they cease to hold a licence”.
Similarly, the Code of Ethics of FIFA:
“applies to all officials, players, match organisers and players' agents to which the
current Code applies, from (sic) the day on which the offense is perpetrated” (Article. 2
FCE).
The same Code provides that:
“in the event that a person to whom this Code applies shall cease to assume a function
during the proceedings, the Ethics Commission has jurisdiction to make a decision”.
However it provides that in such cases the trial chamber of the Ethics
Commission can:
"Suspend the proceedings or make a decision on the facts" (Article 56 FCE).
This discretion is clearly intended to help avoid further prosecution and
sanctioning of the offender when FIFA has no particular interest to do so.
In cricket, the ICC retains that its jurisdiction applies even to facts that occur
within twelve months after the last participation of the person concerned in a
competition:
‟Each Participant shall continue to be bound by and required to comply with the AntiCorruption Code until he/she has not participated [...] or assisted in a Player’s
participation [...] or officiated [...] or been appointed to support an Umpire or Match
Referee [...] in a period of twelve (12) months. The ICC shall continue to have jurisdiction
over him/her under the Anti-Corruption Code thereafter in respect of matters taking place
prior to that point” (Article 1.4 ICC Anti-Corruption Code).
The UEFA Disciplinary Regulations also provide for sanctioning a person who is
not formally under its jurisdiction, since these regulations apply to
266
"all those who fall under UEFA’s jurisdiction on the day the alleged disciplinary offence is
committed." (Article 4 Para. 1 UEFA DR).
It states that:
"disciplinary proceedings instigated against someone who was under UEFA’s jurisdiction
on the day the alleged disciplinary offence was committed must not be abandoned by
UEFA’s disciplinary bodies solely because the person involved is no longer under
UEFA’s jurisdiction " (Article 4 Para. 2 UEFA DR).
The ASOIF also suggests to its member federations to adopt a rule that allows
sanctioning a participant after the latter has left the organised sport:
“Each Participant shall be bound by these Rules until a date 6 months following his last
participation or assistance in a Competition. Each Participant shall continue to be bound
by these Rules in respect of his participation or assistance in Competitions taking place
prior to that date” (ASOIF Model Rules, Ch. 2.4).
In a 2004 case, the Greek athletes Katerina Thanou and Costas Kenteris were
accused of avoiding an anti-doping test, by claiming that they had had a traffic accident,
and this occurred just before the Athens Olympics. These athletes then returned their
accreditation, which prompted the IOC bodies to abandon disciplinary sanctions for lack
of jurisdiction. However these athletes involved faced possible sanctions from their
International Federation, the IAAF, meaning that the lack of competence of the IOC
210
hardly caused any negative consequences.
In another doping case concerning the cyclist Jan Ullrich, Swiss Olympic
renounced to sanction the offender for a proven offense, on the grounds that he was no
longer a licensee of the Swiss Cyclist Union (SCU) and was therefore no longer subject
to its jurisdiction. The ICU appealed this decision before the CAS, on the basis of Rule
1.1.004. The CAS ruled in favour of the ICU, considering that if, in fact, Jan Ullrich had
left organised cycling even before the start of the disciplinary proceedings against him,
Rule 1.1.004 allowed to impose disciplinary sanctions for acts that occurred while he
211
was still licensed, since all other conditions were met.
212
The CAS award has been criticised by the legal doctrine,
213
in its principle and in its results.
but also approved
One author distinguishes between the case where the Federation decides to
exclude an athlete while the latter has already left the organised sport, from that of a
suspension, withdrawal of a title, a change in the rank or the imposition of a fine: in the
first case, it may be logical to renounce to imposing a sanction which, in any case, is no
longer effective (the athlete no longer being a member, and an exclusion or loss of
membership, is of no interest). In the second case, the federation may still have an
214
interest in sanctioning the athlete.
210
See [http://www.theparthenonpost.com/2013/04/06/sur-la-piste-de-kenteris-et-thanou/].
UCI v. Jan Ullrich et Swiss Olympic, CAS 2010/A/2083.
212
C. KRÄHE, “[...] und ewig sperrt der Verband”, SpuRt 2012, pp. 141 et seq.
213
K. HOFMANN, “Sanktionsgewalt von Sportverbänden bei zurückgetretenen Athleten”, SpuRt 2012,
233 et seq.
214
K. HOFMANN, op. cit., p. 234
211
pp.
267
Concerning the sports organisation’s interest in imposing sanctions,
the same author states that based on the obligation to treat members equally
(interest
in
having
offences
prosecuted,
established
and
sanctioned;
"grundsätzlichesFeststellungsinteresse"), an obligation might exist vis-à-vis other
federations to sanction cases of doping (suspensions due to doping affect all
federations) or because of the monopolistic nature of federations since the athlete has
the right - if not sanctioned - to be readmitted after resigning (disciplinary proceedings
would be difficult to conduct at the moment when the request for admission is made,
because the evidence could have been lost if not impossible to obtain because of the
215
statute of limitations). He also points out that Swiss law would allow making a finding
of abuse of process - not protected by law, according to article 2 of the Swiss Civil Code
- if a person resigns from a federation for the sole purpose of avoiding disciplinary
216
proceedings.
In a case concerning the exclusion of a member from a professional medical
association, the Swiss Federal Court stated that when a resignation follows a decision
of exclusion, the association can either consider that the resignation renders the
exclusion procedure underway as well as its effects incidental (in this case: publication
and communication to interested organisations), and thus strike off the procedure, or
decide to uphold the decision of exclusion with its subsidiary effects, despite the
217
resignation).
This seems to leave the door open for making disciplinary decisions
after the loss of membership of a person and it can therefore be assumed that if the
decision were made as a result of a an appeal against a CAS award, the Swiss Federal
Court would not be required to retain violations of public order in the case of a sports
federation sanctioning one of its former members, at least if the internal regulations of
the Federation provide for this possibility. The issue could have been resolved had
Ullrich taken action before the Federal Court against the CAS award referred to above;
however, he did not file an appeal.
The situation is entirely different in France where, according to the
administrative jurisprudence,
“sports federations can only sanction persons who were licensed at the date the
218
disciplinary measure was imposed, regardless of when the offense was committed.”
Sports federations, subject to French jurisdiction, cannot hope that provisions
similar to those adopted by, for example, the UCI, FIFA, UEFA or the ICC will be
protected by national administrative courts, in the case of an administrative appeal
against a disciplinary decision.
However, a sports federation can always initiate a new disciplinary procedure
where a person, after avoiding jurisdiction by waiving his membership, seeks
readmission. However, as noted above, these new proceedings may face difficulties
regarding evidence or statutes of limitation.
215
216
217
218
K.HOFMANN, op. cit., p. 234.
K. HOFMANN, op. cit., pp. 234-235
ATF, 1 September 2009, 5A_10/2009.
Lamy Droit du sport, No. 612.70; BUY et al., No. 311, p. 191.
268
iv. Recommendations
In order to facilitate disciplinary proceedings and to prevent the offender from
circumventing them by the simple act of resignation, the inclusion in the statutory or
regulatory provisions, of a provision that allows sanctioning disciplinary offences even
after the loss of membership is recommended (it should be noted that only in a few
countries, such as France, such a provision would have no legal significance).
Based on the difficulties often faced when establishing facts in cases of sporting
fraud and the time that can elapse, in the same cases, between the offenses and their
discovery, it could be suggested to sports organisations to stop setting time limits for the
exercise of disciplinary power after the loss of membership.
However, some cases, can justify the renunciation of the sports organisation of
the disciplinary prosecution of a person after he has left the organised sport. In such
cases, sports organisations could adopt a provision allowing their bodies to put an end
to the proceedings and to respectively close the case without further action, for reasons
of expediency.
§ 2. Disciplinary Bodies
The activity of "judging" is inherent in the sporting phenomenon and is
characteristic of both the role of referees and field judges during a competition and that
219
of the disciplinary authorities that intervene once the competition is over. Therefore, it
is not surprising that in all international sports federations, a monitoring system has
220
been established with several bodies and several degrees of control.
In national
sports federations, even if this monitoring system is often less developed, it is just as
crucial to guarantee the respect of disciplinary law which is binding on both the officials
of sports organisations and other members.
This organisation is somewhat reminiscent of the idea of a “justice system”,
especially since within international federations, disciplinary mechanisms are largely
221
inspired by State structures.
Therefore, concerning “sports justice”, a very difficult
step must still be considered in terms of independence and impartiality requirements
that must characterise any justice system, which is also often lacking in the system of
disciplinary control of sports organisations. This question will be examined (B) after a
general presentation of the various disciplinary authorities found in sports
organisations (A).
A. General Presentation of the Disciplinary Authorities of Sports Organisations
In principle, sports federations have a lot of freedom to establish, organise and
form their disciplinary bodies.
219
F. OST, “Juge-pacificateur, juge-arbitre, juge-entraîneur. Trois modèles de justice”, in: P. GERARD,
M. VAN DE KERCHOVE, F. OST (dirs.), Fonction de juger et pouvoir judiciaire. Transformations et
déplacements, Bruxelles, 1983, p. 1 et seq.
220
F. LATTY, La lex sportiva. Recherche sur le droit transnational, Leiden, Boston, Martinus Nijhoff
Publishers, 2007, pp. 66 et seq.
221
G. SIMON, Puissance sportive et ordre juridique étatique, LGDJ, Paris, 1990, pp. 4 et seq.
269
In particular, this liberty allows them to provide that disciplinary cases will be
decided by a body, ruling without the possibility of internal appeal to the Federation, or
rather to establish two-level proceedings, with a first instance body and an appeal body.
222
The federations are under no obligation to provide an internal appeal process.
Federations can freely decide the composition of their disciplinary bodies, either
by establishing a single judge system (e.g. MLB) or by preferring a multiple composition
(e.g. AIBA, FIFA, etc.) or even by providing for a single judge for certain types of cases
and a multiple composition for others (UEFA, SFL, etc.).
Similarly, the federations are free to determine the method of selecting the
members of their disciplinary bodies. Most have retained the election by their regulating
body (general assembly, for example: ASF), or more commonly, appointment by the
executive body (e.g. UEFA).
The organisation of the disciplinary proceedings in each sports federation is
more or less sophisticated. As a general rule, it is made up of bodies competent to
initiate proceedings and investigations (1) and a jurisdictional organ (2). However, some
sports federations operate with very specific organisations. This is the case of North
American professional sports (3).
1. The Bodies Competent to Initiate Proceedings and Investigations
Some federations entrust a body equivalent to a public prosecutor, with the
decision to initiate disciplinary proceedings, to conduct investigations, to submit the file
to a decision-making authority and to conduct the prosecution before that authority. For
example, in football, these prerogatives are entrusted, in particular, to the “Prosecutor of
the Italian Football Federation (FIGC)” (Article 32 Codice di Giustizia Sportiva FIGC)
and to the disciplinary investigator of the UEFA (Article 25 DR UEFA). In cricket,
concerning corruption, the role of investigation and prosecution is assumed by the "Anti223
Corruption and Security Unit" (ACSU),
while in tennis, it is entrusted to the "Tennis
224
Integrity Unit.”
The system provided by FIFA for cases relating to ethics is a little different, in
the sense that the Ethics Committee is divided into two chambers, one for investigating
and the other for adjudicating (Article 26. ch. 1 FCE), provided that in complex cases,
the investigative chamber may appoint a third party to take part - under the control of
the criminal investigator - in the investigation. “the tasks of this third party should be
clearly defined” (Article 66 ch.3 FCE).
Other federations prefer to entrust their first instance disciplinary authority with
the task of initiating the proceedings and conducting the investigations before ruling on
the case. This is particularly the case of the AIBA (Article 13.2.1 AIBA DC).
222
M. BELOFF et al., No. 7.181, op. cit., p. 241; with the exception of federartions subject to French
jurisdiction, for which the disciplinary regulation should provide for an appeal procedure.
223
Article 4 ICC Anti-Corruption Code; For a press commentary of the activities of the ACSU UCC, see
E. HAWKINS, Bookie Gambler Fixer Spy – A Journey to the Heart of Cricket’s Underworld, Bloomsbury,
London, 2013, pp. 162 et seq.
224
Article X Letter F Ch. 2 letter a of the Uniform Tennis Anti-Corruption Programme.
270
Some suggest the establishment of an independent "Central Integrity Unit",
which would carry out the investigations concerning sporting fraud, on behalf of all or
some of the sports federations. They rely on the fact that many sports federations do
not have the necessary means - or perhaps they lack the will - to establish investigative
units that are sufficiently developed and endowed with competent personnel, which
prevents the effective pursuit of cases of corruption in every sense. This suggestion
faces, at the time being, scepticism from a large portion of sports federations, anxious
to preserve their independence, and some of which believe that a central unit does not
have the specific knowledge necessary to adequately deal with problems arising from
fraud in all particular sports. However, a middle ground might be to leave the
federations with the decision to develop their own units or join a multi-sports system,
which they could implement or which could be offered to them by independent bodies
(e.g. HCCI). The conception of the multi-sport anti-corruption unit could be inspired by
existing models (ACSU, TIU). This unit may include investigators and lawyers. Funding
should be provided by the federations that adhere to it, or by other sources to be
defined later (e.g. public funding). In order to respect the autonomy of federations, a
purely investigative body could be envisaged, the responsibility of imposing sanctions
being left to federations (unless the latter are looking to abandon this task).
2. The Adjudicating Bodies
As noted above, sports organisations are in principle free to decide whether
they want a single trial system, or if they prefer to have the possibility of an internal
appeal.
In cricket, when the president of the ‟ICC Code of Conduct Commission” is
handed a file by the ACSU, he appoints three members of the commission, including
himself, if necessary, to form the “ICC anti-Corruption Tribunal”, which shall have
jurisdiction to adjudicate (Article 5.1). A proposal to not form a tribunal in some cases,
but rather to leave the power of imposing certain sanctions to ‟appropriate ICC official
or domestic authority on behalf of the ICC, or, in the case of ICC officials and staff, by
the relevant ICC head of department or the CEO of the ICC”, was recently accepted by
225
the ICC (Speville recommendations and determination of ICC Board).
FIFA has established a traditional two-level system, both in the field of ethics
and in the general discipline, but by not allowing appeals against sanctions of little
importance including warnings, official reprimand, a suspension for three games or less
or for up to two months, or a fine of less than CHF 7'500 (Article 80 CEF, 118 CDF).
During a certain period, AIBA had a similar system. However, the Appeal Board
was subsequently abolished and the decisions of the Disciplinary Committee could be
appealed before the Executive Committee. Now, the decisions of the Disciplinary
Committee are final and non-appealable (Article 12.5.1 AIBA DC).
225
B. DE SPEVILLE Report - A Review of the Anti-Corruption Arrangements of the ICC, August 2011/January
2012, and B. DE SPEVILLE Report – 27 Recommendations and ICC’s Preliminary Response, from
20 January 2012; the documents are available on the ICC website, under [http://www.icccricket.com/about/47/anti-corruption/reports].
271
The UEFA has chosen a rather unique system, which is clearly aimed at
efficiency and speed of the proceedings. It includes the Control and Disciplinary Body,
the first Instance authority and the Appeals Body. The novelty of the system is that the
Control and Disciplinary Body rules, as a general rule, according to a brief review of the
facts, based on official reports and other available documents. It does not administer
any additional evidence unless the decision is not delayed as a result. The procedure is
written, except in exceptional cases where the Control and Disciplinary Body holds a
hearing with the parties (Article UEFA DR 51). Another novelty is that “in particularly
urgent cases (particularly those relating to admission or exclusion from UEFA
competitions), the president (of the Control and Disciplinary instance) may refer the
case directly to the Appeal court for a decision” (Article 23 Para. 3 in fine UEFA DR),
leading to a decision of a single trial.
At the FIBA, the Secretary General and the Central Bureau may judge the case
"in accordance with their respective authority" or refer the case to the Disciplinary Board
(Article 53 2010 FIBA Internal Regulations, Book 1), with the precision that the
prerogatives of imposed sanctions outside FIBA competitions "belong in the first place,
to the Secretary General," with the possibility of appeal before the Appeals Chamber of
the FIBA (Articles 130 and 132 of the 2010 FIBA Internal Regulations, Book 1).
The main advantage of a two-stage procedure is that it allows an internal
revision of possible erroneous decisions. This advantage should be especially sought
by federations that handle a large number of disciplinary cases. In order to save
resources, they could establish first instance proceedings in a relatively summary form,
which can settle most cases quickly and inexpensively, as well as an appeal procedure
where the appeal authority grants the parties the broadest rights and has full authority
of cognition. The appeal procedure then corrects any defects in the first instance
proceedings, particularly those concerning the right to be heard and to have the
necessary evidence administered. The obvious disadvantage is the fact that twoinstance proceedings inevitably lead to loss of time, which may be disadvantageous
when decisions concern, for example, the administration of competitions.
In our opinion, the bodies usually responsible for handling disciplinary cases
should also be able to handle any case of manipulation, subject to a potential
"delegation" to any bodies external to federations. Specialisation does not seem
essential, provided that the members of the disciplinary jurisdiction have sufficient
knowledge, particularly in legal matters, and enough availability to handle complex
cases.
3. A Particular Case: North American Professional Sports
Concerning disciplinary bodies, North American professional leagues are
particular cases, in the sense that they give the "commissioner" or their executive body
the power to prosecute and sanction offences.
For example, in MLB, the “commissioner” has the power to
“investigate [...] any act, transaction, or practice charged, alleged, or suspected to be
detrimental to the best interests of the national game of baseball” (Section 2 of Article II
of the Major League Agreement, MLA).
272
Therefore, he has a “Department of Investigations”, that he established in 2009.
He determines
“after investigation, what preventive, remedial, or punitive action is appropriate [...] and
[...] take such action against Major Leagues, Major League Clubs or individuals” (idem).
The same applies in the NFL:
“The Commissioner has the sole authority to investigate and take appropriate
disciplinary and/or corrective measures if any club action, non-participant interference, or
calamity occurs in an NFL game which he deems so extraordinarily unfair or outside the
accepted tactics encountered in professional football that such action has a major effect
on the result of the game” (NFL Rule 17, Section 2, Article 1).
As noted by an author, the "Commissioner" in these systems,
“is in the unique position of fulfilling all three roles: he investigates the matter, decides
226
guilt or innocence and doles out punishment”.
Apparently State courts do not notice the problem:
“United States Federal Courts have upheld these broad powers, holding that it is solely
in the discretion of the MLB Commissioner to determine what is in the best interest of
227
Baseball”.
In general, an appeal is not possible against the decisions of the
"Commissioner", whether internally or externally to a league: players and other
participants agree to renounce seizing State courts. However, an exception exists in
MLB, where players, based on their membership to the MLBPA players’ association,
can resort to arbitration – by a sole arbitrator – if sanctioned by the “commissioner”.
228
This option is not available for managers.
B. Disciplinary Bodies and “Sports Justice”
All the institutions established to settle disputes that arise between athletes,
membership associations and federations are sometimes referred to as “sports
229
justice.”
It is true that in the institutional planning of the sporting movement, the
disciplinary authorities are the bodies that are closest to the idea of justice: if the field
bodies hold "police power" in order to keep the “sporting order,” the disciplinary
authorities, since they judge behaviours in relation to sporting rules, the legality of which
230
231
cannot be denied, can be considered as rendering some form of private justice.
226
M.E. FOOTE, Three strikes and you’re (not necessarily) out: how baseball’s erratic approach to conduct
violations is not in the best interest of the game, p. 7, in: J. DEPAUL, Sports L. & Contemp. Probs., vol. 6.1
2009.
227
M.E. FOOTE, op. cit., p. 9.
228
229
F. ALAPHILIPPE (dir.), “La justice sportive (arbitrage et conciliation)”, Revue juridique et économique du
sport, 1994, vol. 31, special issue. I.S. BLACKSHAW, Mediating Sports Disputes: National and International
Perspectives, T.M.C. Asser, 2002, p. 344; L. CHEVE, La justice sportive, Lextenso, Paris, 2012; M. COCCIA,
“Fenomenologia della controversia sportiva e dei suoi modi di risoluzione”, Riv. (dir.) sport., 1997, pp. 605 et
seq.; L. FERRARA, “Giustizia sportiva”, in Enc. (dir.), Annali, 2009, ad vocem; A. MANZELLA, “La giustizia
sportiva nel pluralismo delle autonomie”, Riv. (dir.) sport., 1993, pp. 1 et seq. and F. P. LUISO, La giustizia
sportiva, Milan, Giuffré, 1975, p. 595.
230
F. RIGAUX, “Le droit disciplinaire du sport”, RTDH, 1995, pp. 309-310.
273
In fact, some disciplinary regulations maintain this amalgam. For example, the
FIFA Disciplinary Code refers to the Disciplinary Committee and the Appeals
232
Committee as well as the Ethics Committee as "judicial authorities".
In addition, it is true that some sports organisations expressly provide for the
independence of their disciplinary bodies from other associative bodies. For example,
the disciplinary regulations of the UEFA state that “the members of the disciplinary
bodies are independent and cannot be part of any other UEFA body or committee. They
must act in accordance with the statutes and regulations of the UEFA” (Article 26 DR
UEFA).
233
In more general terms, Article 56 of the UEFA Organisational Regulations
imposes on members of committees and panels of experts of the UEFA, duties of
independence and loyalty. Article 61 of the same instrument, entitled “Ethical Conduct,
Professional Conduct and Other Duties”, bans in § 2 certain behaviours, among which
are active and passive corruption. Particularly, point f) of this last provision requires
members of the expert panels “not to participate, directly or indirectly, in betting or
similar activities relating to UEFA competition matches and not to have any direct or
indirect financial interest in such activities”.
The FIFA Code of Ethics states that “The members of the Ethics Committee
shall manage their investigations and proceedings and render their decisions entirely
independently and must avoid any third-party influence”. (Article 34 Para. 1 FCE). They
cannot be part of any other FIFA body or committee, except, apparently, Congress
(Article 34 Ch. 2 and 3 FCE). As for the FIFA Disciplinary Code, it states that “the FIFA
jurisdictional authorities render their decisions independently; they do not receive
instructions from other bodies” (Article 85 Ch. 1 FDC). Finally, in cricket, the members
of the ICC Code of Conduct Commission, from which the members of Anti-Corruption
Tribunal are chosen “shall be independent of the ICC, which may provide reasonable
compensation and reimbursement of expenses” (Appendix 1 ICC Anti-Corruption
Code).
However, even though disciplinary proceedings are becoming more and more
jurisdictionalised, which favours a better consideration of the fundamental rights of
234
persons against whom criminal proceedings are instituted,
these must not be
confused with the establishment of a genuine judicial review, which suggests the
existence of independent and impartial courts whose decisions are sealed by res
judicata.
It should also be noted that the method of appointment of the members of the
disciplinary bodies may, in fact, encourage them not to divert from the path desired by
the other bodies, in order to ensure that they will not be removed when the associative
authorities are renewed.
231
See in this regard J.-P. KARAQUILLO, “Le pouvoir disciplinaire dans l’association sportive », Dalloz, 1980,
p. 116; F. RIGAUX, “Le droit disciplinaire du sport”, op. cit., p. 308.
Article 73 of the FIFA Disciplinary Code. The disciplinary and judicial regulations of the International
Automobile Federation, refers by "the International Tribunal", to the first instance disciplinary body.
233
2014 edition.
234
See below Part 3, Title 3, Chapter 3, “Finding Efficient Coordination Mechanisms for Fighting Against the
Manipulation of Sports Competitions” more precisely Section 2, “The Common Principles Applicable to All
Stakeholders”.
232
274
For example, members of the Control and Disciplinary Body and members of
the Appeals Body of the UEFA are elected for four years by the Executive Committee
(Article 22 DR UEFA), those in the judicial bodies of FIFA are elected for eight years by
the Executive Committee (Article 81 Ch. 1 FDC) and those of the Appeals Division of
the FIBA are elected by the Central Board of FIBA (Article 37.1 FIBA General Statutes).
In field hockey, the "Disciplinary Commissioner" can co-opt two independent persons to
"review and assess" corruption cases (FIH, survey). The election by the General
Assembly has sometimes been chosen as the method for appointing the members of
the disciplinary bodies (e.g. ASF). In fact, these methods of designation certainly do not
ensure the total independence of the members of the disciplinary bodies. They are not
immune to direct and indirect influences from the part of members of other bodies.
Therefore, the idea has sometimes been suggested that disciplinary bodies to
include “external” members, entirely independent from the federation. Such a system
would be difficult to implement. Who would appoint these members? How? How to
ensure that these members are competent and are familiar with the sport in question?
In order to better ensure the independence of the disciplinary bodies, one could
also imagine that specific bodies be charged with the suppression of sporting fraud,
regardless of the sport in question, as is prevalent in the field of doping (USADA, Swiss
Olympic, etc.). This issue is complex. In fact, the obvious advantages of this type of
solution (harmonisation of the practices and sanctions, unburdening the federations,
independence, visibility, etc.) are met with disadvantages that are just as obvious (loss
of autonomy of sports federations, incomplete knowledge of the specificities of the sport
in question by the disciplinary authority, communication problems between authorities,
the image of the federations, etc.). In any case, the creation of specific bodies would
235
presuppose the unification of the substantive law in this matter.
Regardless of the possible developments, it should be retained that the
disciplinary authorities of sports organisations cannot be considered as proper
jurisdictions. This does not exclude the requirements that disciplinary proceedings must
be instituted with the respect to certain fundamental principles that, traditionally, apply
236
to State court proceedings. Mainly, this implies that it must be possible to subject the
disciplinary decisions of sports organisations to an external jurisdictional control
procedure.
§ 3. The External Monitoring of the Exercise of the Disciplinary Powers of Sports
Organisations
Regardless of the degree of autonomy granted to sports organisations, the
exercise of their disciplinary powers cannot completely avoid control. In this area, the
sporting movement shows a very clear preference for arbitration - which is a private
dispute settlement method - and a corresponding aversion to the interference of the
ordinary courts in sports cases. However, even if arbitration is the preferred control
method (A), the jurisdiction of State courts can never be totally excluded (B).
235
On the issues of independence and impartiality of the bodies of the sports federation see also G. RABU,
“L’impartialité dans le contrôle de gestion des clubs professionnels”, Cah. Dr. Sport No. 32, 2013, pp. 11 et
seq.
236
See infra Part 3, Title 3, Chapter 3, Section 2, “The Common Principles Applicable to All Stakeholders”.
275
A. Preferred Recourse to Arbitration
Being able to have recourse to their "own judge" has always been a constant
237
concern for sports organisations and a guarantee of their autonomy. For this reason,
recourse to arbitration has become the preferred dispute settlement method within the
sporting movement. It allows benefiting from the advantages of a private justice,
specialised in sporting disputes, while ensuring the primacy of legal norms (1). The
success of this form of justice is due to fact that there are several arbitration centres
specialised in sports, even though it is true that the Court of Arbitration for Sport (CAS)
has a dominant position (2). However, the issue of the independence of arbitration
mechanisms, including that of the CAS, and their judicial nature is often recurrent (3).
1. General Characteristics and Advantages of Arbitration
In general, arbitration has the major advantage of being a consensual and
confidential dispute settlement method, since it is based on the will of the parties. It
238
allows resorting to private judges whose mission is to settle legal disputes.
This form of justice that is greatly widely used in other fields such as
international trade is based on the idea that some highly specialised industries require
the establishment of specifically tailored monitoring mechanisms, the effectiveness of
which does not depend on the jurisdictional constraints of ordinary courts. Therefore,
arbitral tribunals derive their judicial power - their power to state the law – from the
mutual consent of the parties to the dispute, but the parties can only have recourse to
this private justice within the limits set by the State, since the latter is deemed to have a
239
monopoly in the field of justice.
Therefore, it is only possible to have recourse to
arbitration as long as the State recognises a space of freedom for litigants, in which
they may choose, under the conditions provided for by law and within the limits imposed
by the public order, the procedural rules and the law applicable to the substance of the
240
dispute.
In principle, arbitration in sports is based on the same rules as "common law"
arbitration. However, it is a dispute settlement method that, in many ways, could also be
described as "exceptional justice" since it operates away from the usual canons of
traditional arbitration.
Thus, the contractual nature of arbitration is, in the field of sports, largely altered
given the fact that recourse to arbitrators is in fact imposed by the statutes of the sport
organisation or by the different regulations it enacts. Therefore, by adhering to an
organisation, the member has no other choice but to accept arbitration as the exclusive
241
method of resolving disputes.
237
See supra Part 2, Title 3, Chapter 3, “The Sharing of Responsibilities between Sports Institutions and
Public Authorities in the face of the Manipulation of Sports Competitions”.
C. JARROSSON, “Arbitrage et juridiction”, Droits, 1989, p. 111; A.M. STEINGRUBER, Consent in
International Arbitration, Oxford University Press, 2012, § 4.36.
239
See B. OPPETIT, Théorie de l’arbitrage, PUF, Paris, 1998, p. 127.
240
Thus, “arbitral” matters as well as the persons who may resort to arbitration, greatly differ from one State to
another.
241
See infra the developments concerning the CAS.
238
276
Similarly, the freedom that the parties have in the organisation of the procedure
and in the choice of applicable law is completely neutralised, for the members of the
organisation at least, since these issues are determined beforehand by the rules
adopted unilaterally by sports organisations. Concerning the specificities of arbitration in
sports, it should also be noted that in some cases that raise many questions, the
removal of State control is such that any recourse to the ordinary courts - including any
action for annulment before a judge in charge of ensuring that justice was done in
accordance with the principles of public order - is excluded. Finally, while ordinary
arbitral tribunals do not possess the imperium (powers of constraint) and must defer to
state judges to adopt the coercive measures that are sometimes necessary for the
proper enforcement of awards, most decisions rendered in the framework of sports
arbitration benefit from a de facto enforceability which is available without the need to
request the support of public authorities (this is the case of sporting sanctions such as
suspension or exclusion of athletes).
2. Presentation of the Main Arbitration Mechanisms Available for Sporting
Disputes
A distinction is usually made between the types of arbitration depending on
whether they are established on an ad hoc basis or if they occur within an
242
institutionalised framework.
The same distinction can be done in the field of sports
243
arbitration. However, institutionalised arbitration is by far the most common.
To
present the main forms, a distinction should be made according to whether they are
internalised arbitration mechanisms (a) or externalised arbitration mechanisms (b).
a. Internalised Arbitration Mechanisms
Internalised arbitration mechanisms, are arbitral tribunals created by international
federations to resolve disputes relating to their discipline. This mechanism was
implemented, for example, by the International Association of Athletics Federations
(IAAF) with the establishment of the International Panel (however, the latter has ceased
to exist), the International Volleyball Federation with the creation of the International
Tribunal for Volleyball, the International Handball Federation, with the creation of the
244
Arbitral Tribunal
and the International Cricket Council, with the creation of the anti245
246
Corruption Tribunal. A few federations have also created their own arbitral body.
b. Externalised Arbitration Mechanisms
Among the externalised arbitration mechanisms a distinction can be made
based on whether or not the arbitration mechanism is specialised in the sporting field.
Concerning non-specialised arbitration mechanisms, the use of arbitration under the
auspices of the American Arbitration Association may be mentioned. This mechanism is
247
mandatory in certain cases under U.S, law.
242
On this distinction, see A. RIGOZZI, L’arbitrage international en matière de sport, Helbing & Lichtenhahn,
2005, pp. 129-130.
For a detailed presentation of the main centres of arbitration able to intervene in sports matters, see
M. MAISONNEUVE, L’arbitrage des litiges sportifs, LGDJ, Paris, 2011, pp. 35 et seq.
244
FIFA itself, for some time, planned to set up its own tribunal but it gave up the project because of the costs
that the operation of such an institution would have entailed.
245
The International Court of Appeal of the FIA may also be ranked among the internalised arbitral institutions
since the disciplinary and judicial Regulations recognise its competence to definitively resolve some cases,
according to proceedings qualified as arbitrations (Article 14.2 of the Disciplinary and judicial Regulations).
246
As well as the Turkish Football Federation or the Luxembourg Football Federation who have their own
arbitration bodies.
247
M. MAISONNEUVE, L’arbitrage des litiges sportifs, op. cit., pp. 66-67.
243
277
But the use of specialised institutions is the most common. These may be
established at the international level (i.) or internally (ii). In this regard, the particular
case of anti-doping appeal tribunals will be examined (iii).
i. The Arbitral Tribunals Instituted at the International Level: the Example of the
Court of Arbitration for Sport
General Presentation of the CAS. Among the arbitral tribunals established at
the international level, the Court of Arbitration for Sport is considered as the dominant
the arbitration centre. Some commentators qualify it as the “Supreme Court” of the
248
sporting movement.
The CAS was established in 1983 at the initiative of the International Olympic
Committee (IOC). Its statutes, ratified by the IOC, entered into force on 30 June 1984.
Despite the name of this institution, the CAS is not a court. It is in fact a centre for the
administration of arbitrations held under its auspices. The International Council of
Arbitration for Sport (ICAS) is the supreme body of the CAS. It has the task of
safeguarding the independence of the CAS and the rights of the parties. Moreover, it
ensures the management and financing of the CAS.
The CAS has two decentralised offices in Sydney and in New York. These
offices are tied to the CAS administrative office in Lausanne and are competent to
receive and notify all procedural acts. Their creation has facilitated access to the CAS
by parties domiciled in Oceania and North America.
In 1996, the ICAS established an ad hoc Division of CAS, whose mission is to
definitively resolve, within 24 hours, the disputes arising during the Atlanta Olympic
Games. A special procedure that is both simple, flexible and free, was developed for
this event. Since then, ad hoc divisions were established for each edition of the summer
and Winter Olympic Games. In addition, ad hoc divisions are now used in the
Commonwealth Games, the European and UEFA Championships and the FIFA World
Cup.
The proceedings before the CAS. The organisation and conduct of arbitration
proceedings are determined by the Code of Arbitration for Sport. This code is divided
into two parts dedicated to the statutes of the bodies contributing to the settlement of
sports-related disputes (Article S1 to S26 CAS Code) and to the procedural rules
respectively (Article R27 to R70 CAS Code).
The CAS is competent to ensure "the settlement of disputes" through arbitration
or through mediation. With regard to judicial settlement of disputes, two main
procedures must be distinguished:
§ Ordinary proceedings entrusted to the ordinary Arbitration Division, for
contractual disputes that mainly concern commercial disputes related to sports
(broadcasting rights for sports competitions, disputes related to athletes’
employment contracts) or to disputes related to the transfer of players. In this
case, the bodies of the CAS intervene as a first and last instance.
248
L. CASINI, “The Making of A Lex Sportiva by the Court of Arbitration of Sport”, German Law Journal,
vol. 12, No. 5, 2011, pp. 1317-1340. See also on the role of the CAS in the consolidation of sports law, supra
Part 2, Title 3, Chapter 1, “The role of the CAS in the consolidation of the sports law”.
278
§ The Appeal Procedure entrusted to the Appeals Arbitration Division, involves
appeals against the decisions of sports institutions that recognise its
competence. The CAS cannot be seized unless all the internal appeal
procedures established within the sports institution in question have been
249
250
exhausted.
The appeal may be suspensive.
CAS panels are, in this
context, in charge of annulment requests which largely focus on contesting
251
disciplinary sanctions.
There are also proceedings of secondary importance before the CAS.
§ A specific ad hoc procedure is proper to certain major international sports
252
competitions, such as the Olympic Games, during which a special division was
dispatched on site, for the duration of the games.
§ Finally, the CAS can adopt provisional measures in order to preserve the rights
of the parties involved. It can be requested to do so by the parties, immediately
after the notification of a final decision was made by a sports federation, even
253
before the formal filing of the appeal to the CAS.
For each dispute, a panel that consists of arbitrators selected by the parties from
254
a list of arbitrators established by the CAS itself
(usually three arbitrators) is
established and is responsible for resolving the dispute. Since the headquarters of the
CAS are based in Lausanne, arbitrations conducted under its auspices shall be
conducted in accordance with the Swiss Act on Private International Law (PILA) of 18
December 1987. According to this law, CAS awards are subject to an application for
255
annulment before the Swiss Federal Court.
The scope of jurisdiction of CAS. Although the parties to a sporting dispute
always have the option of seeking arbitration through an arbitration clause stipulated in
a contract or an arbitration agreement concluded after the occurrence of the dispute,
the choice of such a dispute settlement mechanism is most often operated through a
third process: sports organisations include, in their statutes or regulations, an arbitration
clause that applies to all of their members. In this mechanism, the sports organisation
gives its consent to arbitration in advance, for any type of dispute that may arise in
connection with the implementation of the organisation’s rules. In addition, the
appointment of the arbitral tribunal is often exclusive to any other remedies, notably
proceedings before State courts of general law. Therefore, athletes, who seldom go
through the trouble of reading all the rules and regulations adopted by the various
sports organisations they wish to join, have no choice but to accept the arbitration
256
clause, and renounce to any recourse available under domestic law.
249
Article R. 47 of the CAS Code: “An appeal against the decision of a federation, association or sportsrelated body may be filed with CAS if the statutes or regulations of the said body so provide or if the parties
have concluded a specific arbitration agreement and if the Appellant has exhausted the legal remedies
available to him prior to the appeal, in accordance with the statutes or regulations of that body”. WADA is not
subject to this requirement during an appeal before the CAS, according to article R48 of the World AntiDoping Code.
250
Article R.48 of the Arbitration Rules.
251
The disputes that fall within the appeals procedure cannot be resolved through mediation.
252
See G. KAUFMANN-KOHLER, Arbitration at the Olympics: Issues of Fast-Track Dispute Resolution and
Sports Law, Kluwer Law International, 2001, p. 172.
253
Article R. 37 of the Arbitration Rules, as modified on 1 March 2013.
254
There are actually 302 arbitrators in the CAS (as of 1 July 2014).
255
See below Part 3, Title 2, Chapter 1, Section 1, § 3, A, 2, b, i.
279
This procedure of statutory recognition of the jurisdiction of arbitral tribunals
chosen by sports organisations aims to ensure the coherence in regulating sport-related
disputes. This goal was largely achieved by CAS, although, during the first years of the
tribunal, many international federations chose to ignore it. At the moment, almost all
international federations and about half of the National Olympic Committees opted for
prior consent to the jurisdiction of CAS. This quasi-monopolistic situation was further
strengthened by the adoption of the World Anti-Doping Code in 2003 (in force since
257
2004) which makes CAS the only international appeals body in the area of doping.
Examples of arbitration clauses designating CAS. The ASOIF recommends
that sports federations submit to the jurisdiction of the CAS. In its model rules, it
provides the following wordings for the arbitration clause to be inserted in the relevant
statutes or regulations:
“9. RIGHT OF APPEAL. 9.1 The following decisions made under these Rules may be
appealed either by the [International Federation] or the Participant who is the subject of
the decision exclusively to CAS in accordance with this Rule 9: (a) a decision that a
charge of breach of these Rules should be dismissed on procedural or jurisdictional
grounds; (b) a decision that a Violation has been committed; (c) a decision that no
Violation has been committed; (d) a decision to impose a Sanction, including a Sanction
that is not in accordance with these Rules; (e) a decision not to impose a Sanction;
(f) any other decision that is considered to be erroneous or procedurally unsound. 9.2
The time for filing an appeal to CAS shall be twenty-one days (21) from the date of
receipt of the decision by the appealing party. 9.3 Any decision and any Sanctions
imposed shall remain in effect while subject to the appeal process, unless CAS directs
otherwise. 9.4 The decision of CAS shall be final and binding on all parties and on all
National Federations and there shall be no right of appeal from the CAS decision. No
claim may be brought in any other court, tribunal or via any other dispute resolution
procedure or mechanism”.
The ICC (Article 7 of the Anti-Corruption Code) provides for the exclusive
competence of CAS for appeals against the decisions of the “Anti-Corruption Tribunal”.
An appeal can be filed by the ICC itself and by the person concerned, against the
decision of a provisional suspension, against decisions concluding “that a charge [...]
should be dismissed for procedural or jurisdictional reasons”, those determining
whether or not an offense was committed, and decisions “to impose (or not to impose)
sanctions”. The appeal shall be dealt with according to the CAS regulations, unless it is
limited to determining whether the decision “was erroneous” (no “re-hearing de novo”,
except “where required in order to do justice (for example to cure procedural errors at
the first instance hearing)”). The ICC provides for the application of English law and that
the proceedings will be conducted in English, unless the parties agree otherwise. The
decision of the CAS is “final and binding on all parties, and no right of appeal shall lie
from the CAS decision”.
256
See A. PINNA, “Les conflits d’intérêts et leur prévention dans l’arbitrage des litiges sportifs”, Cah. Droit
Sport, 2013, pp. 29-30; see an example taken from TFS case law: “experience has shown that, by and large,
athletes will often not have the bargaining power required and would therefore have to submit to the
federation’s requirements, whether they like it or not. Accordingly, any athlete wishing to participate in
organised competition under the control of a sports federation whose rules provide for recourse to arbitration
will not have any choice but to accept the arbitral clause, in particular, by subscribing to the articles of
association of the sports federation in question in which the arbitration clause was inserted, all the more so if
the athlete in question is a professional”
257
Article 13 of the World Anti-Doping Code.
280
In cases of corruption concerning tennis, the following rules are applied:
“1. Any Decision (i) that a Corruption Offense has been committed, (ii) that no Corruption
Offense has been committed, (iii) imposing sanctions for a Corruption Offense, or (iv)
that the AHO lacks jurisdiction to rule on an alleged Corruption Offense or its sanctions,
may be appealed exclusively to CAS in accordance with CAS's Code of Sports-Related
Arbitration and the special provisions applicable to the Appeal Arbitration Proceedings,
by either the Covered Person who is the subject of the Decision being appealed, or the
TIB. 2. Any Decision appealed to CAS shall remain in effect while under appeal unless
CAS orders otherwise. 3. The deadline for filing an appeal with CAS shall be twenty
business days from the date of receipt of the Decision by the appealing party. 4. The
decision of CAS shall be final, non-reviewable, non-appealable and enforceable. No
claim, arbitration, lawsuit or litigation concerning the dispute shall be brought in any other
court or tribunal” (Article X of the Uniform Tennis Anti-Corruption Programme).
The FIBA provides for an Appeal before the CAS against the decisions of the
Appeals Division (Article 178 internal regulations 2010 FIBA, Book 1).
The Swiss Football Association (ASF) recognises without reservation the
prerogatives of CAS as an appeals authority against disciplinary decisions. It provides
for the general rule that it, along with its divisions, sub-organisations,
“clubs and their members, players and officials are subject to the jurisdiction of the
bodies, permanent committees and other competent authorities of the ASF, of divisions
and sub-organisations, as well as the arbitral jurisdiction of the Court of Arbitration for
Sport (CAS)” (Article 89 of the Statutes).
It also provides that
“1. The CAS is exclusively competent to deal with appeals against the decisions of the
ASF, of the sections and sub-organisations, the recourse to ordinary courts being
excluded. The time limit for an appeal is 10 days from the day the challenged decision
was notified in writing. 2. An appeal to the CAS can only be filed after all the internal
remedies have been exhausted. 3. The appeal does not have a suspensive effect,
unless the competent instance of the CAS so decides. 4. Only the CAS is competent to
decide provisional measures against the decisions of the ASF, of sections or suborganisations, recourse to ordinary courts is excluded” (Article 93 of the Statutes).
The jurisdictional powers of the CAS. In an appeal procedure, the Panel “has
full power to review the facts and the law. It may issue a new decision which replaces
the challenged decision or annul the decision and refer the case back to the previous
258
instance.”
Therefore, the CAS has full jurisdiction, which allows it to address all issues of
259
fact and law relevant to the case before it.
In the scope of this appeal jurisdiction,
panels often behave as "administrative" courts; some do not hesitate to compare sports
organisations to governmental entities and to tap into the principles applicable to the
258
Article R.57 of the Arbitration Rules.
See in this regard CAS 2011/A/2362, Mohammad Asif v. International Cricket Council, award from 17 April
2013, §§ 40-41.
259
281
administration – such as the principles of proportionality or due process of law - the
260
rules according to which disciplinary decisions should be monitored.
In fact, the degree of monitoring exercised by the CAS is, however, mitigated to the
extent that panels believe decision-making bodies of sports organisations are more
capable of determining what sanctions are necessary to ensure the effectiveness of
combating sports abuses. Thus, in a recent award dated 17 April 2013, in the case of
Salman Butt v. the International Cricket Council, the panel held that:
“as a general rule, significant deference should be afforded to a sporting body’s expertise
and authority to determine the minimum level of a sanction required to achieve its strategic
261
imperatives […]”.
Therefore, due to this reservation, the monitoring exercised on the legality of
262
the decisions adopted by sports organisations is limited.
The fact that the scope of
monitoring of the CAS is more frequently debated in terms of doctrine should be
263
emphasised.
Recourse before the Federal Supreme Court of Switzerland against CAS
awards. Article 191 LDIP provides that arbitral awards rendered by arbitral tribunals
based in Switzerland may be challenged before the Federal Court of Switzerland, or
before the Supreme Court of Switzerland. Therefore the Federal Court has become,
through challenges against CAS awards, a sort of Supreme Court of world sports.
However, the challenge is limited, to the extent that, in accordance with Article
190 al. 2 PILA, only very specific pleas can be invoked, in the following cases:
§ Irregular appointment of sole arbitrator or irregular establishment of the arbitral
tribunal;
§ When the arbitral tribunal has been wrongly established or denied jurisdiction;
§ When the arbitral tribunal ruled beyond the scope of the submissions or when it
omitted to deliver a verdict on several submissions;
260
L. CASINI, “The Making of a Lex Sportiva…”, op. cit. The author mentions the following awards, which
illustrate the adoption, by certain CAS panels, of a position similar to that of an administrative judge:
- an award from 1995, in which the arbitral panel held that “[t]he fight against doping is arduous, and it may
require strict rules. But the rule-makers and the rule-appliers must begin by being strict with themselves.
Regulations that may affect the careers of dedicated athletes must be predictable. They must emanate from
duly authorized bodies. They must be adopted in constitutionally proper ways. They should not be the product
of an obscure process of accretion” (CAS 94/129, USA Shooting & Q. v. Union Internationale de Tir (UIT), 23
May 1995, § 34);
- Another award from 2001 in which it was stated that: “[it] has always considered the right to be heard as a
general legal principle which has to be respected also during internal proceedings of the federations […]
Federations have the obligation to respect the right to be heard as one of the fundamental principles of due
process”(CAS 2001/A/317, A. v. Fédération Internationale de Luttes Associées (FILA), 9 July 2001; citing
CAS Decision 91/53 G. v. FEI, 15 January 1992, Rec. 79, 86);
- Another decision from 2004 in which it was stated that the CAS “will always have jurisdiction to overrule the
Rules of any sport federation if its decision-making bodies conduct themselves with a lack of good faith or not
in accordance with due process” (CAS OG 04/009, H.O.C. & N. Kaklamanakis v. I.S.A.F., 24 August 2004).
261
CAS 2011/A/2364, Salman Butt v. International Cricket Council, award of 17 April 2013, § 55. Emphasis
added.
262
See infra analysis of possible conflicts with the right to a fair trial, Part 3 Title 3, Chapter 3, Section 2,
"common principles to be respected by all stakeholders."
263
A. VEUTHEY, “Re-questioning the Independence of the Court of Arbitration for Sport in Light of the Scope
of its Review”, International Sports Law Review, 2013, Issue 4, p. 105. A party attempted to raise the question
before the Swiss Federal Court: see Malisse & Wickmayer (TF, 4A_428/2011, A & B v. AMA & VTV); but the
complaint was declared inadmissible since it was filed for the first time before the Federal Court; whereas it
should have been already pending before the CAS. Therefore, it was not processed.
282
§ When equality between the parties and their right to be heard in adversarial
proceedings are not respected;
§ When the award is incompatible with public policy.
The party simply challenging the appropriateness of a disciplinary sanction or
its severity would therefore have his challenge rejected for inadmissibility, except when
he demonstrates that the sanction imposed is so grossly disproportionate and injures
264
his rights so as to become contrary to the Swiss public order.
Can a sports federation ban recourse to the Federal Court against CAS awards,
through statutory or regulatory provisions or by getting its members to sign statements
in which they renounce this remedy?
In this regard, Article 192 LDIP provides that "If two parties have no domicile or
habitual residence or establishment in Switzerland, they may, by an express statement
in the arbitration agreement or a subsequent written agreement, exclude any appeal
against the awards of the arbitral tribunal; they may also only exclude the application to
one of the grounds listed in Article190, Para. 2.”.
This issue was raised in a case involving tennis and the solution was the
following: ‟If two or more parties none of which are domiciled in Switzerland do not want
Swiss law to apply, not even restricted to provisions of Swiss order public quality, they
can agree to waive the right to appeal an award given by a Swiss arbitral tribunal to the
FSC (= Federal Swiss Court). Such waiver can be agreed either in a contract signed
before or after a dispute arises or even be contained in documents to be signed by
members of an association based on their membership. It is mostly seen in arbitration
clauses or membership documents as it seems easiest to agree upon such an issue
before the parties are in dispute. The admissibility of a waiver contained in association
membership documents, however, has some exceptions. [...] The waiver (in a leading
case) was contained in a document drafted by the Association of Tennis Professionals
Tour (ATP) which necessarily had to be signed by tennis professionals in order to be
admitted to compete on the tour. The FSC held that ATP has a dominant position in
tennis and as players do not have a realistic choice as to the signing of the document,
265
such waiver cannot be held against them”.
ii. Arbitral Tribunals and Arbitration Centres Established at the National Level
Among the arbitral tribunals or arbitration centres instituted at the national level,
one may distinguish whether the court is created by law or at the initiative of the sports
organisations themselves. To illustrate the first case, for example, one could mention
the Sport Dispute Resolution Centre of Canada (SDRCC) established by the Federal
266
Law of 19 March 2003 to promote physical activity and sport.
264
For a case of implementation of Article190 Para. 2, Letter e LDIP, see the Matuzalem decision, ATF
4A_558/2011.
E. GUT-SCHWEIZER, C. GASSER, “Switzerland: ordre public/personal freedom”, I.S.L.R. (2013) pp. 31 et
seq., referring to judgement 4A_558/2011, ATF 138 III 322.
266
The decisions of this body adopted on matters of doping shall be the subject of an appeal before the CAS
whereas the decisions adopted concerning other matters can become the subject of an action for annulment
before the Ordinary State Courts in accordance with the law of the province of Ontario, Articles 6.21 (g) and
6.24 of the SDRCC Code.
265
283
As for the second case, one could mention the UK Sport Resolutions
267
established in 1997 at the initiative of the UK's leading sports organisations.
Sport
Resolutions is largely funded by the government agency in charge of high-level sport in
the UK, but the arbitration regulation provides that parties using the mechanism must
268
renounce all recourse against the awards rendered under the auspices of the centre.
Such a waiver, which entails that no action for annulment before a State judge is
possible, casts doubt on the true arbitral nature of the mechanism as well as on the
269
legality of such a waiver.
More generally, when the institution is created by sports
organisations (it is quite common that such institutions are created by National Olympic
270
Committees ), there are still doubts as to the statutory independence of the
organisation and the fact that arbitral awards should be imputed to the sport
organisation itself and therefore strip them of any jurisdictional qualification, cannot be
271
excluded.
iii. The Particular Case of the Anti-Doping Appeals Tribunals Established by Antidoping National Agencies, according to the World Anti-Doping Code
The particular case of anti-doping Appeals Tribunals must be mentioned here
even if it does not fall within the category of arbitration. Article 13 of the World AntiDoping Code provides for a dual system of appeals filed against decisions rendered in
accordance with the Code. Article 13.2.1 recognises the exclusive jurisdiction of the
CAS in appeals in cases related to the participation in an international event or in cases
involving international athletes. Article 13.2.2, provides that appeals must be addressed
to “an independent and impartial body in accordance with the rules established by the
National Anti-Doping organisation”. Therefore, the decisions rendered in accordance
272
with anti-Doping norms
can be challenged when they involve international athletes,
273
exclusively before the CAS, and in the case of athletes playing on the national level,
they can appeal before an “independent and impartial body” established by each
274
National Anti-Doping Organisation,
provided that the decisions of these appeals
tribunals can also be appealed before the CAS.
In doing so, the Code centralises the monitoring of decisions related to doping
at the international level, giving the CAS the role of a last resort judge. In addition, it
requires all national anti-doping organisations to provide a competent specialised
appellate body to review any federal decision that might be challenged.
Providing for national appellate judges in cases of doping has two main
objectives. The first one is to guarantee a maximum degree of protection for athletes.
The measures that aim at ensuring “due process”, included in article 8 of the World
Code, have the same objective.
267
The British Olympic Association, the Central Council of Physical Recreation, the Institute of Professional
Sport, the Institute of Sports Sponsorship, the Northern Ireland Sports Forum, the Scottish Sports Association
and the Welsh Sports Association.
268
See Article 12.4 of the Arbitration Rules of Sport Resolutions.
269
See infra Part 3 Title 3, Chapter 3, Section 2, “The Common Principles Applicable to All Stakeholders”.
270
For example, the Luxembourg Committe of Arbitration for Sport, the Belgium Committee of Arbitration for
Sport, the Italian Court of Arbitration for sport or also the Spanish Court of Arbitration for Sport.
271
See infra.
272
According to Article 13.2 of the World Anti-Doping Code, all the decisions adopted on the basis of AntiDoping norms can be challenged.
273
Article 13.2.1 of the world Anti-Doping Code.
274
Article 13.2.2 of the world Anti-Doping Code.
284
The second objective is more significant, and almost systematic. It actually aims
at a decentralised implementation of Anti-Doping measures. This is confirmed in the
roles entrusted to CAS and WADA: the first is the body at the head of the system; the
second operates as a general prosecutor to guarantee a uniform implementation of the
275
Code.
The question arises as to the nature of these authorities. Given the wide variety
of frameworks established by national Anti-Doping agencies, a single answer is
impossible. Many have set up within their own institutional structure, a panel
responsible for these appeals. But the situation may be quite different. Thus, in France,
appeals against the decisions of the French Anti-Doping Agency are entrusted to the
Council of State, the supreme court of the administrative jurisdictional order. The fact
that most national Anti-Doping Agencies are public agencies does not provide
information about the nature of these “tribunals” or “panels”. The procedure followed by
these bodies must be in accordance with the fundamental procedural principles which
characterise State court proceedings. However, as already noted, these principles also
tend to prevail even in quasi-judicial, disciplinary or even simply administrative
proceedings. Moreover, the decisions of these appeal panels themselves are likely to
be challenged before the CAS, which excludes reviewing final arbitral awards. These
bodies can be compared to Anglo-Saxon administrative courts, which are independent
276
bodies that have a quasi-judicial role as part of administrative-judicial proceedings or
disciplinary bodies of independent administrative authorities considered as "courts"
under Article 6 § 1 of the ECHR. In short, halfway between the disciplinary and judicial,
and between State justice and arbitral justice, an original quasi-judicial solution is found,
which does not fit into the predefined categories of judicial dispute settlement methods.
3. Independence of Arbitral Tribunals Specialised in Sporting Disputes
Arbitration is traditionally identified through indicators which allow verifying that
it was the intention of the parties to refer their legal disputes to rely on an independent
277
and impartial third party, which is empowered to issue a binding award
in order to
settle their legal disputes. The decisive criteria of distinction are the independence and
278
impartiality of the third party responsible for settling the disputes. In fact, the ties that
almost systematically link arbitration centres specialised in sports disputes to sports
organisations, can cast doubts on the independence of the arbitration centres with
279
regard sports organisations.
The method of appointment of the arbitral panel, the
funding of the institution or the ability of the sports organisations to interfere in the
arbitral proceedings are all indicators that verify the independence of these tribunals .
275
In fact, Article 13.2.1 of the World Anti-Doping Code gives the WADA the possibility of seizing CAS.
ème
P. CRAIG, Administrative Law, 6
edition, Sweet & Maxwell, Londres, 2008, pp. 257 et seq., and
H.W.R. WADE, C.F. FORSYTH, Administrative Law, Oxford University Press, 2009, pp. 770 et seq.
277
C. JARROSSON, La notion d'arbitrage, LGDJ, Paris, 1987, pp. 244 et seq., in particular. p. 273
278
See In this regard TFS, Gundel v. FEI et al., 15 March 1993, ATF 119 II 275.
279
The distinction between disciplinary courts and arbitral courts (at least internalised arbitral courts) is not
always clearly established, as illustrated by a decision of the Commercial Court of England, rendered in May
2013. This decision considered that the appeals mechanism set up by the disciplinary regulations of the
English and Wales Cricket Board could not be regarded as a mere internal disciplinary mechanism ([2013]
EWHC 1074 (Comm). More precisely, focusing on the "voluntariness" of the submission of athletes to this
mechanism and the final and binding nature of the decisions, the English judges considered that it was an
arbitration subject to the Arbitration Act of 1996 (See. analysis of D. BAILEY, "the Status of Sports Internal
Disciplinary Proceedings" Sports Law Administration and Practice, June 2013, pp. 4-7). However, this
decision, is isolated and is, moreover, highly questionable, given both the consent, which is deemed
"voluntary", and the usual assessment criteria of the arbitral tribunal.
276
285
Given these criteria, the most problematic case is obviously that of internalised
arbitral bodies where arbitrators are almost always appointed by the federation that
280
created the institution. Moreover, since the arbitral institution is created by the sports
federation and is only competent in sport-related disputes that fall within the
competence of the organisation, it seems inconceivable that no statutory relationship is
maintained between the organisation and the court. Therefore, caution is still required in
respect to jurisdictional rules providing that the decisions of such bodies are final,
covered by the authority of res judicata.
The case of externalised mechanisms seems more satisfying. However, even in
this case, it seems almost impossible to establish an institution that is completely
independent from the sporting movement. Therefore, there are several examples where
domestic courts reject the qualification as arbitral tribunal of decision-making bodies, on
281
the grounds that they are not sufficiently independent.
It also happens that the CAS operate a similar test and has refused to
recognised the arbitral quality of the courts that, when examined, are found to be simple
282
bodies of the concerned sports federation. Particularly and somewhat paradoxically,
in relation to the position of the CAS, the recurrence of questioning the independence of
the latter shows that the independence of specialised arbitral tribunals in sports almost
always requires caution.
The issue of the independence of the CAS. Since the first years of its
existence, this question has been the centre of attention. It should be reminded that the
arbitration centre was then funded almost exclusively by the IOC, which was competent
to modify the statutes of the tribunal and control the procedure for appointing arbitrators.
These financial and functional links led the TFS to express reservations about the
independence of the CAS from the IOC, while recognising its qualification as a genuine
arbitral tribunal (Gundel decision, 15 March 1993). This warning, which meant that the
qualification of independent and impartial tribunal could not be recognised in a dispute
involving the IOC, led to a major reform of the CAS in 1994, whose main contribution
was the creation of the International Council of arbitration for Sport (ICAS), a private
Swiss foundation, which now ensures the management and financing of the CAS.
280
For example, this is the case of the current International Volleyball Court whose members are appointed by
the president of the international federation and who is also entirely funded by the FIVB (Articles 2.5.1 and 2.8
of the statutes of the International Volleyball Court). This is also the case of the members of the arbitral
tribunal of the International Handball Federation that are appointed by the congress of the FIH, Article 37.6 of
the statutes of the federation providing that members of the tribunal are precluded from performing another
function within the FIH but this is a weak guarantee of neutrality.
281
The Court of Appeal of Luxembourg, for instance, ruled in a judgment of 19 January 2000 that "the arbitral
tribunal (or Schiedsgericht) of the Federation [Luxembourg football] is not a tribunal within the meaning of
Articles 1003 and et seq. of the code of Civil Procedure. This is an internal disciplinary court of the Federation
whose only characteristic as an arbitral tribunal is its name. An arbitrator must essentially be a third party. But
the Schiedsgericht comprises only of members who must be licensed by the Federation" (CA Luxembourg,
case No. 22.655, Luxembourg Athletic Union v. Deville, 19 January 2000, quoted by M. THIESEN in:
"L'arbitrage sportif : rapprochement du sport et du droit "in: E.BOURNAZEL (eds.), Sport et droit, Bruylant,
Brussels, 2000, p. 684) The Italian Court of Cassation, for its part, considered that arbitration under the rules
of the Italian Basketball Federation could not be described as an arbitration rituale, partly because of the links
that the arbitrators have with this federation (Cass., sent. No. 12.728, Polisportiva Dinamo v. Associazione
Pallacanestro Pordenone, November 17, 1999, quoted by A. RIGOZZI, L'arbitrage international en matière de
sport , op. cit p. 265).
282
Concerning the Turquish football federation’s arbitral tribunal, see CAS2006/O/1055, V. del Bosque et al.
v. Besisktas JK, award of 9 February 2007, § 59 (commentary of M. MAISONNEUVE in: Revue. Arb., 2008,
p. 542). See also, concerning the FIBA’s Appeals Commission which does not comply with the strict neutrality
requirements to constitute an arbitral tribunal, CAS2006/A/1149 & 1211, AMA v. Carmona et al., award, 16
May 2007, § 34.
286
In the Lazutina decision of 25 May 2003, the TFS finally confirmed without
283
reservation the independence of the CAS.
However, the links between the tribunal
and the IOC are still strong. The ICAS is merely an insufficient screen between the two
since it is itself controlled to a large extent by the IOC. The share of funding provided by
the latter remains very substantial and its role in the selection of arbitrators that may
284
figure on the list of the CAS remains decisive. Although each of these criteria cannot
285
be considered as decisive on its own, doubts surrounding the impartiality of the CAS
286
would still exist and the issue will continue to be raised before the TFS.
The
European Court of Human Rights itself is currently concerned in the matter, in two
cases brought against Switzerland, in the cases of Mutu and Pechstein concerning the
287
review exercised by the TFS on CAS awards.
Finally, it appears that bodies characterised as arbitral are not sufficiently
independent or neutral with regard to the sports federation to which they are attached,
the consequences can be severe: the decisions of such bodies can no longer be
regarded as judicial acts with res judicata. They must be re-qualified as private
unilateral acts attributable to the sports organisation and must therefore be subject to an
appeal before a real court. In such situations, recourse to the ordinary State courts of
the State in which the organisation is based may be established as an appeal before a
288
court with full jurisdiction.
B. The Jurisdiction of State Courts
Since arbitration is inconceivable independently of the support of the state
289
judiciary system, there is, in all arbitration proceedings, a supporting state judge (juge
d’appui) whose role is to ensure that the arbitration is conducted in accordance with
290
conditions imposed by the State of the seat.
This support judge can especially
291
intervene in proceedings requesting the annulment of arbitral awards.
But state courts may also have jurisdiction, apart from this hypothesis, to deal
with sports disputes. Far from being a pathological situation, the intervention of the
State judge, even though it arouses the hostility of the sporting movement (1) can take
place in a variety of situations (2), according to varied procedures (3).
283
TFS, first civil court. case No. 4P.267-270/2002, L. Lazutina et D. Danilova v. CIO, FIS and CAS, 27 May
2003, ATF 129 III 425.
M. MAISONNEUVE, L’arbitrage des litiges sportifs, op. cit., pp. 48 et seq.
285
The issue of the independence of the CAS could also arise concerning the extent of monitoring that it
agrees to exercise on the disciplinary decisions of sports organisations. See infra Part 3 Title 3, Chapter 3,
Section 2, "Common Principles Applicable to All Stakeholders". See also A. VEUTHEY, "Re-questioning the
Independence of the Court of Arbitration for Sport in Light of the Scope of its Review" ISLR, 2013, pp. 105115.
286
See for example in the context of the Malisse and Wickmayer v. AMA & VTV case, TFS, 4A_428/2011, 13
February 2010.
287
Adrian Mutu v. Switzerland, request No. 40575/10 13 July 2010; Claudia Pechstein v. Switzerland, request
No. 67474/10, 11 November 2010.
288
See infra.
289
With the exception of an international arbitration mechanism designed to resolve disputes between a State
and a foreign investor.
290
See supra, Part 3, Title 3, Chapter 2 , Section 2 , § 2, A, 2, c, on the monitoring by the TFS of CAS awards.
In many cases, the reference is made in the arbitration regulations; to the Arbitration Law of the State of the
seat is enough to identify the competent support judge. For example, the arbitration regulations of the
Luxembourg Commission of Arbitration for Sport refer to the new Luxembourg civil code of procedure while
the arbitration regulations of the Belgian Commission of Arbitration for Sport refer to the Belgian Judicial
Code.
291
The grounds for annulment vary, in fact, according to the law of the State considered.
284
287
1. The Difficult Relationship between the Sports Movement and State Justice
The difficult relationship between the sporting movement and State justice is
explained by the reluctance of sports organisations to submit to the competence of
State jurisdictions (a). However, in certain cases, recourse to the State judge is
mandatory (b), all the more so since the choice of arbitration in the field of sport,
because of its specificities, cannot be considered as systematically excluding recourse
to ordinary justice (c)
a. The Reluctance of Sports Organisations to Submit to the Jurisdiction of State
Courts
The aversion of the sporting movement concerning the intervention of a State
judge in "sports matters" is such that many sporting regulations simply exclude
challenging the decisions of the sports organisation before the ordinary courts. Before
the recourse to arbitration and particularly before the recourse to CAS was
292
institutionalised, the ban led to a real situation of denial of justice.
Today, the
293
exclusion of ordinary remedies is compensated by recourse to arbitration.
However,
even in this case, as seen earlier, access to an impartial and independent judge is far
from being always guaranteed. This situation is far more worrying than the fact that
some sports organisations do not hesitate to have recourse to a real deterrence policy
294
in order to prevent State court proceedings before an ordinary judge.
However, intimidation measures which sports organisations sometimes use are
not sufficient to convince athletes to waive recourse to State courts. On the contrary,
295
sports disputes before ordinary courts are significantly increasing. This is due to the
fact that there is no absolute impediment for State judges to issue judgments in sports
matters.
b. Cases of Mandatory Recourse to State Judges
Certain legal systems simply do not allow excluding the jurisdiction of ordinary
courts in the area of disciplinary sanctions.
In France, the review of disciplinary decisions rendered by recognised sports
federations is conducted by administrative jurisdictions, i.e. the Administrative court, the
Administrative Court of Appeal and ultimately the Council of State. Any “exclusion”
clause that would attempt to restrict access for licensees and members of the federation
296
to State courts would be considered void.
292
F. LATTY, La lex sportiva, op. cit., p. 458.
See for example article 61 of the UEFA statutes:
“1. The Court of Arbitration for Sport “CAS” in Lausanne (Switzerland) is exclusively competent to deal with
civil law disputes (of patrimonial nature) concerning UEFA cases between the UEFA and associations, clubs,
players, officials, as well as among them.
2. Ordinary legal remedies are excluded.”
See also Article 1.3 of the legal order of the International Handball Federation: “Decisions of judicial bodies of
the IHF, of continental confederations and of national federations cannot be challenged before a national
court. The Court of Arbitration for Sport (CAS) of the International Olympic Committee may be seized in
special cases (problems concerning doping cases, complaints from athletes)”. In this last case, the appeal
before CAS is not systematic.
294
See above Part 2, Title 3, Chapter 3, “The Sharing of Responsibilities between Sports Institutions and
Public Authorities”, in particular, the discussion on the autonomy of the sporting movement.
295
This finding is especially established by J.-L. CHAPPELET, L’autonomie du sport en Europe, Council of
Europe, EPAS, 2010, p. 25.
296
F. BUY, No. 314-315, pp. 194-195.
293
288
However, the internal remedies of the federation concerned must be exhausted
297
before the dispute can be brought before the administrative courts.
In principle,
defects in the original decision cannot be invoked against the decision of the appeal
disciplinary committee, because the appeal procedure purges the defects of the first
298
instance. The French administrative courts can annul the disciplinary sanctions if their
299
severity is excessive, thus revealing an obvious error of assessment.
“When the judge reviews the legality of the disciplinary measures, he tries to find
whether the sanction is not clearly disproportional compared to the offence committed,
i.e. if the federation has not committed a clear assessment error in the choice of the
300
measure”
Therefore, the administrative courts show some degree of restraint.
301
In England as well, the jurisdiction of ordinary tribunals cannot be excluded.
The FA’s Disciplinary Procedures, Section 3.2 state that ‟A decision of the Appeal
Board shall be final and binding and there shall be no right of further challenge”, with
the exception of recourse to the CAS by FIFA or WADA in cases of doping, but this FA
302
rule cannot eliminate the right of recourse before ordinary courts”.
“In England, as in most other countries, supervisory jurisdiction over decisions of
sporting bodies is exercised ultimately by the ordinary courts of law... The existence of
the courts’ ultimately supervisory jurisdiction, even where the rules provide for
arbitration, is assured by the constitutional principle that the courts’ jurisdiction over
matters of law cannot be ousted. However the English court is not, in the sporting field, a
court of merits in cases where the function of finding the facts is entrusted to officials
under domestic sporting rules. In such cases, a court will not entertain a challenge
founded on the contention that the sporting body came to an erroneous conclusion in
point of fact, unless this conclusion was based on no evidence at all or was otherwise
irrational. The court will not otherwise substitute its own view of the facts for that of the
designated fact finding person or body. As the jurisdiction is supervisory, not original, a
claimant seeking to impugn a decision must show that it was wrong in point of law, or
303
tainted by some other vitiating factor rendering it legally objectionable”.
Depending on the case, ordinary jurisdiction is exercised in the form of a
304
‟private law claim” and not as a ‟judicial review”. Authors criticise the relative absence
of the possibility of using the faster and simpler “judicial review”, particularly because it
allows the judge to rule on the basis of the submitted written documents, without the
305
need for a hearing. In New Zealand and Australia, “judicial review” has already been
306
admitted.
However, the most common way in practice to challenge a disciplinary
307
decision, is through demanding an "injunction": the parties request the judge to issue
an order, at an intermediate stage of the proceedings, to a sports organisation, in order
to force it to admit a person into one of its competitions.
297
Idem.
Council of State, 26 December 2012, No. 350.833, Fédération française d’athlétisme, quoted by D. REMY,
Éditions legislatives, 12 February 2013.
299
th
Lyon Admisitrative Court of Appeals, 6 Chamber, 31 May 2012, No. 11LY02776, Fédération française
d’équitation, Les Cahiers de droit du sport, No. 29, 2012, p. 35.
300
Lamy Droit du sport, No. 612.75 in fine.
301
S. GARDINER, op. cit., pp. 105-106.
302
J. LUKOMSKI, op. cit., p. 63.
303
M. BELOFF et al., op. cit., No. 8.4, p. 258.
304
A. LEWIS, J. TAYLOR, A2.8 op. cit., p. 57; GARDINER et al., Sports Law, Fourth Edition, op. cit., 93 et
seq.
305
M. BELOFF et al., No. 8.18 ss, op. cit., pp. 262 et seq.
306
M. BELOFF et al., No. 8.26-8.27, op. cit., p. 265.
307
M. BELOFF et al., No. 8.62 ss, op. cit., pp. 278 et seq.
298
289
‟In much sporting litigation, the objective of obtaining an injunction is the claimant’s main
and often only goal”. Provided there is a serious issue to be tried, the court looks at the
adequacy of damages as a remedy for either party, and the balance of convenience, or
the balance of justice, in deciding whether to grant or refuse the injunction”;
In Spain as well, the judicial review of disciplinary decisions cannot be
308
banned.
In Switzerland, a review can be exercised by the ordinary courts in the cases
where the concerned sports federation is not subject to the jurisdiction of the CAS. This
review is exercised on the basis of personality rights (Articles 28 et seq. of the Swiss
Civil Code) or association rights (Article 75 Swiss Civil Code).
c. Choice of Arbitration and Recourse to a State Judge
The situation becomes more complicated when the regulations of the sports
organisation provide for recourse to arbitration, sometimes exclusively.
In principle, when both parties agree to resort to arbitration, in a manner that is
consistent with the law of the State concerned, State courts must decline their
309
jurisdiction (known as the negative effect of the competence-competence principle). It
is true that in the case of sports arbitration, the consent of one party, expressed at the
time of adherence to the statutes and regulations of the sports organisation, cannot be
qualified as being totally free. But the negative effect of the competence-competence
principle can only be excluded - and therefore the arbitration clause overridden by State
courts - in the event that this clause is manifestly void or manifestly inapplicable.
Therefore, it seems difficult to argue that the lack of complete freedom of the athlete’s
consent renders the agreement void. This would negate the validity of compulsory
arbitration in the sports context. Doubt is still allowed as to knowing whether the
negative effect of the competence-competence principle applies here since the member
of the sports organisation can hardly be deemed to have knowingly renounced the
guarantees provided in the recourse to ordinary courts.
This question was the focus of discussions between the European Commission
and FIFA as part of the violation proceedings concerning the rules of transfers initiated
by the European Commission against FIFA. It should be recalled that "arbitration is
voluntary and does not prevent recourse to national courts", the Commission compelled
FIFA in order to end the proceedings, among other conditions, to allow the parties to
310
seek redress before an ordinary court
and currently, Article 22 of the FIFA
Regulations provides that arbitration is voluntary, and any player has the right to seek
redress before a court.
308
See in particular Sports Law and Policy Bulletin, International and Comparative Sports Justice, pp. 585587, 2013.
309
P. FOUCHARD, E. GAILLARD, B. GOLDMAN, International Commercial Arbitration, Kluwer Law
International, 1999, p. 407.
310
European
Commission
Press
release.
IP/01/314,
available
at
[http://europa.eu/rapid/pressReleasesAction.do?refrence=IP/01/314].
290
In the same vein, in a decision rendered by the Constitutional Court of Italy in
February 2011, Court judges highlighted the fact that courts can never be totally
excluded from sports disputes, even if arbitration is favoured by sports organisation. In
this country where the law expressly establishes the autonomy of the sporting
311
movement
and conducts a strict division of responsibilities with regard to sports
disputes between state judges and sports justice, the Supreme Court noted that:
“the express exclusion of direct jurisdiction over decisions imposing disciplinary penalties
– which was established in order to protect the autonomy of the sports regulatory system
– does not make it possible to preclude the right to initiate court action in order to obtain
compensation for the resulting damage for those who aver the violation of a legally
312
significant individual interest”.
Finally, it should be recalled that when the appointed arbitral body does not
meet the requirements of independence and impartiality in order for a tribunal to be
considered as such, nothing should prevent a State court from judging the decision of
this instance – which should be qualified as a unilateral private act - to purge the initial
313
procedure of its vices.
2. The Various Scenarios of the Possible Involvement of a State Judge
In general, the possibility of recourse before a State court is in no way linked to
the more or less interventionist nature of the State in sports matters. In this case, three
models of the intervention of the State judge in the sport system can be distinguished.
The first model is the Italian model, where the law itself proceeds to divide the
responsibilities between the State judge and the judges of the sporting movement. It is
Decree-Law No. 220 of 2003 (ratified by Law No. 280 of 2003) which proceeds with this
division. In the first model, which is limited to relationships of patrimonial nature
between sporting communities, sports clubs, athletes (and members), fall within the
jurisdiction of the ordinary judge. The second case relates to certain questions, which
have no direct link with the general law. In such cases, the protection of the
relationships in question falls within the jurisdiction of national bodies of the sporting
movement. Finally, in a third case, related to anything that does not apply to patrimonial
relationships between corporations, sports clubs, athletes (and members), it is again the
ordinary judge who is competent, even if the acts involve the Italian Olympic Committee
and sports federations, as long as they do not affect the matters which, according to
Article 2 of Decree-Law No. 220 of 2003, are reserved to the exclusive jurisdiction of the
314
bodies of sports justice.
Also in Spain and France, certain decisions of the sports federations are
considered as administrative acts and are therefore likely to be appealed before the
administrative judge. This is the case in France, when the activities of federations to
which sports public service functions are delegated, are included in the exercise of
public authority.
311
See supra Part 2, Title 3, Chapter 3, "The Sharing of Responsibilities between Sports Organisations and
Public Authorities in the face of the Manipulation of Sports Competitions".
Constitutional Court of Italy, judgment No. 49/2011, 7 February 2011.
313
See supra.
314
See aforementioned judgment No. 49/2011 of the Constitutional Court of Italy.
312
291
It should be noted that in the context of fighting against doping, the French
legislation recognises, according to what is provided for in the world Anti-Doping Code,
the competence of the CAS over international-level athletes. However, for national-level
athletes the competence is entrusted to the French Anti-Doping Agency, the decisions
315
of which can be challenged before the Council of State. In this case, French law does
not allow WADA or international sports federations, to challenge the decisions of the
national administrative judge before the CAS. However, given that this hypothesis is
provided for in article 13.3 of the World Anti-Doping Code, it is possible theoretically for
WADA, if unsatisfied with the decision of the Council of State, to challenge this decision
316
before the CAS.
A second model is the German model, where the review exercised by the
ordinary judge on all matters not having a purely sporting nature or which were not
referred to an arbitration court. In general, the will to control the monopolistic situation of
several sports federations has led, in the past, the German judge to intervene in this
area. In Germany, ordinary judges then verify, while acknowledging the autonomy of
sports associations, whether the decisions, disciplinary measures and sanctions
imposed by the associations that violate the athlete’s rights, find their basis in the
statutes or associative regulations with which they comply; whether the (statutory)
regulation upon which the sanction is founded matches the criteria of “fairness and
good faith”; whether the sanction was imposed by the competent body designated in
the statutes and according to the procedure provided for; whether the internal
procedure complies with the elementary rules and the principles of the Rule of Law (i.e.
due process); whether the decision-making body verified beyond doubt the facts leading
to the sanction; whether the sanction does not violate public order or morality, and
whether it isn’t manifestly unjust or disproportionate.
Finally, the third model is the English model. In this case, in the absence of an
administrative judge and a law that provides for of the exclusive jurisdiction of the sports
judge, monitoring the activities of sports institutions is left to the ordinary judge. Any
decision of the sports “national governing body” can be referred to a judge. Courts are
still reluctant to intervene in purely sporting matters (like the final result of a competition
or the selection of athletes for example).
The essential role of the Court of Justice of the European Union should be
highlighted. The Court clearly specified that sporting norms cannot be considered as
being exempt from a control of compliance with EU law: in the famous Meca-Medina
ruling, the Court verified the compliance of anti-doping regulations with EU norms
317
concerning an issue that CAS had already ruled on.
315
Article L. 232-24 of the Sports Code.
However, the risk seems eliminated by the conformity of the French legislation to the World Anti-Doping
Code, and the fact that, as a result, the norms applied by the French sports institutions first, and then by the
administrative judges are the same as those that the CAS should ultimately apply. In addition, the CAS tends
to separate the decisions of national authorities - both administrative and judicial - which contradict the norms
of the sport system. On this last point, see. Part 2, Title 3, Chapter 3, "The Sharing of Responsibilities
between Sports Organisations and Public Authorities in the face of the Manipulation of Sports Competitions."
317
ECJ, case C-519/04, David Meca-Medina and Igor Majcen v. European Commission, 30 September 2004.
In this regard, see I.S. BLACKSHAM, “Doping is a Sporting, Not an Economic Matter”, ISLJ, 2005, No. 3-4,
pp. 51 et seq.; F. LATTY, “L’arrêt, le livre blanc et le traité. La lex sportiva dans l’ordre juridique
communautaire – développements récents”, Revue du Marché commun et de l’Union européenne, No. 514,
janvier 2008, pp. 43 et seq.
316
292
Finally, the identification of the competent State courts deserves some
discussion, given that in the case of a dispute concerning a transnational competition,
318
this identification is not always easy. It is a matter of private international law which
requires identifying the State courts which maintain the closest relationship with a sports
case in particular. The most competent courts are naturally those of the State in which
the sports organisation is located, including in the case of an international sports
319
federation whose activities have a transnational scope.
However, other courts can
also be competent once a connection is established between their State and the
situation in question. Some courts were therefore able to recognise their competence
on the basis of a personal relationship, if the petitioner was a national of the State in
320
which the courts are located. More certainly, State courts can retain jurisdiction, even
with regard to the foreign federation, when the challenged decisions were taken
321
concerning a sporting event taking place on the territory of their State,
or when the
national federation applies a sanction imposed by the foreign international sports
322
federation.
3. The Nature and Scope of Sports Litigations Brought to the Attention of State
Courts
The nature of recourse means that may be exercised against decisions of
sports organisations (a) and the effects of decisions of State justice on the sports
organisations (b) constitute the outlines of sports litigation.
a. The Nature of the Recourse Available against the Decisions of Sports
Organisations
Several remedies can be sought to challenge a disciplinary decision. There are
mainly three types of recourse.
First, annulment proceedings may be used, during which the judge proceeds to
a direct legality assessment. This assessment can be carried out in accordance with the
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special rules of the organisation, as constituting its statutory law,
but also in
accordance with the law in force in the State, and particularly according to human rights
norms. Therefore, for example, in the Krabbe case which, among others, caused
difficulties to the International Association of Athletics Federations (IAAF), German
courts considered that the athlete’s constitutional rights – his/her right to be heard and
the doctrine ne bis in idem – had been violated by the federation in the way it conducted
324
the disciplinary proceedings instituted against him.
318
On this aspect of private international law, see. A. RIGOZZI, L’arbitrage international en matière de sport,
op. cit., pp. 109 et seq.
See F. LATTY, La lex sportiva …, op. cit., pp. 448 et seq.
320
Concerning the Harry "Butch" Reynolds case that gave rise to conflicting decisions by American courts,
see F. LATTY, lex sportiva ..., op. cit., p. 464-465.
321
F. LATTY, La lex sportiva …, op. cit., pp. 466-467.
322
High Court of Justice, Chancery Division, Edwards v. B.A.F. and I.A.A.C., 23 June 1997, C.M.L.R., 1998,
No. 2, p. 363 quoted par F. LATTY, La lex sportiva …, op. cit., p. 468.
323
F. LATTY, La lex sportiva …, op. cit.,p. 450-454.
324
Landgericht, Münich, K. Krabbe v. D.L.V. and I.A.A.F., 17 May 1995, SpuRt, 4/95, p. 167. In another
decision of 2 April 2002, another German court confirmed that a two-year suspension for a first offence was
not disproportionate. Cases cited by F. LATTY, in La lex sportiva …, op. cit., p. 471.
319
293
Among these annulment procedures, one should also make the distinction
according to whether these are ordinary proceedings or more specific ones, notably
reserved for monitoring the acts of public authorities. Concerning the first category, one
325
may recall the possibility of challenging the legality of the decisions of associations,
according to article 75 of the Swiss Civil Code. In Common Law countries, the doctrines
of natural justice and restraint of trade are often invoked against the decisions of sports
326
organisations.
In France, an annulment procedure can also be exercised before
courts against sports organisations that are simply licensed, or against delegate
federations when the issue concerns acts that do not involve the use of prerogatives of
public power. In this regard, it should be reminded that although the French Court of
Cassation refuses to submit the review of the associative disciplinary procedures to the
control of article 6 § 1 of the ECHR, it does not hesitate, however, to annul a disciplinary
sanction on the grounds that this sanction was imposed following proceedings that
ignored the general principles of law which are the right to a defence, the principle of
impartiality or the adversarial principle, which can be substantially found in the
guarantees offered by the ECHR.
Concerning more specific procedures, one should mention the recourse for
abuse of power that can be exercised before the French administrative courts when the
challenged decision was taken by a federation to whom public powers were
327
delegated.
In this context, the conduct of disciplinary proceedings is subject to the
328
compliance with the procedural rights as provided for by Article 6 § 1 of the ECHR.
Apart from this very specific case, one can also mention the cases of New Zealand,
Australian and South African courts who agree to submit the decisions of sports
329
organisations to judicial review, normally reserved to the exercise of public power.
In addition to the annulment procedures whereby the legality of the decision of
the sports organisation is directly contested, it is possible to seek remedies in
contractual or quasi-tort liability during which the legality of the measure is also
necessarily examined incidentally. Thus, it can be considered that an athlete who
believes that he was unfairly and disproportionately sanctioned, due to a violation of the
essential guarantees attached to his person, can claim compensation before the State
judge. However, such a hypothesis seems to be rare in sports disputes brought to the
attention of State courts.
However, these are more often seized by a third type of Appeal: interlocutory
actions that aim at obtaining a judge's injunction against the sports organisation to
suspend the effects of a sanction imposed against the applicant. This type of act is
seen as the most serious interference in the autonomy of the sporting movement as it
seeks to neutralise, through an emergency procedure, the decisions of sports
organisations.
325
On this basis, a Taiwanese athlete had, for example, in 1979, filed a complaint against the IOC before the
Swiss courts, to challenge the legality of the decision to change the name and emblem of the Taiwanese
NOC. The complaint was, however, withdrawn the following year. See. J.-L. CHAPPELET, op. cit., p. 26.
326
Both doctrines were invoked, in particular before the Canadian courts, by the sprinter Ben Johnson against
the decision of the Canadian Athletics Federation and the International Federation to suspend him for life from
competitions for doping in 1993. Ontario Court of justice, Johnson v. Athletic Canada and I.A.A.F., 25 July
1997, O.J. No. 3201, DRS 98-01748, § 29, cited by F. LATTY, La lex sportiva …, op. cit., p. 471.
327
A law from 13 July 1992 also implemented a mechanism for mandatory conciliation before the French
CNOS.
328
See below Part 3 Title 3, Chapter 3, Section 2, “The Common Principles Applicable to All Stakeholders”.
329
See below Part 3 Title 3, Chapter 3, Section 2, “The Common Principles Applicable to All Stakeholders”.
294
For example, in the Harry "Butch" Reynolds case, the American sprinter asked
the American judge to obtain a preliminary injunction allowing him to participate in the
American pre-selection process for the Barcelona Olympics, even though the IAAF had
330
suspended him. Similarly, in the Mitu, Nikolovski and Fassotte v. URBSF Acase, the
Belgian courts granted the request of the three players sanctioned by their organisation
to obtain an injunction to suspend the enforcement of the measures pending the
outcome of the criminal proceedings also instituted on the grounds that the disciplinary
331
proceedings had not been conducted in accordance with Article 6 § 1 of the ECHR.
b. The Effects of the Decisions of State Judges on Sports Organisations
When a decision of a sports organisation is annulled by a State judge or when
the organisation is ordered to pay damages to an athlete or is required to suspend
disciplinary action, such a decision must, in principle, be enforced, if necessary through
the use of coercive measures.
However, the struggle of sports organisations against the "interference" of
public authorities in sports matters may cause concern regarding the fact that the
decisions would go unheeded. Many examples tend to confirm this. In the abovementioned Reynolds case, in order to obtain the USD 27.4 million that were granted to
him by the judges of Ohio as damages, the applicant had undertaken execution actions
against the IAAF’s American sponsors. However, in order to avoid any further
complaints before the English courts, the federation moved its headquarters from
London to Monaco, where the law is less restrictive with regard to sports
332
associations.
In more general terms, when a State judge decides that a decision of
an international federation must be annulled, this annulment decision only has an effect
in his legal system. Unless several execution procedures, which are both heavy and
complex, are engaged, such a decision cannot neutralise the contested decision
333
beyond national borders.
However, decisions rendered by State courts, are not always rendered in vain.
For example, the aforementioned Krabbe case is one of those cases that had a
tremendous impact on the sporting movement. In addition to finding a violation of the
constitutional rights of the athlete, the German courts also considered that the
suspension for a period of four years for a first offense under the rules of the IAAF was
disproportionate. The judges stated that in such a case, a suspension of up to two years
was consistent with the athlete’s fundamental rights. Given this decision, the
international federation showed caution by reinstating several athletes on the basis of
"exceptional circumstances", in this case resulting from the Krabbe case law. But even
more fundamentally, determining that a maximum sanction of two years' suspension for
a first offence is not a disproportionate punishment, was received by several
334
international federations who changed their disciplinary regulations to this effect,
as
well as the IOC which included the rule in the Olympic Movement Anti-Doping Code and
the WADA that included it in the World Anti-Doping Code.
330
F. LATTY, La lex sportiva…, op. cit., pp. 464-465.
The Brussels Court of Appeal, in a judgment of February 8, 2007 ruled in favour of the athletes.
332
However, it should be noted that the decision to transfer the headquarters of the IAAF to Monaco, was
actually motivated by a series of complaints before English courts which did not all concern the Krabbe case.
See J.-L. CHAPPELET, op. cit.,p. 26.
333
For some examples, F. LATTY, La lex sportiva…, op. cit., p. 472.
334
F. LATTY, La lex sportiva…, op. cit.,p. 474.
331
295
Despite the tendency of sports organisations to want to escape the jurisdiction
of State courts and to increase the role of the CAS in order to ensure the centralisation
and internalisation of the system, the assessment of their decisions can never
completely escape State justice. From this point of view, the legal autonomy enjoyed by
the entire sporting movement is relative. It must be more so in the field of manipulation
of sports competitions where sports organisations share the responsibility of combating
335
this abuse with the public authorities.
Section 2: Disciplinary Rules and Procedures Applied to Cases of Manipulation of
Sports Competitions
In this section, the behavioural norms, and the rules defining the acts and
omissions that may result in disciplinary consequences for their authors will be
addressed (§ 1). Also, the requirement of disciplinary action as well as sanctions and
their effects will be discussed (§ 2).
§ 1. Behavioural Rules
Behavioural norms are the statutory and regulatory rules laid down by sports
organisations which provide, for persons subject to their jurisdiction, positive obligations
or obligations to refrain from certain actions, at the risk of incurring disciplinary
sanctions.
Two categories of disciplinary offences must be distinguished.
The first category includes offences concerning the technical rules and game
rules. In fact, sports associations adopt disciplinary rules, aimed at defining the sport for
which they are responsible and governing its practice. Contrary to the rules of law that
commonly codify a practice or pre-existing rule, technical sporting rules, strictly
speaking, often reveal a founding character: it is through their promulgation that a sport
is created and perpetuated. These rules also tend, thanks to their universality, to enable
the sport to achieve a uniform practice in all countries and hold competitions between
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athletes and teams around the world.
In a broad sense, the technical rules still
include provisions that regulate the transfer of athletes, their eligibility for competitions
337
and these organisation of competitions. Therefore, the technical rules and game rules
constitute a set of technical requirements that ensure the smooth running of events and
the conformity of competitions. In the strict sense, the assessment of whether there has
been a violation or not is operated by the sports referees and judges, and decisions in
this regard cannot be compared to traditional disciplinary sanctions as they aim at
ensuring the fair conduct of the competition and not protecting a sports institution from
potential breaches. Therefore, a priori decisions on technical rules in the strict sense
338
are not subject to judicial review).
335
See. Part 2, Title 3, Chapter 3 “The Sharing of Responsibilities between Sports Institutions faced with the
Manipulation of Sports Competitions”.
336
See D. OSWALD, pp. 139-141, who also points out that these rules are not immutable: introduction of a
tie-break in tennis, special rules for passing to the goalkeeper in football, rules on the colour of the kimono in
judo, enlarging the size of the ball in table tennis, biathlon starting system, etc.
337
D. OSWALD, op. cit., pp. 142-143.
338
D. OSWALD, op. cit., pp. 151 et seq.
296
The other category of disciplinary offenses consists in the violation of general
discipline rules, particularly ethics and fair play. These rules purport to promote values
339
such as dignity, integrity, loyalty and responsibility.
The norms related to sporting
fraud are generally part of the second category. Naturally, they are often less precise
than technical rules and game rules, which might present some difficulties, particularly
when it comes to their compatibility with certain essential principles that regulate the
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repressive sports tools.
Delimitations
In the field of sports fraud, everything that falls within the ambit of criminal law
must also fall within disciplinary law. The distinction does not pose a particular problem
in terms of disciplinary law, however, the latter also punishes behaviours that criminal
norms do not apprehend (example: a cricket player keeping his cell phone in the locker
room will never be punished by criminal law, but his acts fall within the ambit of
disciplinary law).
However, the delimitation between tactics (non-punishable in theory) and
corruption in the broad sense (which should result in disciplinary consequences), poses
a number of problems, in particular concerning knowing whether to impose sanctions in
all cases in which, for example, an athlete does not make his "best efforts", or in cases
where a team willingly does not use its best line-up.
For example, in tennis, “tanking” is the fact that a player does not make a great
deal of effort to win. The reasons behind this attitude are many. The player might feel
tired or discouraged and wants to finish the match as soon as possible. He may not
push himself in order not to aggravate an injury, or to preserve his energy for more
lucrative upcoming matches. Opponents can agree on letting one or the other win to
improve one’s ranking in exchange for a share of the reward. Obviously, a player can
lose intentionally to allow third parties to achieve gains from bets. A report notes that
the "low end" of such behaviour is considered - at least by tennis stakeholders - as part
of the game, even if the player did not make all possible efforts, which is still contrary to
341
the rules; it is a matter of game culture. If the referee finds that a player is not making
342
his best efforts, he may intervene or even sanction the concerned party.
The 2012 London Olympics provided several examples of sanctions against
athletes who obviously had deliberately lost badminton matches in order to avoid
343
encountering particular opponents during the next round of the competition.
In football, it so happens that sometimes a manager decides not to use his best
line-up. His decision may be due to the absence of significant stakes in the match (the
team already qualified for the next round; end of season without stakes; a more
important match in the upcoming days, etc.) or a willingness to spare tired or injured
players, but it could also be due to the desire to lose the game in order to favour some
bettors.
339
D. OSWALD, op. cit., p. 148.
See infra Title 3, Chapter 3, Section 2, § 2 “The Framing of the Sports Repressive Instruments by the
Common Principles”.
341
S. GARDINER, p. 289, referring to B. GUNN and J. RESS, Environmental Review of Integrity in
Professional Tennis, May 2008.
342
Example: Nikolay DAVYDENKO, sanctioned for this reason during matches against CILIC and
ARGUELLO; [http://www.theguardian.com/sport/2007/oct/26/tennis].
343
[http://www.bbc.com/sport/0/olympics/19072677)].
340
297
Distinguishing between situations that are part of a tactic which does not
contradict sports ethics and those in which disciplinary law should be implemented is
not always easy. In this regard, solutions probably result from taking into account the
parameters inherent in particular sports. The potential impact of behaviours on third
parties should certainly be a criterion, as shown in the badminton case at the London
Olympics.
Retroactivity of the Behavioural Rules
For a person to be sanctioned, the rules the competent body is intending to rely
on must be in force when the acts occur, since non-retroactivity also applies to
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disciplinary law.
For example, one can refer to the cases Benfica v. UEFA & FC
345
346
Porto and Vitoria Guimaraes v. UEFA & FC Porto which were decided jointly in a
single CAS award, on 15 July2008: FC Porto had been sanctioned by the Portuguese
Football Federation, with a deduction of points during the 2007-2008 season in a case
of attempted corruption of referees, the facts of which date back to the 2003-2004
season; on 16 June 2008, the Appeals Body of UEFA had refused the admission of the
club to the 2008-2009 UEFA's Champions League (UCL) on the basis of a regulatory
provision adopted after 2004, which provided in essence that access to this competition
should be denied to clubs that had committed acts of sports fraud; CAS considered that
the principle of non-retroactivity was not violated and that UEFA was right in applying
the new rule for admission to competitions, provided that it applies the same rule to all
candidates; it particularly retained that the principle of non-retroactivity protects good
faith, and that FC Porto had not, in 2004, acquired the right to participate in the 20082009 UCL and that it did not have a right to require that the facts that occurred not be
taken into consideration for subsequent examination for admission to the competition
criteria, even if non-admission was a form of sanctioning.
The implementation of the principle of non-retroactivity can cause problems in
the field of sports fraud, a relatively new phenomenon, concerning which many
regulations were enacted quite recently and for which offences are often discovered
several weeks, months or even years after the occurrence of the acts.
However, these regulations are constantly evolving. Also, in order to measure
their applicability, it is important to analyse the methods of commission of reprehensible
acts (A) as well as their definition (B).
A. Methods of Committing Reprehensible Acts
Most regulations include provisions related to the conditions of repression.
These rules provide for the punishment of offences committed through action or
omission (example: art 5 Ch. 2 FCE). For an example of omissions that lead to
disciplinary sanctions, one could mention failure to report an approach by a third party
for corruption purposes to the competent sports body.
344
345
346
See in particular A. LEWIS, J. TAYLOR, A2.9 p. 58 and A2.25 p. 64.
CAS 2008/A/1583.
CAS 2008/A/1584.
298
Offences can be sanctioned whether effected directly or indirectly (ASOIF
Model Rules).
Unless provided otherwise, intentional actions as well as acts and omissions
committed due to negligence are punishable (e.g. art 7 FDC, Article 5 Ch. 2 FCE art 4.6
AIBA DC.). However, the degree of fault probably plays a role in determining the
sanction.
Several regulations expressly specify that attempts are punishable (examples:
Article 8 FDC, Article 5 Ch. 2 FCE, Article 4.7 AIBA DC).
Chapter 3.5.(a) of the model rules established by ASOIF state that:
“Any attempt by a Participant, or any agreement by a Participant with any other person,
to engage in conduct that would culminate in the commission of any Violation of this
Rule 3 shall be treated as if a Violation had been committed, whether or not such
attempt or agreement in fact resulted in such violation.”
It should be noted that these model rules also suggest punishing a form of
preparatory acts, such as a simple agreement between two persons to commit an
offence, without them having begun its execution. However, the same provisions state
that he who:
“renounces his attempt or agreement prior to it being discovered by a third party not
involved in the attempt or agreement”, is not subject to punishment.
Punishing an attempt clearly implies that a sanction can be imposed even
though the offence did not lead to any result. This is also illustrated by Article X letter E
Ch. 2 of the Uniform Tennis Anti-Corruption Programme, which states that:
“for a Corruption Offense to be committed, it is sufficient that an offer or solicitation was
made, regardless of whether any money, benefit or Consideration was actually paid or
received”.
The disciplinary rules are intended to sanction the persons involved in the
offence in one way or another and whether such involvement is primary or secondary.
Some provisions only provide for the punishment of the instigator and
accomplice (examples: Article 9 FDC, art 5 Ch. 2 FCE, Article 4.8 AIBA Disciplinary
Code). The rules of tennis only refer to the notion of assisting in the commission of the
offence (Article X letter E Ch. 1 of the Uniform Tennis Anti-Corruption Programme
Article X letter E Ch. 4 of the Uniform Tennis Anti-Corruption Programme)
Others enter into more detail. For example, the very similar provisions of Ch.
3.5 of the ASOIF model rules, of Article 2.5.2 Of the ICC and Ch. 3.2.12 of BWF
sanction those who "knowingly assist, cover up or otherwise be complicit in any acts [...]
committed by a participant”, the ICC also applies its sanctions to those who “authorise”,
“cause”, “encourage”, “aid” or “abet” acts of the same nature, which does not add much
since these additional incriminations are certainly covered by the notion of assistance.
299
The same rules specify that “the participant shall be treated as having
committed such acts himself and shall be liable accordingly”. The provisions applicable
to tennis also render the accomplice (in a broad sense) ‟responsible for any Corruption
Offense committed by any Covered Person”, in the case of assisting the author, and the
provisions also add that the accomplice will be subject to “sanctions [...]) to the same
extent as if the Player had committed the Corruption Offense”.
Still on the subject of participation, the ICC also sanctions those guilty of:
“Soliciting, inducing, enticing, instructing, persuading, encouraging or facilitating any
Participant to breach any of the ... provisions”, (Ch. 2.1.4).
347
ASOIF, the BWF and the ICC, provided, practically under the same terms,
that certain circumstances have no role in the determination of a violation of anticorruption provisions, particularly:
“(a) Whether or not the Participant was participating, or a Participant assisted by another
Participant was participating, in the specific Event or Competition; (b) The nature or
outcome of any Bet in issue; (c) The outcome of the Event or Competition on which the
Bet was made; (d) Whether or not the Participant’s efforts or performance (if any) in any
Event or Competition in issue were (or could be expected to be) affected by the acts or
omissions in question; (e) Whether or not the results in the Event or Competition in issue
were (or could be expected to be) affected by the acts or omissions in question” (Ch. 3.6
ASOIF, 3.3 BWF, 2.6 ICC).
In some cases, regulations provide for valid defence, which may lead to the
renunciation of imposing a sanction or to its mitigation, such as in the case where the
concerned person proves, “on the balance of probabilities”, that the offence was
committed “due to the Participant’s honest and reasonable belief that there was a
serious threat to his/her life or safety or to the life or safety of any other person” (Article
2.7 ICC anti-Corruption Code) or if this person “promptly reports (his/her) conduct”
(Article X letter E Ch. 4 of the Uniform Tennis Anti-Corruption Programme).
B. Definition of Reprehensible Acts
Reprehensible acts can be defined according to “catch-all” rules (1), on the
specific offence of manipulation of sports competitions (2) the specific offence of
corruption (3), the issue of inducement (4), the prohibition from betting imposed on
athletes (5), the prohibition of disclosing confidential information (6), the use of certain
communication tools for reprehensible purposes (7), unexplained wealth (8), breach of
the obligation to report approaches (9), breach of the obligation to denounce (10) and
breach of the obligation to cooperate in investigations (11).
1. “Catch-All” Rules
Several regulations contain general provisions that aim at avoiding
shortcomings in repression by punishing all forms of behaviours that are harmful to
sports; it is therefore clarified that:
347
Logically, since the ASOIF Model Rules included to a great extent those enacted by the ICC and the BWF
was later largely inspired by the model rules.
300
“Almost without exception, sports governing bodies’ rules contain a provision that
prohibits “bringing the sport into disrepute”. By its very nature this is a “catch all”
provision designed to cover misconduct which is not specifically provided for in more
focused rules ... The rule has been criticised as being too uncertain as to the conduct
348
that it covers, but there has been no successful challenge to its breadth”.
Even though "catch all" rules are found in most of the regulations, the majority
is, however, accompanied by specific norms that illustrate the subject, but with no claim
to completeness. Therefore, the most common system is that of a set of rules, which
describes a number of behaviours constituting a disciplinary offence, accompanied by a
general provision in order to make sure that the behaviours, which are contrary to
sports ethics and which will not be apprehended by special provisions, do not go
unpunished.
This solution was in particular adopted by UEFA, which states in Article 11 of its
DR that what constitutes an offence is the act of not “complying with the principles of
loyalty, integrity and sportsmanship” and in Article 12 Para. 1 of the DR which states
that:
“All persons bound by UEFA’s rules and regulations must refrain from any behaviour that
damages or could damage the integrity of matches and competitions and must
cooperate fully with UEFA at all times in its efforts to combat such behaviour”.
Both provisions include examples of behaviours, sometimes formulated broadly,
for example by stating that a person is considered to have violated the principles if he
“who engages in or attempts to engage in active or passive bribery and/or corruption”
(Article 11 al. 2 letter a UEFA DR) and one who “whose conduct brings the sport of
football, and UEFA in particular, into disrepute” (Article 11 Para. 2 letter d UEFA DR).
AIBA provides, as a behavioural rule, that “All persons subject to (the)
Disciplinary Code must [...] respect the principles of honesty, integrity and
sportsmanship” (Article 3.1 letter f AIBA DC) and that “Anyone who violates the
principles of conduct, as set out in Article 3.1, shall be liable to sanction under this
Code” (Article 6.11 AIBA DC).
As for FIFA, it states that its Code of Ethics applies to any “conduct that
damages the integrity and reputation of football and in particular to illegal, immoral and
unethical behaviour.” (Article 1 FCE).
Under the jurisdiction of FIBA, the persons subject to its rules must “refrain from
activities that may affect the result of basketball matches”, particularly:
“involvement in criminal or reprehensible activities” (the provision also includes a number
of other examples); a last sentence, aiming at avoiding gaps, sanctions “Engaging in
other unethical conduct of any kind which has the potential to affect the outcome of
games.” (Article 28, 2010 FIBA internal regulations, Book 1).
348
A. LEWIS, J. TAYLOR, A2.48 op. cit., p. 72.
301
In England, the Football Association (FA) Rule E3(1) requires players “to act in
the best interests of the game and […] not to act in a manner that is improper or brings
the game into disrepute”, but specific provisions specify that what is meant by this is the
349
manipulation of competitions and sporting bets.
In Badminton, Ch. 5.1 of the “Player’s Code of Conduct” prohibits, under the
heading “Conduct contrary to the integrity of the game”, the act of “Engaging in conduct
contrary to the integrity of the game of Badminton”. The same provision adds that:
“If a player is convicted of serious violation of a criminal law of any country, the
punishment for which includes possible imprisonment, that player may be deemed by
virtue of such conviction to have engaged in conduct contrary to the integrity of the game
of Badminton. In addition, if a player has at any time behaved in a manner severely
damaging to the reputation of the sport, that player may be deemed by virtue of such
behaviour to have engaged in conduct contrary to the integrity of the game of
Badminton.”
North American sports organisations give their “commissioners” wide powers of
assessment concerning the definition of behaviours that may or must be sanctioned.
For instance, in Baseball, the commissioner of the MLB has the power to:
“investigate [...] any act, transaction, or practice charged, alleged, or suspected to be
detrimental to the best interests of the national game of baseball” (Section 2 of Article II
of the Major League Agreement, MLA).
However, more precise rules are included in “Rule 21, Misconduct”, particularly
concerning the manipulation of results and bets, but even these rules do not claim
completeness, to the extent that the letter (f) clarifies that:
“Nothing herein contained shall be construed as exclusively defining or otherwise limiting
acts, transactions, practices or conduct not to be in the best interests of Baseball; and
any and all other acts, transactions, practices or conduct not to be in the best interests of
Baseball are prohibited and shall be subject to such penalties, including permanent
ineligibility, as the facts in the particular case may warrant.”
One author criticised the fact that:
“This nebulous standard makes it difficult for MLB players and other personnel to clearly
350
understand what type of behaviour is intolerable”,
but in the same article, the author
concedes that “The other alternative – specifically listing all transgressions and their
respective penalties – seems an equally impossible task, considering the wide array of
351
human behaviour”.
349
A. LEWIS, J. TAYLOR, A2.47 op. cit., pp. 71-72.
M.E. FOOTE, Three strikes and you’re (not necessarily) out: how baseball’s erratic approach to conduct
violations is not in the best interest of the game, p. 7, in: J. DEPAUL, Sports L. & Contemp. Probs., vol. 6.1
2009.
351
350
302
In fact, on the one hand, the diversity of unacceptable behaviours in terms of
ethics and morality leads to an inability to grasp all of them through precise rules, and,
on the other hand, sports organisations should be able to sanction the perpetrators of
such behaviours to avoid negative consequences, in particular, to the integrity of
competitions and the image of the sport. The inclusion of broad rules in the regulations,
in the sense mentioned above, is the only solution for an effective fight against sports
fraud. However, it goes without saying that the rules in question should not be
interpreted too broadly and disciplinary bodies should refrain from applying them to
futile behaviours without consequences to sport integrity (e.g. a tennis player who was
annoyed by a mistake he made, and let the next point slip as a gesture of frustration).
2. The Specific Offence of Manipulation of Sports Competitions
The specific offence of manipulation of sports competitions remains difficult to
delimit (a). However, different federations have tried to define the illegal manipulation of
a competition (b).
a. Difficulty of Delimitation
As seen above, the difficulty lies in the distinction, on the one hand, between
behaviours that are likely to affect the integrity of matches and which must be
sanctioned, and on the other hand those that, while not encouraging performance, fall
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within tactics or practices considered admissible.
b. Definition of the Illegal Manipulation of a Competition
Badminton rules include the following definition: “Manipulation of sports
results/match fixing: influencing the course or the result of a sports event in order to
obtain advantage for oneself or for others and to remove all or part of the uncertainty
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normally associated with the results of a competition”.
The same elements are taken up by UEFA, which sanctions any person who:
“acts in a manner that is likely to exert an unlawful or undue influence on the course
and/or result of a match or competition with a view to gaining an advantage for himself or
a third party;” (Article 12 Para. 1 letter, a UEFA DR).
FIFA does not retain the need for a benefit for oneself or for others, but it
sanctions “Anyone who conspires to influence the result of a match in a manner
contrary to sporting ethics” (Article 69 Ch. 1 FDC).
The UCI simply states in rule 1.2.081 that:
“Riders shall sportingly defend their own chances. Any collusion or behaviour likely to
falsify or go against the interests of the competition shall be forbidden”.
352
353
See supra, B. 1. of this paragraph.
Article 1.2.3 Code of Conduct of Participants in relation to betting, wagering and irregular match results.
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Other regulations enter more into detail. One of the most complete examples is
found in the model rules proposed by ASOIF, which provide as follows:
“3.2 Manipulation of results
(a) Fixing or contriving in any way or otherwise improperly influencing, or being a party to
fix or contrive in any way or otherwise improperly influence, the result, progress,
outcome, conduct or any other aspect of an Event or Competition (NB: the ICC specified
that “[...] being a party to any effort to fix or contrive ...”, Article 2.1.1 ICC Anti-Corruption
Code).
(b) Ensuring or seeking to ensure the occurrence of a particular incident in an Event or
Competition which occurrence is to the Participant’s knowledge the subject of a Bet and
for which he or another Person expects to receive or has received a Benefit.
(c) Failing in return for a Benefit (or the legitimate expectation of a Benefit, irrespective of
whether such Benefit is in fact given or received) to perform to the best of one’s abilities
in an Event or Competition.
(d) Inducing, instructing, facilitating or encouraging a Participant to commit a Violation
set out in this Rule 3.2.
3.3 Corrupt Conduct
(a) Accepting, offering, agreeing to accept or offer, a bribe or other Benefit (or the
legitimate expectation of a Benefit, irrespective of whether such Benefit is in fact given or
received) to fix or contrive in any way or otherwise to influence improperly the result,
progress, outcome, conduct or any other aspect of an Event or Competition.
(b) Providing, offering, giving, requesting or receiving any gift or Benefit (or the legitimate
expectation of a Benefit, irrespective of whether such Benefit is in fact given or received)
in circumstances that the Participant might reasonably have expected could bring him or
the sport into disrepute.
(c) Inducing, instructing, facilitating or encouraging a Participant to commit a Violation as
set out in this Rule 3.3”.
The ICC retained the same offences but used “Reward” instead of “Benefit” and
defined the notion as follows:
“A person acts “for Reward” if he/she arranges or agrees that he/she or some other party
will receive any direct or indirect financial or other benefit for that act (other than official
prize money and/or contracted payments under playing, service, endorsement,
sponsorship or other such similar contracts), and the term “Reward” shall be construed
accordingly” (Appendix 1 – Definitions).
The definitions retained in tennis are more concise (Article X letter D Ch. 1 of
the Uniform Tennis Anti-Corruption Programme):
“d. No Covered Person shall, directly or indirectly, contrive or attempt to contrive the
outcome or any other aspect of any Event.
e. No Covered Person shall, directly or indirectly, solicit or facilitate any Player to not use
his or her best efforts in any Event.
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f. No Covered Person shall, directly or indirectly, solicit or accept any money, benefit or
Consideration with the intention of negatively influencing a Player's best efforts in any
Event.
g. No Covered Person shall, directly or indirectly, offer or provide any money, benefit or
Consideration to any other Covered Person with the intention of negatively influencing a
Player's best efforts in any Event”.
In MLB, “Rule 21”, letter (a), criminalises:
“Any player or person connected with a club who shall promise or agree to lose, or to
attempt to lose, or to fail to give his best efforts towards the winning of any baseball
game with which he is or may be in any way concerned; or who shall intentionally lose or
attempt to lose or attempt to lose, or intentionally fail to give his best efforts towards the
winning of any such baseball game, or who shall solicit or attempt to induce any player
or person connected with a club to lose, or attempt to lose, or to fail to give his best
efforts towards the winning of any baseball game with which such other player or person
is or may be in any way connected”. Moreover, the same rule sanctions in particular, in
letter (c), the bribery of a referee in exchange for the referee’s decisions “on anything
connected with the playing of a baseball game [...] otherwise than on its merits”.
Badminton rules particularly establish the act by a player of “Not using one’s
best efforts to win a match” (Article 4.5 BWF Player’s Code of Conduct), as well as
“Bribes or other payments” in order to “influence any player’s efforts or the result of a
match in any BWF-sanctioned tournament” as offences (Article 5.3 BWF Player’s Code
of Conduct). The provision in Ch. 4.5 in particular enabled the BWF to sanction eight
players by banning them from China, Indonesia and South-Korea, due to the fact that,
during the 2012 Summer Olympics, they intentionally lost matches during the group
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stage, in order to avoid facing certain teams during the next stage of the competition.
Similarly, the ICC’s Code of Conduct for Players and Players Support Personnel
prohibits “manipulating International Matches for strategic or tactical reasons (such as
where a Player performs in a certain manner to enable his team to lose a pool Match in
an ICC Event in order to affect the standings of other teams in that ICC Event)”.
From the foregoing, it can be noted that the definition of manipulation of a
competition and the behaviours constituting an offence should consider the following
elements:
§ An act or omission;
§ Which, directly or indirectly, aims at or leads to influencing the progress or
outcome of a match or sports competition (this includes every fact of the game
or other aspects of the match or competition);
§ This is done inappropriately, respectively contrary to sports ethics.
The objective of obtaining an advantage for oneself or others does not need to
be sought after or achieved. The execution of the offence should not, in any case,
depend on offering or obtaining an advantage.
354
See [http://www.bbc.com/sport/0/olympics/19072677.].
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Concerning the degree of execution, preparatory acts (any move aiming at
manipulating a competition) and attempts (beginning of execution) must be sanctioned
as completed offences (actual manipulation), as well as, to take Common Law into
account, agreements for the purpose of manipulating.
All forms of participation (instigation, complicity and co-action included) must be
criminalised.
The aforementioned provisions provide good examples of formulations,
depending on whether one wishes to refer to the continental legal tradition (broad
definition) or to the Common Law system (precise description of behaviours).
3. The Specific Offence of Corruption
Several regulations contain provisions that punish active and passive
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corruption, usually in quite a broad sense.
They allow sanctioning those who promise, give or accept any advantages, in
kind or in cash, in exchange for behaviours contrary to the rules defined by the sports
organisation in question.
These provisions can clearly be applied to cases of manipulation of
competitions, as well as specific rules. They do not seem to require any particular
comments.
4. “Incitements”
Usually, the chances or the position of a participant in a competition depend on
the victory of another participant over a third party. For example, Team A may need that
Team B beat Team C to improve its own position in the rankings, in order to qualify for
the upcoming competition or to avoid relegation to a lower division. In this example,
representatives of Team A may be tempted to offer a reward to Team B (or to the coach
or a player of that team) to increase its motivation. These rewards are called
"incentives".
Some find nothing particularly wrong with this: after all, isn’t it a matter of
encouraging a person or a team to do their best, while they should already have the
intention to do so?
The MLB does not share this opinion, since it included a particular provision in
Rule 21, Misconduct. This rule provides that:
‟(b) GIFT FOR DEFEATING COMPETING CLUB. Any player or person connected with
a club who shall offer or give any gift or reward to a player or person connected with
another club for services rendered or supposed to be or to have been rendered in
defeating or attempting to defeat a competing club, and any player or person connected
with a club who shall solicit or accept from a player connected with another club any gifts
or reward for any such services rendered, or supposed to have been rendered, or who
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Examples: Article 62 Ch. 1 and 2 FDC; Article 20 and 21 FCE; Article 3 AIBA DC; Article 2.4 ICC AntiCorruption Code; Ch. 3.2.8 BWF; Ch. 28 Book 1 FIBA; Para. E5 and E6 FA Rules.
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having been offered any such gift or reward, shall fail to inform his League President or
the Commissioner immediately of such offer, and of all facts and circumstances
therewith shall be declared ineligible for not less than three (3) years”.
Although other regulations generally do not include a similar rule, it does not
mean that this type of behaviour would not be considered a disciplinary offence. In fact,
one may consider that a person who promises or gives a reward of this kind seeks to
improperly influence, for his own advantage, the result of a match between two other
opposing participants, and that he clearly expects that his actions will lead to results
that cannot be attained without a reward (if he considers that his actions will not exert
influence, he would not go through with his plans). In fact, each person should be aware
that this form of agreement is contrary to sports ethics.
Therefore, sports organisations and federations must rely on their rules that
prohibit rewards or promises of rewards, or in the absence of such precise rules, on
their “catch all” provisions as noted above, in order to sanction this type of behaviour.
This being said, rewards promised or offered by people who, normally, would
like to encourage a competitor without the intent of encouraging another should be
excluded from the repressive field. Therefore, it should not be a matter of prohibiting, for
example, a basketball club from being promised, and then receiving a reward for the
victory given by an ordinary supporter, even if he is not a member of the club. This
obviously poses a problem in terms of evidence, in that it will not always be easy to
determine whether the donor was doing this for the sole benefit of the beneficiary, or if
he also had in mind the advantage that a victory would provide to a third party.
Everything will depend on the circumstances the case.
5. Prohibiting Athletes from Betting
By definition, athletes and others persons that are involved in sports love
competition, and love the game. They become interested in sports, and usually not only
in their sport. As for professional athletes, they often have above average financial
means and daily recreation periods. Therefore, it is not surprising that athletes,
members of their supervisory staff and officials may be tempted to bet on sporting
events.
The fact that athletes bet on their own competitions is obviously linked to a risk
of damaging the integrity of these competitions. What could be simpler than betting
against oneself or one's team, and making sure, on the field, that their bet wins?
However, there are risks that are also related to bets on other competitions of the same
sport (confidential information) or other sports (gambling addiction, with the
consequence that the person is likely to encounter financial difficulties that will make
him vulnerable to approaches with the purpose of convincing him to manipulate his own
competitions).
Therefore, many sports federations have adopted provisions prohibiting or at
least limiting the possibility for members to bet on sports competitions, possibly also to
engage in certain activities related to sporting bets (a). However, these provisions can
still be improved. The Chair also offers recommendations (b).
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a. Examples of Regulations
In its model provisions, ASOIF suggested prohibiting all activities related to
sporting bets and to sanction the following behaviours:
“3.1 Betting: (a) Participation in, support for, or promotion of, any form of Betting related
to an Event or Competition (whether one in which the Participant is directly participating
or is otherwise taking place in the Participant’s sport or is taking place in another sport at
an International Competition hosted by a Major Event Organisation in which the
Participant is participating), including Betting with another Person on the result, progress,
outcome, conduct or any other aspect of such an Event or Competition. (b) Inducing,
instructing, facilitating or encouraging a Participant to commit a Violation set out in this
Rule 3.1”.
The rules in force in badminton are similar, insofar as they criminalise the
following behaviours:
“3.2 The following will be considered an offence related to betting and wagering by a
Participant: [...] 3.2.3 Participating in all forms of, or support for, betting (whether legal or
illegal betting) or gambling related to their own matches and/or competitions in their
sport; [...] 3.2.5 Instructing, encouraging or facilitating any other party to bet; 3.2.6
Inducing, instructing or encouraging any participant to breach any of the established
offences; 3.2.7 Ensuring the occurrence of a particular incident, which is the subject of a
bet and for which he/she expects to receive or has received any reward”. Reference to
illegal and legal bets should be noted. Number 5.2 of the "Players Code of Conduct" also
established the act of an athlete betting “anything of value in connection with a
tournament in which one will be, or is, competing” as a major offence.
In tennis, the ITF rules leave little room for any of the bet-related activities:
“Corruption Offenses. a. No Covered Person shall, directly or indirectly, wager or
attempt to wager on the outcome or any other aspect of any Event or any other tennis
competition. b. No Covered Person shall, directly or indirectly, solicit or facilitate any
other person to wager on the outcome or any other aspect of any Event or any other
tennis competition. For the avoidance of doubt, to solicit or facilitate to wager shall
include, but not be limited to: display of live tennis betting odds on a Covered Person
website; writing articles for a tennis betting publication or website; conducting personal
appearances for a tennis betting company; and appearing in commercials encouraging
others to bet on tennis [...] k. No Covered Person may be employed or otherwise
engaged by a company which accepts wagers on Events”.
The bodies in cricket do not go that far (Article 2 ICC Anti-Corruption Code):
“2.2 Betting. 2.2.1 Placing, accepting, laying or otherwise entering into any Bet with any
other party (whether individual, company or otherwise) in relation to the result, progress,
conduct or any other aspect of any International Match or ICC Event. 2.2.2 Soliciting,
inducing, enticing, instructing, persuading, encouraging, facilitating or authorising any
other party to enter into a Bet for the direct or indirect benefit of the Participant in relation
to the result, progress, conduct or any other aspect of any International Match or ICC
Event. 2.2.3 Ensuring the occurrence of a particular incident in an International Match or
ICC Event, which occurrence is to the Participant’s knowledge the subject of a Bet and
for which he/she expects to receive or has received any Reward”.
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In football, Article 12 Para. 1 UEFA DR states that:
“The integrity of matches and competitions is violated, for example, by anyone: ... b)
who participates directly or indirectly in betting or similar activities relating to competition
matches or who has a direct or indirect financial interest in such activities;”
It should be noted that this regulation apparently excludes the repression of
bets carried out on training matches, which FIFA does not provide for, stating:
"It is prohibited ... to take part, either directly or indirectly - or otherwise being associated
with - betting, gambling, lotteries and similar events or transactions connected with
football matches.” (Article 25 FCE).
FIBA prohibits:
“Betting or otherwise speculating either alone or through others” (Article 28 2010 FIBA
Internal Regulations, Book 1), and as for officials, it provides for “Entering into contracts
or other arrangements with organisations whose business is related to speculation on
the outcomes or otherwise of sporting events only to the extent that such activity is not in
breach of this Code of Ethics” (Article 30 letter j 2010 FIBA Internal Regulations,
Book 1).
This last provision could enable FIBA to exclude sponsoring contracts with
sporting bets operators or with some of them.
The MLB, in its “Rule 21, Misconduct”, letter d), prohibits only its players,
referees, club officials and employees from betting on Baseball matches:
“Any player, umpire, or club official or employee, who shall bet any sum whatsoever
upon any baseball game in connection with which the bettor has no duty to perform shall
be declared ineligible for one year. Any player, umpire, or club or league official or
employee, who shall bet any sum whatsoever upon any baseball game in connection
with which the bettor has a duty to perform shall be declared permanently ineligible”.
This does not rule out sanctions against persons who participated in gambling
and betting activities that are unrelated to baseball. Indeed, the "commissioners
regularly use a clause prohibiting acts contrary to the" best Interests of Baseball" to
control the personal behaviour of the players. For example, proceedings were initiated
against a player who admitted to having lost USD 300,000 by legally betting on sports
other than baseball. The Commissioner renounced to sanctioning him because "no
action was necessary to protect the integrity of the game”, but another player was
sanctioned in 1991 with 1 year "probation" for having illegally gambled USD100, 000 in
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poker.
The UCI has so far only prohibited those who are subject to its disciplinary
authority from any direct or indirect involvement the organisation of bets in cycling
competitions (Cycling Regulations, c. 1.2.030). It should be noted that if a race
organiser is involved, the sanctions may include excluding his competitions from the
cycling calendar for a year.
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M.E. FOOTE, p. 9.
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b. Recommendations
Based on the risks involved in activities related to sporting bets, one could
recommend that federations prohibit the following behaviours to persons subject to their
disciplinary jurisdiction (in addition to prohibitions related to the manipulation of
competitions):
§ Any form of betting on all competitions of the sport in question (obviously
including betting through a third party);
§ Possibly any form of betting on all sports competitions (same comment), if
necessary by limiting this prohibition to multi-sport events in which the person in
question participates;
§ Direct or indirect participation in all activities of a sporting bets operator;
§ Direct or indirect promotion of all forms of sporting bets;
§ All forms of participation (instigation, complicity, co-action) in the behaviours
mentioned above.
Some relationships with State operators or operators whose primary benefits to
the community, such as some lotteries, could be admitted.
Revealing Confidential Information
Many disciplinary regulations criminalise the act of disclosing confidential
information to a third party.
"Confidential information" can include those that is not known to the public,
which was acquired by the author due to his position in sport regardless of his level, and
which is supposed to remain confidential because of their nature. The information may
be related to the sport in which the author is engaged, but sometimes it could also be
related to other sports (e.g. athlete, member of an Olympic team, which receives
information through exchanges with other members of the same team, who play
another sport).
A detailed definition was proposed by ASOIF and was fully taken up in
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particular by the ICC in Appendix 1, Definitions and by the BWF :
“‛Inside Information’ means any information relating to any Competition or Event that a
Participant possesses by virtue of his position within the sport. Such information
includes, but is not limited to, factual information regarding the competitors, the
conditions, tactical considerations or any other aspect of the Competition or Event, but
does not include such information that is already published or a matter of public record,
readily acquired by an interested member of the public or disclosed according to the
rules and regulations governing the relevant Competition or Event”.
For example, the following information is considered confidential, provided that
it is not already public: information related to the illness of a handball player, which may
keep him from playing a match in the upcoming days, a basketball coach that decided
to spare his three top players from the next match, a private dispute between three key
players in a football team, the tactics decided by a hockey coach for a particular game,
a cyclist who decides to drop out during the next round, etc.
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Article 1.2.2 BWF Code of Conduct of Participants in relation to betting, wagering and irregular match
results.
310
Information that is already public, for example because it was disclosed to
journalists or posted on social networks by third parties, does not fall within the
definition above.
The regulation adopted by UEFA may lend itself to interpretations. Article 12
Para. 1, letter c UEFA DR in fact provides for sanctions against a person
“who uses or provides others with information which is not publicly available, which is
obtained through his position in football, and damages or could damage the integrity of a
match or competition”.
According to this definition, a distinction should be made between confidential
information in general, the disclosure of which would be authorised, from those that
“may damage the integrity of a match or competition,” the disclosure of which to third
parties would be punishable. This distinction may give rise to practical problems, unless
all information related to the abilities of players (physical and mental state, mood, etc.),
team tactics and all other elements that may affect the performance of a team, are
included in the scope of information that is sanctionable if revealed. Excluding
confidential information due to its nature that is unrelated to performance, such as the
romantic fallouts of the stadium manager, the vacation destination of the coach, etc.
The prohibition of disclosure and use of confidential information may be
stipulated in general, such as in Article 43 of FIBA Internal Regulations 2010, Book 1,
which provides that “The basketball parties shall not disclose information entrusted to
them in confidence”. In these cases, the simple act of disclosing information is
sanctionable, regardless of the motives of this disclosure.
As noted above, Article 12 Para. 1 letter c UEFA DR sanctions the act of
providing and using confidential information. The rule does not require the existence of
a particular motive for the disclosure, but it does limit the scope of information which
constitutes a sanction if disclosed.
In tennis, disclosure of information is only considered a disciplinary offence if it
aims at providing its author with an advantage:
‟h. No Covered Person shall, directly or indirectly, solicit or accept any money, benefit or
Consideration, for the provision of any Inside Information. i. No Covered Person shall,
directly or indirectly, offer or provide any money, benefit or Consideration to any other
Covered Person for the provision of any Inside Information. j. No Covered Person shall,
directly or indirectly, offer or provide any money, benefit or Consideration to any
Tournament Support Personnel in exchange for any information or benefit relating to a
tournament” (Article X letter D Ch. 1 of the Uniform Tennis Anti-Corruption Programme).
It should be noted that the provision is not restricted to the person who
discloses, but also to the recipient of the information, provided that he is also subject to
the jurisdiction of the federation.
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In many cases, disclosure is only punishable if its allows the beneficiary to use
the information for bets, or if there is an existing risk in such a use, and one who holds
key information and uses it for his own profit on bets is also punishable. This is
particularly the aim of the ASOIF model rules:
‟3.4 Inside Information. (a) Using Inside Information for Betting purposes or otherwise in
relation to Betting. (b) Disclosing Inside Information to any Person with or without Benefit
where the Participant might reasonably be expected to know that its disclosure in such
circumstances could be used in relation to Betting. (c) Inducing, instructing, facilitating or
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encouraging a Participant to commit a Violation set out in this Rule 3.4.”.
A question, which often arises before the disciplinary bodies concerning the
provisions that were recalled, is whether the author could have reasonably expected
that the information would be used for bets. The concerned person will probably try to
claim that the author did not imagine such a use and it will be up to the disciplinary body
to decide objectively whether the disclosed facts were likely to benefit the recipient in
bets and if, based on the relationship between the parties, the one who disclosed the
information was expecting such an abusive use of the information. A possible reward,
offered or promised to the author would obviously be an important clue of a possible
abuse of information (except in the case where the journalist offers money to an athlete
in order to have a scoop with the obtained information).
As for the recipient of information, the ICC specifically provided that it was not
its intention:
‟to prohibit any such disclosure made within a personal relationship (such as to a
member of a family) where it is reasonable for a Participant to expect that such
information can be disclosed in confidence and without being subsequently used for
Betting” (ICC commentary of Article 2.3.2 of the ICC Anti-Corruption Code).
The desire not to aim too high may be commendable, but a recent case in the
field of French handball showed that relatives and family members of players could
sometimes bet on contested matches played by the latter, obviously while have certain
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inside information concerning the team in question.
It is therefore questionable
whether such clarification is useful and would not be counter-productive. A general
clause, like the one mentioned above, might be sufficient.
Based on the above, it could be suggested that federations adopt rules
sanctioning the disclosure and use of confidential information (insider information
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abuse) which should be strictly prohibited.
These rules can reconsider the following elements:
§ Broad definition of confidential information (information that is unknown to the
public, acquired by the author due to his position in sports and which is not
destined to be published, given its nature);
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See also Article 2.3 ICC Anti-Corruption Code and Ch. 3.2.9 BWF.
See [http://www.liberation.fr/sports/2012/11/01/hand-des-paris-pour-niquer-le-systeme_857575].
In this regard, see in particular, L. REBEGGIANI, F. REBEGGIANI, “Which Factors Favor Betting Related
Cheating in Sports?”, in: M.R. HABERFELD, D. SHEEHAN (eds.), Match-Fixing in International Sports:
Existing Processes, Law Enforcement, and Prevention Strategies, Springer, 2013, p. 174.
359
360
312
§ Prohibition of disclosing information to third parties;
§ Prohibition of using the information, particularly in connection with bets;
§ Discretional clause allowing the disciplinary bodies to renounce prosecution and
punishment if it appears, according to the circumstances of the case, that
disclosure was not likely to involve any risk to the integrity of competitions.
7. The Use of Certain Tools of Communication for reprehensible purposes
With the development of the methods of communication, it has become easy to
contact anyone, anywhere, at any time and in a relatively discreet manner. These
contact facilities can be exploited by malicious persons, for example to obtain
confidential information from a player or coach some hours before a competition, or to
give a player instructions on how to proceed with manipulations during that same
match.
A recent case has revealed the importance of communication, including during
the last moments before the start of a match, for the establishment and implementation
of a conspiracy to manipulate the facts of the game. In short, the agent of several
Pakistani cricketers had approached an alleged corruptor - who was actually an
undercover journalist - to get these players to commit specific mistakes at
predetermined times in a match. Several communications between the agent and the
players were established, in particular text messages aimed at reminding the persons
involved of what was expected of them. During the game, the players actually
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committed the mistakes at the times agreed upon with the alleged corruptor.
The ICC has drawn the consequence by providing strict restrictions on the use
of methods of communication in the premises used by players and officials, on the team
benches or in the terraces used by players before, during and after the matches. It also
adopted the “ICC’s minimum standards for players’ and match officials’ areas at
international matches” that provide for example, that players are prohibited from using
mobile devices in these places and they cannot use a cell phone, which is at the
disposal of the team manager unless it is allowed by the latter for an ‟important
personal matter only” (Article 4.2.1). Organisers of international competitions must
ensure the absence of telephone landlines in the same areas as well as a strict access
control (Article 2.2 for example). It should be noted that communications are generally
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scrambled on the site of the French Open at Roland-Garros.
ICC rules do not provide for sanctions against Organisers - it is essentially
national federations that do so - but the Anti-Corruption and Security Unit (ACSU)
General Manager can ‟seek the implementation of any corrective measure” and he also
sends quarterly reports to the Executive of the ICC on identified incidents (Article 6.1).
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See the decisions in the cases of Salman Butt, Mohammad Amir and Mohammad Asif,
[http://www.telegraph.co.uk/sport/cricket/international/pakistan/8866718/Salman-Butt-Mohammad-AmirMohammad-Asif-and-Mazhar-Majeed-all-imprisoned-for-spot-fixing.html]; CAS 2011/A/2364 Salman Butt v.
International Cricket Council; ICC Independent Tribunal’s Decision, ICC v. Salman Butt, Mohammad Asif and
Mohammad Amir, Doha, January 2010; CAS 2011/A/2362, Mohammad Asif v. International Cricket Council.
362
See D. HILL, The Insider’s Guide to Match-Fixing in Football, Anne McDermid & Associates Ltd., 2013,
p. 276.
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A first offence - in particular carrying and/or using a communication device in
the secured areas - leads to a written warning, a fine of USD 2'500 is imposed for the
second offence and USD 5'000 for every other subsequent offence (Article 6.3.2). The
sanctions are imposed by the ACSU General Manager and they are final, without any
possibility of appeal (art 6.3.3).
These rules are a fairly typical example of repressive measures, which are,
however, aimed primarily at prevention (such as restrictions on access to the stadium,
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the training areas and residence of athletes).
8. Unexplained Wealth
In some cases, the suspicion of manipulation may result from changes in the
financial situation of a sports stakeholder. Moreover, offences are difficult to establish,
but a disciplinary body can sometimes obtain financial information about a person, at
least with the consent of the latter.
Based on these elements, the author of a recent report destined to the ICC
Executive Board suggested considering “unexplained wealth” as an offence. This allows
imposing disciplinary sanctions against persons who are suspected of manipulation
and/or other forms of corruption, without having to prove these acts of manipulation
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and/or corruption.
The ICC Executive Board has so far not responded to this proposal and even
expressed some scepticism. It believes that such regulation would be difficult to
implement, especially because persons may have different sources of income, have
properties in different countries, etc. (see the ICC’s Preliminary Response, cited in the
previous paragraph).
As it stands, we do not know of sporting regulations that allow sanctioning
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"unexplained wealth".
Theoretically, the idea seems interesting: if it can be
determined that an athlete (or official) has properties, the origin of which he cannot
explain, this would be a serious indication of corruption. However, in practice, this rule
seems very difficult to implement: without the consent of the person concerned, a sports
organisation cannot access the relevant information; even if the person provides
information, there is no guarantee that this information is complete (e.g. omitting an
undeclared bank account to the tax authorities) a person can have legal sources of
income, but which he cannot reveal to a sports organisation for reasons of
confidentiality concerning third parties; the full establishment of a financial situation
involves substantial resources, except in particularly simple cases; the investment may
seem disproportionate to the goal pursued. In addition to the practical drawbacks,
sports federations should consider whether it is really necessary to use such an
instrument, which could be perceived as a disproportionate intrusion into the private
sphere of athletes and officials.
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See D. HILL, op. cit. p. 276.
B. DE SPEVILLE Report, “A Review of the Anti-Corruption Arrangements of the ICC”, August
2011/January 2012, and DE SPELVILLE Report, “27 Recommendations and ICC’s Preliminary Response”,
from 10 January 2012; the documents are available on the ICC website, at [http://www.icccricket.com/about/47/anti-corruption/reports].
365
In fact, among the international federations, the ICC is the only one that refers to this concept.
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9. The Breach of the Obligation to Report Approaches
Several studied regulations include the obligation for persons subject to the
associative jurisdiction, to report - normally to their federation - approaches and
invitations they may have received in exchange for behaviours contrary to the rules on
corruption in a broad sense. Any approach should be reported immediately ("without
undue delay", "as soon as possible"). The fact that the approaching person is or is not
subject to the associative jurisdiction is irrelevant: the person approached is in any case
under the obligation to report it.
For example, Ch. 3.5 letter (c) of the ASOIF model rules provide that:
“Failing to disclose to the [International Federation] or other competent authority (without
undue delay) full details of any approaches or invitations received by the Participant to
engage in conduct or incidents that would amount to a Violation as set out in this Rule 3”
constitutes a disciplinary offence.
The rule, inspired by the ICC regulations (Ch. 2.4.2 ICC Anti-Corruption Code)
was included as is in the BWF regulations (Ch. 3.2.10).
In tennis, number 2a of Article X letter D of the Uniform Tennis Anti-Corruption
Programme provides as follows:
“i. In the event any Player is approached by any person who offers or provides any type
of money, benefit or Consideration to a Player to (i) influence the outcome or any other
aspect of any Event, or (ii) provide Inside Information, it shall be the Player's obligation to
report such incident to the Tennis Integrity Unit (TIU) as soon as possible”.
A similar rule applies to other persons – subject to the associative jurisdiction –
except players (Ch. 2b). Failure to report, in these circumstances, is a disciplinary
offence (Ch. 2c).
While this should go without saying, it may be helpful to clarify that when a
person reports the facts to the competent body, he remains bound by the obligation to
report any developments that may arise or are brought to his attention later. In this
sense, it is a continuing obligation. The rules applicable to tennis expressly mention the
following:
“A Player shall have a continuing obligation to report any new knowledge or suspicion
regarding any Corruption Offense, even if the Player's prior knowledge or suspicion has
already been reported” (Ch. 2a iv).
What is the threshold of suspicion level that triggers the obligation to report?
The question is tricky because, in practice, approaches are not always clear and direct
and the targeted person may not immediately understand that his interlocutor is trying
or will try to corrupt him. If, for example, a handball player said during a conversation in
the locker room, that those who fix matches make a lot of money, and a moment later
he said that he would like to buy a new car; this does not necessarily mean that he is
considering fraud. If a referee is contacted by a third party that presents himself as a fan
and wants to invite him to share a meal, it should not raise much suspicion initially.
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However, the concrete offer of an advantage in relation to a competition or
without any other reasonable cause should set off alarm bells. Therefore, not every
abstract suspicion entails an obligation to report, but this obligation should exist when
concrete elements cause the person in question to consider that a third party is
attempting to corrupt him. For practical reasons, we recommend adopting a fairly strict
definition, aimed at encouraging too reports rather than not having enough of them. In
sporting terms, one could say that it is appropriate to set the bar low. Thus, the
processing of reports can be adapted according to the particular circumstances of each
case.
According to most of the rules studied, failure to report when this was
mandatory under the circumstances is an offense in itself, which is quite logical. The
rules of tennis suggest otherwise, in the sense that he who violates the obligation to
report is legally liable for the offence committed by the person who approached him.
“Each Player shall be responsible for any Corruption Offense committed by any Covered
Person if such Player [...] had knowledge of a Corruption Offense and failed to report
such knowledge pursuant to the reporting obligations [...]. In such event, the AHO shall
have the right to impose sanctions on the Player to the same extent as if the Player had
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committed the Corruption Offense”.
This results in a liability for the acts of third parties, which leads one to wonder
whether or not it is justified.
Nevertheless, it is essential that the obligation to report the approaches be
imposed on persons involved in sport and that the violation of this obligation be
sanctioned with a certain severity. If these stakeholders immediately reported any
approach, the manipulation of competitions would have no future, attempts would be
nipped in the bud and investigations - criminal and, if required, disciplinary - against the
perpetrators would be greatly facilitated. Therefore, they should assume their
responsibilities by reporting the facts or expect serious consequences if they fail to
comply with their obligations in this regard. Moreover, experience shows that it is
generally difficult to prove that a competition was actually manipulated, but it is often
less difficult to prove that a person was approached: for example, phone records can
easily prove contact between an referee and a suspect, or even a person convicted of
manipulation, when all it takes is for the referee to say that he did not respond to the
proposals which would make it difficult to prove otherwise. Such was the situation in a
case involving a Ukrainian football referee in which suspicions of an actual manipulation
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existed, but evidence of these manipulations was not brought.
Finally, it might be helpful if the rules provided some clarification concerning the
recipient of the report, rather than just mentioning, for example, the “BWF competent
authority” or “UEFA”, because generally athletes are unfamiliar with the structure of
their federation and therefore they do not always know to whom they should speak. In
tennis, the rule states that reporting should be made to the “Tennis Integrity Unit” (TIU)
and, in the MLB, “Rule 2” provides that the player must inform "his Major League
President and the Commissioner" (letter a).
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367
Article X letter E Ch. 1 of the Uniform Tennis Anti-Corruption Programme.
See CAS award in the Oriekhov v. UEFA case, CAS 2010/A/2172.
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Regardless of the regulatory issues, it would be desirable that sport
stakeholders subject to the reporting obligation be informed by their federation, in
appropriate forms, about their obligations and how to fulfil them. A publication on a
visible part of their website could be a solution.
10. Violation of the obligation to denounce
In addition to the obligation to report approaches, many regulations provided
for the obligation to report, to the competent body, acts of manipulation of which a
sports stakeholder learned in a different manner.
For example, it may happen that an athlete overhears a conversation in the
locker room about a coach who is observing curious facts in a match or that a sports
official notices the unexplained sudden wealth of one of his colleagues.
For example, article 2.4.3 of the ICC Anti-Corruption Code, states that
‟failing to disclose to the ACSU (without undue delay) full details of any incident, fact, or
matter that comes to the attention of a Participant that may evidence an offence under
the Anti-Corruption Code by a third party, including (without limitation) approaches or
invitations that have been received by any other party to engage in conduct that would
amount to a breach of the Anti-Corruption Code” is an offence.
Similarly, in FIFA, “persons bound by this Code shall immediately report any
potential breach of this Code to the secretariat of the investigatory chamber of the
Ethics Committee” (Article 18 Ch. 1 FCE).
The same observations made in the previous chapter also apply to this
situation, concerning the limit between abstract suspicions, which do not entail
obligation to report at the risk of incurring sanctions, and concrete suspicions that do
entail such obligation. For example, if an athlete sees other team members acting
suspiciously in the locker rooms, he/she should not necessarily conclude that these
team members are preparing a sports fraud: the reasons for such behaviour can indeed
be various (discussions concerning a delicate marital status, a dispute within the team
on the current wage negotiations, discrete non-sporting activities, etc.). Similarly, one
can hardly imagine that a basketball player has a duty to report a teammate who was
not fully focused during a game: the teammate in question may very well be struggling
to concentrate for reasons unrelated to the game.
Reflection therefore has its limitations and it is not possible to define a clear
regulatory framework that would allow each athlete and official to know exactly at what
point the obligation to report applies to him in a specific case. This depends on the
circumstances of the case, and like the duty to report approaches, the establishment of
a broad regulatory framework may be suggested here, allowing to understand the
situations in which a duty to report in any case be justified and then leaving the
disciplinary bodies, if necessary, to act according to the elements of each particular
case.
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11. The Violation of the Obligation to Cooperate in Investigations
As British authors say:
“An investigation into alleged wrongdoings is greatly aided by a provision in the
governing body’s rules compelling other clubs and individuals subject to those rules to
assist it with such investigations. However, such a provision may be unpopular with
those subject to it, particularly if it is perceived that it might be used so as to compel a
club or individual not the subject of disciplinary action to provide incriminating information
which may then result in charges being brought against them. If a governing body does
choose to include such a provision in its rules, it will need to spell out the obligation
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clearly and what the consequences of non-compliance are”.
The obligation to cooperate is justified by the particular nature of the facts in
question and the importance, for sports federations, of being able to prosecute and
sanction the authors:
“it is of the nature of this type of misconduct that it is carried out under cover and in
secret, thereby creating significant challenges for the ICC in the enforcement of rules of
conduct. As a consequence, the ICC needs to be empowered to [...] require Participants
to cooperate fully with all investigations and requests for information” (Article 1.1.4 ICC
Anti-Corruption Code).
The authors mentioned above rightly note the practical utility of the obligation
imposed on sport stakeholders to actively cooperate in investigations. In fact, these
stakeholders often hold valuable information. For example, an athlete is in the sole
possession of his bank records, phone bills detailing his communications and his
electronic correspondence, while a club necessarily has information on contracts with
its employees and their lifestyle. Without an obligation to cooperate imposed on them by
the associative rules, disciplinary organs cannot obtain elements that might be essential
for investigations.
Obviously and as the authors also note, persons subject to the obligation to
cooperate are not necessarily enthusiastic about revealing confidential information that
concerns them, because this information may lead the disciplinary bodies to
conclusions that could be disadvantageous for them (e.g. evidence of numerous
telephone calls with a person suspected of manipulation) or because they would feed
proceedings already brought against them.
Unlike criminal proceedings, disciplinary proceedings do not recognise the
person’s right to remain silent and to refuse to provide information that may incriminate
him (right to not incriminate oneself). As a result, the disciplinary rules may include an
obligation to cooperate imposed on persons subject to the associative jurisdiction and
even establish the refusal to cooperate as well as insufficient collaboration, as a
disciplinary offence.
Most of the studied regulations actually provide for this type of obligation (a).
However, these provisions call for a few observations (b).
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318
a. Examples of Regulations
While some regulations settle for a general clause stating for example that sport
stakeholders must "fully cooperate with UEFA at any time in its fight against such
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behaviour”, or establish
“failing to cooperate with any reasonable investigation carried-out by the BWF, Including
failure to provide any information and / or requested documentation”,
offence, others have chosen to adopt more specific provisions.
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as a disciplinary
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More precise provisions generally provide the following:
a) The obligation to cooperate applies to investigations in connection with
manipulation and bets;
b) It is part of a “reasonable investigation” (knowing, in each case, what is
reasonable, results from an examination of the circumstances of the case:
if it is undoubtedly reasonable to require from someone who claims that a
contract exists to produce it, or from someone against whom serious
accusations are brought, to explain and provide evidence concerning his
place of residence at a given time, an athlete who placed bets on another
team’s match is not necessarily required to provide his bank and telephone
records for a long period of time);
c) It arises when the competent body makes a request to that effect to the
person concerned (no obligation to cooperate spontaneously, subject to
cases of obligation to report and denounce;
d) It concerns the communication of information and documents held by the
concerned person (e.g. written statements concerning the facts of the case,
itemised telephone billing statements, text of SMS messages, banking
statements, internet service records, computers, hard drives, other
electronic information storage devices and data reading (text, image,
sound, etc.), other electronic storage media, documents related to the
sources of income);
e) This information and documents must be relevant to the investigation;
f)
The person may also be called to a hearing at which he is expected to
introduce himself and answer questions;
g) Sometimes it is recognised that a "compelling justification" could allow the
person to refuse to comply with a request for information (Section 2.4.4 ICC
Anti-Corruption Code.); by failing to cooperate, the disciplinary body rules
on the basis of the case file.
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370
371
Article 12 Para. 1 UEFA DR; see also Article 41 Ch. 2 FCE and Article 110 Ch. 1 FDC.
Ch. 3.2.11 BWF.
Examples: Ch. 3.5 ASOIF, Article 2.4.4 ICC Anti-Corruption Code.
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h) The file in possession (example: if the parties do not cooperate, the
adjudicatory chamber of the FIFA Ethics committee “may reach a decision
on the case using the file in its possession, taking into account the conduct
of the parties to the proceedings.” Article 41 Ch. 5 FCE, similarly Article 110
Ch. 4 FDC);
i)
In its assessment of the evidence, the disciplinary body can take into
account the refusal to cooperate and draw adverse inferences concerning
this person, Article 3.2.2 ICC Anti-Corruption Code provides that “the
disciplinary bodies may take due account of any unjustified refusal to
appear at a hearing and/or provide evidence on the part of a party, a party’s
representative or a witness”, Article 39 Para. 1 in fine UEFA DR);
j)
Failure to cooperate constitutes a disciplinary offence
The most detailed regulation is that adopted in tennis. It is worth reproducing in
full here (Article X letter F Ch. 2 of the Uniform Tennis Anti-Corruption Programme):
“b. All Covered Persons must cooperate fully with investigations conducted by the TIU
including giving evidence at hearings, if requested. No Covered Person shall tamper with
or destroy any evidence or other information related to any Corruption Offense.
c. If the TIU believes that a Covered Person may have committed a Corruption Offense,
the TIU may make a Demand to any Covered Person to furnish to the TIU any
information regarding the alleged Corruption Offense, including, without limitation, (i)
records relating to the alleged Corruption Offense (including, without limitation, itemized
telephone billing statements, text of SMS messages received and sent, banking
statements, Internet service records, computers, hard drives and other electronic
information storage devices), and (ii) a written statement setting forth the facts and
circumstances with respect to the alleged Corruption Offense. The Covered Person shall
furnish such information within seven business days of the making of such Demand, or
within such other time as may be set by the TIU. Any information furnished to the TIU
shall be (i) kept confidential except when it becomes necessary to disclose such
information in furtherance of the prosecution of a Corruption Offense, or when such
information is reported to administrative, professional, or judicial authorities pursuant to
an investigation or prosecution of non-sporting laws or regulations and (ii) used solely for
the purposes of the investigation and prosecution of a Corruption Offense.
d. By participating in any Event, or accepting accreditation at any Event, a Covered
Person contractually agrees to waive and forfeit any rights, defences, and privileges
provided by any law in any jurisdiction to withhold information requested by the TIU or
the AHO. If a Covered Person fails to produce such information, the AHO may rule a
Player ineligible to compete, and deny a Covered Person credentials and access to
Events, pending compliance with the Demand”.
It should be noted that, compared to other regulations, the rules applying to
tennis contain many examples of confidential information, which seems to be required
only from the persons who are under investigation (itemised telephone billing
statements, text of SMS messages, banking statements, internet service records,
computers, hard drives, other electronic information storage devices).
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Moreover, the rules require that the persons concerned waive their rights to
withhold information that may result from legal provisions. This renunciation is also
required, in slightly different terms, in Ch. 5.4 of the ASOIF model rules:
‟By participation in a competition, each participant shall be deemed to have agreed for
the purposes of applicable data protection laws and other laws, and for all other
purposes, to have consented to the collection, processing, disclosure or any other use of
information relating to his activities (including without limitation personal information) to
the extent permitted under these Rules and shall confirm such agreement in writing upon
demand”.
One might wonder if such a clause – that reveals a clear Common Law
background – would withstand judicial scrutiny in other legal systems.
b. Comments
The obligation to cooperate is necessary for effectively combating sports fraud.
However, it cannot serve as a pretext for associative bodies to require from the persons
concerned to provide information that is unrelated to the case or to the facts to be
proven or completely disproportionate compared to the purpose and importance of the
case.
Regulatory provisions restricting the obligation to what is necessary and
reasonable - see the previous paragraphs - retain their justification, even if, in practice,
their implementation would lead to disputes, which would constitute obstacles to
conducting a swift procedure (for example, a defendant who refuses to provide certain
documents on the grounds that they are not necessary for the assessment of the facts
alleged against him).
Therefore, sports federations must show a certain restraint concerning the
confidential information that their rules enable them to require from persons concerned
through disciplinary proceedings. Their regulations must reflect the care not to impinge
on their members’ privacy, but with enough flexibility to allow an efficient prosecution.
§ 2. The Sanction for Violating the Behavioural Rules
In principle, sports organisations are free to define, in their statutes and
regulations, the types of sanctions they want to be able to impose on persons subject to
their jurisdiction and, if necessary, to set maximum and/or minimum sanctions
applicable to certain types of offences. The disciplinary bodies can as a result freely
decide on the most appropriate sanction in each case subject to their assessment,
provided that they comply with the framework defined in the statutes and regulations.
However, these principles are subject to some exceptions
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National legislations can establish a framework for disciplinary sanctions, which
the licensed sports federations are bound to respect. This is particularly the case in
France, where the legislator enacted "disciplinary regulations for licensed sports
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federations", which are imposed to these federations. However, these regulations are
not very restrictive concerning sanctions: in Article 18, it entrusts federations with
choosing what it calls "sporting penalties", such as "relegation", "disqualification" or
"field suspension", and it sets no time limitation for "suspension from competition or
performance of functions" and provides a list of disciplinary sanctions that corresponds
roughly to what is customary in the world of sport (warning, reprimand, suspension,
pecuniary penalties, temporary withdrawal of license, radiation, ineligibility for a fixed
term to the governing bodies). However, a limit is set for pecuniary penalties, the
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amount of which cannot surpass “the amount of fines provided for police fines”.
Article 18 Para. 3 imposes granting the possibility of replacing a penalty of suspension,
with the consent of the person in question or his legal representative, by community
service for a first offence, but without forcing the federation to apply this measure in
concrete cases. As for Article 20, it requires federations to provide for the possibility of a
total or partial reprieve in certain types of offences, also without forcing the
implementation of this measure in particular cases.
In countries that do not recognise this type of legislation, limits to the freedom of
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sports organisations can result from general principles of law or conventional rules.
Here are some examples of prohibitions related to the different types of
sanctions:
§ Article 3 of the ECHR prohibits torture and “inhuman or degrading treatment”.
Therefore, sports organisations cannot provide for sanctions that would violate
these rules, such as, for example shaving heads, the obligation to walk in a
stadium with a humiliating sign around the neck, exposing the sanctioned
person in a sports arena, or corporal punishment;
§ Article 4 of the ECHR prohibits forced labour and a sports federation therefore
cannot, without the consent of the person concerned, impose performing an
activity for the public interest or for the interest of the federation;
§ Criminal law norms may limit the sanctioning power of federations: the sports
organisation that deprives a player or an official of his freedom of movement, in
one way or another, will be subject to criminal prosecution based on the norms
repressing sequestration and similar acts.
Sports associations must also comply with the general principles of law when
determining the amount of sanctions. In particular, sanctions should not be contrary to
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public order.
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Annex I-6 of the Sport Code.
Currently EUR 1,500, but a maximum of EUR 3,000 for repeated offencens; Article 131-13 of the French
Penal Code.
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On the issue of proportionality of sanctions examined on the basis of the respect of the fundamental rights
of a person, see below Part 3, Tile 3, Chapter 3, Section 2 “Common Principles applicable to All
Stakeholders”.
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See in particular on the subject of the decision rendered by the Federal Supreme Court of Switzerland on
March 27, 2012 ATF 4A_558/2011, Francelino Da Silva Matuzalem).
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322
They should particularly consider the individual liberties of the persons in
question, such as for example the economic liberty when the sanction consists in the
suspension of athletes whose sport practice is their career (suspension that is
equivalent to a professional ban), or competition law. Sanctions rendered in a particular
case may be considered as contrary to public order, because they are contrary to
economic liberty and the right to competition:
‟There is no reason why the restraint of trade doctrine should not be applied to
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(disciplinary) rules”.
‟We recognise that in certain circumstances application of the penal provisions of a
sporting body’s regulations, and even the regulations themselves, could be held as
contrary to the public policy of the common law stigmatising unreasonable restraint of
trade, to EU competition law, or even visited with a declaration of incompatibility under
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the Human Rights Act 1998”.
However, a restriction of economic liberty or competition is admissible if its
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purpose is legitimate or worthy of protection, and if it is reasonable and proportionate.
Regulators and disciplinary bodies must, like all other public and private legal
stakeholders, respect the principle of proportionality, or the
‟principle that a domestic tribunal (= a disciplinary tribunal) may not impose a penalty so
radically out of proportion to the offense charged as to be irrational, or so manifestly
excessive that it is outside the permitted range of discretionary responses to the offence.
It follows from that principle that a disciplinary rule providing for a manifestly perverse
penalty necessarily out of all proportion to the seriousness of the offence to which it
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applied, would itself be void on public policy grounds”.
The same applies to sanctions imposed in concrete cases that would be
considered disproportionate to the purpose, to the circumstances of the case and to the
personal circumstances of the person concerned.
The aforementioned principles do not prevent imposing severe sanctions in
cases of serious disciplinary offences. The CAS, which must also apply these principles
and whose decisions can be appealed before the Federal Supreme Court of
Switzerland, which then reviews the compliance of the award with the public order, has
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validated lifelong bans in cases of manipulation of sports competitions. This position
was approved by the doctrine, for example by Roy Levy:
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M. BELOFF et al., op. cit., p. 200.
ICC Independent Tribunal’s Determination, ICC v. Salman Butt, Mohammad Asif and Mohammad Amir,
Doha, January 2010, Para. 207.
378
For more details, see in particular A. LEWIS, J. TAYLOR, A4.107, p. 240.
379
M. BELOFF et al., op cit., p. 200.
380
David Savic v. PITOs, CAS 2011/A/2621; Daniel Köllerer v ATF, CAS 2011/A/2490; FK Pobeda,
Aleksandar Zabrcanec, Nikolce Zdraveski v. UEFA, CAS 2009/A/1920; Oleg Oriekhov v. UEFA, CAS
2010/A/2172.
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‟While doping abuses the principle of ‘May the best man win!’, match fixing attacks the
impartiality of a referee or the attitude which any sportsperson should have: the ambition
to win and thus, the unpredictability of the outcome of a sporting event. If these
fundamental sporting principles are in danger, lifelong bans should – in severe cases –
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be possible sanctions to protect the integrity of the sport”.
The Federal Supreme Court of Switzerland showed a great deal of restraint
while examining CAS awards on the basis of public order. In the Francelino Da Silva
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Matuzalem decision, it nevertheless considered - for the first time - that a CAS award
was contrary to public order on account of the imposed sanction. In short, the court
decided it was contrary to public order to suspend a player for an undetermined period
(professional ban) because of a debt to a club, and in this case, the player's interest
exceeded the FIFA’s to assist the club in the recovery of a financial claim against the
player, in part because the claim could in any case be collected according to the
procedures established by the New York Convention on the Recognition and
Enforcement of Foreign Arbitral awards on 10 June 1958. For Levy, the situation was
very different from a case of manipulation of a competition, because the sanction
imposed by FIFA and upheld by the CAS served only to ‟enforce damages awarded as
compensation” which is why it was considered as contrary to public order due to its
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magnitude.
It is clear from the above, that sports organisations, despite their generally
recognised autonomy, are not allowed free reign, on the one hand, concerning the
sanctions they provide for in their statutes and regulations (which should not be contrary
to the principles recalled above) and, on the other hand, concerning the actual
implementation of these sanctions (that should not be disproportionate as to violate
public order).
However, it can be concluded that sports
their constitutions and rules, for types of sanctions
the recognised legal principles and some of them
disciplinary measures and sanctions should
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proportionality.
organisations have not provided in
which, in themselves, would violate
having also explicitly provided that
comply with the principle of
The sanction for violating the behavioural rules is subject to statutes of limitation
(A) and different categories of coercive provisions (B).
A. Statutes of Limitation for Disciplinary Actions
In criminal law, limitation periods (“statute of limitations”) limit the period during
which a person can be prosecuted and convicted, except in rare cases (mostly crimes
against humanity). The issue relating to limitation periods also arises in the disciplinary
framework.
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R. LEVY, “Swiss Federal Tribunal overrules CAS award in a landmark decision: FIFA v. Matuzalem”,
The International Sports Law Journal, 2012/1-2, p. 38.
ATF 4A_558/2011.
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R. LEVY, op. cit.,p. 38.
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Example: IOC ‟Guidelines for Sanctioning the Members of an Athlete’s Entourage”, Ch. 4.1.
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324
Naturally, cases of corruption, broadly defined, are rarely brought to the
attention of disciplinary bodies, particularly when they are discovered during the course
of police and judicial investigations (e.g. judicial proceedings conducted in Bochum,
Germany, which reopened cases from several years back). Therefore, disciplinary
action should not in any case become time-barred too quickly in this area.
State law does not require sports organisations to provide for limitation periods
and these organisations can freely choose their solution from the following options:
§ Absence of statutory and regulatory provisions, which leads to the absence of
statutes of limitations for disciplinary offences;
§ Provisions that set limitation periods (and defining, when necessary the
methods such as the possible suspension and interruption of the limitation
periods);
§ Provisions identifying acts that are not subject to a limitation period (necessary
if these limitation periods are provided in general in disciplinary matters and if
the organisation concerned wants to make an exception for acts of corruption).
The solutions adopted in the practice vary.
Certain regulations do not provide for a limitation period in disciplinary matters
(example: “Rule 21” MLB)
In football, FIFA and UEFA both provide that acts of corruption are not subject
to a limitation period, and UEFA specifies that this absence of limitation also applies to
“match-fixing” (Article 10 Para. 2 UEFA DR; Article 12 Ch. 2 FCE; Article 42 Ch. 3
FDC).
ASOIF suggests providing that no disciplinary action may be commenced more
than 8 years after the relevant facts had taken place (Ch 11.1 ASOIF Model Rules). The
same time limit was used in cricket (Article 10.1 ICC Anti-Corruption Code), the same
applies in tennis, but with the precision that the action can also be commenced within
two years after the discovery of the facts - undoubtedly by the disciplinary bodies - at
the moment of initiation of the proceedings (Article X letter K Ch. 1 of the Uniform
Tennis Anti-Corruption Programme).
Shorter time limits are sometimes provided for, for example by FIBA, which
states that referrals of cases to the Ethics Committee must relate to alleged breaches of
the Code of Ethics within the previous five years (Article 48 2010 FIBA Internal
Regulations , Book 1) and AIBA applies the general time limit of three years, whereas
the limitation period for cases of doping is eight years (Article 11.1-11.3 AIBA DR).
In order to effectively fight against sports fraud and because of the time that
often elapses between the facts and their discovery in this area, sports organisations
should make sure not to provide for statutes of limitations that are too short. For
example, a limitation period of three years would have impeded much of the
proceedings initiated by UEFA and many of its national associations following the
discoveries made by the authorities in Bochum. In theory, the most obvious solution is
the non-applicability of limitation periods, which also has the advantage of simplicity.
325
To our knowledge, the Federal Supreme Court of Switzerland has not yet been
able to decide, in the context of appeals against CAS awards, on the compliance of a
sanction with public order, when this sanction was imposed after a significant time had
elapsed since the commission of the offence; in fact, a reprimand cannot be excluded in
this regard, in a case where a heavy sanction is imposed many years after the facts and
where a life ban would have been disproportionate if the case had been resolved shortly
after the facts. One can also imagine that the CAS would not approve sanctions under
the same conditions. Nevertheless, one has to wonder if it would still make sense to
sanction a player who bet on a match fifteen years ago, or even if at the same time he
had committed more serious offences (except for those that would justify a "life ban").
However, this kind of problem can be resolved in another way: since disciplinary
proceedings are subject to the rule of expediency, nothing prevents the disciplinary
body, if necessary, from renouncing to prosecute facts that took place too long ago and
that present no current interest, or imposing sanctions by taking into account the
passage of time.
B. Types of Disciplinary Sanctions
In most sports federations, the applicable rules define certain types of sanctions
that could be imposed by the disciplinary bodies.
In general, these rules establish an exhaustive list, in a sense that the
disciplinary bodies can only impose sanctions provided for in the statutes and
regulations. However, it seems that some regulations tend to give the disciplinary
bodies more freedom, such as for example Article 6.11 AIBA DC, which states that ‟The
type of sanction which may be imposed shall be determined by the Disciplinary
Commission in its absolute discretion”, in the event that the rules do not expressly
provide for particular sanctions (Article 9.15 AIBA RD: ‟Where an offence carries a
specified sanction the Judicial Body shall impose such sanction”). Apparently, the
Disciplinary Committee of AIBA interprets these provisions as allowing flexibility in
imposing types of sanctions other than those expressly provided for by the disciplinary
385
regulations, when these do not provide anything specific.
This does not seem
contrary to the legal order, insofar as the rules of procedure may provide the authority
with ‟ostensibly unfettered discretion”, but ‟clearly a sporting body cannot impose a
prison sentence on a sprinter for leaving the blocks early. Nor could it order an
individual found guilty of receiving illegal payments to leave her husband or to have his
386
head shaved”.
If the applicable statutes and regulations so provide, the disciplinary
body may have considerable leeway, provided that it remains within the limits of what is
acceptable under the rule of law.
The types of sanctions that are relevant to cases of manipulation of
competitions and prohibited bets will be examined, noting that in most cases, the
sanctions can be combined, which means that the disciplinary body can impose
387
different types of sanctions cumulatively against the same person.
385
386
387
See for example, the AIBA v. ABAE decision dated 4 September 2013.
nd
M. BELOFF et al., Sports Law, 2 edition, op. cit., p. 191.
Examples: Article 32 FDC; Article 129 Internal Regulations 2010 FIBA, Book 1.
326
Disciplinary sanctions include those common to natural and legal persons (1)
those applicable only to natural persons (2) and those applicable only to legal persons
(3). More specifically, the disciplinary law may provide for the confiscation of assets that
have contributed to the offence (4). Finally, sports associations can add a reprieve to
the sanctions (5).
1. Sanctions Common to Natural and Legal Persons
Some sanctions are imposed against natural persons as well as legal persons.
This is also the case with warning and reprimand, which should only play a
minor role in this field.
Fines (pecuniary penalties) can also be envisaged. Like other sanctions, they
should clearly be proportionate to the degree of gravity of the offence. Also, they should
be proportionate to the financial capabilities of the sanctioned person, whether natural
or legal. Some regulations set lower and/or upper limits (examples: EUR 100 to EUR
1'000'000 for legal persons and EUR 100 to 100'000 for natural persons, Article 6.1 and
6.2 UEFA DR; CHF 300 to CHF 1'000'000, Article 15 Ch. 2 FDC), Others do not provide
for such limits (examples: Ch. 3.4 BWF; NFL Rule 17, Section 2, Article 3).
In cases of sports fraud, fines are generally imposed along with other sanctions,
particularly with suspensions. The more significant the other sanctions, the lower the
388
fines will be.
Some regulations provide that the club of the person involved, or the national
federation of the person or club involved, are jointly liable for fines imposed on the
wrongdoers (example: Article15 Ch. 4 FDC, which specifies that “the fact that a natural
person has left a club or association does not cancel out joint liability”). This joint liability
even extends to the new club after a player has been transferred, as recalled by a
decision rendered in October 2013 by the FIFA Dispute Resolution Chamber in a case
involving the player Adrian Mutu and Italian clubs Juventus and Livourne (John Shea,
Initial considerations from the latest Adrian Mutu compensation ruling, LawInSport, 5
November 2013). The purpose of this joint liability is to establish a mechanism to
facilitate the recovery of debts. For example, in many organisations, clubs receive
contributions from their national association or from the league to which they belong
(shares in TV rights, contributions to training, etc.). To collect the fines imposed on the
members, all it takes is offsetting these fines with part of the contributions.
The disciplinary regulations may also provide that the payment of the fine - and
potential costs of proceedings - is a condition for the resumption of activity after a period
of suspension (Article X letter J of the Uniform Tennis Anti-Corruption Programme).
However, it should be ensured that such a measure does not, in fact, prevent the
person sanctioned from resuming the activity within a reasonable time, by failing to do
so, the sanction could be considered disproportionate.
388
In the cases of David Savic, CAS 2011/A/2621, and Daniel, Köllerer, CAS 2011/A/2490, the CAS
confirmed life bans, but annulled the fines of de USD 100'000 that were imposed by the competent bodies in
tennis; it considered that the purpose of prevention was achieved by the life ban and that it would be
inappropriate to sanction the parties in question by fines as well.
327
2. Sanctions against Natural Persons
The sanctions that are most commonly imposed against natural persons are
suspension, for a certain number of matches or competitions or for a determined or
undetermined period of time, and the prohibition from performing any activity related to
the sport in question, also for determined or undetermined periods. These sanctions
allow prohibiting the person at fault from practicing sports, in one way or another or in
general. They mark the will of the federation to eliminate the troublemakers from its
ranks, temporarily or definitively.
What distinguishes these two types of sanctions is the fact that the person
subject to suspension is only banned from one particular activity and not all activities
within the same sport. For example, a football player is banned from participating in
matches as a player, but can officiate as a referee or participate in the life of a club as
an official. A suspended coach can usually manage the training sessions, but he cannot
be present on the substitutes’ benches during a match
However, the person subject to the prohibition of performing any activity related
to the sport in question cannot take part in any competition or other activity in the
organised sport during the period in question. This is equivalent to a ban from the
association. For example, a banned football official cannot participate as a player in any
championship, nor officiate as a referee, nor represent his club in a regional assembly,
nor sign correspondence, not even participate in the club committee meetings. Some
regulations do not clarify the concept, obviously because the organisations in question
assume that it is clear (example: Article 6 Para. 2 RD UEFA; Rule 21 MLB). Others
provide some clarifications, like for example, the tennis regulation which expressly
states that:
“No Player who has been declared ineligible may, during the period of ineligibility,
participate in any capacity in any Event (other than authorized anti-gambling or anticorruption education or rehabilitation programmes) organized or sanctioned by any
Governing Body. Without limiting the generality of the foregoing, such Player shall not be
given accreditation for, or otherwise granted access to, any competition or event to
which access is controlled by any Governing Body, nor shall the Player be credited with
any points for any competition played during the period of ineligibility” (Article X letter H
Ch. 1 letter c of the Uniform Tennis Anti-Corruption Programme).
Under the influence of the World Anti-Doping Code, the suspensions imposed
against an athlete, related to practicing a sport, also apply to all other sports. Number
10.10.1 of the code provides that:
“No Athlete or other Person who has been declared Ineligible may, during the period of
Ineligibility, participate in any capacity in a Competition or activity (other than authorized
anti-doping education or rehabilitation programmes) authorized or organized by any
Signatory, Signatory's member organisation, or a club or other member organisation of a
Signatory’s member organisation, or in Competitions authorized or organized by any
professional league or any international- or national-level Event organisation. An Athlete
or other Person subject to a period of Ineligibility longer than four (4) years may, after
completing four (4) years of the period of Ineligibility, participate in local sport events in a
sport other than the sport in which the Athlete or other Person committed the anti-doping
rule violation, but only so long as the local sport event is not at a level that could
otherwise qualify such Athlete or other Person directly or indirectly to compete in (or
accumulate points toward) a national championship or International Event.”
328
In matters of manipulation of competitions, there is no corresponding regulation.
Therefore, this implies, for example, that a cyclist suspended for having fixed races, can
immediately start a career in another sport, such as triathlon. This type of situation
would be difficult to accept
In order to avoid this, the following should be done:
§ Each sports federation should have rules that allow it to deny access to persons
sanctioned by another federation for acts of fraud, for the same period of
suspension imposed by the other federation; or
§ Establish an agreement between sports federations for the mutual recognition
of sanctions imposed in this area; or
§ A “World Anti-Manipulation of Competitions Code”, following the model of the
World Anti-Doping Code (a solution that seems more adequate, insofar as it
would be the only one allowing avoiding disparities in the practices of
federations).
Concerning officials, the rules may provide for revocation or removal from office
(example: Ch. 54 FIBA Book).
Community service is sometimes provided for as a sanction (e.g. Article 6 Para.
2 UEFA DR; France: Model Disciplinary Regulations for licensed sports federations).
However, it should be noted that such sanctions should not be imposed without the
consent of the person concerned. When it is possible, such a sanction requires from the
competent disciplinary body to provide a clear framework (place, date or choice of
dates, required activity, consequences of inadequate performance, etc.), it also requires
the executive body to make efforts to implement and monitor these sanctions. For,
example, the UEFA Appeals Body sanctioned football player Wayne Rooney, after an
expulsion for assaulting an opponent, to community service that consisted in going to
Switzerland to participate in training young players, which the player fulfilled
intermittently.
Among the other sanctions provided for against natural persons, the following
can be mentioned:
§ The withdrawal of a title or award (example: Article 6 Para. 2 UEFA DR);
§ The withdrawal of a right (Article129 2010 FIBA Internal Regulations, Book 1);
§ Ban from stadiums, dressing rooms or the team benches (Article 11 letters d
and e CDF, Article 3.4 BWF Code of Conduct of Participants in relation to
betting, wagering and irregular match results).
In general, against a natural person, the choice of suspension of a more or less
long period, even for life, is imposed for offences in cases of sporting fraud. It can be
accompanied by accessory measures.
329
3. Sanctions against Legal Persons
A club or a federation, respectively, is responsible for the behaviour of its
members. Some regulations provide for an objective responsibility even in the absence
of any fault, and even for the acts of third parties (Article 8 UEFA DR). This principle
allows sanctioning clubs for the behaviour of their supporters. In the field of sporting
fraud, it authorises the imposition of sanctions against clubs and associations when
their members have committed disciplinary offences, and who will obviously be
individually subject to sanctions.
The heaviest sanction that could be imposed would be a ban of the club or
federation, which would result in the loss of their membership status. While some
statutes of international and national federations do provide for the ability to ban a
national federation or a club, respectively, the application of these rules is exceptional.
This comes from the fact that an international federation has an interest in being
represented in as many countries as possible, and thus, banning a national federation
cannot be easily considered. As for clubs, it may seem disproportionate to ban all its
components, including the teams that are not involved. Nonetheless, a possible
sanction in the field of sporting fraud would the suspension of a national federation or
club for a period of time or until certain conditions are met, for example concerning the
389
governance of the associations concerned.
Another possible sanction for cases of sporting fraud is the cancellation of the
results achieved in a game, whether imposed as a reversal of a game’s result, or a
decision to reschedule a game.
Some sports organisations consider this sanction in general terms (examples:
“A Disciplinary Committee may also cancel a match result (take the result off the world
ranking list for that event, (please refer BWF Appendix 6 (World Ranking System),
Article 4.3) where the disciplinary Committee establish/identify a risk of fraud”, Art 3.4
BWF; “if appropriate, the reversal of a game’s result or the rescheduling of a game”,
NFL Rule 17, Section 2, Article 3).
Other federations expressly exclude this solution (example: The ICC tribunal
does not have jurisdiction "to adjust, reverse or amend the results of any International
Match or ICC Event”, Article 6.3.1 ICC Anti-Corruption Code), particularly because it
becomes impossible at a certain stage during the course of a competition (example: “If
filed after the relevant competition stage has finished, complaints regarding match-fixing
can have no impact on the sporting result of the competition or match in question and,
therefore, the match cannot be replayed, unless the competent disciplinary body
decides otherwise.” Article 12 Para. 3 UEFA DR). The clear purpose of this kind of
provision is to avoid complications in the scheduling of matches and in the identification
of the teams qualified, for example, in alternating group stages and knockout rounds,
such as the UEFA Champions League.
389
Example: Article 54 2010 FIBA Internal Regulations, Book 1, which provides for “suspension of
membership or status as a basketball party”; in an extreme case, four Nigerian clubs were suspended for ten
years in July 2013, following scandalous matches, where two teams whose promotion depended on score
difference won 79-0 and 67-0, against opponents who had qualified for the same promotion to a professional
league; see in particular [http://espnfc.com/news/story/_/id/1504982?cc=5739].
330
Sports organisations also provide for the ban from current and future
competitions (e.g. Article 6 Para. 1 UEFA DR). It is rare, for acts of sporting fraud, for
clubs to be banned from all competitions at all levels, because federations are reluctant
to simply ban a club altogether (see above). In cases of team competitions organised in
a championship, where each team plays the other teams on one or more occasion, the
ban of a team creates problems for all the others, in the form of “gaps” in their game
schedule and leads to a loss of revenue related to matches. A ban from an ongoing
competition does not lead to the same problems if the competition is played on the
390
knock-out basis, where the banned team can be replaced immediately.
The same
applies to bans from future competitions, replacing the sanctioned team is usually
391
possible without any particular problem, except in a closed league system, where the
392
ban of a club is difficult to consider, particularly due to contractual requirements.
A
ban from current and future competitions is a particularly serious sanction for the clubs
concerned when these competitions allow qualifying for major events (Olympic Games,
FIFA World Cup, etc.) and/or when the participation provides significant revenues in the
form of participation bonuses, shares in broadcasting rights, ticket sales, etc.
In championships where each team plays the other teams on one or more
occasion, a deduction of gained or future points or a relegation are quite effective
sanctions against the clubs that committed the offence (examples: Article 6 Para. 1
UEFA DR; Article 13 letter I and 29 FDC). For example, various sanctions of this type
were imposed and are still being used in Italian football, in particular in the context of
the successive cases of “Totonero”, “Calciopoli”, and “Calacioscomesse”. For a
summary of the sanctions imposed against clubs in these cases, see:
393
§ Totonero
394
§ Calciopoli
395
§ Calacioscomesse:
§ More generally and also concerning the concrete consequences of point
deduction: T. Boeri and B. Severgnini, Match Rigging in Italian Professional
396
Soccer.
Among the other considered sanctions, one could mention, withdrawal of
397
titles
or awards, withdrawal of license or withholding revenues from competitions
collected by the federation, which should be paid to the participating clubs (example:
Article 6 Para. 1 UEFA DR).
390
Examples: in the cases FC Sion v. UEFA, CAS 2011/O/2574; UEFA v. Olympique des Alpes SA/FC Sion;
Olympiakos Volos FC v UEFA, [http://fr.uefa.org/aboutuefa/organisation/news/newsid=1751867.html].
See
for
example
Fenerbahçe
SK
v.
UEFA,
CAS,
available
at
[http://www.tascas.org/d2wfiles/document/6677/5048/0/Media20Release20decision20final20_English_2028.0
8.pdf].
392
On the economic structures of North-American professional sport, see in particular G.M. WONG,
Essentials of Sports Law, 4th Edition, pp. 745 et seq.
393
[http://en.wikipedia.org/wiki/Totonero_1980].
394
[http://fr.wikipedia.org/wiki/Affaire_des_matchs_truqu%C3%A9s_du_Calcio].
395
[http://en.wikipedia.org/wiki/2011%E2%80%9312_Italian_football_scandal].
396
“The Economic Determinants”, in M.R. HABERFELD, D. SHEEHAN (eds.), Match-Fixing in International
Sports: Existing Processes, Law Enforcement, and Prevention Strategies, Springer, 2013, p. 105.
397
Example of Olympique de Marseille, for the title of French Champion; see A. PECHERAL, Rien ne va plus,
p. 317.
391
331
Finally, in the North-American sporting system, where clubs have specific rights
concerning the future commitment of players which are not yet licensed, the ‟draftchoice forfeiture” can be considered as a sanction (example: NFL Rule 17, Section 2,
Article 3).
The question was raised concerning whether to sanction a team for the
behaviour of its players, when some of them, who were corrupted without the
knowledge of their managers, "sold" matches, which resulted in the defeat of their team.
This situation occurs frequently, as most cases of manipulation of matches involve
players who act individually. In Switzerland, a club requested that another club, also a
victim of fraud and whose players (some of them) were suspended for corruption, be
sanctioned as well. Its request was rejected (decision of the sports court of the Swiss
Football Association [ASF], unpublished).
4. The Confiscation of Assets
Disciplinary regulations may provide that the competent bodies may order the
confiscation of assets that aided in the commission of the offence (example: Article 62
Ch. 4 FDC, which specifies that “these assets will be used for football development
programmes.”
These attractive provisions - even if they withstand a review by a judicial
authority, which is not evident - are difficult to apply in practice. In fact, sports
organisations do not have the State powers, which would allow them to confiscate
certain goods and values or even to conduct searches to confiscate them. Relying on
the voluntary submission of these assets by the offenders may seem illusory, unless
this submission is linked to a mitigation of the sanction. However, sports organisations
could provide that services due, under normal circumstances, to natural or legal
persons be retained, to replace the assets that should have been confiscated.
According to this hypothesis, the disciplinary body should impose a compensatory
payment, the recovery of which would be done according to the aforementioned
methods, or whose payment could be established as a condition for the temporarily
suspended person to resume his/her activity at the end of the provided period.
In cases of doping, number 10.1 of the World Anti-Doping Code, with some
exceptions, provides for “forfeiture of all medals, points and prizes” obtained by the
athlete during competitions for which the individual results of this player are cancelled
following an offence. Moreover, the athlete has to return all of his gains. As in the
mentioned hypothesis, this repayment can encounter practical problems.
5. Reprieve
Various sports organisations have provided that disciplinary sanctions can be
accompanied by a partial or total reprieve.
The French legislation requires them to provide for this possibility in their
regulations.
332
In a recent decision, an ICC disciplinary body considered that it can attach a
partial reprieve to suspensions, even though the rules in force did not provide for this
398
possibility, but as the saying goes “he who can do more, can do less”.
Certain federations only allow reprieves for particular types of sanctions
(example, Article 20 UEFA DR: all disciplinary measures may be suspended with the
exception of warnings, reprimands, bans on all football related activity, with a
probationary period of one to five years).
399
Others only allow partial reprieve and limit it to the duration of the sanction.
When possible, granting reprieve may be accompanied by conditions. Two
recent decisions, rendered by the bodies of cricket, can illustrate this possibility:
§ Partial reprieve granted under the condition that the sanctioned person
participates in a "rookie camp”, cooperates in the making of a "training video”
with a testimony regarding the consequences of the affair on his life, as well as
participating in the "PCA pre-season road shows to the Counties”, in a way that
400
is satisfactory to the association;
§ Partial reprieve, on the condition of participating in Anti-Corruption programmes,
in accordance with the idea that ‟repentant sinners have in other areas,
401
including the sporting, made the best teachers”;
§ Contractual consequences.
In order to reinforce the regulatory arsenal, it may be time for clubs to make
their players and other employees sign employment contracts, preferably standard
contracts created by the federation or league – providing for the effective termination of
the contract in the case of a breach of the rules related to the manipulation of results or
bets.
C. Determining the Sanctions
As in criminal law, the determination of sanctions in each case must consider
general prevention objectives, namely the deterrent effect of the sanctions imposed, on
third parties, as well objectives of special prevention, namely the effect of the sanction
on the person subject to it (punitive effect and preventing recidivism). In addition,
in disciplinary matters, sanctions must allow the sports organisation imposing them to
maintain or restore order among its ranks, as well as preserving or re-establishing its
image in the eyes third parties, such as sponsors, other contractual partners
(e.g. broadcasters of television programmes), supporters and the public in general.
398
Doha, January 2010, Para. 211, in which the tribunal admitted that it is not possible to add reprieve to the part
of the suspension corresponding to a minimum sanction - in this case, 5 years of suspension - provided for by
the applicable rules.
399
Example, Article 33 FDC and Article 7 FDC: possible reprieve for the suspension from a match and the
ban from exercising any football-related activity, but only “if the duration of the sanction does not exceed six
matches or six months and if the relevant circumstances allow it, in particular the previous record of the
person sanctioned,” in any case, half of the sanction is definite, a probationary period of anything from six
months to two years, and no partial suspension in case of doping.
400
Westfield decision, Appeal Panel of the Cricket Discipline Commission of the England and Wales Cricket
Board, July 2013
401
333
The disciplinary sanctions should be severe enough in order to be dissuasive.
They must be effective and known by sports stakeholders. An author suggests that
sports federations publish their intention to implement a “one-strike-you-are-out
402
policy”.
In one the first manipulation cases it dealt with, the CAS considered that:
“It is essential in the panel’s view for sporting regulators to demonstrate zero tolerance
against all kinds of corruption and to impose sanctions sufficient to serve as a deterrent
to people who otherwise might be tempted through greed or fear to consider involvement
in such criminal activities”.
The CAS also specified that:
“the very essence of sport is that competition is fair; its attraction to spectators is the
403
unpredictability of the outcome”.
This “zero tolerance” principle has since guided the disciplinary sports bodies in
their decision-making process. However, it does not imply that every offence is
punishable by a maximum sanction, but rather that disciplinary bodies cannot show
weakness in front of what is a major threat to sports.
The types of sanctions that may be imposed are, in general, determined by the
statutes and regulations. The latter can also provide for minimum and maximum
sanctions for particular types of offences. In this ambit or in the absence of minimum
and maximum sanctions, disciplinary bodies hold great power of assessment in order to
determine the most appropriate sanction, on the basis of the circumstances of each
case.
Also, their determination is based on a set of criteria (1) that vary according to
the circumstances (2). Therefore, the sanctions are not based on a scale. (3).
1. Criteria for Determining the Sanction
To determine the sanction, the disciplinary body shall consider all the
circumstances of the case. This principle is sometimes recalled in the regulatory
provisions. For example, Article 9 Ch. 1 FCE provides that sanctions are set:
“by taking into account all relevant factors of the case, including the offender’s
assistance and cooperation, the motive, the circumstances and the degree of the
offender’s guilt.” (Article 9 Ch.1 FCE)
and Article 17 Para. 1 UEFA DR states that:
“the competent disciplinary body determines the type and extent of the disciplinary
measures to be imposed in accordance with the objective and subjective elements of the
offence, taking account of both aggravating and mitigating circumstances.”
402
403
D. HILL, The Insider’s Guide to Match-Fixing in Football, Anne McDermid & Associates Ltd., 2013, p. 274.
Oriekhov v. UEFA, CAS 2010/A/2172.
334
Sanctions may first consider the specificities of the sport concerned. The
careers of athletes are longer in yachting than in gymnastics and the same sanction,
such as a suspension for two years, will not affect the athletes in these two disciplines
in the same way. Moreover, certain sports offer, more than others, the chance to
participate in competitions. If a professional football player can play more than 60
matches per season, a boxer can only participate in a few fights during the same period
and a suspension of twenty games will prevent the latter from practicing his sport for
several years. Finally, for a professional football player, participation in the Olympics is
not essential (other competitions are more prestigious in this sport), whereas it
determines the economic future of someone who practices athletics; a suspension
having the effect of preventing the athlete from participating in the Olympics would have
a different impact on the persons concerned.
Should the importance of a manipulated competition be taken into account?
Each sports match is important for those who are playing, but also for those who are
watching and funding it, and it is not less reprehensible, morally, to manipulate a
regional competition than an international event. However, the manipulation of an
important and widely broadcasted competition causes more damage to sport in general,
concerning its image, its development prospects and economic stakes. The impact of a
fraud on third parties is also different (example: negative consequences of repeated
frauds, in a given sport, on the firms associated with the sport, namely equipment
manufacturers, sponsors, media companies and their advertisers). This could justify
nuances regarding the sanctions to be imposed.
The disciplinary body may take into account the context in which the offence
was committed. For example, it could be more lenient in the case of manipulation of a
nd
competition by a football player from the 2 division in developing country, whose low
salary had not been paid for several months as well as having family expenses, than in
st
the case of a 1 division football player who benefits from a high salary, paid on time.
The status of the person concerned can also play a role. A long-term
suspension will hit a professional athlete, coach or official harder than their amateur
equivalent. Although the sporting sanction is the same, its economic impact is obviously
not the same.
The sanction can be adjusted according to the concrete consequences on the
person in question. In addition to the professional or amateur status, the disciplinary
body must examine other relevant elements concerning the consequences of the
sanction, such as the expected duration of the concerned party’s sports career, his
prospects for advancement in this career, etc. In France, the case law considers, on the
basis of Article L.100-1 of the Sports Code, that the body determining the sanction must
take into account the effects it might produce on the education, integration and social
404
life of the person on whom the sanction is imposed.
Other personal circumstances are also taken into account, such as motives, the
degree of guilt, (example: intention or negligence), experience, status as a role model,
etc.
404
nd
F. BUY et al., Droit du sport, 2 edition, No. 310, p. 191.
335
Mitigating and aggravating circumstances will be examined next.
2. Mitigating and Aggravating Circumstances
Certain aggravating (b) and mitigating (c) circumstances defined by ASOIF are
subject to consensus; however, they are not enclosed in a restrictive list (a).
a. General Considerations
Certain regulations contain quite complete lists of mitigating and aggravating
circumstances that disciplinary bodies can or must consider when determining the
sanctions in each case. In particular, this is included in Ch. 8.6 of the ASOIF Model
Rules and in Article 6.1. of the ICC Anti-Corruption Code.
Other regulations only mention expressly certain types of mitigating and
aggravating circumstances. For example, the FIFA Rules only retain as aggravating
circumstances, recidivism, (Article 10 FCE, 40 Ch. 1 FDC) and concurrent breaches
(Article 11 FCE, 41 FDC). In this field, UEFA specifically refers to recidivism (Article 19
UEFA DR: aggravation for recidivism if another offence of a similar nature is committed
within ten years of the previous offence if that offence was related to match-fixing or
corruption).
In any event, the lists are not exhaustive and disciplinary bodies can or even
405
must consider other factors as well, if necessary.
This absence of a "numerus
clausus" is also expressly mentioned in the two regulations that provide the lists of
circumstances and are mentioned above.
Furthermore, it is not a matter of making precise calculations, by giving value to
each element in terms of sanction. As stated in a decision rendered in cricket:
406
‟The exercise is a qualitative and not a quantitative one”.
Regulations also do not
provide for the degree of mitigation or aggravation based on a particular factor.
b. Aggravating Circumstances
Among the circumstances considered as aggravating, one could mention the
following by referring to ASOIF’s model rules:
§ Failure to cooperate by the Participant during the investigation or to respond to
requests for information
§ Recidivism, specific or non-specific (“any previous Violations by the
Participant”)
§ The Participant receiving or being due to receive a significant benefit in
connection with the Violation
§ The significance of the amounts at stake in the offence, for example the amount
of gains that a third party achieved or could have achieved from bets, following
an offence (“where the sums of money [...] involved in the offence(s) were
substantial”);
405
406
336
§ The effect or possible effect of the violation on the course or result of an event
or competition; the disciplinary body can modify the sanctions according the
facts of the fixed game. While admitting that each case of fixing is a serious
offence to the sporting spirit, the reduced impact – on teammates and third
parties – of an insignificant fact of the game occurring at a specific moment
during the match (throw-in in football, which could be subject to bets),
compared to that of losing the match, can warrant a lighter sanction;
§ The Participant displaying a lack of remorse;
§ The author refusing to take part in anti-corruption educational programmes;
§ Where the offence substantially damaged (or had the potential to substantially
damage) the commercial value and/or the public interest in the relevant
(competition)”;
§ Where the welfare of a Participant was endangered as a result of the offence
§ Where the offence involved more than one Participant, in particular the concept
of organised commission;
§ When the author exerted influence on other participants in order to lead them to
commit the offence with him or for him.
c. Mitigating Circumstances
Among the circumstances considered as mitigating, the following could be
mentioned by also referring to the ASOIF Model Rules unless specified otherwise:
§ “Co-operation by the Participant with any investigation or requests for
information”; “cooperation with Sporting Entities, governments and
governmental organisations”: IOC “Guidelines for Sanctioning the Members of
an Athlete’s Entourage”, Ch. 4.2.4);
§ When the author provided information that was decisive in uncovering or
establishing the breach of the rules and regulations (Article 17 Para. 2 UEFA
DR, which provides that the disciplinary body can even renounce sanctioning, in
such a case and if justified, even allowing criminal prosecution by the
competent authorities), the ICC rules define what should be understood by
“Substantial Assistance”: “a Participant must: (a) fully disclose in a signed
witness statement all information that he/she possesses in relation to offences
under the Anti-Corruption Code; and (b) reasonably cooperate with the
investigation and adjudication of any case related to that information, including,
for example, presenting testimony at a hearing if requested to do so by the ICC.
Further, the information provided must be credible and must comprise an
important part of any case that is initiated or, if no case is initiated, must have
provided a sufficient basis on which a case could have been brought”; Appendix
1 – Definitions;
§ A timely admission of guilt by the Participant;
§ The Participant's clean disciplinary record;
§ The youth or inexperience of the Participant;
§ The Violation not having affected or not having the potential to affect the course
or result of an Event or Competition;
§ The Participant displaying remorse;
§ Agreement of the author to take part in anti-corruption educational programmes;
337
§ Where the Participant has already suffered penalties under other laws and/or
regulations for the same offence;
§ The influence exerted over the author by other persons holding power.
Neither the sporting talent of the author, nor the benefit that the resumption of
his activity would bring to sports, are grounds for the mitigation of the sanction, this is
due to the need for equality before the rules: if these criteria are taken into account, a
less talented player would be punished more severely than talented players, in similar
407
circumstances, which would clearly not be acceptable.
3. Fixed, Minimal, and Maximal Sanctions
In most cases, sports organisations have renounced to providing for scales for
sanctions for different offences, except in cases – irrelevant in this study – of relatively
frequent and benign offences committed on the playing field and around it (example:
Articles 6 and 17 UEFA DR).
The French Council of State also ruled, on 21 October 2013, that automatic
suspensions were contrary to the principle that penalties must fit the offence included in
Article 8 of the 1789 Declaration of the Rights of Man and of the Citizen. In summary,
the French Basketball Federation (FFBB) suspended - automatically - a coach for one
match because he had been sanctioned with three technical fouls during the same
season. Judges of the Council of State noted that the FFBB regulations did not allow
disciplinary bodies to decide on the actual imputability of the fouls, nor to consider the
circumstances of the case. They therefore considered that the contested provisions
408
were illegal.
This decision could seriously disrupt the functioning of many French
sports federations, which will have to request their disciplinary bodies to examine
thousands of minor decisions each year (e.g. in football: automatic suspension from
matches for a pre-defined number of warnings during the season). However, when it
comes to the manipulation of sports results, the decision should not result in significant
consequences, insofar as this type of cases, clearly serious, is in any case examined by
disciplinary bodies that have a margin of assessment. However, it would prevent the
federations subject to the French jurisdiction to provide for automatic sanctions for
certain offences in this area.
Some regulations provide that the disciplinary bodies must impose particular
types of sanctions to certain types of offences, but mainly without fixing minimum and
maximum durations, for example, for suspensions and ban from exercising certain
activities.
This is particularly the case of FIFA, whose disciplinary code states that:
“1. Anyone who offers, promises or grants an unjustified advantage to a body of FIFA, a
match official, a player or an official on behalf of himself or a third party in an attempt to
incite it or him to violate the regulations of FIFA will be sanctioned: a) with a fine of at
least CHF 10,000, b) with a ban on taking part in any football-related activity, and c) with
a ban on entering any stadium” (Article 62 Ch. 1 FDC).
407
408
CAS 2011/A/2364, Salman Butt v. International Cricket Council.
nd
th
Council of State, 2 and 7 sub-sections combined, 21/10/2013, 367107.
338
Passive corruption (soliciting, being promised or accepting an unjustified
advantage) will be sanctioned in the same manner (Article62 Ch.2 FDC). “In serious
cases and in the case of repetition, sanction 1b) may be pronounced for life” (Article 62
Ch. 3 FDC). In addition “Anyone who conspires to influence the result of a match in a
manner contrary to sporting ethics shall be sanctioned with a match suspension or a
ban on taking part in any football-related activity as well as a fi ne of at least CHF
15,000. In serious cases, a lifetime ban on taking part in any football-related activity
shall be imposed” (Article 69 Ch. 1 FDC). Finally, in the case of unlawfully influencing
the result of a match, the club or association to which the player or official belongs may
be fined. “Serious offences may be sanctioned with expulsion from a competition,
relegation to a lower division, deduction of points and the return of awards.” (Article 69
Ch. 2 FDC).
It should be noted, concerning Article 69 Ch. 1 FDC, that the disciplinary bodies
of FIFA are free to decide whether the case is “serious”, which implies that a lifetime
ban on exercising any football-related activity cannot be considered as an obligatory
sanction.
For tennis players, the rules do not provide for minimum periods, but for
maximum periods according to each case, for ineligibility sanctions, or the possibility but
not the obligation, to impose them for life
“With respect to any Player, (i) a fine of up to $250,000 plus an amount equal to the
value of any winnings or other amounts received by such Covered Person in connection
with any Corruption Offense, (ii) ineligibility for participation in any event organized or
sanctioned by any Governing Body for a period of up to three years, and (iii) with respect
to any violation of Section D.1, clauses (d)-(j) and Section D.2., ineligibility for
participation in any event organized or sanctioned by any Governing Body for a
maximum period of permanent ineligibility” (Article X letter H Ch. 1 letter a of the Uniform
Tennis Anti-Corruption Programme).
However, the regulations in tennis provide an example of a minimum sanction
applicable to persons other than players, subject to the associative jurisdiction:
“With respect to any Related Person or Tournament Support Person, (i) a fine of up to
$250,000 plus an amount equal to the value of any winnings or other amounts received
by such Covered Person in connection with any Corruption Offense; (ii) suspension of
credentials and access to any Event organized, sanctioned or recognized by any
Governing Body for a period of not less than one year, and (iii) with respect to any
violation of clauses (c)-(i) of Section D.1., suspension of credentials and access to any
Event organized, sanctioned or recognized by any Governing Body for a maximum
period of permanent revocation of such credentials and access” (Article X letter H Ch. 1
letter b of the Uniform Tennis Anti-Corruption Programme).
The MLB, in its “Rule 21”, applies ineligibility without a limited period for certain
types of offences, particularly the manipulation of results and bets in their own
competitions. However, it should be specified that the “commissioner” retains the
possibility of putting an end to ineligibility, based on his assessment, in such a way that
the definitive ban does not affect all cases (for a list “life ban” cases that also mentions
409
persons whose ban was lifted by the “commissioner”).
409
See [http://en.wikipedia.org/wiki/List_of_people_banned_from_Major_League_Baseball].
339
In cricket, there is an interesting example of minimum and maximum sanctions,
in Article 6.2 of the ICC Anti-Corruption Code: the author shall be punished with a
suspension of a minimum of five years and a maximum of a lifetime ban for corruption
offences, a suspension of 2 to 5 years for violations of betting rules, a suspension of 2
to 5 years or 6 months to 5 years, depending on the circumstances of the case, for
misuse of inside information, and a suspension of 6 months to 5 years, and respectively
1 to 5 years for other cases. An additional fine shall be imposed “up to a maximum of
the value of any Reward received by the participant directly or indirectly, out of, or in
relation to, the offence committed under the Anti-Corruption Code”. This last clause
allows circumventing the practical difficulties related to the confiscation of the proceeds
of the offence. It should be noted that in cricket, any suspension results in a ban from
exercising any cricket-related activity – except for participation in “authorised anticorruption education or rehabilitation programmes” - and that it is therefore not just a
suspension from duties (Article 6.5 ICC Anti-Corruption Code).
In a recent case, an ICC disciplinary body had addressed the legality and
applicability of the rules providing for minimum sanctions. In particular it stated the
following:
“We recognise that in certain circumstances application of the penal provisions of a
sporting body’s regulations, and even the regulations themselves, could be held as
contrary to the public policy of the common law stigmatising unreasonable restraint of
trade, to EU competition law, or even visited with a declaration of incompatibility under
the Human Rights Act 1998 (See generally Lewis and Taylor, The Law of Sport, Second
Edition Para A.479) [...] However, no authority was cited to us to the effect that a
mandatory sanction, even a life ban, had been set aside by reference to any such
principle”.
The same decision also points out that, if in the case of Puerta v. ITF, CAS
2006/A/1025, a CAS panel, diverged from the minimum sanction of 8 years for a
second offence in cases of doping “on the basis of a wholly unusual set of facts” and by
using a loophole in the WADA code, but not by considering that the regulatory minimum
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should not be applied.
According to the same decision, the principle of proportionality:
“is engaged where discretion exists and cannot be used to create discretion where it
does not. Bradley v The Jockey Club, 2004 EWHC 2164 (Q.B) was a case in which no
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limits were promulgated in the Rules of Racing for disqualification”.
Therefore the disciplinary body does not need to establish whether imposing a
sanction equivalent to the minimum provided for by the rules in force violates the
principle of proportionality. It should impose a sanction equal or superior to this
minimum.
410
411
340
Despite the foregoing, the ICC court decided that it was useful, in an obiter
dictum, to suggest to the governing bodies to review the issue of minimum sanctions, by
removing the provisions or at least by scaling their implementation:
“Continuity and consistency are important legal values, but minimum sentences always
pose problems for judges who wish to tailor penalties to a range of diverse facts, not all
of them have been envisaged by the legislative body: hypothetical examples where a
minimum 5 year ban would be palpably unfair can be easily suggested. An ability to
suspend or part suspend a ban would allow greater play to a Tribunal’s sense of what is
fair and reasonable in special circumstances. Alternatively, the ICC itself might be
accorded the power to refer a case on the Tribunal to consider the lifting of a ban, if
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since its imposition, circumstances have changed in a material way”.
An expert appointed by the ICC to examine the situation in the field of
corruption has also expressed doubts about challenging minimum sanctions and
suggested to remove them. The ICC Executive Board held as follows concerning this
recommendation:
“[...] removing minimum periods of ineligibility, which were arrived at after rigorous
consultation with all stakeholders, would not necessarily be appropriate for all of the
offences in the Anti-Corruption Code [...] It must be noted that prevailing mood across all
sectors of cricket, at this time, is that there needs to be a strong message of deterrence.
Severe minimum periods of ineligibility, whilst remaining proportionate to the offence
committed, are most likely to have the necessary effect – certainly there is a risk that to
remove the minimum sanction would be to send the wrong message to those
considering engaging in corrupt activity” (Speville table of recommendations of, with the
determinations of the ICC Executive Board).
Under the current state of the law, it must be assumed that sports organisations
can provide for minimum and/or maximum sanctions for certain types of offences (as
already provided by some federations), or impose lifetime bans - or equivalent
sanctions –in particular cases. Disciplinary bodies must remain within the determined
framework. This does not imply that a State or arbitral tribunal, called to review
decisions of this kind, is bound by the sporting norms at the moment of examining its
conformity to public order or challenging the sanctions imposed.
4. Recommendations
The practice shows that the disciplinary sanctions imposed against referees
and players who manipulated competitions are generally heavy. In numerous cases,
suspensions or lifetime bans were imposed. In other cases, the competent disciplinary
bodies chose to use suspensions with time limits (among many examples: suspensions
of six months to 5 years for 17 Salvadorian football players: “Interpol Weekly Media
Recap”, 25 November 2013; a pool player suspended for 12 years: Jack Anderson,
Match-fixing and the Rights of Individual Sports Participants: The Stephen Lee appeal,
LawInSport, 22 October 2013). Heavy sanctions can also be imposed on those who bet
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on competitions in their sport.
412
413
Example: Baseball manager, Pete Rose, Cincinnati Reds, was declared “permanently ineligible” for having
placed bets on baseball matches, in 1989: cited by M.E. FOOTE, p. 13.
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This corresponds, on the one hand, to the need to keep away from sports,
people who are harmful to it, and on the other hand, to deter those who might be
tempted to commit fraudulent acts.
Therefore, should the systematic imposition of lifetime bans against athletes
who manipulated sporting events be considered, as the UEFA president seems to
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advocate? We do not think so, because the guilt of the concerned party is not always
so heavy that such suspension would be the only solution. For example, such a
sanction would obviously be too harsh for a young volleyball player, who was influenced
by a more experienced team-mate and who, for a meagre sum, would deliberately miss
his service at a specific time, to favour certain bettors. It would also be too severe if
imposed on a minor league football player , who, due to the fact that he was not been
paid by his club for several months, yields to a criminal organisation because it is the
only way he can provide for his family.
In our opinion, it is important to be careful not to generalise, and it should be
recommend that disciplinary bodies be able to rule by applying the principle of
individualisation of the sanction, but also by showing the necessary firmness and by not
hesitating to impose long-term or even lifetime suspensions against those who
deserve it.
However, the suppression and prevention of sporting fraud requires a minimum
of coherence and consistency in the practice of disciplinary bodies. Therefore, the latter
must make sure that, in similar circumstances, the sanctions imposed against two
different persons do not differ significantly, even if taking into account the personal
circumstances of the author lead to some differences.
In this regard, it is desirable that sports federations and arbitral tribunals (in
particular CAS) publish not only their decisions more broadly, but also a "structured
reporting" of the sanctions they impose in the field of sports fraud, in particular so as to
facilitate the harmonisation of practices. These kinds of reports could also be used in
prevention programmes implemented by the federations and other sports organisations,
in order for each sports stakeholder to know the risks of behaviours contrary to the rules
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and that in case of an offence, this knowledge can be invoked against the offenders.
D. The Execution and Effects of Disciplinary Sanctions
We will examine only a few specific issues that may be of importance in the
field of sporting fraud. In this regard, the following issues will be considered: the terms
of the execution (1), the material validity of sanctions (2), the geographic validity of
suspensions (3), effects beyond the period of suspension (4) and the practical problems
related to suspensions (5).
414
See [http://www.lexpress.mu/article/michel-platini-pr%C3%A9sident-de-l%E2%80%99uefa-%C2%ABlefoot-doit-rester-un-jeu%C2%BB].
‟ [...] well knowing, not least through the ICC educational programmes, the penalties that await them if
caught”, ICC Independent Tribunal’s Determination, ICC v. Salman Butt, Mohammad Asif and Mohammad
Amir, Doha, January 2010, Para. 216.
415
342
1. The Terms of Execution
Most regulations provide that the disciplinary body should fix an overall
sentence, punishing all the offences committed. Therefore, the question of executing
concurrent sanctions rarely arises, except in cases where a national federation, on the
one hand and an international federation on the other hand, sanction the same person
and when determining how to impose them.
However, in cricket, the disciplinary body imposes a sanction for each offence
committed. If the amount of fines seems to be cumulative, this is not the case for
suspensions and the ICC adopted the rule that sanctions "should run concurrently (and
not cumulatively)” (Article 6.3.2 ICC Anti-Corruption Code),
Concerning the collection of fines, various systems exist. It was mentioned
above that, in some associations, clubs and national associations are jointly liable for
paying the fines imposed on their members, which solves most of the problem. Due to
not having a similar regulation providing that a fine must be paid by the person and not
by a third party, namely by his national federation (Article 6.3.3 ICC Anti-Corruption
Code), the ICC provided that if a person is sanctioned with a fine and fails to pay it
within a period of one month, or in the additional period that could be granted to him,
the person is suspended pending the full payment, except if the ICC accepts that the
fine not be paid (Article 6.3.3 ICC Anti-Corruption Code).
2. The Material Validity of Sanctions
In the case of the Olympic Games, the IOC sanctions facts that occur during
competitions, usually by disqualification, but sanctions that go beyond disqualification
416
are generally left to the respective federations. Therefore, sanctions imposed by the
IOC have no effect outside the Olympic Games.
Furthermore and contrary to sanctions for doping, the sentences imposed by a
federation for the manipulation of competitions does not apply directly to other sports
except to the one it governs: for example, a cyclist stripped of his license by the ICU or
an affiliated federation will not be, in theory, prevented from competing in triathlons.
Athletes can change their discipline, even if they have some difficulties
achieving, in their new sport, the same level as in their original discipline. The same
applies to officials, because nothing would prevent, in theory, anyone who worked as a
physical trainer for decathletes, from working with basketball players later, and it is even
less difficult for a removed member of a handball committee to join a shooting
federation.
A particular issue is raised in sports in which the international federation and
national federations do not hold a monopolistic position. For example, nothing prevents
the WBA or the WBC from granting a license to a boxer suspended by the AIBA from
acts of fraud.
416
A. LEWIS, J. TAYLOR, A2.31 p. 66.
343
On a different note, major leagues of North American professional sports have
no obligation to recognise the suspensions imposed by a national federation, including
an American federation covering the same sport, even though NHL and NBA players
regularly participate in the Olympic Games and world Championships (it should be
noted that an NBA player participating in the Olympic Games is subject to the
disciplinary jurisdiction of FIBA and can therefore be sanctioned by a suspension of a
certain period; which would not be executed concerning NBA competitions, unless the
NBA itself decides to apply it)
As mentioned above, a solution must be found and it supposes:
§ That each sports federation establish rules that allow it to reject the admission
of a person sanctioned by another federation for acts of fraud, for the
suspension period imposed by the other federation, or;
§ An agreement between sports federations for the mutual recognition of
sanctions imposed in this field, or;
§ “A World Anti-Manipulation Code”, based on the World Anti-Doping Code (this
solution seems to be the most adequate, insofar as it would be the only way of
preventing disparities in the practices of federations; it could also be applied to
“dissident” leagues)
3. The Geographic Validity of the Suspensions
Based on the nature and the organisation of sports, the issue of the geographic
validity of suspensions can have different answers.
In rugby, a player suspended by a federation cannot take part in matches of the
same sport in a different geographic area: "the player may not participate in any rugby
417
until the suspension is over”.
The cricket jurisdictions adopted the same solution: the decisions of the ICC
disciplinary bodies must be applied by all national federations, and the decisions of a
national federation must be applied by the ICC and by all national federations"
automatically upon receipt of notice of the same, without the need for further
418
formality”.
In federations that are unfamiliar with this kind of rule, the expected response is
that of universal validity - automatic or through the decision of the competent authority of the sanctions imposed by the international federation and the possible extension of
national sanctions.
In basketball, the FIBA Secretary General may decide that the sanction he
imposes should be implemented by all affiliated national federations, in the framework
419
of their national competitions.
The same secretary general can also, ex officio or
upon request, universally extend a sanction imposed by a national federation. However,
some conditions must be met, namely that the sanctioned person's right to be heard is
417
418
419
Article 9.1 and 9.2 ICC Anti-Corruption Code.
Article 131, 2010 FIBA Internal Regulations, Book 1.
344
respected in the national proceedings, that the decision is correctly notified, that the
sanction does not contradict FIBA rules and that extending the sanction does not
420
conflict with public order.
In football, associations, confederations and other organising sports entities are
required to request from FIFA to globally extend the sanctions they imposed, “If the
infringement is serious, in particular, […] in the case, […] of unlawfully influencing match
results” (Article 136 Ch. 1 FDC). Extension is, in principle, granted except in very
particular cases (Article 137 FDC) and a sanction imposed by an association or
confederation has the same effect in each member association of FIFA as if the
sanction had been imposed by any one of them” (Article 140 Ch.1 FDC). A similar
procedure is applied within the UEFA, where the Control and Disciplinary body decides
on the extension, in particular in cases of serious offences. The extension is requested
in writing. “An extension is granted if the decision on which the request is based
complies with the general principles of law and with UEFA’s regulations.” (Article 66
UEFA DR)
4. Effects beyond the Period of Suspension
What has been called the Osaka Rule was not favoured by the CAS. The IOC
had wanted to ban from the following Olympic Games, athletes sanctioned for doping,
even in cases where the period of suspension decided by the competent disciplinary
body was over by the time the Olympics were scheduled to stArticle The validity of the
421
relevant clause of the IOC rules was not accepted by CAS. In short, the CAS did not
accept the interpretation operated by the IOC, according to which the implementation of
the Osaka rule would not result in the imposition of a sanction, but rather in establishing
the absence of an eligibility criterion. It considered that it was not acceptable, based on
individual rights, to maintain the effects of an expired suspension.
422
The CAS award has certainly been criticised, notably by Jan F. Orth.
However, the fact remains that it exists and we have no reason to justify any deviation
from it in the future.
The regulations of a sports organisation can at least provide, for serious issues,
conditions that ensure that the effects of a suspension imposed for a fixed term will
cease at the end of this period. This is precisely what the ICC decided. Its regulations
state that when the suspension ends, the person will again be allowed to participate as
long as he has "completed an official anti-corruption education session to the
reasonable satisfaction of ACSU ", paid the fine and costs, including the fees of the
CAS, and "agreed to subject him/herself to such additional reasonable and
proportionate monitoring procedures and requirements as the ACSU's General
Manager may reasonably consider necessary given the nature and scope of the offense
423
committed” .
420
Article 141 Para. 2, 2010 FIBA Internal Regulations, Book 1.
USOC v. IOC, 10 April 2011, CAS 2011/O/2422.
“Striking down the ‟Osaka Rule” - An unnecessary departure”, The International Sports Law Journal,
2012/1-2, pp. 28-34.
423
Article 6.7 ICC Anti-Corruption Code.
421
422
345
When dealing with suspensions of a fixed duration, we recommend that
federations adopt rules that require the perpetrators of manipulations to submit to
certain conditions upon the expiration of their suspension, before they can take up
regular sports activity again. Depending on the amount of the fine and costs, the rule
requiring prior payment, however, could be considered disproportionate or contrary to
424
public policy.
However, the obligation of prior participation in a reasonable
educational programme should not be open to criticism.
5. Practical Problems Related to the Execution of Suspensions
In some countries, a change of identity does not entail any problems at all.
Indeed, it is as easy as fraudulently obtaining official identification documents or
425
sporting identification documents.
Therefore, suspended sports players may be
tempted to use these methods in order to pursue their careers in other countries.
Unless players are regularly submitted to fingerprint or DNA tests, we do not
see how organisations can prevent such fraudulent practices.
§ 3. The Disciplinary Procedure
In general, sports organisations have considerable freedom to adjust the
applicable procedures of their disciplinary bodies. In addition, this freedom is only
limited by the parties' right to a fair trial that respects the right to be heard. Within such
limits, federations can organise procedures as they see fit.
As will be discussed below, disciplinary bodies also enjoy a fair amount of
liberty in how they conduct individual procedures. Most of the time, the regulations do
not detail the different stages of the procedure, thus leaving a wide margin for these
bodies: they often rely on a few articles written in general terms (unlike civil and criminal
laws enacted by legislators).
To that extent, "The general duty of fairness applying to sports disciplinary
tribunals should not detract from the wide discretion they enjoy as to the manner in
426
which they may, without unfairness, conduct their proceedings”.
This flexibility, with regard to both the adoption of the rules and their practical
application, allows disciplinary bodies to adapt the procedure to the needs of individual
cases. These bodies can therefore deal with simple cases quickly and without
complication, thus leaving more time for complex procedures.
424
See, mutatis mutandis, the Matuzalem decision rendered by the Swiss Federal Tribunal, ATF
4A_558/2011.
For examples of fraud on age in the under-19 competitions by the Uganda team, using false identity
documents - passports and birth certificates –, see M.M. RICHARDS, “Impact of Sports Betting and
Corruption: Reflections from Uganda”, in M.R. HABERFELD, D. SHEEHAN (eds.), Match-Fixing in
International Sports: Existing Processes, Law Enforcement, and Prevention Strategies, Springer, 2013,
pp. 60-61.
426
M. BELOFF et al., No. 7.109 op. cit., p. 220.
425
346
One exception to this relative freedom concerns sports organisations subject to
French law. Indeed, the French legislature has adopted model disciplinary rules. They
dictate a number of procedural rules which are applicable to all licensed sports
427
federations.
This paragraph will address the issue of procedural rules in general and not by
reference to French law. In this perspective, it will deal with the criminal procedure and
disciplinary procedure (A), the opening of the disciplinary procedure (B), the parties
involved in the disciplinary procedure (C), procedural guarantees (D) mechanisms to
promote the unveiling of acts of corruption (E), provisional measures (F), evidence and
administration of evidence (G) the burden of proof, the standard of proof (H) and the
publication of decisions (I).
A. Criminal Procedure and Disciplinary Procedure
The same facts may be subject to both criminal and disciplinary law. It is
therefore natural that criminal and disciplinary proceedings are conducted
simultaneously. The persons concerned may be the same, but they may also be
different: in the case of manipulation, criminal proceedings may target an athlete, who
manipulated a competition, and third parties - unrelated to the sports movement - who
pushed the athlete to manipulate the competition and made profit from sports bets.
However, disciplinary proceedings cannot deal with third parties, but can target the
athlete's coach, for example, if he bet on the competition in question.
Therefore, the question that regularly arises is whether the two procedures
must be carried out simultaneously or if one of them should be suspended, awaiting the
outcome of the other.
If the criminal and disciplinary authorities investigate at the same time the same
facts regarding the same persons, operations carried out in one of the proceedings
might endanger the success of the investigations done by the other: authorities
summon the same witnesses and try to get their hands on the same documents; in the
proceedings, the parties may examine statements made by third parties, when the
interest of one of the procedures lies in the fact that the other procedure did not consult
the above mentioned third parties; etc.
Persons subject to disciplinary proceedings sometimes want to suspend the
proceedings pending the outcome of the criminal investigation. This is done in order to
delay the issuance of the sports verdict against them. As such, these persons regularly
ask for a suspension from the disciplinary body. This particularly happened in the
framework of Turkish procedures, which delayed the disciplinary proceedings related to
the Fenerbahce and Besiktas clubs, particularly proceedings that were pending before
the UEFA. Due to the suspension of these proceedings, a reporter questioned the real
intention of the UEFA to act firmly against the manipulators and suggested that without
media and public pressure, the organisation would not have imposed any sanction
428
against the clubs concerned, even though the manipulations were confirmed.
427
Annex I-6 of the Code of Sport.
See B. BEST, Der gekaufte Fussball – Manipulierte Spiele und betrogene Fans, Murmann Verlag,
Hamburg, 2013, pp. 152-154.
428
347
Depending on differences between disciplinary proceedings and criminal
proceedings on the one hand, and the interest of sports authorities in achieving speedy
decisions, on the other, there is in principle no reason to suspend the first pending the
outcome of the second: “[...] the charges are different, the standard of proof is lower in
the disciplinary proceedings, the disciplinary proceedings would not be admissible in the
429
criminal proceedings and speed is of the essence.”
The parties are not automatically entitled to suspend disciplinary proceedings,
430
pending the outcome of criminal proceedings. The simple fact that, for example, the
same witness that should testify in both cases will make different statements, is not a
decisive. This witness will probably say the same thing in both cases. Furthermore,
there is no evidence that this dual statement would cause harm to persons involved in
431
the investigations.
In addition, even though disciplinary procedures are generally
faster than criminal procedures, nothing prevents the criminal authority to disregard the
432
disciplinary decision, particularly when the standard of proof is different.
Depending on the interest in having speedy disciplinary proceedings, the
suspension of the latter pending the outcome of criminal proceedings should be an
exception rather than a rule. Some even believe that disciplinary bodies should never
433
spontaneously suspend their proceedings, except by court order.
Special circumstances may, however, lead the disciplinary body to wait for the
end or at least some advancement in the criminal proceedings. This body will
particularly take into account the seriousness of the issue, the elements to be resolved
434
in both procedures and their common elements. The body will make a determination
on whether the disciplinary procedure can establish the facts, or if the means of
implementation require decisions from criminal authorities (searches, for example), or,
more prosaically, if the criminal investigation will quickly gather evidence that may be
435
used in the disciplinary proceedings.
Furthermore, the body will also examine
whether criminal proceedings would suffer from the parallel conduct of the disciplinary
investigation. The body must keep in mind that in sports, the disciplinary sanction for
unacceptable behaviour is more important than the possible criminal sanction, and that
what is necessary is consistent criminal and disciplinary decisions, partly because of the
difference in the standard of proof.
Some sports federations have expressly provided for the case of competition
between disciplinary and criminal proceedings, or other disciplinary proceedings. For
example, in cricket:
429
A. LEWIS, J. TAYLOR, A2.96, op. cit., p. 86.
“There (is) no automatic right to have disciplinary proceedings stayed pending criminal proceedings”,
M. BELOFF et al., 8.45 et seq., pp. 272 et seq; “There is no right to stay disciplinary proceedings pending the
resolution of criminal proceedings”, A. LEWIS, J. TAYLOR, A2.95 p. 85.
431
M. BELOFF et al., 8.45 et seq., pp. 272 et seq.
432
M. BELOFF et al. ibidem.
433
See M. BELOFF et al., No. 8.56, p. 276; see also “The British Horseracing Authority and Integrity in
Horseracing” report, by E. NEVILLE QPM, quoted by J. LUKOMSKI.
434
“Much will depend on the severity of the offence, the precise issue before the other court, and the extent of
the overlap”, A. LEWIS, J. TAYLOR, A2.95 p. 85.
435 “
All cases will depend upon their facts, however, and it is obviously paramount that a criminal hearing
should not be prejudiced”, A. LEWIS, J. TAYLOR, A2.96, op. cit., p. 86.
430
348
“The ACSU shall have discretion, where it deems appropriate, to stay its own
investigation pending the outcome of investigations being conducted by other National
436
Cricket Federations and/or other relevant authorities ”.
In any case, the interests of disciplinary bodies as well as criminal authorities lie
in the fact that proceedings do not adversely affect one another. They should therefore
ensure cooperation to the extent permitted by law and to the degree needed in each
437
case.
B. Initiating the Disciplinary Procedure
The opening of the disciplinary procedure requires that we examine jurisdiction
and the ex officio maxim (1), informing the parties (2) and the informal investigation
stage (3).
1. Jurisdiction and the Ex Officio Maxim
Disciplinary regulations generally use an ex officio maxim, whereby the
competent body may decide to initiate proceedings, without having received a complaint
438
or denunciation. In addition, it is expected that disciplinary bodies will proact and not
just react, as they must not be content by merely waiting for claims to be brought to
439
their knowledge in order to initiate investigations.
In some cases, reading the rules may give the impression that disciplinary
bodies may only initiate proceedings pursuant to the denunciation of certain
440
enumerated bodies and persons.
In practice, this type of rule, however, is not
interpreted to mean that the disciplinary bodies cannot act independently.
However, the studied regulations often reveal that in addition to ex officio
prosecutions, the disciplinary mechanism can be activated by complaints and
denunciations. For example, the rules applicable to the FIFA provide that each person
subject to these rules may file a complaint about violations, while clearly stating that the
"filing of a complaint does not entail the opening of proceedings" (Article 61 c. 1 and 2
FCE), the Disciplinary Code specifying that “Officials shall report offenses they know
of"(Article 108 FDC). In the AIBA, the prosecution may take place automatically or on
the basis of a complaint by AIBA Headquarters, the AIBA Executive Committee or "any
person subject to this Disciplinary Code" (Article 13.2.1 AIBA DC). Concerning FIBA,
the president, the central office, the Secretary General and the national federations may
report cases of alleged violations of the Code of Ethics to the Ethics Commission, in
principle via the Secretary General; the Commission may reject the request or establish
a prima facie violation and recommendations to the Secretary General or the central
bureau, in light of disciplinary proceedings (Article 44-52 FIBA Internal Regulations
2010, Book 1). UEFA disciplinary inspectors may prosecute ex officio, but the Executive
Committee, the President, Secretary General and disciplinary bodies may also require
of them to initiate investigations (Article 25 Para. 4 UEFA DR).
436
Article 4.2 ICC Anti-Corruption Code and “The ICC may temporarily suspend investigations under the AntiCorruption Code to avoid prejudice to, and/or to give precedence to, investigations conducted by other
relevant authorities into the same or related matters” (Article 10.2 ICC Anti-Corruption Code).
437
See Part 3, Title 2, Chapter 3, Section 2, §6, B, 3; Part 3, Title 3, Chapter 1, Section 2, § 1.
438
Examples: Article 13.2.1 AIBA DC, Article 25 DR UEFA, Article 62 and 64 CEF, Article 108 Ch. 1 CDF.
439
See supra, Part 3, Title 2, Chapter 1, Section 1, § 2, C, 3 and A, 2 of the same paragraph.
440
Example: Article 46 of the 2010 FIBA Internal Regulations, Book 1, which lists the persons capable of
referring cases to the Ethics Commission.
349
To avoid disputes and ensure that disciplinary bodies can initiate investigations
based on their own assessment, we suggest that ex officio prosecution be mentioned in
the regulations of all sports organisations. Otherwise, there would be a risk preventing
investigations on sports fraud, due to the inaction of third parties who hold a monopoly
in terms of disciplinary action. In addition, the possibility of denunciation may very well
be provided to members of certain associated authorities. To facilitate the unveiling of
manipulation affairs, the regulations could also give all members (including athletes and
officials) the opportunity to denounce acts of manipulation.
2. Informing the Parties
In principle, the parties concerned are notified of the initiation of an
investigation, but for example, concerning UEFA, a disciplinary inspector may waive this
requirement if it does not seem appropriate to him (Article 25 Para. 5 letter b UEFA
DR). Generally, the right to information is waived in the event where knowledge of the
investigation by the targeted person would be likely to result in a risk of collusion
(witness tampering, disappearance of documents and computer files, etc.).
3. Informal Phase of Investigations
In some cases, an informal investigation phase may precede the formal
opening of the procedure.
This is particularly the case in cricket. For instance, the ACSU carries out the
necessary investigations then sends to the targeted person a written notice of charge
that informs him of the opening of the investigation, "the specific offense(s) that the
participant is alleged to have committed "," details of the alleged acts and /or omissions
relied upon in support of the charge", the penalties to be applied if it is determined that
the person has committed an offence, and if any provisional suspension is imposed and
the terms of the observations that the person may file (see Article 4.5 ICC AntiCorruption Code). The decision to carry on with the proceedings (decision to charge) is
made by the General Manager of the ACSU who acts in accordance to Article 4.5 of the
Anti-Corruption Code, in consultation with the CEO and the Head of Legal.
C. Parties Involved in the Disciplinary Proceedings
Natural and legal persons directly targeted in these proceedings and those
against whom sanctions could be taken, obviously have the status as party.
Sometimes, the athlete’s club may also have the status of party. This is
particularly the case when the club may have to bear monetary sanctions and/or
procedural fees.
However, this is not the case for persons who only have an indirect interest in
the outcome of the case. For example, the players of a handball club should not be
given the status of party in the proceedings against the president and patron of the club,
even if the exclusion of the latter from any activity related to sports would have
consequences on the club, and thus on the economic future of the players in question.
350
Various sports federations consider themselves as parties in disciplinary
proceedings, at least in the trial stage. For example, the status of party is recognised to
the ICC, before the association’s internal court, and to UEFA, which acts through a
disciplinary inspector.
When dealing with sports fraud, athletes and clubs directly affected by the
manipulation may also be granted the status as parties. For these persons, the
procedural rules should at least allow them access to the file in due time.
In disciplinary proceedings, the informant is not considered a party if he does
not have any direct interest in the outcome of the case.
D. Procedural Guarantees
As already mentioned, the parties in disciplinary proceedings are entitled to a
441
fair trial. This includes the right to be heard, along with its corollaries.
Among the most frequently mentioned rights in texts or in the practice of
disciplinary bodies, the following may be mentioned:
§ The right to a speedy trial;
§ The right to be informed of the charges or facts held against the person
concerned;
§ The right to be assisted by legal counsel (examples: Article 162 of the 2010
FIBA Internal Regulations, Book 1, "the right to be represented by counsel", Ch.
7.3 ASOIF). This right is not absolute, unless it is stipulated in the regulations.
But if the charges are serious, denying to the accused the right to be assisted
442
could jeopardise a fair trial. "Although the rules of some sports prohibit legal
representation, and it is not yet established that this is contrary to the rules of
natural justice [...] best practice is that a defendant accused of a disciplinary
offense should be entitled to bring a representative (legally qualified or
443
otherwise) to the hearing ". In general, the party shall bear the expenses of
its representation (examples: Ch. 7.3 ASOIF; Article 40 FCE; Article 145 2010
FIBA Internal Regulations, Book 1).
444
§ The right to challenge the members of the disciplinary body, for cause;
445
§ The right to inspect the complete file and to obtain copies of it;
§ The right to bring relevant evidence, including the filing of documents and
446
requesting the hearing of witnesses.
However, the right to evidence is not
absolute, insofar as that the person who, for example, wishes to call witnesses,
must exercise this right within the time and in accordance with the measures
441
For developments under the umbrella of fundamental rights of a person, see infra Title 3, Chapter 3,
Section 2, “The Common Principles Applicable to all Stakeholders”.
See M. BELOFF et al., Para. No. 7.126 et seq., pp. 225 et seq., op. cit.
443
A. LEWIS, J. TAYLOR, A.102, p. 87.
444
Example: Ch 5.1 ICC Anti-Corruption Code; the right to a ‟fair and impartial Hearing Panel”; “the members
of the Hearing Panel shall have had no prior involvement in the case and shall not, unless otherwise agreed
between the parties, be from the same country as the Participant alleged to have violated these Rules”; see
7.1 and 7.3 ASOIF Model Rules.
445
Examples: Article 34 Para. 2 UEFA DR; Article 39 Ch.1 FCE.
446
Examples: Article 162 and 168 2010 FIBA Internal Regulations, Book 1; Article 94 FDC; ‟the right of each
party to present evidence, including the right to call and question witnesses (subject to the Hearing Panel’s
discretion to accept evidence by telephone or written submission). Ch. 7.3 ASOIF; Article 39 Ch. 1 FCE.
442
351
447
stipulated in the rules of procedure.
Certain regulations require that the
parties themselves bear the costs incurred by their witnesses (example: Article
145 FIBA 2010 Internal Regulations, Book 1);
§ The right to take part in investigation operations (e.g. Article 94 FDC; see also
above). This right may be restricted in certain cases;
448
§ The right to state one’s position in writing;
449
§ The right to a Hearing: The ASOIF Model Rules suggest limiting this right to
cases where the facts and/or the proposed sanctions are challenged: "7.1
Where the International Federation alleges that a Participant has committed a
Violation of these Rules and the Participant denies the allegation and/or
disputes the sanctions to be imposed for such Violation, then the matter shall
be referred to a hearing before the Hearing Panel." The procedural rules may
provide that there is to be no hearing at first instance, or even that the entire
procedure will be conducted in writing. It is worth noting that the model
disciplinary rules of French law require a hearing, which must, in addition, be
public except when issues such as public order or the protection of privacy are
450
to be taken into consideration;
§ The right to the assistance of an interpreter (e.g. "the Participant's right to an
interpreter at the hearing (with the Hearing Panel to determine the identity and
responsibility for the cost of the interpreter)," Ch 7.3 ASOIF);
§ The right to plead, unless waived (e.g.: Art 171 2010 FIBA Internal Regulations,
Book 1, applicable to the appeal process). This right does not apply when the
procedure is exclusively written. Where appropriate, the disciplinary body may
then authorise written pleadings;
451
§ The right to a reasoned decision: in general, disciplinary decisions must state
the reasons on which they are based. With the view of simplification, some
federations, however, decided that the parties may waive this right and accept
the decision, at least in simple cases. The principle is that a non-reasoned
decision must be notified to the parties, who have a short time to ask for the
reasons. If the parties do not do so, they shall be deemed to have waived this
452
right;
§ The right to the confidentiality of the proceedings, in particular regarding non453
public documents filed in the record.
This right is not applicable when the
rules require a public hearing;
§ The right to be heard and its corollaries can sometimes be limited by the
competent disciplinary body, such as "when exceptional circumstances so
require, such as the protection of secrets or the good functioning of the
proceedings" (Article 95 Ch. 1 FDC) or "when exceptional circumstances so
require, such as the preservation of confidential matters, protection of
witnesses, or when required to establish the elements of the procedure" (Article
39 Ch. 2 FCE).
447
Swiss Federal Tribunal, ATF 4A_162/2011, Milutinovic.
Examples: Article 162 2010 FIBA Internal Reglations, Book 1; Article 34 Para. 2 UEFA DR; Article 94 CDF;
Ch. 5.1 ICC Anti-Corruption Code, which provides for a written exchange between the ICC and the accused
party.
449
Examples: Ch. 4.7, 5.1 ICC Anti-Corruption Code; Article 162 2010 FIBA Internal Regulations, Book 1,
applicable in second instance hearings.
450
Article 4 Annex 1-6 of the Code of Sports.
451
Examples: Ch. 7.3 ASOIF, Article 39 Ch. 1 CEF, Article 94 FDC.
452
Example: Article 52 Para. 1 UEFA DR, which requires the motivational demand as a condition for second
instance trials; the same system is provided for under Article 78 CEF and 116 FDC.
453
Example: “Any non public act or document issued from a disciplinary procedure must remain confidential”,
Article 24 Para. 8 UEFA DR.
448
352
Some regulations provide that the accused may waive all or part of his rights, or
that such rights are extinguished due to the accused’s absence during the operation or
declaration in due course. Concerning UEFA for example, "The disciplinary bodies can
sit and decide in the absence of any or all parties" (Article 34 Para. 4 UEFA DR), which
means in particular that the party that is not present forfeits its right to appear
personally. In addition, the ICC system provides, in Article 4.7 ICC Anti-Corruption
Code, that if the accused does not answer to the notice of charge within the set
deadline, or eventually extended, he is presumed to have waived his right to a hearing,
admitted the charges as being true and accepted that a sanction be imposed against
him in the context mentioned in the notice of charge. The CEO of the ICC, in
consultation with the Head of Legal, then decides the sanction (Article 4.7.2 in fine ICC
Anti-Corruption Code).
The party that considers that its rights have been violated or that has suffered
any other procedural violation should invoke this fact immediately in the procedure (in
this case, an arbitration), otherwise this right will be foreclosed. Furthermore, it goes
against the principle of good faith to only invoke the breach during an appeal against
454
the decision, when it could have been invoked at the first instance trial.
Finally, it should be noted that respect for due process by the disciplinary
bodies of federations can be verified, as appropriate, by the CAS, other arbitral tribunals
and/or State courts dealing with the case.
E. Mechanisms Favouring the Unveiling of Acts of Corruption
One of the major challenges in the fight against fraud in sports is the reluctance
of the persons approached to report corruption. Persons that are approached by others
to encourage them to manipulate competitions and those who are aware of corruption
acts do not generally denounce the people behind these approaches.
In addition, persons guilty of rule violations obviously tend hide this fact,
particularly since disciplinary penalties are known to be severe. Furthermore, some
sports leaders preaching "zero tolerance" in this area consider that anyone who has
manipulated competitions should be banned for life from sports. The prospect of a more
or less systematic life ban discourages those who would like to make amends and start
from scratch to confess their violation to federations.
Certain regulatory mechanisms can favour the unveiling of approaches such as:
the obligation to report and denounce (1), the existence of whistleblowing mechanisms
(2) the mitigation of the sanction or its waiver in case of cooperation (3), plea bargaining
(4), and amnesty (5). However, they remain perfectible. In this regard, the Chair
proposes a recommendation to rationalise them (6).
454
Swiss Federal Tribunal, ATF 4A_530/2011.
353
1. The Obligation to Report and Denounce
As mentioned above, some sports federations impose on all the persons
subject to their jurisdiction the obligation to report and denounce the facts to them. They
typically require of the same persons to cooperate in disciplinary investigations, to the
extent required of them by the relevant bodies.
Even if such an obligation does not guarantee that the facts will always be
disclosed, it may be helpful, and this is why it should be established as a rule in all
sports federations.
State legislation does not normally require of associative bodies to report sports
fraud cases to the competent public authorities, even if the cases constitute criminal
offenses. However, there are exceptions to this principle.
Associative regulation could provide for this obligation to report. FIFA has not
gone this far, in the sense that it provides a possibility to denounce, at the discretion of
the competent bodies: "The Ethics Commission may recommend to the competent body
FIFA that a case to be brought to the attention of law enforcement or judicial
authorities." (Article 6 Ch. 3 FCE).
In our opinion, sports federations must not conceal the implication of their
members (direct or indirect) from the attention of criminal authorities when these
members are guilty of offences punishable under the applicable law. Therefore, we
suggest that sports regulations require that associative bodies report to the criminal
authorities, cases that come to their knowledge. Such a rule would save these bodies
the trouble of considering, in each case, whether a disclosure is justified. This is
subject, of course, to necessary checks as to the intensity of suspicion. In addition, the
obligation to report should be limited to facts connected directly to the sport, but must
extend at least to cases of sports fraud and violations of the legislation on sports bets.
2. Whistleblowing Mechanisms
States are aware of the need to facilitate, in some areas, uncovering criminal
acts or harmful practices, thus pushing them to put in place legislative mechanisms to
455
protect those who report irregularities.
When it comes to competition manipulation, sports organisations need to
establish mechanisms that make sure that facts are brought to their attention.
The ability to easily expose fraudulent behaviour by phone or email may
increase the number of cases that are brought to the attention of disciplinary bodies and
can thus be sanctioned.
455
See for instance, the message of the Swiss Ferederal Council on the protection of workers in case of
irregularity detection, FF 2013 p.1392 et seq; this message mentions the measures taken by the European
Union, USA, UK, France and Germany.
354
Certain federations have hotlines or direct lines - telephone or electronic leading to central stations whose duty is to gather information from members or from
456
the public.
Should the central station be run by the federation itself (e.g. BWF), or rather by
an independent body such as an institution with extensive experience in corruption (e.g.
an office of Transparency International for UEFA) or an ombudsman appointed by the
federation, but whose status guarantees independence from the latter (e.g. Deutscher
Fussball-Bund)? The advantage of the first solution is that the federation has immediate
access to the information collected, given that the federation is probably – having
knowledge of contexts – more suited than an independent body to sort between what
requires further scrutiny and what is simply made up. The second solution, however,
offers better guarantees of confidentiality for people who use the "hotline", which can
457
encourage them to use it more readily.
Generally, hotlines allow the preservation of anonymity, at least if the caller
asks for it. The management of the call centre may adopt technical measures, similar to
jamming devices, so that the identification of telephone connection or the computer
used by the caller is not possible. In the absence of such measures, the call centre may
make a formal commitment to respect the anonymity of the caller, or at least to
guarantee him the privacy that he might ask for. The purpose of this procedure is to
encourage denunciations, for athletes might wonder if their leaders are not as corrupt
458
as the people they are calling in to report on.
Anonymity has its advantages, but is also disadvantageous for the concerned
federation. This obviously increases the chances that people reveal sports fraud,
without there being any risk to them. Nonetheless, it does involve the risk of false
information being submitted in bad faith, with the intention of harming the people that
are reported, without sufficient information. As a result, a call centre may well be
inundated with calls or pointless and even malicious messages.
Once the information is received, the federation decides the action it will take. It
is indeed up to it to determine what information should be considered as credible, and
therefore require further investigation. Sorting does not concern any outside party that
may decide not to report to the federation any information that might sound unrealistic
to them. In the event of a credible denunciation, the federation must launch an
investigation. It may in particular ask the informant – although his identity remains
anonymous – to substantiate the suspicions and to provide evidence in his possession.
In badminton, the information is provided by e-mail where the informant is asked to fill
out a specific report, the “BWF Whistle Blower Betting Report Form". It expressly states
that:
456
Example: ‟Interpol sets up hotline to curb match-fixing”, [http://mwnation.com/interpol-sets-hotline-curbmatch-fixing/].
457
On this subject see also, T. FELTES, Match Fixing in Western Europe, in: M.R. HABERFELD,
D. SHEEHAN (eds.), Match-Fixing in International Sports: Existing Processes, Law Enforcement, and
Prevention Strategies, Springer, 2013, p. 34.
458
pp. 277-278.
355
"By filing a report, the individual will have consented to taking part in actions to follow.
The BWF recognises and fully respects the concern of confidentiality, and therefore, will
take every attempt to keep personal information confidential. Please keep in mind
however that some information on the case will need to be shared with others in order to
investigate the report properly." On the form, the caller can check "I request to remain
anonymous" and it is stated that "such request will be respected by BWF. Only the BWF
General Secretary will be aware about the identity of the person making the report. The
personal information, however, still has to be filled in for the report to be seen as
credible."
Obviously, the establishment and management of a facilitative reporting system
are costly. Major sporting organisations can afford them, but the cost would probably be
prohibitive for most of the other organisations. However, a solution to this problem might
reside in pooling resources. Another solution might also be found in referring to external
459
organisations with sufficient resources.
3. Mitigation or Waiver of Sanctions in Case of Cooperation
Persons subject to disciplinary investigations should be encouraged to
cooperate. What is mainly required of them is to reveal everything they know and testify
against others who are involved. This is why regulations should provide for the
possibility of mitigating the sanctions, and even waiving them.
In this regard, the UEFA Disciplinary Regulations state that:
"If the disciplinary authority considers that the information provided by the person to be
penalised were instrumental in the discovery or the determination of a violation of the
UEFA regulations, it may, in the exercise of its discretion, reduce the sanction or waive
it." (Article 17 Para. 2 UEFA DR).
This system, which we think is necessary, only weakly stimulates selfdenunciation, in cases where the perpetrator of a violation is not yet subject to a
disciplinary procedure of which he has knowledge. Indeed, the fraudster who might
consider self-reporting cannot know in advance whether the disciplinary body will
actually give him preferential treatment, since the decision in this regard will be taken
only after the perpetrator has provided information about his actions and possibly also
about third parties. However, a provision of this kind should encourage confessions and
the cooperation of persons subject to disciplinary investigations. Nonetheless, this may
only have limited effects, insofar as in the previous case, the person does not know in
advance the outcome if he cooperates.
4. Plea Bargaining
Many criminal procedure laws allow plea bargaining. Plea bargaining is the
conclusion of an agreement between the prosecution and the defence. In the
agreement, the defendant admits to having committed all or some of the offences and,
where applicable, agrees to testify against his accomplices and perpetrators of other
crimes.
459
For example, Interpol has secured communication means and is ready to conclude agreements with
international
and
national
federations
[http://www.interpol.int/fr/Criminalit%C3%A9/Corruption/Int%C3%A9grit%C3%A9-dans-le-sport#].
356
This is done in exchange for a reduced sentence. This kind of agreement can
be used in the course of criminal proceedings, but sometimes even before the formal
opening of such proceedings (someone who is considering self-report, but will not give
concrete confessions unless he is provided with guarantees of preferential treatment).
An agreement concluded during an ongoing procedure is based on the state of
the evidence at the time when the negotiations take place, in the sense that the
prosecution will not settle, in principle (except in regard to the penalty to be imposed) on
the facts that the record has already established. However, the prosecution may agree
to give up trying to establish other facts which the accused is also suspected of
perpetrating, if an agreement is reached. Before the formal opening of the proceedings,
negotiations are conducted on the basis of the information provided by the perpetrator.
In any case, a judge must ratify the agreement between the prosecution and the
defence. A refusal to ratify may result from the imbalance between the "benefits"
provided or from non-compliance with the law of the clauses of the agreement with the
law. In case of refusal, the deal is cancelled and the information provided by the
accused cannot be used against him.
In the United States, such agreements allow to settle - in principle, quickly and
without undue cost - most of the criminal proceedings, and also identify numerous
460
offenses and offenders.
Under disciplinary law, a negotiated sanction is also likely to increase the
efficiency of prosecutions and encourage disclosures: the perpetrator of the violation
knows precisely the consequences of potential confessions and the benefits that he
might obtain by confessing and/or by cooperating with the prosecuting authority. This is
an effective incentive for offenders who want to get back on track, make amends and
get on with their careers, possibly after a short suspension period.
Currently, a large majority of federations do not have regulations providing for
plea bargaining (80% according to the survey conducted in partnership with
SportAccord – see Part 2, Title 3, Section 3). As a federation wrote in its response to
the survey conducted for this study, "This should be the sole solution if the sports
movement wants to move forward with match fixing. We should deal like public
authorities in criminal areas." Other federations believe, however, that such an
instrument should not be used in disciplinary law, but did not state their positions.
Besides its benefits in encouraging the unveiling of violations, the system of
negotiated sanctions gives disciplinary bodies the chance to save their strength: if the
person admits to having committed the facts alleged against him, the disciplinary body
has no need to conduct an evaluation of the evidence, which can be a long and costly
process.
460
See in particular A. ROSETT, D.R. CRESSEY, “Justice by Consent: Plea Bargains in the American
Courthouse”, [https://www.ncjrs.gov/App/Publications/abstract.aspx?ID=34418].
357
The major drawback of the system is that it allows fraudsters to obtain
moderate sanctions, sometimes unrelated to their involvement in the violation. From a
moral perspective, it can appear to be unsatisfactory. Furthermore, it does not entirely
respect the principle of equal treatment, since at equal fault, the person who concluded
an agreement is treated more favourably compared to another who refused to enter
such an agreement or who has not received the approval of the accusing body to a
proposal he made.
Based on the nature of the disciplinary violation, the difficulty in proving the
facts, the imperatives of efficiency and benefits of the system in terms of unveiling
sports fraud, we believe that sports federations should not exclude such a system. They
could even consider using it in practice, in a more or less wide scope depending on the
461
situation in that sport, the practical necessities, any moral hesitations or other criteria.
In the case of self-denunciation, outside the scope of any disciplinary
procedure, such a system should address the issue of guarantees given to one who
intends to report his own acts, regarding the non-use of the revelations that he is
required to make, in the event of refusal to enter into discussions regarding an
arrangement, the absence of a subsequent agreement or the refusal to ratify by the trial
body. For example, it could provide the intervention of a third party in the negotiation, to
enable the individual to remain anonymous as long as he has not received formal
guarantees. This also applies regarding the content of the agreement (e.g. potential
third parties: sports unions, ombudsmen, lawyers).
The system should also limit the ability of the trial body, to refuse the ratification
of an agreement between the prosecution and the defence on the grounds of noncompliance of the agreement with the statutes and regulations in force.
Inappropriateness should not be invoked. A federation could also consider that the
agreement is valid once consensus is reached between the prosecution and the
defence, without any necessary ratification.
5. Amnesty
A federation facing recurrent problems could decree an amnesty that would
guarantee impunity or a previously fixed sanction for those guilty of sports fraud and
who denounce themselves spontaneously within a given period of time (as is done in
some countries concerning fiscal fraud). If the sanctions were moderate or inexistent,
fraudsters with a conscience could end up adjusting their situation and denouncing their
accomplices. This would allow the aforementioned federation to put an end to the
matter and resume its activity.
Naturally, the opposite way would be granting fraudsters total or partial
impunity, including those who severely violated sports ethics.
461
For interesting discussions on the “Game theory” applied in self-denunciation processes, see
F.B. HAKEEM, “Sports-Related Crime: A Game Theory Approach”, in: M.R. HABERFELD, D. SHEEHAN
(eds.), Match-Fixing in International Sports: Existing Processes, Law Enforcement, and Prevention Strategies,
Springer, 2013, p. 253.
358
Amnesty should be considered as an ultima ratio, which a federation could only
resort to if other means, more compatible with morals, did not achieve the anticipated
ends, or if the situation required an immediate solution.
6. Recommendation
In a field such as the manipulation of competitions, the stakes are important,
and the natural tendency of those involved in such a field is too discreet, even covert. It
is therefore essential that mechanisms encourage the unveiling of instances.
Some of the aforementioned measures involve costs, especially implementing
the use of a hotline. Several federations could thus combine their resources to carry out
these measures without depleting their budgets.
F. Provisional Measures
When suspicions are raised against a person under disciplinary jurisdiction due
to facts related to sports fraud, the authorised bodies of the concerned federation might
have to issue provisional measures, particularly the provisional suspension of the
suspect during the proceedings, in order to preserve the integrity of the competitions
and the image of the sport.
Naturally, these measures are implemented at a stage of the disciplinary
proceedings where facts are not yet sufficient for a sanction to be certain, or at a time
where the suspect was not yet able – or was not yet entirely able – to benefit from their
defence rights. These measures are thus based on a prima facie assessment of the
situation, which might be refuted based on the results of the operations carried out in
accordance with subsequent investigations.
There is a risk that a person might be affected by a provisional suspension
based on suspicions, before he/she is eventually proven innocent, or sentenced to a
shorter period of suspension than the provisional one they had already undergone,
given that the final facts could end up being less serious than those suggested by the
prima facie assessment. Federations must, however, assume this risk in the best
interest of the sport, while attempting to avoid hasty and unjustified decisions.
For example, FIFA authorises that the head of the competent jurisdictional
authority impose a provisional suspension in the event that the violation of the
provisions of the present Code seems to have occurred (likelihood criteria), and if a
decision regarding the main issue could not be rendered soon enough, or in order to
avoid all obstacles that would prevent the truth from prevailing (Article 83 CEF; Article
129 Ch. 1 CDF). The conditions are therefore particularly flexible, but require, in
exchange, a limitation of the length of the provisional suspensions, to 90 days, with a
possible maximum extension of 45 days (Article 85 CEF; limited to 30 and 20 days
respectively in terms of ordinary discipline, Article 132 CDF), and a possible appeal
before the head of the Appeal Board, noting that the appeal would have no suspensive
effect (Article 86 CEF; Article 133 CDF).
359
The FIFA had, in fact, made use of the provisional suspension against one of its
vice presidents and another member of its Executive Committee on 29 May 2011,
462
because they were accused of corruption.
In cricket (Article 4.6 ICC Anti-Corruption Code), the ACSU General Manager
shall have the discretion (after consulting with the ICC CEO and the Head of Legal) to
impose a provisional suspension, until the time where the Anti-Corruption Tribunal
decides if the suspect was guilty, in the event that the ACSU General Manager
considers this suspect guilty, and “in circumstances where he/she considers that the
integrity of the sport could otherwise be seriously undermined.” When a provisional
suspension is imposed, the concerned party may contest it, and the matter would be
referred to the Chairman of the ICC Code of Conduct Commission, who could order a
provisional hearing, or allow the suspect to otherwise present their point of view and
present evidence. The Chairman may also demand lifting the suspension if a hearing
does not take place at the Anti-Corruption Tribunal within the three months following the
decision. To review the Provisional Suspension, the ACSU General Manager must
establish: ‟ (a) that there is a strong, arguable case against the Participant on the
charge(s) that have been made against him/her; and (b) that, in such circumstances,
the integrity of the sport could be seriously undermined if a Provisional Suspension was
not imposed against him/her. “The Provisional Suspension is valid for all activities
related to cricket, except the authorised anti-corruption education or rehabilitation
programmes (Article 4.6.4 ICC Anti-Corruption Code). For example, the News of the
World magazine published, on 29August 2010, an article on Pakistani players
manipulating games, on which a provisional suspension was decided by the ICC on 2
September 2010, and the Anti-Corruption Tribunal refused to lift the provisional
suspensions in a preliminary hearing held on 30 and 31 October 2010. The ICC held a
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hearing from the 6 to 11 January 2011, and ruled on the merits on 5 February 2011.
In the UEFA, the president of a disciplinary authority may issue provisional
measures “if he regards them as necessary to ensure a good justice for the
administration, maintain discipline in the sport, or avoid an irreparable prejudice, or if
security motives require them.” These measures are valid for a maximum of 30 days,
but may be exceptionally extended for 15 days. An appeal is possible against the
decision of the president of the trial court before the president of the court of appeal
(Article 42 RD UEFA).
The World Anti-Doping Code stipulates in article 7.5.2 the possibility of an
optional provisional suspension on the basis of abnormal findings in the analysis of a
sample (A) or another violation of the anti-doping regulations. A provisional suspension,
however, could not be imposed unless the athlete, or the other person, is offered a
chance to have a preliminary hearing before the provisional suspension comes into
force, or as soon as this provisional suspension becomes effective.
462
See
the
press
statement
issued
by
FIFA
[http://www.fifa.com/aboutfifa/organisation/bodies/news/newsid=1443230/].
463
CAS 2011/A/2364 Salman Butt v. ICC, Para. 23 et seq.
in
this
regard,
360
We recommend that provisional suspensions be allowed in the event of a
tangible suspicion of the manipulation of competitions. Disciplinary bodies must have
jurisdiction to order such a suspension. Suspects must enjoy the right of being heard
before announcing the decision or soon after the announcement.
If criminal proceedings begin in the same context, associative bodies might tend
to systematically order the provisional suspension of the suspects. Such a practice may,
however, lead to a number or problems. In the absence of immediate access to the
criminal file, disciplinary bodies could not estimate the probability of definitely
establishing disciplinary violations against the suspects. In some cases, the suspicions
that led to the initiation of the criminal proceedings could also be relatively insufficient.
Therefore, adopting a systematic provisional suspension approach in the event of the
beginning of criminal proceedings for sports fraud is untenable, and such suspensions
must only be imposed in cases where the disciplinary body has sufficient information to
rule with full knowledge of the facts and justify the measure.
G. Evidence and Administration of Evidence
Evidence and its administration will be discussed through the
publicity/confidentiality aspects of the proceedings (1), general principles (2), the right to
evidence (3), the interrogation of the parties (4), the hearing of witnesses (5), the use of
incriminating documents (6), measures of expertise (7), evidence related to bets (8),
investigations (9), sound and image recordings (10), and lie detectors (11).
1. Publicity/Confidentiality Aspects of the Proceedings
In theory, disciplinary proceedings are not public. They are, in fact, proceedings
internal to the sports organisation concerned, proceedings that are private by definition.
Consequently, information provided by a person must be regarded as
confidential. There are, however, exceptions, such as the necessity of revealing the
information in order to support an accusation, a revelation imposed by law, information
that is already in the public domain or that was already published, or the exchange of
information with other bodies and authorities (Article 4.4 ICC Anti-Corruption Code).
Another consequence is the fact that the parties are, in theory, not entitled to a
public hearing in disciplinary proceedings, despite Article 6 ECHR. The reason
advanced in this regard is the fact that the parties that agree to resolve their disputes
through arbitration are considered to have waived their right to a public hearing [...] few
464
sportsmen and women want publicity anyway, particularly in disciplinary proceedings.
An exception is found in Article 4 of the model disciplinary regulations imposed
on French sports federations certified by the State, according to which the disciplinary
hearings must be, in theory, public (Annex I-6 of the Code of Sports).
464
M. BELOFF et al., No. 8.41, p. 270, op. cit.
361
2. General Principles
As revealed by British authors:
“Sporting disciplinary bodies [...] are not bound by strict rules of procedure and evidence
which apply in courts of law [...], except to the extent that their rules so provide.
However, they must not misinterpret the meaning of the rules they are applying; nor
must they conduct themselves other than in conformity with well-recognised principles of
nd
fairness” (Beloff et al., Sports Law, 2 edition, p. 190) and “The procedures are not
465
intended as a substitute for a formal court system.
Consequently, in order to establish facts in a disciplinary proceeding, the judicial
regulations regarding the admissibility of the evidence does not apply. For instance,
Anglo-Saxon courts do not admit hearsay evidence, but this fact does not apply in
disciplinary proceedings. Furthermore, even unlawfully obtained evidence may
sometimes be used. For instance, the Anti-Corruption Court of the ICC accepted as
evidence the clandestine recordings of conversations between a journalist and a
number of Pakistani cricket players. The court indicated that the parties did not contest
466
the authenticity of these recordings,
and that “the legal defence of a fundamentally
467
unfair entrapment was not raised”;
it extensively used the transcriptions of the
468
recordings to establish the guilt of the suspected players.
Furthermore, there is no numerus clausus concerning evidence in disciplinary
proceedings, and facts may be established by any useful and pertinent means.
Therefore, in principle,
469
the only means excluded are the following:
§ Methods which do not lead to establishing the truth, given their aleatory, nonscientific or irrelevant character for other motives (ordeals, divinations, etc.; the
lie detector issue will be examined subsequently);
§ Methods of obtaining evidence that do not respect human dignity (torture, truth
serum, etc.).
Except for the abovementioned cases, all forms of evidence are admissible.
The problem facing disciplinary bodies is therefore not related to the admissibility of
evidence, given that in general, any evidence is admissible, but rather, to the probative
value of such evidence:
“we must consider weight rather than admissibility, subject always to the overriding
imperative of fairness which is necessarily to be implied into the Code. We recognize
that the principles that have lain behind the exclusion of certain forms of evidence from
being heard in English courts will have resonance even where questions of weight are
being considered. It is obvious, for example, that hearsay evidence from what someone
said outside of the Tribunal hearing is of less weight than evidence given by witnesses in
470
court”.
465
This means, for example, that the formal rules of evidence do not apply,” A. LEWIS, J. TAYLOR, A2.67,
p. 77.
Doha, January 2010, Para. 37-38.
467
468
Doha, January 2010, Para. 80-81, for example.
469
On the incompatibility of certain evidence with other fundemental guarantees, for example the right to
privacy, see below Title 3, Chapter 3, Section 2 “The Common Principles Applicable to all Stakeholders”.
470
466
362
A confession may be considered as sufficient evidence for the facts the parties
are seeking to prove, contrary to what is practiced in some criminal procedure systems,
where the investigating authority must prove facts even in the presence of the
confession. In other words, if a person admits to having committed facts they are
accused of, the disciplinary body may consider these facts as established, and is not
required to make any verification. The confession must, however, be credible; the
disciplinary body establishes this credibility on the basis of the circumstances of the
case as a whole.
Regulatory provisions could impose limits to the administration of evidence.
They could, for example, determine that certain forms of evidence cannot be used or
can only be used in a limited manner.
The abovementioned regulations were used in the normative frameworks of
various sports regulations. For instance, in cricket, a disciplinary body shall not be
bound by judicial rules governing the admissibility of evidence. Instead, facts relating to
an offense under the Anti-Corruption Code may be established by any reliable means,
including admissions” (Article 3.1 ICC Anti-Corruption Code). Similar rules were
adopted in tennis: “The AHO shall not be bound by any jurisdiction's judicial rules
governing the admissibility of evidence. Instead, facts relating to a Corruption Offence
may be established by any reliable means, as determined in the sole discretion of the
AHO” (Article X letter G Ch. 3 letter c of the Uniform Tennis Anti-Corruption
471
472
Programme). The FIFA, as well as the UEFA Have established similar rules. In the
NFL, the Commissioner may hear witnesses, use video recordings and resort to any
other procedure he deems appropriate (NFL Rule 17, Section 2, and Article 3).
According to the above, it seems clear that sports organisations should adopt
regulations that mirror these principles, and particularly that accept the administration of
any useful evidence, regardless of its nature (except for irrelevant evidence or evidence
that does not respect the principles of human dignity), that regard confessions as
evidence which exempts the authority from conducting further investigations and offers
disciplinary bodies latitude broad margin of manoeuvre in the process of administering
evidence (with respect to the parties’ rights).
3. The Right to Evidence
Parties are entitled to suggest the administration of evidence. This right,
however, is not absolute, given that the disciplinary body may refuse to administer
evidence that it considers as irrelevant, and that it enjoys broad evaluation powers in
this regard.
For instance, the disciplinary court may consider that hearing a witness is
useless, given that the facts that this witness would help establish were already
sufficiently proved, given that doubts as to this witness’s credibility are obvious, or even
given that many other witnesses brought forward by the same party were already heard
on the same subject.
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“All means of evidence must be provided”, Article 46 CEF, idem 96 Ch. 1 CDF, containing a list of
examples.
472
“All means of evidence may be used during the investigations and disciplinary proceedings, with respect to
the human dignity. In this context, acceptable means of evidence include official reports and documents,
testimonies, hearing the parties and disciplinary inspectors, local inspections, experts’ opinions, TV and video
recordings, confessions and any other recording or document.” Article 37 Para. 1 UEFA DR.
363
We recommend that a clause be added to the procedural regulations, providing
that the disciplinary bodies may refuse the administration of evidences which seem
irrelevant based on preliminary evaluation. The same regulations must provide that the
evidence submitted should conform to formalities and deadlines. Otherwise, parties
would slow down the proceedings through repetitive and multiple petitions.
4. Interrogation of the Parties
The parties may be interrogated.
They must cooperate in the disciplinary proceedings, in particular by attending
the hearings to which they were summoned, and answering the questions of the
disciplinary body concerned. An abstention from attending and/or answering could lead
to negative consequences, given that it may be considered as a disciplinary violation
itself, and the competent disciplinary body may duly take this abstention into
consideration in the evaluation of evidence – when evaluating the evidence.
One may recommend that, in the field of sports fraud, the interrogation of the
parties always be subject to a written verbal procedure, unless it was recorded on video
or audio. This would prevent disputes regarding the exact content of the statements.
5. Hearing Witnesses
A witness is someone who is not targeted by the proceedings, and who could,
in theory, provide useful information. A person subject to disciplinary sanctions in
another proceeding, or a person prosecuted separately, may therefore be heard as a
witness as well.
It is not necessary that witnesses be subject to the jurisdiction of the concerned
federation: persons who are not members of the federation may be heard as well. The
difference is that persons under the jurisdiction of the federation are obliged to offer
information, answer questions and speak the truth. A sports federation clearly cannot
impose such obligations to third parties.
In order to simplify the tasks of their bodies, some federations stipulated that the
parties are in charge of ensuring the availability of the witnesses they summon
473
themselves, and of covering their fees as well.
Depending on the nature of the sports fraud, and on those involved in it, many
federations guarantee the possibility of anonymous testimonies, in order to protect
witnesses from reprisals, in cases where a testimony might endanger the witness’s life,
their physical integrity, or endanger the lives or the physical integrity of their families
474
and entourage. Other federations have not implemented such regulations yet, or have
not yet taken stock of their importance: this last case includes 68% of the federations
included in the survey conducted in line with the current study.
473
474
Examples: Article 39 Para. 3 UEFA DR; Article 75 Ch. 2 CEF.
Examples: Article 40 RD UEFA, Article 47 and 48 CEF.
364
In a matter related to sports fraud, the Court of Arbitration for Sport (CAS)
475
agreed to protect the anonymity of the witnesses. It made the following determination
in this regard:
‟72. When facts are based on anonymous witness statements, the right to be heard
which is guaranteed by article 6 of the European Convention of Human Rights (ECHR)
and article 29 par. 2 of the Swiss Constitution is affected. According to a decision of the
Swiss Federal Court dated 2 November 2006 (ATF 133 I 33) anonymous witness
statements do however not breach this right when such statements support the other
evidence provided to the court. According to the Swiss Federal Court, if the applicable
procedural Code provides for the possibility to prove facts by witness statements, it
would infringe the principle of the court’s power to assess the witness statements if a
party was prevented from relying on anonymous witness statements. The Swiss Federal
Court refers to the jurisprudence of the European Court of Human Rights which
recognizes the right of a party to rely on anonymous witness statements and to prevent
the other party from cross examining the witness, if «la sauvegarde d’intérêts dignes de
protection», (i.e. if the personal safety of the witness is at stake). With reference to the
ECHR-cases Doorson, Van Mechelen and Krasniki, the Swiss Federal Court then noted
that the use of anonymous witnesses, although admissible, was subject to strict
conditions. The right to be heard and to a fair trial must be ensured through other means,
namely by cross examination through “audio-visual protection” and by an in-depth check
of the identity and the reputation of the anonymous witness by the court. 73. The Panel
emphasizes that due attention was given to the statements of the protected witnesses in
the current proceeding and in the proceedings before the UEFA Bodies that they were
personally exposed to threats, insults, pressure and intimidation. Given the
circumstances of this case, the Panel had no reasons to ignore those fears and could
not disregard the possibility of such threats and the Respondent’s assertion that the life
and/or the personal safety of the witnesses and their families were at risk. 74. However,
at all-time the Panel has respected the procedural rights of the Appellants. It is
convinced having maintained a proper balance between the rights of the Appellants,
notably the right to examine the witnesses, and the necessity to protect the witnesses.
75. The Panel made sure that the Appellants received the minutes of the interrogations
of the protected witnesses and that the Appellants were able to directly cross-examine
the protected witnesses over the phone during the Hearing. A counsel of the CAS
assured that the witnesses were properly identified and that they were alone at the time
of the examination-in-chief and the cross-examination. The Panel repeatedly denied
requests of the Respondent that anonymous witness statements should be admitted
without providing the Appellants with the minutes or without granting them the right to
cross-examine them”.
In our opinion, the possibility of preserving the anonymity of witnesses is
essential in order to fight against the manipulation of competitions. Therefore, we
suggest that each federation add the appropriate provisions to its regulations. As an
example of recent regulations, we have provided below the regulations imposed by the
UEFA in its Disciplinary Regulations:
“Article 40 - Anonymous witnesses 1. Where a person’s testimony in disciplinary
proceedings opened in accordance with these regulations could endanger his life or put
that person or his family or close friends in physical danger, the chairman of the
competent disciplinary body, or his nominee, may order that: a) the witness not be
identified in the presence of the parties and ethics and disciplinary inspector; b) the
witness not appear at the hearing; c) all or some of the information that could be used to
475
CAS 2009/A/1920 FK Pobeda, Aleksandar Zabrcanec, Nikolce Zdraveski v. UEFA.
365
identify the witness be included only in a separate, confidential case file. 2. In view of the
overall circumstances (particularly if no other evidence is available to corroborate that of
the anonymous witness), and if it is technically possible, the chairman of the competent
disciplinary body, or his nominee, may exceptionally order, on his own initiative or at the
request of one of the parties or the ethics and disciplinary inspector, that: a) the
witness’s voice be distorted; b) the witness’s face be masked; c) the witness be
questioned outside of the court room; d) the witness be questioned in writing through the
chairman of the competent disciplinary body or his nominee. 3. Disciplinary measures
are imposed on anyone who reveals the identity of an anonymous witness or any
information that could be used to identify him. Article 41 - Identification of anonymous
witnesses 1. To ensure their safety, anonymous witnesses are identified behind closed
doors in the absence of the parties and the ethics and disciplinary inspector. This is
carried out either by the chairman of the competent disciplinary body, or his nominee,
alone, or by all the members of the competent disciplinary body together, and is
recorded in minutes containing the witness’s personal details. 2. These minutes are not
communicated to the parties and the ethics and disciplinary inspector. 3. The parties and
the ethics and disciplinary inspector receive a brief note which: a) confirms that the
anonymous witness has been formally identified; and b) contains no details that could be
used to identify the anonymous witness.”
6. Documents
Disciplinary bodies may clearly use these documents as evidence.
These documents may be obtained from the parties
spontaneously, or on the basis of the parties’ obligation to cooperate.
themselves,
In the Butt, Asif and Amir Case concerning Pakistani cricket players, the
disciplinary bodies of the ICC requested that the concerned parties submit their phone
call records in detailed bills issued by phone operators (billing records). These records
played a major part in the evaluation of evidence, given that they helped prove the
concerned parties’ communications with each other, and with their agent, at specific
times, via phone calls and SMS, and established the links between these
communications and the meetings, via pictures and clandestine audio recordings,
476
between a journalist and the agent. Similar records also played an important part in
477
the results of the Kaneria case.
When sports federations can obtain copies of the documents taken from the
files of criminal cases, these documents often bring evidence that is decisive in the
outcome of the disciplinary procedures. For instance, transcripts of the interrogations of
the players concerned, submitted by the police, proved to be useful elements in the
478
abovementioned case of Butt and others.
Similarly, the reports established by the
Bochum Police in the Sapina and others case, as well as the phone call records
annexed to these reports were also useful many disciplinary proceedings commissioned
by the UEFA and national federations, which ended in sanctions imposed on the parties
479
concerned for taking part in the manipulation of competitions.
476
Doha, January 2010, Para. 48, 51, 53, 56, 59, 120.
477
Appeal Panel of the Cricket Disciplinary Commission of the England and Wales Cricket Board, May 2013
decision.
478
479
For example: the Oriekhov proceedings, TAS 2010/A/2172.
366
7. Expert Opinions
In some circumstances, disciplinary bodies may hear expert testimonies, in
order to establish the facts which require particular scientific knowledge: “The standard
of proof [...] can be met by any reliable means, including through innovations in
480
scientific detection techniques, provided the expert testimony is sufficiently credible.”
Clearly, evidence provided through expert reports is only credible if the expert
complies with certain requirements:
“to be and be seen to be independent; to provide an objective unbiased opinion; to state
the facts or assumptions on which that opinion is based; to volunteer material facts
which detract from his opinion; to delineate clearly his area of expertise and identify any
issue falling outside it; to distinguish between concluded opinions and provisional ones;
and to communicate to the other side and the tribunal any change of view on a material
481
point, arising, for example, from availability of new material”.
For instance, a statistics expert, with a good knowledge of cricket, was
summoned to offer an opinion on the probability of three “no balls” accidentally
happening at three specific moments in the same game. He explained that the odds
were 1 out of 1.5 million, which led the disciplinary body to considering that the facts of
482
the contentious encounter were not simply accidental. Also in terms of statistics, an
author believes that such information might lead to the detection of high-risk games, or
even probable cases of manipulation, and present information regarding those
483
responsible for these manipulations.
A more debatable case is resorting to an expert’s opinion in order to determine
whether or not a goalkeeper willingly conceded goals. This “expertise” was entrusted to
484
Bob Wilson, sports caster and former Arsenal goalkeeper.
Since the members of a
disciplinary body must often be familiar with the sport in question, one cannot help but
wonder whether this type of expertise is really necessary, especially since it is difficult to
discern a mistake committed on purpose from one that resulted, for example, from a
miscalculation of the trajectory or from a lack of fitness. An author even indicates that it
is virtually impossible to prove that a competition was manipulated based of its sole
observation: athletes are human beings, and therefore subject to mistakes, and, in
485
general, one cannot truly ascertain whether or not a mistake was intentional.
Resorting to experts, which is often necessary, however, has its limits that are
related to the scientific value of the methods implemented, to the pertinence of the
possible deductions resulting from these methods, and also to the credibility of the
experts.
480
nd
M. BELOFF et al., Sports Law, 2 edition, p. 192, op. cit.
M. BELOFF et al., p. 212, op. cit. Also, A. LEWIS, J. TAYLOR, A2.92 pp. 84-85.
482
483
pp. 29 et seq. and 271-272.
484
See M. BELOFF et al., p. 211, op. cit.
485
See particularly D. HILL, The Insider’s Guide to Match-Fixing in Football, Anne McDermid& Associates
Ltd., 2013, p. 187.
481
367
8. Evidence Related to Bets
Sports federations are increasingly using monitoring systems, governed by
private firms for specific terms, in order to detect anomalies in the movement of odds in
486
sports bets. These firms establish reports on suspicious competitions, which explain
how the evolution of odds before and during the competition leads to seriously doubt
that some bettors are probably already aware of the outcome when placing their bets.
Monitoring reports may be used as evidence by the sports organisations.
Monitoring systems are sometimes criticised and accused of inefficiency, especially
when they failed to detect to manipulations during the investigations conducted in the
487
Bochum case. “Monitoring systems are (at least at the moment) not effective because
they deliver no facts or data, which can be used in investigations and trials. They have
no evidentiary value, and they are suggested to be monitored by those criminal
networks, or even tactically used by such networks for their own bets. Monitoring
systems are a net with very large mesh, because Asian fixers do not bet with Betfair or
488
English companies”. Certainly, these bet-monitoring systems do not offer definitive
proof that a competition was manipulated, but they do provide sufficient elements of
489
suspicion to allow launching a criminal and/or disciplinary investigation. Even though
monitoring systems do not offer sufficient evidence to prove the presence of
490
manipulation, they remain an “excellent first step”.
Some people believe that:
“Monitoring systems must be re-structured and an independent body must overview and
491
evaluate their work; early detection is crucial”. That is one opinion among others. In
any case, the necessary measures must be taken to ensure the existence of a
monitoring system and the use of the measures depending on its functions.
Information detained by sports bets operators, such as the evolution of odds in
a given competition, the amounts of money being wagered, and the identity of all or
some of the bettors, can be decisive in establishing manipulation. For sports
federations, the difficulty resides in the fact that, in theory, they cannot easily access
such information. In some cases, they conclude memorandums of understanding with
betting operators who agree to this and are no longer bound by law to preserve the
confidentiality of this information. In other cases, a regulatory authority of bets may have
access to the information and deliver it to the federations concerned. Certain
information may also be found in court files; copies of these files may be provided to
sports bodies.
486
For example: FIFA’s Early Warning System (EWS), the ITF’s and the UEFA’s Sport Radar; the IOC which
has also implemented a similar system since the Olympics 2010.
487
See B. BEST, Der gekaufteFussball – ManipulierteSpiele und betrogene Fans, MurmannVerlag, Hamburg,
2013, pp. 176 et seq.
488
T. FELTES, “Match Fixing in Western Europe”, in: M.R. HABERFELD, D. SHEEHAN (eds.), Match-Fixing
in International Sports: Existing Processes, Law Enforcement, and Prevention Strategies, Springer, 2013, p.
27.
489
See B. BEST, Der gekaufteFussball – ManipulierteSpiele und betrogene Fans, MurmannVerlag, Hamburg,
2013, pp. 176 et seq.
490
D. HILL, The Insider’s Guide to Match-Fixing in Football, Anne McDermid& Associates Ltd., 2013, pp. 115
et seq. and 276.
491
T. FELTES, “Match Fixing in Western Europe”, in: M.R. HABERFELD, D. SHEEHAN (eds.), Match-Fixing
in International Sports: Existing Processes, Law Enforcement, and Prevention Strategies, Springer, 2013, p.
28.
368
9. Investigations
Disciplinary bodies may resort to local investigations, such as visiting the sites
where evidence can be found.
For instance, a disciplinary court may inspect a stadium to make sure that the
witness who pretends to have seen a certain event could really have seen it from where
he was standing, or a site visit may be organised in a restaurant to determine whether
someone standing at the bar could hear a conversation which took place in the room.
10. Sound and Image Recordings
The use of sound and image recordings, even if they were obtained in a
clandestine manner, could bring useful proof, and therefore must be taken into
consideration.
For instance, clandestine image recordings were extensively used in a case of
the Pakistani cricket players. They revealed that the agent of the players assured a third
party – an undercover journalist –that he could get some of his principals to make
mistakes at specific times of encounter.
In another case, regarding a FIFA official who conspired – with undercover
journalists – to manipulate the allotments for the final stages of the World Cup, the CAS
had also accepted the use of clandestine recordings. In short, it considered that the
evidence was illegal according to Swiss Law and at least debatable according to British
Law, but that an international arbitration court was not bound by Swiss civil or criminal
regulations. The arbitrator enjoys discretionary powers to accept evidence, a power that
is only restricted by the procedural public order. The CAS noted that Article 96 of the
FIFA Disciplinary Code (FDC) only ruled out evidence that did not respect human
dignity, which was not the case for clandestine recordings. The CAS then proceeded to
conducting a weighing of interests, particularly between the right to the preservation of
private life and the media’s freedom of expression. In that regard, the court concluded
that the FIFA did not commit any illegal acts, noting that many details in those
conversations were already public, since a part of them was published in the Sunday
Times and on the Internet, and that the interests of the FIFA, and of the public in
general, in having regular proceedings regarding the attribution of competitions,
superseded the interests of the official concerned. In the eyes of the CAS, the use of
recordings, even illegal ones, in a disciplinary proceeding is not considered
incompatible with the known values of the rule of law, and does not violate the Swiss
procedural public order. Finally, taking into consideration the nature of the targeted
behaviour and its severity, as well as the ethical necessity to discover the truth and
punish offences, the responsibility resulting from being in an elite position, and the
general consensus – whether in sports or State-controlled organisations – on the fact
that corruption is a serious threat that affects the very core of the credibility of sports,
and therefore must be resolutely fought, in addition to the limited powers of investigation
of sports organisations, the CAS tribunal accepted the use of the abovementioned
records (CAS 2011/A/2426, Amos Adamu v. FIFA).
369
Given that acts involving manipulation of competitions are hardly ever obvious,
the necessity of resorting to clandestine recordings seems evident, provided, however,
492
that this does not constitute a disproportionate violation of the right to privacy.
11. Lie Detectors
A lie detector is a group of devices to which a person is connected. It measures
and registers various physiological variables, such as blood pressure, pulse, respiration
and skin conductivity, while the subject answers a series of questions. The system
relies on the belief that answers which include lies would cause physiological reactions
493
that might be distinguished from those associated with truthful answers.
Its use is relatively common in penal proceedings in some states of the United
States of America, knowing that these devices do not, however, replace the role of the
494
jury in its evaluation of the truth. In the United Kingdom, these tests are not used as
admissible evidence in court, but ‟the use of lie detector tests for certain criminals
subject to licence conditions has been legalised and sex offenders can now be
495
assessed for release based in part on such investigations”. In Australia, a judge in the
New South Wales District Court rejected the use of a lie detector as evidence in the
Raymond George Murray (1982) case, particularly because the method was ‟devoid of
any proved or accepted scientific basis” and therefore constituted “inadmissible
hearsay”, besides the fact that the jury is tasked with evaluating the suspect’s credibility
496
and the importance that ought to be granted to the evidence. A reference law book,
“Phipson on Evidence”, expresses strong scepticism, and indicates that ‟we do not think
that evidence of the results of polygraph tests would be admitted in England in their
497
present state of development”. On the other hand, it seems that the police’s use of lie
498
detectors is relatively common in India. The use of such methods is not admissible in
499
Switzerland.
Recently, a former captain of the Australian cricket team suggested that
polygraph tests be used in fighting corruption through disciplinary investigations. He
took a test himself, and “convincingly” proved that he had never taken part in a
500
manipulation. His approach, however, was subject to scepticism. The president of a
Bulgarian football club seems to have made his players undergo such a test after a
game
they
had
lost
under
circumstances
which
he
considered
501
suspicious. International cricket organisations do not completely rule out this method,
502
noting that a long debate is necessary before thinking of resorting to it.
492
See infra Title 3, Chapter 3, Section 2 “The Common Principles Applicable to All Stakeholders”.
A. ODELL, S. WAUGH calls for lie detector test, see: [http://www.lawinsport.com/blog/alexodell/item/steve-waugh-calls-for-lie-detector-tests, LawInSport, 9th of August, 2013].
494
P. GIBBS, Liar, Liar – Should Polygraph Evidence be used in Sports Tribunals? See:
th
[http://gibbsbarrister.blogspot.ch/2013/03/liar-liar-should-polygraph-evidence-be.html, 14 of March, 2013].
495
P. GIBBS, op. cit.
496
A. ODELL, op. cit.
497
See A. ODELL, op cit.
498
Idem.
499
See the sentence of the CAS in the Jessica Foschi case, CAS 96/156 Para. 14.1.1; CAS 99/A/246 W./FEI,
Para. 5-9, with the cited references.
500
P. GIBBS, op. cit.
501
‟Owner
orders
Lokomotiv
Plovdiv
players
to
take
lie
detector
tests”,[http://www.theguardian.com/football/2012/sep/25/lokomotiv-plovdiv-lie-detector-test].
502
The World Cricket Committee accepts that the use of polygraph tests is a sensitive subject but their
potential use should now be widely debated in the game”, see P. GIBBS, op. cit.
493
370
An expert commissioned by the ICC suggested waiting for an evolution of the
judicial practice: ‟The ICC should not introduce or support the use of the polygraph until
its validity and admissibility have been accepted by the courts,” and effectively, the
ACSU, in its “current practice and public position on this matter”, does not foresee an
503
immediate use of these methods.
Would it therefore be necessary to consider the use of lying detectors in
disciplinary proceedings related to the manipulation of sports competitions?
The first problem is that opinions vary regarding the reliability of the results of
504
such tests, estimated at 60% to 95% depending on the source.
In a proceeding in
505
front of the CAS, an expert gave a testimony alleging a 95% rate of reliability. In that
regard, one could reply that this expert frequently administered such test himself, and
therefore could not easily describe them as being unreliable.
Another problem is that, apparently, it is possible to lie detectors using counter506
measures such as hypnosis, resorting to drugs, or other means.
Police and spy
novels give examples of criminals and spies who successfully train to take such tests.
The fact that Lance Armstrong suggested, in 2012, to undergo such a test to prove that
he was not on drugs reveals that he was seriously thinking of taking the test without
being damaged, while it is now certain – as confessed by the concerned party, that he
507
was massively using doping products. Also, it would be impossible to use this type of
tests without the consent of the person concerned; ‟it is therefore more than likely that
this type of evidence will prove more useful, but to a limited degree, to the accused
508
athlete, than the prosecuting authority.”
Surprisingly, it seems that the CAS does not rule out – or no longer rules out,
the use of this kind of evidence.
Until recently, the CAS affirmed the inadmissibility of these methods (CAS
2008/A/1515, para 119):
“[…] A polygraph test is inadmissible as per se evidence under Swiss law. Therefore, the
CAS Panel may take into consideration the declarations […] as mere personal
statements, with no additional evidentiary value whatsoever given by the circumstance
509
that they were rendered during a lie detector test.”
In addition, in a doping case, the CAS admitted this type of evidence, but not as
decisive evidence that the athlete’s declarations in the test were truthful, given the lack
of contrary elements detected by the devices used: “The results of the polygraph add
some force to Mr Contador’s declaration of innocence but do not, by nature, trump other
510
elements of evidence.” The panel of the CAS particularly considered the following:
503
On the Spelville recommendations, see above, Part 3, Title 2, Chapter 1, Section 1, 2, C, 3 and A, 2 of the
same paragraph.
P. GIBBS, op. cit.
505
CAS 2011/A/2384, UCI v. Alberto Contador Velasco & RFEC.
506
P. GIBBS, op. cit.
507
P. GIBBS, op. cit.
508
P. GIBBS, op. cit.
509
CAS 99/A/246, Para. 4.5; CAS 96/156, Para. 14.1.1.
510
CAS 2011/A/2384, Contador.
504
371
“237. During the hearing, Mr Contador drew the attention of the Panel to Article 23 UCI
ADR and the corresponding Article 3.2 of the WADC providing that: “Facts related to
anti-doping rule violations may be established by any reliable means, including
admissions”. 238. Mr Contador also underlined that the admissibility of a polygraph test
in arbitration procedures is far less stringent as in courts. As Mr Contador considers the
polygraph examination to be a reliable method, he argues that the evidence should be
admitted by the Panel. Moreover, according to the Athlete, the polygraph examination in
CAS 2008/A/1515 was not admissible for another reason: the two CAS awards referred
to in the CAS 2008/A/1515 case are irrelevant as those awards were rendered before
the entering into force of the WADC. 239. The Panel notes that the Appellants did not
oppose the admissibility of the polygraph examination, but only argued that it has no
more evidentiary weight than a personal statement of the Athlete. 240. Based on its
powers to administrate proof under Article 184 PILA and given the Appellants
acceptance that the polygraph examination is admissible as evidence per se, the Panel
considers that the results of the polygraph examination undergone by Mr Contador in
this case are admissible. 241. In respect to the probative value of the polygraph test the
Panel notes that the examination was conducted by Dr Louis Rovner, a highly
experienced polygraph examiner who alleges to be 95% accurate and that the remaining
5% were false positive results. The Panel also notes that the polygraph examination was
reviewed by Dr Palmatier, an experienced polygraph credibility consultant who came to
the conclusion that ‘the examinations were professionally conducted and in compliance
with professional associations and organisational standards. More important, the
examinations were conducted in a manner supported by empirical research’. 242. In light
of the foregoing, the Panel takes good note of the fact that the results of the polygraph
corroborate Mr Contador’s own assertions, the credibility of which must nonetheless be
verified in light of all the other elements of proof adduced. In other words, the Panel
considers that the results of the polygraph add some force to M Contador’s declaration
of innocence but do not, by nature, trump other elements of evidence. 243. In coming to
its conclusions, the Panel took note of the former CAS awards regarding polygraph
examinations. However, as already mentioned, two of these awards (TAS 99/A/246 and
96/156) were rendered before the entering into force of the WADC. The third award
(CAS 2008/A/1515) simply refers to these two previous cases with no specific reference
to the applicable procedural provisions for the admissibility of evidence and to article 3.2
of the WADC. This jurisprudence does not prevent the admissibility of the polygraph
examination in the case at hand”.
In spite of the recent and somehow surprising jurisprudence of the CAS, it
seems impossible to generalise resorting to lie detectors in investigations related to
cases of sports fraud, because of its controversial scientific character. In any case, a
negative test must never be considered as evidence of innocence, given that it is
possible for a person to easily pass the test with the appropriate training, or simply
thanks to their special physical capacities (it is noteworthy that, in general, thanks to
their training, athletes have special concentration abilities, which allow them to “beat the
machine”).
These different methods of evidence are the main mechanisms used by
disciplinary bodies. Therefore, disciplinary bodies are free to resort to other methods of
511
evidence.
511
For example: a picture of an SMS copied in the decision, ICC Independent Tribunal’s Determination, ICC
v. Salman Butt, Mohammad Asif and Mohammad Amir, Doha, January 2010, Para. 101.
372
H. Burden Of Proof and Standards of Proof
Analysing the types of proof also involves examining the burden (1), and the
standards (2).
1. Burden of Proof
Regarding the burden of the proof:
‟The burden of proving that an offence has been committed should be, and generally is
under the applicable rules, on the governing body. However in some situations it is
possible to provide that once basic facts are proved, there is a presumption of an
512
offence unless the defendant disproves it.”
The burden of proof arrests on the disciplinary body and not on the person
accused. Two scenarios are possible depending on the jurisdictional organisation of the
sports federation. The first involves an accusing body, whether or not in charge of the
513
investigation, and in this case this body bears the burden of proof.
Regarding presumptions, it is known that the anti-doping system relies on the
analysis of biological samples and on a presumption – that is refutable – of guilt, when
514
the analysis leads to positive results.
Is it possible and necessary to establish presumptions that facilitate proving that
sports fraud acts were committed?
In principle, there is no objection to disciplinary bodies establishing
515
presumptions.
In our opinion, resorting to presumptions must, however, be
proportional to the goal sought, without violating the principle of equitable proceedings.
For instance, a federation may presume that the established facts are exact, in
decisions that may no longer be challenged before a State court, an arbitration tribunal,
a disciplinary body or any other competent State or sporting jurisdiction. The ICC did
this, but it indicated that its anti-corruption tribunal may – but does not have to–
consider that these facts are established, and that the presumption is therefore
irrefutable, but that the suspect should be able to attempt to prove that the stated
516
decision violated the principles of a fair trial.
512
A. LEWIS, A2.100, p. 87, op. cit.
For example: ACSU’s General Manager, Article 3.1 ICC Anti-Corruption Code; UEFA disciplinary
inspectors, Article 25 UEFA DR; PTIO, Professional Tennis Integrity Officer, Ch. 3 Uniform Tennis AntiCorruption Programme). In the absence of a body in charge of prosecution, the burden of proof lies within the
hands of the deciding authority itself (for example: for FIFA, Article 52 CEF and 99 CDF).
514
Ch. 2.2.1 of the World Anti-Doping Code: “It is each Athlete’s personal duty to ensure that no prohibited
substance enters his or her body and that no prohibited method is used. Accordingly, it is not necessary that
intent, fault, negligence or knowing Use on the Athlete’s part be demonstrated in order to establish an antidoping rule violation for Use of a Prohibited Substance or a Prohibited Method.”
515
See M. BELOFF et al., No. 7.81 and No. 7.82, pp. 212-213, op. cit.
516
‟The Anti-Corruption Tribunal shall have discretion to accept any facts established by a decision of a court
or professional disciplinary tribunal of competent jurisdiction which is not the subject of a pending appeal as
irrebuttable evidence against the Participant to whom the decision pertained of those facts, unless the
Participant establishes that the decision violated principles of natural justice”; Article 3.2.1 ICC Anti-Corruption
Code, which adopts literally the text of Ch. 4.4 of the ASOIF Model Rules.
513
373
As it was previously mentioned, special proceedings allow extending local
sanctions to an international level. In this context, and except for the case where the
local proceedings would be considered inequitable, the system relies on an irrefutable
presumption of the accuracy of the facts, but also of their legal qualification and even of
the sanction imposed after hearing the case on the merits.
In certain systems, the decisions of national federations serve as a basis for the
decisions made by international federations. For instance, the UEFA’s disciplinary
bodies refer to decisions taken by national federations against persons or clubs that are
found guilty of manipulating results, in order to command the exclusion of clubs from
competitions organised by the UEFA. The question is whether they can retain the facts
as established before the national proceedings are closed, and this question is also
valid concerning the CAS. In the Metalist Kharkiv case, the UEFA bodies waited until
the final decision of the Ukrainian federation was confirmed by the CAS before making
517
a decision themselves, whereas they were content with the national decision of the
Greek appeals court in order to sanction Olympiakos Volos FC by excluding it from the
UEFA Europa League, given that it was undoubtedly because of emergency in the
second case that the competent authority did not to wait for the definitive issuance of
518
the national proceedings.
In our opinion, international federations must be able to consider as accurate, at
least regarding the facts, decisions rendered by affiliated national federations in order to
ensure efficiency. The only exception should be cases where the national decision is
clearly marked by serious defects such as the violation of the right to be heard, or
obvious inadvertences in the establishment of facts (for example: a fact established in
way which contradicts a probative element of the file).
Still in football, many regulations establish a refutable presumption of the
accuracy of the reports established by their officials, particularly the games referees and
delegates (Article 38 UEFA DR; idem 98 CDF).
Could a disciplinary code provide for a presumption of manipulation of a
competition when a monitoring report reveals suspicious fluctuations of the odds in the
sports bets related to this competition? The answer seems negative, given that such a
report only provides signs that are exclusively based on the fluctuation of odds, and
does not allow deducing that the competition was actually manipulated. Suspicious
odds fluctuations may also be due to a bettor’s surprising behaviour, without being
related to a manipulation and these bettors could never be prohibited from betting.
Sometimes, a rule may spare the disciplinary body the trouble of proving certain
facts. This is in particular the case of the provisions which stipulate that it is not
necessary to prove that an athlete deliberately competed without fully exploiting his
potential. For instance, in tennis:
517
28
August
2013,
[http://www.tascas.org/d2wfiles/document/6677/5048/0/Media20Release20decision20final20_English_2028.0
8.pdf].
518
[http://fr.uefa.org/aboutuefa/organisation/news/newsid=1751867.html].
374
‟Evidence of a Player's lack of efforts or poor performance during an Event may be
offered to support allegations that a Covered Person committed a Corruption Offense,
but the absence of such evidence shall not preclude a Covered Person from being
sanctioned for a Corruption Offense” (Article X letter E Ch. 3 of the Uniform Tennis AntiCorruption Programme).
Such a provision helps avoid the need of bringing evidence that is technically
generally impossible. Even in the absence of such a rule, the way that the offences are
defined no longer requires this evidence, for example when an approach whereby an
advantage is promised or an unauthorised allowance is offered is not reported.
Disciplinary rules may also provide that a given behaviour or the absence of
such behaviour could have consequences on the evaluation of evidence regarding
other facts. For instance, article 2.4.1of the ICC Anti-Corruption Code incriminates
granting or receiving gifts or other advantages:
‟in circumstances that the Participant might reasonably have expected could bring
him/her or the sport of cricket into disrepute”.
The commentary of this provision specifies that if the gift was in fact offered by
an unknown person or organisation and/or for no apparent reason, it is recommended
to inform the federation or the ACSU of the matter.
‟Where such Participant does not make such a report, then that is likely to constitute
strong evidence (which the Participant will have the opportunity of rebutting) of the
commission of this offence.”
Regardless of any presumption, the accused person may have to prove the
facts they are alleging in disciplinary proceedings. If, for example, an athlete is accused
of having been contacted by a third party with the aim of manipulation, without informing
the concerned authorities of this matter, and if the athlete argues that they had informed
a federation official, it is up to the athlete to prove this fact. In the same situation, if the
athlete argues that he spoke to the presumed corrupter because they were childhood
friends, it is up to the athlete to prove this previous relationship.
Finally, in order to regard certain facts as established, it is not necessary to
have possessed elements. Circumstantial evidence can be sufficient, according to the
circumstances; through a combination of circumstantial elements that may be
insufficient on their own, but when taken together they create a strong suspicion of
519
guilt. The CAS accepted that a circumstantial evidence was sufficient to prove a case
520
of manipulation of samples in the context of doping.
2. Standard of Proof
Under criminal law, the standard of proof adopted by courts is that facts must be
proven beyond reasonable doubt. Among the many legal and jurisprudential definitions
of this notion, one is taken as an example:
519
Doha, January 2010, Para. 30, qui cite Pollock CB in: R v. Exall 1866 4 F F 922.
520
B v. FINA, CAS 98/211 Para. 56.
375
‟It need not reach certainty, but it must carry a high degree of probability. Proof beyond
reasonable doubt does not mean proof beyond the shadow of a doubt. The law would
fail to protect the community if it admitted fanciful possibilities to deflect the course of
justice. If the evidence is so strong against a man as to leave only a remote possibility in
his favour which can be dismissed with the sentence ‘of course it is possible, but not in
the least probable’, the case is proved beyond reasonable doubt, but nothing short of
521
that will suffice.”
In some legal systems, the standard of proof in civil proceedings is that of the
balance of probabilities, or of the preponderance of evidence, these notions being
522
identical. The test that must be applied then is the “more likely than not” test, since a
fact, such as the payment, by one person, of an amount of cash to another person for
example, is considered as proven when, given the administrated evidence, this
hypothesis seems more probable than the other, in this case, the absence of such
payment. A 51% probability is then sufficient, but British courts in general admit that the
more serious the alleged violation is, the more evidence must be provided in order to
consider that the balance of probabilities is not advantageous for the targeted
523524
person.
The third standard of proof to consider, the comfortable satisfaction test, was in
a way invented by the CAS. This standard lies between the beyond reasonable doubt
test and the preponderance of evidence test since it is sufficient that the evidence be of
a nature allowing the adjudicating body to be comfortably satisfied that the facts were
established, the absence of doubt not being necessary. The standard varies depending
on the seriousness of the offence: “The more serious the allegation, the greater the
525
degree of evidence required to achieve ‘comfortable satisfaction”.
In the absence of a contrary provision in the regulations of the sports federation
concerned, the CAS adopts the standard of comfortable satisfaction.
In its model rules, the ASOIF suggests that federations refer to this standard:
“The standard of proof shall be whether the [International Federation] or other
prosecuting authority has proved a Violation to the comfortable satisfaction of the
Hearing Panel, a standard which is greater than the mere balance of probability but less
than proof beyond a reasonable doubt”.
Cricket rules reiterate this standard in their own way, according to the article 3.1
of the ICC Anti-Corruption Code:
521
Doha, January 2010, Para. 27 citing Denning J in Miller v. Minister of Pensions, 1947 2 All ER 372 at 373 H.
522
523
M. BELOFF et al., No. 7.87, pp. 214-215, op. cit.; also A. LEWIS, J. TAYLOR, A2.101, p. 87.
524
See in particular Wang v. FINA, CAS 98/208; Michelle Smith de Bruin v. FINA, CAS 98/211, No. 10.2;
Mohamed Bin Hammam v. FIFA, 19 July, 2012, CAS 2011/A/2625; see in particular, Wang v. FINA, TAS
98/208; Michelle Smith de Bruin v. FINA, CAS 98/211, No. 10.2; Mohammed Bin Hammam v. FIFA, 18 July
2012, CAS 2011/A/2625.
525
“The more serious the allegation, the greater the degree of evidence required to achieve comfortable
satisfaction”, M. BELOFF et al., No. 7.89, p. 215; see also A. LEWIS, J. TAYLOR, A2.101, p. 87.
376
"[…] the standard of proof in all cases […] shall be whether the Anti-Corruption Tribunal
is comfortably satisfied, bearing in mind the seriousness of the allegation that is being
made, that the alleged offence has been committed. This standard of proof in all cases
shall be determined on a sliding scale from, at a minimum, a mere balance of probability
(for the least serious offences) up to proof beyond a reasonable doubt (for the most
serious offences)”. This rule led the Anti-Corruption Tribunal to adopt, in a tangible case
where the minimal sanction was a suspension of five years if the suspects were declared
guilty, the usual criteria according to penal law: “Given the gravity of the charges and the
implication for the Players, we consider it appropriate to adopt the criminal standard of
proof beyond reasonable doubt. While a lesser standard might in principle be utilised if
charges were only of non-disclosure of another’s wrongdoing, in this case the linkage
526
between the charges makes such dissection unfruitful.”
In contrast, tennis authorities prefer the test of the preponderance of evidence:
‟The standard of proof will be whether the PTIO has established the commission of the
Corruption Offense by a preponderance of evidence”, the standard being moreover the
527
same for the proof that the targeted person must submit in particular cases.
In the
case of tennis player Kelleher, the CAS accepted the adoption of this standard, given
that it was stipulated by the regulations of the concerned federation and since it was
also a standard in the Law of Florida, ‟which governs the Tennis Uniform Anti528
Corruption Programme”.
FIFA simply stipulated in the provisions related to the “degree of evidence” that
“the members of the Ethical Commission ruled on the basis of their personal
529
convictions.”
It appears that this federation preferred the balance of probabilities
standard over the criminal law standard.
The majority of other federations did not solve this matter. Therefore, if their
proceedings must be judged by the CAS, the standard of comfortable satisfaction will
be applied.
According to one author:
“In corruption cases, the standard of proof may be of critical importance because the
allegations are likely to be of very serious wrongdoing and the evidence relied on may
well, unless covertly obtained evidence such as sound recordings is relied upon, consist
principally of reports of conversations between the accused and those he has, allegedly,
530
tried to corrupt.”
“This state of affairs means that in the fight against corruption and
match fixing in sport, arguably a greater scourge even than doping, proof to a lesser
531
standard than that required to prove a doping offence is regarded as acceptable”.
It is thus legitimate for sports organisations not to require that the facts be
established beyond any reasonable doubt before imposing a sanction. Certainly, this
involves a risk and even a certain probability that innocent people will be sanctioned,
but such unfairness must be accepted in the larger interest of sport integrity. According
to the CAS:
526
527
Article X Letter G Ch. 3 letters a and b of the Uniform Tennis Anti-Corruption Programme.
528
M. BELOFF et al., p. 196, op. cit.
529
Article 51 CEF; ‟on the basis of their personal convictions”; also see, Article97 Ch. 3 CDF.
530
531
377
“The vicissitudes of competition, like those of life generally, may create many types of
unfairness, whether by accident or by negligence of unaccountable persons, which the
law cannot repair […]. It appears to be a laudable policy objective not to repair an
accidental unfairness to an individual by creating an intentional unfairness to the whole
532
body of other competitors”.
I. Publication of Decisions
Federative policies regarding the publication of decisions taken by disciplinary
bodies vary.
In fact, different interests are taken into consideration: the interest of the
sanctioned person in not having their turpitudes and personal affairs made public, or in
the opposite sense, the interest of the person whose innocence is established in having
the decisions which exonerated them published, the interest of the disciplinary body in
proving that it did its work properly, the interest of the sports federation to show the
persons who are tempted to commit offences that the suppression of these offences is
not lenient, the interest of the sports world in establishing a harmonised jurisprudence
through a better knowledge of respected practices, etc.:
“The governing body may provide in its rules for the publication of the outcome of the
hearing. This may be justified […] by the improvement to consistency in decision-making
533
that may be achieved by publication of disciplinary outcomes”.
The problem in fact
resides in striking a balance between transparency and the necessity of preserving the
confidentiality and/or integrity and/or effectiveness of investigations.
A British author points out that:
‟The decisions of domestic arbitral tribunals in sport related disciplinary cases are now
normally published on the websites of the governing bodies concerned. Sensitive factual
material (egg any ecological evidence in a doping case involving a female defendant)
may be excised to protect privacy, but otherwise the trend is gradually towards making
534
the full decision publicly available, rather than just a summary or press release”.
In fact, publishing decisions is the rule in some sports. For instance, the UEFA
must publish all its decisions completely (in theory), but without mentioning real names
535
if the version contains confidential information,
and the FIBA publishes at least the
outcome of its disciplinary proceedings such as the established offences and the
536
sanctions.
The case is similar in tennis, where only the decisions and the general
537
descriptions of the offences may be published.
532
Quigley v UIT, CAS 94/129.
A. LEWIS, J. TAYLOR, A2.98, p. 86.
M. BELOFF et al., No. 8.145, p. 304-305, op. cit.
535
“ The UEFA Administration publishes the decisions of disciplinary hearings. When a decision contains
confidential information, the UEFA Administration may decide, on its own or upon request, to publish a
version without mentioning names.” Article 45 UEFA DR.
536
“To facilitate the competent authorities’ decisions, the FIBA issued a catalogue of infractions and
sanctions, which is available on its website.” (Article134 2010 FIBA Internal Regulations, Book 1).
537
See the statements of the Tennis Integrity Unit.
533
534
378
Many federations provided for the possibility of having their decisions published.
In general, the choice is in the hands of the authority which made the decision. This is,
538
in particular, the case of FIFA. In cricket, the ICC may publish the whole decision if an
offence is established, as well as ‟such part of the proceedings before the AntiCorruption Tribunal as the ICC thinks fit”. If a person is acquitted, the decision may only
be published following that person’s approval; the approval may also allow publishing
only a part of the decision (Article 8.1 ICC Anti-Corruption Code).
CAS practice varies, given that a publication can only take place with the
consent of the parties. The CAS website does not allow access to the entire list of
awards.
§ 4. Recommendations
Sports organisations should establish or reinforce a mechanism of
denunciation. It allows people who detain information on instances of manipulation of
competitions to easily report it to the sports organisations concerned. These
mechanisms must ensure confidentiality, and, if necessary, ensure the anonymity of the
whistle-blowers. They may consist of a phone line, and/or special websites, and/or the
creation of an ombudsman function. Given the costs that these solutions may require,
organisations may pool their resources and resort to external organisations.
Disciplinary rules must provide for an obligation to report, and establish as an
offence instances where a person bound by these rules does not reveal all information
or reasonable suspicions regarding a third party’s activity that violates the rules
prohibiting the manipulation of competitions, or any third party’s approach aiming at
engaging in prohibited behaviour (including actual or implied threats), or receiving any
gift or other advantage from an unknown person or organisation or with no apparent
reason. This obligation to report must be clearly highlighted on the organisation’s
website, for example. Sports organisations must also ensure that the competent public
authorities are informed of suspicious activities in terms of manipulation of competitions
which could be considered as law violations.
In their disciplinary regulations, sports organisations must establish the burden
and level of proof, particularly:
§ The burden of proof must not be borne by the accused, but the rules may
indicate that if certain facts are established, an offence is presumed unless
otherwise proven by the accused (for example : proving that a player received a
money transfer);
§ The disciplinary bodies must accept all useful means of evidence, regardless of
their nature, provided that these elements are not irrelevant and that they
respect the human dignity;
§ They must also consider as irrefutably established, facts established by a court
or a competent professional disciplinary body against the same person, unless
the court considers that the decision violates the general principles of law;
538
“Only final decisions already notified to their recipients can be rendered public” (Article 36 Ch. 2 CEF) and
“Only the contents of the decisions already notified to their recipients can be made public” (Art 88, Ch. 2
CDF).
379
§ The procedural rules must preserve the anonymity of the witnesses when their
testimony exposes them and their families to serious risks;
§ The disciplinary bodies must be able to conduct domestic visits and use audio
and video recordings, even unauthorised ones. It is recommended to reject the
use of lie detectors, or, in any case, provide that a negative outcome will never
be considered as proof of innocence;
§ They must be able to obtain monitoring reports on bets, as well as other
relevant bet-related information;
§ A rule may sometimes spare the disciplinary body from having to prove certain
facts, by providing that the absence of proof that a participant did not make all
possible efforts or performed badly in a competition must not necessarily lead to
the conclusion that this participant is not guilty of the offence. Resorting to
presumptions, however, must be proportional to the objective sought, and must
not violate the principles of equitable proceedings;
§ It is recommended that the standard of proof for cases of manipulation of
competitions be the standard of comfortable satisfaction, instead of the
standard of beyond all reasonable doubt test, which is the standard generally
used in criminal law.
§ The rights of the presumed perpetrator of offences relating to match-fixing must
be guaranteed;
§ It is recommended that the negotiations of the defence be permitted;
§ The possibility of granting amnesty must be provided for;
§ The publication of decisions must become the principle;
§ The right to appeal must be generalised;
§ Exhaustive statutes of limitations must be established;
§ The creation of a surveillance and data/information sharing system must be
envisaged or the collaboration with such as system;
Chapter 2. The Desired Function of Other Private Actors: Economically
Sanctioning Violations of Sport Integrity – Example of Sponsoring
The word sponsor has Latin roots. It represents two ideas: guarantee on the
539
one hand and patronage on the other hand.
In France, this new contractual technique is referred to as advertisement
540
patronage (“parrainage publicitaire”). This meaning of sponsorship takes different
541
shapes:
§ Financial support for an athlete, a sports team, or a sports organisation;
§ Material support for the abovementioned beneficiaries;
§ Providing support for a sporting match: any sponsor will obtain, in exchange for
the payment of a certain amount of money, the association of their trademark to
some elements of this event;
539
D. GRILLET-PONTON, Publicité, “Contrat de parrainage publicitaire”, J.-Cl. Contrats distribution, Fasc.
4050, 2001, No. 1.
Decree of 17 March, 1982, Enrichissement du vocabulaire du tourisme, JORF of 3 April, 1982, p. 3274.
541
X. LANEQUE, “Essai de définition du sponsorisme”, JCP E 1982, Cah. dr. entr. No. 1, p. 1 et seq. See also
Sporsora, Les bonnes pratiques du sponsoring sportif, Studyrama Pro, 2013, p. 20.
540
380
§ Providing support for a sports operation: a sponsor assists in the preparation of
a sports event. Unlike sponsoring a sporting event, which resembles the
acquisition of a right to have one’s trademark associated with certain elements
in this event, sponsoring the sports operation is closer to a collaboration
between the sponsor and the organisers of the operation.
Since the sponsor contributes, through his material and financial support, to the
smooth conduct of a sporting event or to the exercise of a sporting activity by one or
several athletes taking part in a sports activity, the sponsor must be considered as a
“competition stakeholder”, a term used by the European Council while referring to
athletes, the management staff and officials in sports organisations and organising
542
bodies of sports events.
Regardless of the sponsoring method, a sponsor’s goal is to broadcast its
trademark and take advantage of the fame of the athlete or the event, in order to
543
544
generate a profitable trademark image and obtain commercial benefits. The fame
of the athlete or the event is therefore essential, which explains why sponsors try to
protect themselves from doping and match-fixing phenomena, which could ruin the
545
image of these events or involve the sponsored athletes.
Therefore, the first aim
should be to protect the sponsor (§ 1). Moreover, since the sponsor could also be
involved in such matters given the financial risks, the protected party would then be the
athlete or the organiser of the sponsored event (§ 2).
§ 1. Protecting the Sponsor
Sponsors must pay careful attention to the wording of their contract in order to
protect themselves against doping and match-fixing affairs. The clauses in the contract
should not be the only element to be taken into consideration. In fact, given the
ambivalent nature of sponsoring contracts, their qualification may vary. In some cases,
the qualification as a labour contract is retained, where the contract is more beneficial
and provides higher protection to the sponsor (A). However, in most cases, the
qualification of service contract is adopted, given the freedom it offers to the parties in
determining its contents, and it is presumed that the sponsor is particularly vigilant (B).
A. Qualification as a Labour Contract
The qualification of a sponsoring contract as a labour contract requires that
certain conditions be met (1). Even if such circumstances are rare, it is in the interest of
the sponsor that these conditions be met, given that the regime resulting from the
presence of these conditions is favourable for the sponsor when it comes to sanctioning
doping and match-fixing behaviour of a sponsored athlete or of an organiser of the
sponsored event (2).
542
Council of Europe, Draft Convention against the Manipulation of Sports Competitions, version 3.2α, EPAS
(2013), 16rev5, Article 3,5°.
Sporsora, Les bonnes pratiques du sponsoring sportif, p. 58.
544
Insisting on this commercial goal that is related to the coverage of the sponsored event, P. CHANTELAT,
“De la corruption dans le sport, Le faux crépuscule d’une idole”, Le Débat 2012, No. 34.
545
Insisting on the fact that doping and match-fixing affect athletes, but also clubs, intermediaries, sponsors
and the media, A. LORET, Sport mondial: bien public et interest économiques, Finance & Bien Commun,
2007/1, No. 26, p. 62.
543
381
1. Conditions
A labour contract is a contract under which an employee offers services to his
employer in exchange for the payment of an amount of money. The essential element in
such a contract is therefore the relationship of subordination established between an
546
employer and an employee. The latter works “under the direction of another person”
according to the CJEU.
If one must abide by this strict definition of the labour contract, this qualification
is often rejected in sponsoring contracts, given that the subordination link is not
547
established.
This explains why the jurisprudence only takes this link into
consideration in cases where the athlete takes part in an event organised by the
548
sponsor.
A broader interpretation of the presence of such a subordination link is thus
suggested, especially regarding cases in which the methods of remuneration pressure
the athlete (inclusion of provisions relating to penalties in the event of bad
performances, clause providing for the progressive evolution of the amounts due
549
depending on the athlete’s performance).
The French jurisprudence abandoned the
strict approach to the labour contract and determines the existence of a labour contract
in some circumstances:
550
§ The time spent in the service of the sponsor is significant;
§ The sponsor has the power to control the actions of the athlete to a certain
551
extent;
§ The sponsor pays the athlete a certain amount of money every month, which
currently constitutes the best clue indicating the presence of a labour
552
contract.
This approach is also used under European Law. In fact, the ECJ already
confirmed that “professional or semi-professional sportspeople are workers by virtue of
553
the fact that their activities involve gainful employment.”
546
ECJ, 3 July 1986, Deborah Lawrie-Blum v. Land Baden-Württemberg, case. 66/85, Rec. 1986, p. 2121 et
seq., in particular Para. 17. See also Action for good governance in international sports orgnisations, Final
report, Jens Alm (eds.), April 2013, p. 154.
547
Court of Cassation, 17 January 1997, RJS 1997, No. 326, concerning a tennis player; Court of Cassation,
2 July 1993, JurisData No. 1993-001470; Bull. civ. V, No. 215, for a motorcyclist.
548
R. BOFFA, Contrats du sport, J.-Cl. Contrats distribution, Fasc. 3100, 2010, No. 160.
549
D. GRILLET-PONTON, “Publicité, Contrat de parrainage publicitaire”, J.-Cl. Contrats distribution, Fasc.
4050, 2001, No. 40.
550
Versailles Court of Appeal, 5 December 1993, Therier v. SA Citroën: JurisData No. 1993-047021;
Lyon Court of Appeal, 14 December 1995, Butt v. Association sportive de Tarare, JurisData No. 1995051844; S. DUCROS, Sport, parrainage et contrat de travail, note sous Douai Court of Appeal, 27 juin 1997,
Dr. ouvrier 1997, p. 447 et seq.
551
See for example the operation of the materials and equipment used, Paris Court of Appeal, 7 November
1998, Société Nantes Atlantique v. Soc. W. Pabisch SARL, JurisData No. 1998-024430.
552
Court of Cassation, 8 juill. 1960, Bull. civ. IV, No. 593; Court of Cassation, 7 February 1974, Bull. civ. V,
No. 104. On this issue, Y. SAINT-JOURS, “Le sport au regard du droit du travail et de la sécurité sociale”,
JCP G 1977, I, 2848.
553
CJEU, 16 March 2010, Olympique Lyonnais SASP v. Olivier Bernard and Newcastle UFC, case C-325/08,
Rec. 2010, p. I-02177 et seq., No. 28. See also Action for good governance in international sports
organisations, Final report, Jens Alm (eds.), April 2013, p. 153.
382
Even if different criteria can be used, such as the length of relationship, the
source of the money, etc., what matters is the payment of a salary in exchange for the
execution of a task, in accordance with the orders of a third party, regardless of the type
554
of work, provided that it constitutes an economic activity.
The sponsor has every interest in taking this qualification into consideration,
given that the system resulting from it is particularly in their favour.
2. A Favourable System for the Sponsor
The case law unanimously agrees on the acts constituting the offence of
doping. For an employee in a firm in the sports domain, testing positive in anti-doping
test is a serious misconduct which would result in his dismissal.
Accordingly, a cyclist involved in his team’s doping case was not dismissed for
committing serious misconduct given that the veracity of the facts he was accused of
555
were still being investigated in the criminal proceedings initiated against him. A
contrario, the serious misconduct which would result in his dismissal would have been
established if the proceedings had allowed the establishment of the facts he was
accused of.
In other words, it was decided that testing positive in an anti-doping control was
considered a serious mistake resulting in the dismissal of the assistant director of a golf
club. He could no longer participate in the competitions and events organised by the
556
French Golf Federation.
Therefore, the assessment is clear if a labour contract links an athlete to their
sponsor: the athlete’s positive anti-doping tests or his involvement in a doping case
warrants their dismissal for committing serious misconduct. Through interpretation by
analogy, this solution must also be used concerning match-fixing facts in which the
sponsored athlete may be involved. In fact, according to the abovementioned
557
jurisprudence,
dismissal is explained by the fact that the athlete no longer has the
right to participate in competitions or events organised by the associated federation.
This sanction is also possible in cases of match-fixing; the athlete may be subject to a
suspension, whose length depends on the circumstances, for violating the sport’s rules.
Consequently, regardless of the type of sanction, the athlete’s inability participate in
such sports events due to their misconduct justifies their dismissal.
The establishment of the existence of a labour contract is the situation that
provides maximum protection to the sponsor. The mere establishment of the sponsored
athlete’s commission doping or match-fixing acts is reason enough for terminating this
contract. This matter, however, is subject to two technical difficulties:
554
In this sense, for a basketball player, CJEU, 13 April 2000, Jyri Lehtonen et Castors Canada Dry NamurBraine ASBL v. Fédération royale belge des sociétés de basket-ball ASBL (FRBSB), case No. C-176/96, Rec.
os
2000, p. I-02681 et seq., especially n 39 et seq. See also Action for good governance in international sports
orgnisations, Final report, Jens Alm (ed.), April 2013, p. 153.
555
Court of Cassation, 13 January 2009, No. 06-46445.
556
Court of Cassation, 5 December 2012, No. 10-24821.
557
Court of Cassation, 5 Dec. 2012, ibid.
383
§ Athletes are not very likely to conclude labour contracts with sponsors,
particularly because of the subordination relationship they involve.
§ If sponsoring contracts are silent regarding their qualification, it is only in rare
cases that such contracts are qualified as employment contracts because of the
stringency of the conditions.
This is why, by default, the case law retains the qualification of service contract
in most cases.
B. Qualification as a Contract for Services
The qualification of a sponsoring contract as a contract for services is the most
common qualification whether under French Law or in other legal systems. It is mostly
chosen by default given the flexibility of its defining elements (1). This flexibility is also
present in its system, which is governed by the principle of party autonomy. When it
comes to sponsoring contracts, some practices are born, by inserting specific clauses in
order to protect sponsors from the harmful behaviour of the sponsored athletes and
sports organisations (2). Some issues, however, are yet to be resolved (3).
1. Defining Elements of a Service Contract
In general, a sponsoring contract is part of a larger family of advertisement
contracts. It is “a form of service contract through which an advertiser undertakes to
provide the technical means necessary for the preparation and broadcasting of an
advertisement message, without taking part directly in the outcome of the corporation’s
558
promotional action.”
Therefore, the sponsored person actively participates in the
promotion and valorisation of the announcer’s or the sponsor’s brand. The sponsored
person’s name is therefore associated with the sponsor’s brand.
The wide scale of implementation explains the choice of qualifying a sponsoring
contract as a contract for services. The sponsored athlete must execute advertising
actions (taking part in an advertisement, wearing a hat that clearly shows the brand’s
logo…). For their part, and in addition to paying a certain amount of money, the sponsor
must sometimes provide the equipment loans, materially organise an event… In this
559
last case, the relationship is similar to a contract for the exchange of services
or
560
“a two-sided service contract,” or in other words a sui generis contract.
The Financial Action Task Force attempted to provide a general definition for
561
the sponsoring contract. In a report published in 2009,
sponsoring contracts were
defined as image contracts through which sponsors benefit from the image and fame of
the sponsored athlete. Therefore, it becomes clearer why sponsors protect themselves
from the side-slips of the sponsored athletes, whether in the area doping, match-fixing
or even problems in their personal lives. In fact, “a sport persona is made up of the
562
sports values they abide by,” and which the sponsors want to use by concluding the
contracts. Therefore, if an athlete conveys in his behaviour ideals which contradict
sports values, the sponsor will suffer from collateral damage.
558
D. GRILLET-PONTON, “Publicité, Contrat de parrainage publicitaire”, J.-Cl. Contrats distribution, Fasc.
4050, 2001, No. 5. On this issue, N. CHOLLET, Les contrats de publicité, Montpellier, 1970.
559
R. BOFFA, “Contrats du sport”, J.-Cl. Contrats distribution, Fasc. 3100, 2010, No. 158.
560
th
F. COLLART-DUTILLEUL, P. DELEBECQUE, Contrats civils et commerciaux, 9 ed., Précis Dalloz, 2011,
No. 790.
561
FATF Report, Money Laundering through the Football Sector, July 2009, No. 85.
562
G. JEANNOT-PAGÈS, “La composition de l’image des sportifs”, RLDA 2004/4674, p. 38.
384
More generally, in analysing the services rendered, the sportsperson’s activity
“can in principle be considered an independent activity which might fall under the scope
of the provisions of self-employed persons,” meaning that “sportspeople may be
563
considered as providers of service.” It is therefore certainly a service contract, but its
originality is that it relies on the athlete’s image and charisma. The advantage in this
qualification is in the flexibility of its system, given that it is possible to insert clauses
specifically designed to avoid any deviant acts of the athlete, or to avoid the
consequences of such acts.
2. The Inclusion of Clauses Destined to Protect the Sponsor
Sponsors are led to taking preventive measures to avoid the prejudice due to
564
the behaviour of sponsored athletes, particularly by tarnishing their reputation.
On
this issue, the Council of Europe suggested that member States adopt of a national
legislation with the purpose of temporarily prohibiting athletes and sports organisations
from receiving any financial support in case they were sanctioned for the manipulation
565
of sports results.
Although various provisions can be envisaged, which is permitted
566
by the law on contracts in Common Law, such as clauses on the cooperation of the
567
athlete in the event of a scandal, or clauses providing for a Code of Conduct,
two
types of clauses essentially emerge from practice. Their purpose, common for any
568
“termination clause”, is to prompt all parties to correctly implement the contract:
“morals clauses” (a), “specific provisions”, and “warranties” (b).
a. “Morals Clauses”
“Morals clauses” are also known as “morality clauses”. They were originally
stipulated in contracts signed between film production studios and actors, with the
official objective of reassuring the public, but unofficially they were destined to
569
protecting the investments made by these studios. They were formulated as follows:
“actors promised not to “do or commit anything tending to degrade him (her) in society
or bring him (her) into public hatred, contempt, scorn or ridicule; or tending to shock,
insult or offend the community or outrage public morals or decency; or tending to the
570
prejudice of the Universal Film Manufacturing Co. or the motion picture industry”.
571
These clauses were later used in modelling, and subsequently in sport.
563
Action for good governance in international sports orgnisations, Final report, J. ALM (ed.), April 2013, pp.
154 and 162.
564
Here, referring notably to the parody of Nike’s slogan, “Don’t do it”. S. BENZIE, T. KILLEN, Contractual
remedies for damage to reputation in sport sponsorship, www.lawinsport.com, Friday, 22 November 2013.
565
(2013), 16rev5, Article 8, 3°. Advising companies not to sponsor athletes already involved in events of doping
or match-fixing, I. LYNAM, C. EVANS, Sponsoring a sports star: a moral tale, [www.charlesrussell.co.uk], May
2010, p. 1.
566
Parties are free to stipulate “termination clauses”: S. WHITTAKER, “Termination clauses”, in: Contract
terms, edited by A. BURROWS & E. PEEL, Oxford University Press, 2007, p. 253.
567
On these clauses, see I. LYNAM, C. EVANS, Sponsoring a sports star: a moral tale.
568
S. WHITTAKER, Termination clauses, op. cit., p. 259.
569
J. GIBEAUT, “Hold That Tiger, After the Woods scandal, more lawyers are teeing up “morals clauses””,
The National Pulse, ABA Journal, September 2010, pp. 16-17.
570
J. GIBEAUT, “Hold That Tiger, After the Woods scandal, more lawyers are teeing up “morals clauses””, op.
cit., p. 17.
571
D. GUNAY, “Morals clauses: Tiger Woods and the death of his sponsorships”, IPLJ, March 04, 2010.
385
In this area, these trending clauses were worded broadly in order to cover a
maximum of behaviours that are illegal or capable of damaging the athlete’s reputation,
572
and eventually the sponsor’s reputation. The sponsor’s aim is to be protected against
any behaviour that may be seen as bad publicity, thus justifying their application even if
573
the deviant behaviours of athletes or sports organisations are only rumoured.
The fact remains that these clauses appear more frequently in the sponsoring contracts
of individual athletes rather than teams or sports organisations, since athletes, as
individual persons, are better at controlling their behaviour, whereas, for clubs and
574
sports organisations, controlling a group of athletes is more complex.
A first debate concerns the behaviours considered. As a general rule, these
clauses use expressions such as “bad behaviour”, “immoral behaviour”, or “moral
575
turpitude”. Certain clauses are worded as follows: “The Sports Personality shall, at all
times, during the term of this Agreement act and conduct himself/herself in accordance
with the highest standards of disciplined and professional sporting and personal
behaviour and shall not do or say anything or authorise there to be done or said
anything which, in the reasonable opinion of the Licensor, is or could be detrimental,
whether directly or by association, to the reputation, image or goodwill of the Company
or any of its associated companies. The Sports Personality shall not, during the term of
this Agreement, act or conduct himself/herself in a manner that, in the reasonable
opinion of the Company, offends against decency, morality or professionalism or
causes the Company, or any of its associated companies, to be held in public ridicule,
disrepute or contempt, nor shall the Sports Personality be involved in any public
576
scandal”. These references allow understanding of the sporting behaviour of athletes,
but also their extra-sporting behaviour (tormented conjugal life, relationships with
577
prostitutes…).
In order to regulate the assessment of these behaviours, “morality clauses”
578
refer to an assessment “in the reasonable opinion of the Sponsor”. Under the pretext
of objectivity, this assessment conceals a great deal of subjectivity since the sponsor
only seeks the selfish protection of his personal interests. This is notably the result of
contract terminations justified by the wrongdoing committed in the name of the sponsor
579
and while representing sport that is affected by anti-sporting behaviours. Therefore, it
is important that athletes who sign contracts containing such clauses know exactly what
580
behaviours the sponsor wishes to cover in this clause, and more specifically whether
a simple rumour is enough to invoke the termination of the contract.
572
D.C. ENGLAND, “Can Lance Armstrong’s sponsors sue him to get their money back”, Criminal defense
Lawyer.com.
573
J. GIBEAUT, “Hold That Tiger, After Woods scandal, more lawyers are teeing up “morals clauses””, ibid..
574
A. BUJALSKI, “Sponsorships contracts: morality, reverse morality and integrity”, [www.lawinsport.com],
Friday, 15 November 2013.
575
C. EVANS, “Negotiating Sponsorship Deals using the Moral High Ground”, Law In sport, Thursday,
7 March 2013.
576
A. JOHAL, “Drafting “morality clauses” into sports sponsorship contracts”, Rainer Hughes, Sports Media
and Entertainment, [www.rainerhughes.com].
577
On the scope of application of these clauses, Celebrity legal news: “Tiger Woods risks endorsements”,
[www.lawyers.com].
578
C. EVANS, “Negotiating sponsorship deals using the moral high ground”, Law In sport, 7 March 2013.
579
For such justification concerning doping in cycling, B. SOULE and L. LESTRELIN, “Réguler le dopage?
Les failles de la gouvernance sportive, “L’affaire Puerto” as an illustration”, Revue européenne des sciences
sociales 2012, 50-1, p. 141.
580
E.C. PERKINS, “Tiger’s wake-up call for other professional athletes and entertainers – a brief overview of
morals clauses in endorsement agreements”, [www.ericperkinslaw.com].
386
Some authors consider it suitable that a non-exhaustive list of behaviours
covered by this clause be mentioned upon contracting, thus allowing the athlete to be
581
aware of his commitment. For others, without opting for the inclusion of such a list, it
would be judicious to provide that “any action harming the credibility of the performance
582
shall entail a termination of the contract,”
thus directing the discussion toward the
non-compliance with sports values, while excluding privately conducted behaviours.
A second debate concerns the sanction, and more precisely its scope. The
“morality clauses” generally gives one party the right “to unilaterally terminate the
583
agreement.”
The sanction consisting in the refusal of pursuing the contractual
relationship with the athlete or sports organisation involved in a controversial behaviour
584
is the most frequent.
As a matter of fact, sponsors have considerable leeway, allowing them to adapt
sanctions on a case-by-case basis. The sponsor must take several elements into
consideration in order to adjust the severity of the sanction to the seriousness of the
breach: the press coverage, the nature, frequency and seriousness of the infringement,
its impact on the sponsor and in a broader sense, on the image of the sport in
585
question. This is why the cases of Tiger Woods and Lance Armstrong were dealt with
586
differently. Some sponsors – Gillette, Tag Heuer – terminated their contract with Tiger
587
Woods following the events that affected his conjugal life.
Here, the sanction is
considered as a unilateral termination of the contract, having effects only in the future.
Nevertheless, other sponsors, like Nike, reaffirmed their support for the athlete and
renounced invoking the morality clause.
The Lance Armstrong case is different, but it reflects the major concerns in this
matter: ending the sponsoring contract and the question of recovering the amounts paid
588
by virtue of this contract.
The cyclist had built a strong public image throughout his
career, not only due to his physical abilities, but also because of his battle with cancer
and his work with the LiveStrong foundation. Armstrong was, however, subject to
numerous doping accusations and had once tested positive for steroids. However, this
test was not the source of Armstrong’s setbacks. In fact, the United States Anti-Doping
Agency (USADA) sanctioned the athlete on 24 August 2012 for doping acts throughout
his career. He was issued a lifetime ban from professional cycling and was stripped of
the titles he won since 1 August 1998, notably his seven Tour de France titles. In this
case, the cheating was sport-related. Whereas Tiger Woods behaved improperly in his
589
private and conjugal life, Lance Armstrong betrayed his fans and the sport.
581
and Entertainment, [www.rainerhughes.com].
582
T. LARDINOIT, “Lance Armstrong, les sponsors et la crédibilité du sport”, The Huffington Post,
13 November 2012.
583
D. GUNAY, “Morals clauses: Tiger Woods and the death of his sponsorships”, IPLJ, March 04, 2010.
584
W. MAENNIG, “Corruption in international sports and how it may be combated”, IASE/NAASE Working
Paper Series, August 2008, Paper No. 08-13, p. 18.
585
S. GORSE, S. CHADWICK, “Conceptualising Corruption in Sport: Implications for Sponsorship
Programmes”, The European Business Review, July/August 2010, pp. 40-45. On the desertion of the cycling
world by sponsors in 1998, J.K. FOSCHI, A constant battle: the evolving challenges in the international fight
against doping in sport, Duke journal of comparative & international law, 2006, vol. 16, p. 461.
586
L. FENELON, “Athletes behaving badly – sponsors fight back”, Sport Legal, 10.02.2012.
587
See also L. DONEGAN, “Tiger Woods suffers new blow as Accenture drops sponsorship”, The Guardian,
Sunday, 13 December 2009.
588
S. BENZIE, T. KILLEN, Contractual remedies for damage to reputation in sport sponsorship, ibid.
589
T. LARDINOIT, “Lance Armstrong, les sponsors et la crédibilité du sport”, The Huffington Post,
13 November 2012.
387
This explains why his sponsors decided to drop him. These terminations
revealed the gravity of Lance Armstrong’s behaviour throughout during these years.
This was the case for Trek in particular, the company which designed the bicycles with
which the cyclist won his titles, or the brewing company Anheuser-Busch, a leader in
the American beer market and the third producer worldwide. But the most striking
termination came from Nike, despite being known to support its athletes during the
hardships they endure. The brand was callous in one of its statements, stressing that
590
Lance Armstrong was guilty of betraying the brand itself.
An author’s interest was
then sparked by what he called Nike’s “barometer of morality”. While murder allegations
(a reference to the suspicions framing South-African athlete Oscar Pistorius for killing
his girlfriend) and corroborated cases of doping are intolerable, unfounded doping
591
suspicions, infidelity and sex addiction are tolerated by this firm.
The common feature between the sponsors mentioned is breaking their
sponsoring relationship with Lance Armstrong only for the future, thus leaving past
relationships intact. Other sponsors were asking for tougher sanctions, namely the
return of the money paid to Lance Armstrong because of the loss of his titles. This can
potentially cause irreversible damage to the rider since the success of such demands
would force him to return all of the gains won during his career, approximately one
592
hundred million euros.
The problem therefore lies in the contract’s omission of the
scope of the penalty for such a breach. Arguments go both ways. Sponsors argue that
since Lance Armstrong received the money in consideration of his titles, the payment is
593
no longer warranted due to the forfeiture thereof. This is particularly the case of the
insurer SCA, who had paid Lance Armstrong no less than four and a half million dollars
for victories in the Tour de France between 2001 and 2003, and who had promised five
million dollars after winning in 2004. Due to doping rumours involving the athlete, the
sponsor refused to pay that sum. However, the athlete was able to obtain payment on
the grounds that the sponsorship contract contained no stipulation as to the sponsored
athlete’s doping. Today, as the facts of doping were proven, the sponsor intends to
recover all the amounts paid. The athlete can nevertheless rely on the fact that the
contract contains two clauses that could, according to some authors, render the
recovery of paid winnings difficult. It is stated that “no party shall challenge, appeal or
attempt to set aside the arbitration award," and further that “no promise or
representation of any kind has been made to any party or to anyone acting for a party,
594
except as is expressly stated in this settlement agreement.”
In other words, the
contract does not specifically mention, among the hypotheses of recovering the
amounts paid under the sponsorship, the case when doping practices are proven. Also,
if the sponsors were to claim that they were deceived by Lance Armstrong’s authenticity
of performance because of his doping, this can be countered by invoking the doctrine of
"unclean hands."
590
“Lance Armstrong perd un à un tous ses sponsors”, Le Monde.fr, 17 October 2012.
S. CHADWICK, “Puma leaps out of South Africa amid rising market morality”, [www.theconversation.com],
11 November 2013.
592
“Les sponsors d’Armstrong pourraient exiger reparation”, [www.lefigaro.fr].
593
“Les sponsors d’Armstrong pourraient exiger reparation”, ibid.
594
“Can sponsors reclaim money from Lance Armstrong?”, IMR, Sports marketing & sponsorship intelligence,
31 October 2012.
591
388
Given that the cyclist’s sporting performance was always under suspicion,
sponsors entered into the contract knowingly, and therefore, their claims of repayment
595
or payment of a penalty of any amount is unfounded. As others have subscribed to
this point of view of the sponsor, it is sometimes better to end the relationship and carry
on with the profits made through the contract, rather than letting the dispute drag out in
596
courts.
b. “Specific Provisions” and “Warranties”
In addition to morality clauses that are now stipulated in the majority of athlete
sponsoring contracts, some sponsors take the precaution of stipulating “specific
597
provisions” or “warranties.”
These clauses cover very particular circumstances and
behaviours, and provide for adequate sanctions. They are generally stipulated with
regard to athletes whose behaviour has not always complied with the sporting spirit and
more generally with what is expected from a sponsored athlete. Such provisions were
stipulated in some of Lance Armstrong’s sponsoring contracts. Given the circulation of
rumours of his doping, Coca-Cola took precautions upon the negotiation of the contract
in 2001. Armstrong was then to be bound by the following stipulations: "I'll give you a
contractual provision that gives you a total and complete out, and I'll offer to refund the
money you've paid us if this investigation ever turns anything up in terms of a positive
598
test or if it ever happens in any other setting.”
Thus the athlete was required to
provide a guarantee that he would neither take drugs nor test positive in anti-doping
tests. The sanction provided for was the recovery of the amounts received pursuant to
the provisions of the contract. Through its express nature, this contractual provision
leaves no room for doubt as to the behaviours covered and the sanctions imposed
should a violation occur.
These clauses allow the adaption of every sponsorship contract to the
personality of the athlete, but also provide suitable and often heavier sanctions, in order
to repress the behaviours which the athlete or the sponsored organisation is used to or,
at least likely to commit. The disadvantage lies in their rarity, since they are subject to
tough negotiations between the sponsor and the athlete or sports organisation. In fact,
they are based on a suspicion, a risk, incurred by the sponsor and recognised by the
athlete or sports organisation in question. Their acceptance is regarded as a guarantee
of their debtor that this risk will not occur.
Even if clauses are being stipulated more often in the contracts concluded with
professional athletes, there are still many cases in which the contracts remain concise
to the point where these behaviours are not taken into account. Certain issues must
therefore be resolved.
595
D.C. ENGLAND, “Can Lance Armstrong’s sponsors sue him to get their money back”,
Criminaldefenselawyer.com.
596
D.C. ENGLAND, “Can Lance Armstrong’s sponsors sue him to get their money back”, ibid.
597
C. EVANS, “Negotiating sponsorship deals using the moral high ground”, Law In sport, 7 March 2013.
598
J. SEGAN, “Lessons from Lance – Recovering sponsorship and endorsement monies”, Law in sport, 23
September 2013.
389
3. Unresolved Issues: Absence of Clauses
When the sponsoring contract stipulates neither a “morality clause” nor “specific
provisions”, does this mean that the athlete cannot be sanctioned for an anti-sporting
599
behaviour, or more loosely, one that damages the image of the sponsor?
This problem was formulated in English Law, and could be extended to any
other legal system: is the athlete bound by an “implied term,” in other words, an implicit
600
clause?
The question has been raised about some contracts concluded by Lance
Armstrong, notably with the insurer SCA since this contract was silent on doping and
the pertaining consequences. A proposition in connection to this question was
formulated following the athlete’s commitment to Coca-Cola in 2001. Lance Armstrong
expressly guaranteed to the sponsor that he had never and would never resort to
doping; otherwise he would return the gains paid according to this sponsoring contract.
An author thus suggested that, since this express commitment concerns a sporting
activity that is at the origin of all sponsoring relationships from which the athlete
benefits, it could apply beyond the scope of the contract stipulating it and be applicable
601
to all the other sponsors.
The existence of these implicit clauses is subject to arguments and counterarguments.
In a sense, some say that selling one’s image for millions in order to represent a
brand requires being a clean athlete.
The proponents of the opposing view have formulated the following three
602
arguments:
§ Should a sponsor ask for a particular protection, this should be stated expressly
in the contract, notably when it is known that the sport practiced by the athlete
is exposed to anti-sporting practices, or if the athlete has already been involved
603
in such practices.
§ A sponsoring contract works perfectly with an athlete who engages in doping.
What is disturbing is the revelation of this doping, and more broadly the antisporting behaviour. Subsequently, it is irrelevant whether or not the athlete
resorts to doping, or if he/she is involved in match-fixing, provided that this
remains unknown.
§ An implicit clause raises many questions, particularly as far as its scope is
concerned: what are the covered behaviours and their appropriate sanction?
For example, concerning doping, what becomes of the contract should the
athlete test positive for an anti-doping test when he/she has not committed any
mistake or negligence? As for match-fixing, does it only concern the athlete who
is paid to lose, or does it also have to take into consideration the behaviour of
the athlete who pays to win matches?
599
“Raising this question, Celebrity legal news: Tiger Woods risks endorsements”, [www.lawyers.com].
J. SEGAN, “Lessons from Lance – Recovering sponsorship and endorsement monies”, Law in sport, 23
September 2013.
601
J. SEGAN, “Lessons from Lance – Recovering sponsorship and endorsement monies”, ibid.
602
J. SEGAN, “Lessons from Lance – Recovering sponsorship and endorsement monies”, ibid.
603
and Entertainement, [www.rainerhughes.com].
600
390
§ Implicit obligations have been discovered in French Law through the founding
interpretation of Article 1135 of the Civil Code. Moreover, a good faith
implementation of the contract assumes that each party refrains from harming
the other.
Similarly, the Common Law recognises not only the existence of a right to
604
terminate the contract outside any express stipulation,
but also the existence of
implied terms. Either these stipulations are discovered due to "questions of
reasonableness, fairness, and the balancing of competing policy considerations," what
605
an author calls “minimum decencies”,
or result from the “business efficacy” of the
606
contract, which can be summarised by the expression “this goes without saying.” This
means that an implicit clause can be recognised not as an addendum to the contract in
question, but as a natural extension for it, giving it its full meaning. Therefore, for a
contract consisting in showcasing the reputation of a brand, the athlete shall not act in a
607
way that harms the brand’s reputation.
Even if the judge’s intervention seems inevitable to determine not only the
scope of the implicit obligations but their sanctions as well, the principles of the French
law and the Common Law, to which the aforementioned arguments could be added, do
not oppose the recognition of implicit obligations applicable to the athlete. A limit could,
however, be drawn. Insofar as it is an athlete or a sports organisation that are
sponsored, it seems reasonable that this implicit obligation cover only behaviours that
608
contradict sports values,
thus covering anti-sporting practices that are relative to
609
sports cheating in the broad sense.
Behaviours relevant to the extra-sporting life of
the sponsored athlete should always, however, be the subject to a particular stipulation
to be integrated in the contractual field, because it is not relevant to the same sphere of
the essential nature of the relationship, i.e. sports.
In this first perspective, the stated clauses aim to protect the sponsor from the
deviant behaviours of the athlete or the sponsored organisation. But the relationship
may sometimes be reversed, in a way that the athlete is the one who should be
protected from the sponsor.
§ 2. Protecting the Athlete
Since the athlete is not necessarily well versed in business, he/she could be at
disadvantage in the relationship with the sponsor. This is why a number of precautions
are to be taken concerning the obligations of both parties (A). The athlete should also
seek protection against the sponsor’s behaviour. In fact, the sponsor may also adopt an
anti-sporting behaviour (B).
604
This right can be invoked without resorting to court, without the possibility of catching up with the party at
fault, and not producing any retroactive effect, contrarily to the known resolution in French Law and more
generally in civil code systems: S. WHITTAKER, “Termination clauses”, in: Contract terms, edited by
A. BURROWS and E. PEEL, Oxford University Press, 2007, pp. 255-256.
605
G. McMEEL, “The principles and policies of contractual construction”, in: Contract terms, edited by
A. BURROWS & E. PEEL, Oxford University Press, 2007, p. 33.
606
G. McMEEL, “The principles and policies of contractual construction”, op. cit., p. 34.
607
S. BENZIE, T. KILLEN, “Contractual Remedies for Damage to Reputation in Sport Sponsorship”, available
at [www.lawinsport.com], 22 November 2013.
608
On these values, C. ALBIGES, Sport et loisirs, Sport, Généralités, J.-Cl. Civil code, Article 1382 to 1386,
2010, No. 13; C. ALBIGES, S. DARMAISIN, O. SAUTEL, Responsabilité et sport, Lexisnexis Litec, 2007,
No. 169; G. JEANNOT-PAGÈS, “La composition de l’image des sportifs”, RLDA 2004/4674, p. 38.
609
C. ALBIGES, Sport et loisirs, Sport, Généralités, op. cit., No. 14.
391
A. The Precautions to be taken as to the Obligations of the Sponsored Athlete
The athlete who benefits from sponsoring should take precautions against two
types of clauses.
The first ones are the aforementioned “morality clauses”. As indicated, it is
important for the athlete to insist on the clarity of the clause’s language. He has to be
aware of the prohibited behaviours, and know which areas of his life – in sport solely or
610
also in his private life – are covered.
Given that the athletes dominating their
respective sports can afford better legal advice, it would be increasingly difficult for
sponsors to secure their relationships with them since the morality clause can give rise
611
to discussions.
Performance clauses should be considered next. Indeed, the athletes’
revenues, notably the ones generated by sponsoring, “depend mainly on their sporting
612
performance and success”. It is in fact these results that encourage sponsors to be
engaged with an athlete. However, once a relationship is established, this notion of
performance must not be abandoned. Therefore, an author has recommended an
emphasis on these performances by advocating the inclusion of “performance-related
613
clauses”
by the sponsor. These clauses present an interest if they refer to the
athlete’s obligation to adopt a behaviour that complies with sports values, so that any
contrary behaviour is sanctioned. However, conversely, these clauses can prove
dangerous when they subject the remuneration of the athlete or sports organisation to
their performance, especially when the athlete’s competitors resort to anti-sporting
614
practices during competitions or during their preparation phases. This is the case of
clauses that adjust the amounts paid by the sponsor to the sponsored athlete according
to his/her results. Thus, for a boat race, it can be stipulated that the amount of the
premium paid by the sponsor to the skipper changes according to his final ranking, or if
615
he simply finishes the race regardless of his ranking.
Even though athletes now sign insurance contracts in order to guarantee that
the revenues are sufficient in case of failure, it is not enough to protect them against
temptations of doping and match-fixing which allow them to honour their commitments
and correlatively increase their gains. It has, in fact, been noticed that, maintaining
one’s ranking within a division or qualifying for a higher level is not without financial
616
consequences, e.g. to win a sponsoring contract.
Regulating these clauses would
then be suitable, especially regarding the amount due by the sponsor according to the
athlete’s results. As in the aforementioned model contracts for skippers, it seems
appropriate that only a part of the amount due vary according to the result.
610
E.C. PERKINS, “Tiger’s wake-up call for other professional athletes and entertainers – a brief overview of
morals clauses in endorsement agreements”, [www.ericperkinslaw.com].
E. GEIGER, W. SMITH, ““morals” clauses impact Tiger’s endorsements?”, [www.businessinsider.com].
612
Swiss Federal Council, Lutte contre la corruption et les matchs truqués dans le sport, Report in response
to postulate 11.3754 filed on 28 June 2011 by the Council of States’ Committee for Science, Education and
Culture, 7 Nov. 2012, p. 59.
613
S. GORSE, S. CHADWICK, “Conceptualising Corruption in Sport: Implications for Sponsorship
Programmes”, The European Business Review, July/August 2010, pp. 40-45.
614
S. GORSE, S. CHADWOCK, “Conceptualising Corruption in Sport: Implications for Sponsorship
Programmes”, ibid.
615
“Contrat de sponsor”, JCP E 1982, Cah. dr. entr. No. 1.
616
KEA, Match-fixing in sport, A mapping of criminal law provisions in EU 27, March 2012, p. 10.
611
392
What remains now is the determination of the proportion of the fixed share and
the variable share of remuneration, with the variable one not being so large that it risks
leading the athlete to resort to anti-sporting practices in order to reach certain
performances, and increase or simply keep his gains.
B. The Anti-Sporting Behaviour of the Sponsor
Temptations to adopt anti-sporting behaviours in order to increase gains do not
affect the athlete solely. The doping case of Ben Johnson at the Seoul Olympics in
1988 could accurately serve as an example, since the athlete insisted that testing
positive for the Stanozolol test was linked to the fact that he had ended his sponsoring
617
relationship with his equipment provider, Adidas. In a broader sense, the sponsor can
be exposed to anti-sporting behaviours in two ways.
Firstly, the sponsor can be the accomplice of the athlete who is involved in antisporting practices. The sponsors in question here are the ones who provide food
supplements to the athletes they sponsor, in order to enhance their performance and
eventually their impact in the media. In this case, athletes must remain vigilant as to the
618
products they are provided with.
In the same sense, the athlete who becomes dependent on his sponsor runs
the risk of being coerced into tolerating or even adopting anti-sporting behaviours:
“arbitrary inclusion of the sponsors’ protégés into the team, setting the time of departure
619
and the location of the manifestation under the sponsor’s pressure…”
Secondly, a sponsor can easily find itself in a situation of conflicts of interests
regarding the sponsored athlete or entity. Therefore, any city bidding for the
organisation of the Olympic Games may not receive support from any of the sponsors
620
of the IOC or the Olympic Games.
The analyses of conflicts of interests are trending with the increase in online
gambling and bets. As a matter of fact, a conflict of interest is detected when a betting
operator offers bets on a competition while being involved in a business deal with the
organiser, or when the financing mode of sponsoring is linked to the amount of bets
621
placed on the competition, team or sponsored athlete.
The risks of the sponsor’s
attempts to manipulate sports results are revealed here. This type of sponsoring is
622
always on the rise.
617
P.-J. VAZEL, B. JOHNSON: “J’ai été contrôlé positif parce que j’ai changé d’équipementier “,
[http://vazel.blog.lemonde.fr/], 19 May 2014.
618
On this question, R. RESZEL, “Guilty until proven innocent, and then, still guilty: what the world anti-doping
agency can learn from the national football league about first-time anti-doping violations”, Wisconsin
International Law Journal, Winter 2012, No. 807, p. 817 et seq.
619
Swiss Olympic for the spirit of sport, Guide pratique à l’usage des fédérations, Transparence dans le sport
structuré, p. 7.
620
IOC Ethics Code, 2012, Règles de bonne conduite applicables à toutes les villes désireuses d’organiser
les Jeux Olympiques, Article 10, p. 36.
621
European Commission’s Green Paper of 24 March 2011 on on-line gambling in the Internal Market,
Common position for the International Olympic Committee and European Olympic Committees, p.2
622
“Unibet to shirt sponsor Australia’s Parrametta Eels”, Sports betting community, 4 October 2013; BWin
sponsors belgium’s Oostende basketball club, Sports betting community, October 17, 2013; SportYes.it
Sponsor Serie A Livorno Calcio, Sports betting community, October 25, 2013.
393
This is why an older version of the Council of Europe’s Draft Convention against
the Manipulation of Sports Competitions recommended the adoption of domestic
legislation preventing the sponsor from interfering with sports decisions of athletes or
sponsored sports organisations, and prohibiting sports organisations from accepting a
623
sports betting operator as sponsor.
These recommendations were dropped for the
benefit of other measures.
In the most recent of version of this Draft Convention, the first measure
prohibits the sponsor from taking advantage of his position to facilitate the manipulation
of competitions or obtaining inside information that would distort the results of sporting
624
bets.
This wording can be regretted. Even though the terms are more general and
could potentially cover more hypotheses, interpretation efforts will be needed, in
contrast to the first version of the text which covers more limited, yet better identified
cases of conflict of interests.
As for the second measure, it prohibits advertising for illegal betting
625
operators, which can also cover an operator’s sponsoring of athletes who are under
the jurisdiction that considers these bets to be illegal. However, this measure marks a
step backwards compared to previous recommendations, because it no longer covers
all sports betting operators, but only those who organise illegal bets. However, conflicts
of interest and illegal bets are two different things: an operator who is validly exercising
his sports betting activities may benefit from his sponsor status in order to manipulate
competitions and obtain undue benefits through his betting activity. Limiting this ban to
illegal betting operators is therefore too restrictive.
To protect themselves, and although this is rare in practice, athletes can ask
their sponsor to be bound by a morality clause. Indeed, because the damage to the
reputation of the athlete or sponsored organisation can be serious, it is important that
626
they be able to unilaterally terminate the contract. One author gives the example of
the athlete who can terminate his contract because the sponsor would take part in
627
activities that harm the environment or that involve tobacco production. Certainly, the
athlete could sanction his sponsor if he were to adopt a behaviour that contradicts the
values of sport insofar as these suspicions could also cast doubts on the performance
of the athlete and thus tarnish his image.
Chapter 3. The Expected Reaction of States and International Organisations:
Allowing an Efficient Criminal Repression of Sports Competitions
Regardless of the mobilisation of the sporting movement and some private
stakeholder, the effectiveness of the repression of the manipulation of sports
competition will not be fully ensured unless it is covered by both international norms
(Section 1) and national norms (Section 2). The authors of these norms must rely on
specific tools (Section 3).
623
Council of Europe, Preliminary Draft Convention against the Manipulation of Sports Competitions, EPAS
(2012), 27rev, Article 11, 4° and 5°, p. 7.
(2013), 16rev5, Article 10, 1°, b.
625
(2013), 16rev5, Article 11,c.
626
A. BUJALSKI, “Sponsorships contracts: morality, reverse morality and integrity”, [www.lawinsport.com],
15 November 2013.
627
L. FENELON, “Athletes behaving badly – sponsors fight back”, Sport Legal, 10.02.2012.
624
394
Section 1. Applicable International Norms
Most States do not have a specific legislation for dealing with sports
competitions and therefore cannot refer to their existing normative system which is
generally deficient in matters of corruption, fraud, or, where appropriate, illegal sporting
628
bets. In addition, these notions do not necessarily cover the same offences so much
so that the coverage of the various forms of manipulation is very fluctuating depending
on the legislation in question. Moreover, even the few States that have established a
specific legal framework in this area do not deal with the phenomenon in a uniform
manner and in all its forms. To stick with two examples, the specific offence of
manipulation of sports competitions sanctioned by Russian law (Article 184 of the
Criminal Code) applies only to the most serious forms of this phenomenon, those
related to corruption (including referees, coaches and other organisers and participants
in sports competitions) and professional sport, leaving the actual fraudulent behaviours
629
immune to criminal sanction.
In contrast, the South African legislation appears to
address the phenomenon in its entirety. What is particularly interesting is the fact that
the manipulation offence, although included in the South African anti-corruption law
630
(Section 15), also covers fraudulent cases that are unrelated to corruption. Moreover,
even when there are specific provisions for the manipulation of sports competitions, and
whatever their scope may be, it is feared that they would not be applied in practice. A
case in point is Russia, where no conviction has been pronounced on the basis of
Article 184 of the Criminal Code, although fixing football matches in several cases
631
seemed to be established beyond doubt.
The insufficiency as well as the disparities of domestic normative devices
against a complex phenomenon that goes beyond the borders of a single State prompts
one to examine the status of international norms notably applied or intended to apply to
betting-related manipulation of sports competitions.
The international legal framework, namely interstate, remains to this day very
little developed. Pending the entry into force of the Council of Europe’s Convention
(EPAS) on the Manipulation of Sports Competitions, adopted on 9 July 2014 by the
Committee of ministers and open to signature on 18 September 2014 at Macolin
632
633
(Switzerland),
and keeping in mind the different initiatives of the EU in this field,
there is yet to be an international legal instrument that specifically applies to sports
corruption in general or to the manipulation of sports competitions, particularly in
connection to sporting bets.
628
For an insight on the legislations in EU member States see KEA, Match-fixing in sport, A mapping of
criminal law provisions in EU 27, March 2012; for European Council member States see also C.
CHIAROMONTE, “Criminal Law in European Countries. Combating Manipulation of Sports Results – Matchfixing,” EUCRIM. The European Criminal Law Association Forum, 2012/1, pp. 30-33.
629
See IOC/UNODC, Criminalization Approaches to Combat Match-Fixing and Illegal/Irregular Betting: a
Global Perspective. Comparative Study on the Applicability of Criminal Law Provisions Concerning MatchFixing and Illegal/Irregular Betting, Lausanne/Vienna, July 2013, p. 188.
630
Ibid, pp. 196-197.
631
See supra Part 2, Title 3, Chapter 2, Section 2, §2, A, 4, on the discussion on the Russian legislation.
632
See supra Part 2, Title 3, Chapter 2, Section 1, §1, B.
633
See in particular the Conclusions of the EU Council on the Fight against Match-Fixing, Brussels, 28 and 29
November 2011, JO C 378 of 23.12.2011, p.1 and the European Parliament Resolution of 14 March 2013 on
Match-Fixing and Corruption in Sport ((2013/2567 (RSP)). For an in-depth discussion of the European Union’s
role in this field, see above, Part 2.
395
Subsequently, there is no obligatory definition of the manipulation of sports
competitions at the international level, given that the definitions provided by some
domestic laws containing specific provisions in this matter are far from being aligned. It
would undoubtedly be desirable that a future international binding instrument provide
not only a clear and operational definition of the manipulation of sports competitions, but
also require the parties to establish manipulation as a criminal offence in their
respective domestic laws. However, on the second point, namely the binding
634
criminalisation of manipulation, unanimity seems to be lacking. That said, the recent
resolution of the European Parliament of 23 October 2013, regarding organised crime,
corruption and money laundering requires setting up a European action plan for the
period of 2014-2019 providing for, among other things, a “crime of sporting manipulation
635
in order to promote the fight against illegal sporting bets”.
Moreover, from a “legislative politics” point of view, the three main stakeholders
(State authorities, sports organisations and betting operators) could draw inspiration
from anti-doping mechanisms. These mechanisms (UNESCO’s International
Convention against Doping in Sport, World Anti-Doping Agency and notably the World
Anti-Doping Code), which narrowly associate States and sports organisations at the
636
national and international level, appear to be globally satisfactory. Nevertheless, their
adoption within the field of fighting against corruption in sport faces the considerable
differences separating the two phenomena. In fact, contrary to doping which involves a
limited number of persons and which is generally easier to detect, sports corruption,
and more particularly betting-related manipulation of competitions, is nowadays a quite
complex transnational phenomenon causing the intervention of many stakeholders,
whether directly related or unrelated to sport, and raising important economic stakes.
This is why the fight against this phenomenon must adapt to its specificities.
That said, and until a change takes place in this field, some instruments in
international law could be applicable to certain aspects of the phenomenon of
manipulation of sports competitions, namely the conventions on corruption (§ 1),
637
transnational organised crime (§ 2) and, to a lesser extent cybercrime (§ 3).
§ 1. Corruption
Corruption in sport can take different shapes due, in particular, to the absence
638
of transparency governing certain sectors of the sports industry. It can also manifest
itself upon the awarding of the organisation of sporting events or of broadcasting rights,
as well as within the context of sponsoring athletes.
634
See the contribution of the Sorbonne-ICSS Research Programme on Ethics and Sport Security in the
preparatory work of the EPAS Convention, and in particular, the note concerning the criminal law aspects,
above, Part 2, Title 1, Chapter 3, Section 3.
635
See § 131, ii).
636
See infra Part 3, Title 3, Chapter 2, Section 1, § 2
637
The Council of Europe’s Convention on the Manipulation of Sports Competitions (see supra, Part 2)
mentions in its preamble the United Nations Convention against Corruption and the United Nations
Convention against Transnational Organised Crime.
638
See UNODC, The United Nations Convention against Corruption. A Strategy for Safeguarding against
Corruption in Major Public Events, September 2013, p. 5, p. 10, p. 14, p. 54 and p. 56. See also Transparency
International (2009). Corruption and Sport: Building Integrity and Preventing Abuses. Berlin: Transparency
International. It should be added that this absence or lack of transparency is neither found in all sports, nor at
all levels. For instance, The Swiss Football Association is highly transparent and this goes to several
international federations.
396
As for match fixing, it represents another particular form of sports corruption,
639
because it is generally linked to online gambling and organised crime. However, it is
worth noting that none of the international instruments for fighting against corruption
specifically takes into consideration the phenomenon of sports corruption in general and
the bet-related manipulation of competitions in particular. Nothing, however, precludes
their implementation in sports corruption, given that it all depends on the definition these
instruments give to corruption. Their main purpose does not lie in the direct
criminalisation, i.e. at the international level, of certain individual behaviours, but to
require parties (obligatory criminalisation) or allow them (optional criminalisation), to
establish some behaviours as criminal offences under their domestic law.
The two main conventions in this field are the United Nations Convention
640
against Corruption adopted on 31 October 2003 and the Council of Europe’s Criminal
641
Law Convention on Corruption on 27 January 1999.
They cover corruption in the
public (national and foreign public officials, international public organisations officials) as
well as the private sector, and set up advanced mechanisms of international
cooperation. Their analysis leads to four observations: the extension of the scope of the
provisions on corruption to cases of sports corruption involving the public sector
remains optional (A), the criminalisation of acts of corruption in the public sector is
optional (B), the scope of the provisions related to corruption in the case of sporting
corruption involving the private sector remains limited (C). Moreover, the UN
Convention faces some difficulties related to implementation in the States Parties (D).
A. The Uncertain Applicability of Provisions on Corruption in the Public Sector to
Sports Corruption
From a general point a view, one could consider that the UN Convention
against Corruption is applicable to all forms of sports corruption, including the
manipulation of a competition exhibiting elements of corruption. In fact, "[a]although this
United Nations Convention against Corruption does not specifically mention 'sports'
corruption or 'match-fixing' this may not be necessary due to the breadth of the
Convention, and because sport specificity does not uniquely impact the application of
the provisions on the problem of sports corruption. Even though the environment of
sports creates an interesting element to the area of corruption, as match-fixing is a form
of corruption that is unique to sport, there may be little or no need to create an entirely
separate area of corruption to deal with match-fixing especially when there are sufficient
642
laws in place to address the broader comprehensive area of corruption."
639
Indeed, “online betting has increased the number people with direct personal economic interest in the
manipulation of the results of sports competitions”, (See J.-F. VILOTTE, “Prévention et lutte contre l’atteinte à
l’intégrité et à la sincérité des compétitions sportives en relation avec le développement des paris sportifs: 10
propositions”, report to Ms. Chantal Jouanno, Minister of Sports, 17 March 2011, § 1).
640
In force since 14 December 2005 and ratified on the same day by 171 States.
641
In force since 1 July 2002, currently binding 45 States. The Penal Convention is supplemented by the
Council of Europe’s Civil Convention (open to signature on 4 November 1998, in force since 1 November
2003 and currently binding 35 States). The object of this convention is to obligate parties to provide, in their
domestic legislations, for “effective recourse for persons having suffered damages resulting from an act of
corruption in order to allow them to defend their rights and their interests, including the possibility of obtaining
damages” (Article 1).
642
K.L. JONES, “The Applicability of the ‘United Nations Convention against Corruption’ to the Area of Sports
Corruption (Match-Fixing)”, The International Sports Law Journal, 2012/3-4, pp. 55-57, p. 57.
397
However, it is worth noting that provisions on corruption in the public sector of
the UN Convention and the Criminal Law Convention of the Council of Europe are not
643
applied to sport which is mainly governed by private law.
It is indeed not excluded
that the different sports associations or federations, mainly national, can be charged
with a public service mission, which depends on the national system in question and the
way it conceives of the principle of autonomy of the sports world. In France particularly,
unlike the majority of States, national sports federations, despite having the status of
private law associations, are considered to be accomplishing a public service mission
644
on behalf of the State. Whether it is the directors of such associations or federations,
or other members of the sporting community (players, trainers, referees, club presidents
etc.), putting them in the same category as national or foreign public officials remains
problematic insofar as these persons do not exercise any executive, administrative or
judiciary function, and are usually not vested with a public service mission by the
645
State.
Also, insofar as international sports federations evidently are not “public
international organisations”, their directors cannot be considered as international
646
officials. That said, national or foreign public officials could be involved in corruption
or abuse of functions in the field of sport, including match-fixing. For example, the case
of a public sector official vested with control and supervision powers (including
jurisdictional powers) over the organisation and the course of sports competitions or
over the work of betting operators, when soliciting or receiving an undue advantage,
financial or other, in order to exercise or refrain from exercising their functions in a
manner that contradicts their duties (passive corruption), or to abuse their functions to
obtain such an advantage (abuse of functions), is part of the scope of the provisions on
corruption in the public sector and abuse of functions. However, unlike the corruption of
public sector officials whose criminalisation is compulsory, the criminalisation of the
647
abuse of functions committed by such officials remains optional.
In addition, article 18 of the UN Convention against Corruption pertaining to
passive or active influence peddling does not require States Parties to establish it as
criminal offence. This provision also possesses a limited scope as long as the purpose
behind such peddling, whether it is a public official or any other person, to “obtain an
undue advantage from an administration or public authority of the State Party”.
Therefore, one may doubt whether or not it can be applied to the manipulation of sports
competitions, provided that the manipulation takes place outside the relationship with a
648
State administration or public authority.
643
In principle, the same remark goes for the OECD’s Convention on Combating Bribery of Foreign Public
Officials in International Business Transactions of 29 March 1996 (in effect on 6 March 1997 and binding on
the same day for 33 States) which only considers bribery in the public sector.
644
See. S. CUENDET, Droit du sport et droits de l’homme, report prepared for ICSS-Sorbonne, December
2013, §§ 37-39 and 57-58.
645
See IOC/UNODC, Criminalization Approaches to Combat Match-Fixing and Illegal/Irregular Betting:
a Global Perspective. Comparative Study on the Applicability of Criminal Law Provisions Concerning MatchFixing and Illegal/Irregular Betting, Lausanne/Vienna, July 2013, p. 188.
646
See IOC/UNODC, Criminalization Approaches to Combat Match-Fixing and Illegal/Irregular Betting,
op. cit., p. 282. See also UN Convention, Article 2, a-c and Council of Europe’s Criminal Law Convention,
Articles 1 & 9, for definitions of the terms “public official” and “officials of international organisations”.
647
See Article 19 of the UN Convention. Council of Europe’s Criminal Law Convention does not take into
consideration the case of abuse of functions.
648
See IOC/UNODC, Criminalization Approaches to Combat Match-Fixing and Illegal/Irregular Betting,
op. cit., p. 282.
398
Meanwhile, it could, for example, be applied to the case in which a person
promises or offers an undue advantage to another person in order for the latter to use
his influence with a view to obtaining a certain behaviour from a public authority vested
with control and supervision powers over the organisation of the sports competition or
betting operators (Active trading in influence)
B. The Optional Criminalisation of Acts of Corruption in the Private Sector
Unlike active or passive corruption, notably of national public officials, the
649
criminalisation of active and passive acts of corruption in the private sector remains
650
optional under the domestic legal orders of the parties to these instruments. In fact,
according to article 21 of the UN Convention “Each State Party shall consider adopting
such legislative and other measures as may be necessary to establish criminal offences
[…]”. As for articles 7 and 8 of Council of Europe’s Criminal Law Convention, they
impose on parties the obligation of establishing active and passive acts of bribery in the
private sector as criminal offences. However, article 37 § 1 of the same convention
allows States Parties to reserve their right to avoid, in part or in whole, the binding
nature of the criminalisation of these acts.
The optional nature of the criminalisation of acts of corruption in the private
sector drastically reduces the effectiveness of these instruments which definitively
remain subjected to each party’s choice of criminal policy.
C. The Systematic but Limited Applicability of the Corruption-Related Provisions
to Sports Corruption in the Private Sector
The very definition of corruption in the private sector and its potential extension
to sports corruption and particularly to betting-related manipulation of sports
competitions proves to be very delicate. According to article 21 of the UN Convention,
acts of corruption in the private sector may be established as criminal offences when
“committed intentionally in the course of economic, financial and commercial activities.”
It particularly concerns “the promise, offering or giving, directly or indirectly of an undue
advantage to any person who directs or work, in any capacity, for a private sector entity,
in order that he or she, in breach of his or her duties, act or refrain from acting;” and “the
solicitation or acceptance, directly or indirectly, of an undue advantage by any person
who directs or works, in any capacity, for a private sector entity, for the person himself
or herself or for another person, in order that he or she, in breach of his or her duties,
act or refrain from acting.” Moreover, according to articles 7 and 8 of Council of
Europe’s Criminal Law Convention, active and passive acts of bribery in the private
sector are those “committed intentionally, in the course of a commercial activity”.
649
In contrast, the African Union’s Convention for Preventing and Combating Corruption of 12 July 2003 goes
further as the parties undertake to “adopt legislative and other measures to prevent and combat acts of
corruption and related offences committed in and by agents of the private sector” (Article 11 § 1) and to
establish as criminal offence money laundering associated with these acts (ibid., § 6).
650
See Articles 2,3,5 and 9 of the Council of Europe’s Criminal Law Convention and Article 15 of the UN
Convention.
399
A priori, many forms of sports corruption, including some aspects of the
manipulation of sports competitions, are covered by these provisions. In fact, to stick to
two examples, the following behaviours fall within the ambit of these provisions: 1) the
case of a person involved, directly or indirectly, in the course of the competition (e.g.
players, referees, trainers, club officials, even technicians etc.) who solicits or accepts
an undue advantage, financial or other, with a view to manipulating this competition
(passive corruption); 2) or another person (e.g. third party or club officials) who
promises or offers an undue advantage, financial or other, to the same persons to
obtain from them the manipulation of the competition (active corruption).
However, without forgetting the optional nature of the criminalisation of private
651
corruption acts for the parties,
it all depends here on their interpretation of the
definition of corruption in the private sector and notably of the terms “in the course of a
commercial activity.” The parties actually have considerable leeway in this field, given
that it could be difficult, even impossible, to establish (all) acts of sports corruption, such
as the ones reported above as manipulation, as having been committed in the course of
652
a commercial, or even economic or financial activity.
In particular, amateur sports
653
seem in any case to be excluded from these definitions.
In addition and above all, placing bets on arranged competitions does not seem
capable of being criminalised as an act of corruption, unless the punter does not
engage, at the same time, in acts of corruption (of a betting operator or an athlete in
654
particular) to organise the manipulation. As a matter of fact, laws on corruption do not
apply to cases in which there no stakeholder is seeking to obtain through this means
the behaviour of someone else, in this case that of the manipulator of a competition on
the field.
Therefore, are excluded from the scope of this regime (indicative):
§ The case of an operator who offers irregular sporting bets, when this operator is
aware of the manipulation of the competition subject to bets, unless he has not
received an undue advantage from a third party, including the organiser of the
manipulation who is planning to bet on it, to offer such bets and particularly their
specific and beneficial terms to the same third party;
§ The case of a referee betting upon his own initiative (without being corrupted)
on a match he would be taking part in and intending to manipulate;
§ The case of any person betting on a competition in connection to which he/she
is aware of the manipulation, when this person does not take part in the
organisation of this manipulation via active corruption (of players or referees).
651
See supra, Part 3, Title 2, Chapter 1, Section 2, § 1, B, 3.
The aforementioned AU Convention, which also provides an obligatory criminalisation, defines the private
sector in broader terms as “the sector of a national economy under private ownership in which the allocation
of productive resources is controlled by market forces, rather than public authorities and other sectors of
economy not under the public sector or government” (Article 1 § 1).
653
See KEA, Match-fixing in sport, A mapping of criminal law provisions in EU 27, March 2012, p.18
(concerning Council of Europe’s Criminal Law Convention).
654
See also in a similar sense IOC/UNODC Criminalization Approaches to Combat Match-Fixing and
Illegal/Irregular Betting, op. cit., p. 279 and p. 287.
652
400
These behaviours actually fall within the notion of fraud, rather than that of
corruption, and can only be effectively apprehended through a specific legislation.
To sum up, the conventions on corruption do not seem capable of covering all
the phenomena of corruption in sport, particularly the phenomenon of irregular bets
related to a manipulation. They present a direct interest, however limited, in the field of
manipulation of sports competitions. Nevertheless, these instruments could also have a
positive impact – although indirect, but important nevertheless – on the efficiency of the
international fight in this field. This is particularly true for the UN Convention, the
effective implementation of which could reduce the magnitude of the phenomenon in
some States, especially in Asia, where the repression of the manipulation of sports
competitions linked to illegal bets (notably street bets) is hindered by the corruption of
public officials notably the police. In this respect, it is appropriate to consider the
provisional assessment of the implementation of this Convention.
D. Assessment of the Implementation of the UN Convention against Corruption
Beyond the mainly limited applicability of conventional instruments of the fight
against corruption in the manipulation of sports competitions, the practice of the Review
Mechanism of the implementation of the UN Convention also reveals the difficulties
faced by States. The provisions of the UN Convention are indeed not directly and
immediately applicable under the domestic law of States Parties. The application of this
instrument is therefore based primarily on the adoption of national measures, mainly
legislative, and then these measures are to be assessed in reference to the Convention
to ensure compliance with its provisions. The results to date of the Review Mechanism
of the implementation of this universal instrument, as shown by the thematic reports
established by the Secretariat in accordance with the terms of reference of this
655
Mechanism, make it possible to highlight the disparity in the solutions adopted by the
States Parties on several levels. Reviewing States have also regularly made
recommendations to States under review to ensure the full application and to the extent
possible of the provisions of the Convention. But what are the challenges? Although it is
impossible to mention them all, the analysis leads to the following observations.
First, with regard to corruption in the public sector, even though it could be
extended to members of the sports community, the fact remains that the domestic laws
of States Parties are far from being uniform. Thus, not only is the term "national public
official" not identically defined by the domestic laws of States Parties; it also does not
656
cover all categories covered by the Convention.
655
Terms of reference, § 35 (figuring in the annex of the resolution 3/1 of the Conference of States Parties).
On this mechanism see infra part 3, chapter 3 “Finding Effective Coordination Mechanisms for Combating the
Manipulation of Sports Competitions”, Section 1, § 2.
656
Implementation of Chapter III (Criminalization and law enforcement) of the United Nations Convention
against Corruption, Thematic report prepared by the Secretariat, CAC/COSP/IRG/2011, CRP.5, 24 August
2011 (only available in English), § 4. The report covers the first year of the first cycle of the Review
Mechanism. Implementation of Chapter III (Criminalization and law enforcement) of the United Nations
Convention against Corruption, Thematic report prepared by the Secretariat, CAC/COSP/IRG/2012/CRP.1,
11 June 2012 (first two years of the first reviewing cycle), § 6; Implementation of Chapter III (Criminalization
and law enforcement) of the UN Convention against Corruption Thematic report prepared by the Secretariat,
CAC/COSP/IRG/2012/7, 27 August 2012, § 6; Implementation of Chapters III (Criminalization and law
enforcement) and IV (International Cooperation) of the UN Convention against Corruption (review of Articles
15 to 29, Thematic report prepared by the Secretariat CAC/COSP/IRG/2013/6, 22 March 2013, § 6.
401
In addition, several States have not yet criminalised active and passive
657
corruption of foreign public officials and officials of international organisations.
However, even when domestic laws apply to all such officials, the material scope of the
alleged offences varies considerably from one State to another. To stick to certain
examples, the criminal laws of many States do not include among the elements
constituting an offence the cases of "promising" an undue advantage and settle
therefore with criminalising the offer or exchange of such advantages. Moreover, the
very term "undue advantage" is differently defined; some States focusing on the
658
material value of the benefit, while others adopt a broader approach.
As for corruption in the private sector, it should be noted that, to date, less than
half of the States Parties to the UN Convention have taken measures to criminalise, not
659
to mention that criminalisation is optional. Moreover, even the laws of the States that
criminalise such corruption do not define it - and this is actually not surprising - in the
same manner. To measure the extent of divergence of different domestic laws, it is
useful to quote a passage from the last report prepared by the Secretariat of the
Conference of States Parties to this universal instrument:
“In one case, the law limited bribery in the private sector to a breach of obligations “in
the purchase or sale of goods or contracting of professional services,” although it was
noted that other cases of bribery in the private sector would be covered under other
provisions of the penal code. In another case the relevant conduct was criminalised
notwithstanding that the act, favour or disfavour was not done or given in relation of the
business or affairs of an employer. In a third case, the relevant provisions did not cover
the indirect commission of the offence, although non-governmental organisations and
foundations were covered to the extent that they engaged in “economic, financial or
commercial activities”. The indirect commission of the offence was covered in one State
Party, while it was notably absent in the corresponding bribery offence involving public
officials. In three States parties there were issues concerning the scope of private
individuals covered, although legislation was pending to address the matter, and in a
further case the relevant offence required damage or detriment to be caused to the
represented entity, in variation from the provisions of the Convention. In one State party,
notwithstanding the lack of a federal commercial bribery law, commercial bribery had
been effectively prosecuted under related laws and was further criminalised at the state
level. In another case, the conduct was pursued under the fraud provisions of the penal
code. In one State party where the offence was contained in the law against unfair
competition, a prior complaint from competitors or State authorities was required for
proceedings to be initiated, though this element was under consideration. A need to
enact relevant legislation criminalising bribery in the private sector was noted as a
660
priority in one State.”
That said, the thematic reports are as yet silent on the issue of whether States
Parties to the UN Convention that decided to criminalise corruption in the private sector
understand, from this angle, sports corruption in general and the manipulation of sports
competitions in particular.
657
CAC/COSP/IRG/2011, CRP.5, 24 August 2011, aforementioned, § 6; CAC/COSP/IRG/2012/CRP.1,
11 June 2012, aforementioned, § 8; CAC/COSP/IRG/2012/7, 27 August 2012, § 8; CAC/COSP/IRG/2013/6,
aforementioned, 22 March 2013, § 9. However, it should be noted that the criminalization of passive
corruption of the category of officials remains optional, see Article 16 § 2 of the United Nations Convention.
658
CAC/COSP/IRG/2011,CRP.5, 24 August 2011, aforementioned, § 5; CAC/COSP/IRG/2012/CRP.1,
11 June 2012, aforementioned, § 7; CAC/COSP/IRG/2012/7, 27 August 2012, § 7; CAC/COSP/IRG/2013/6,
22 March 2013, § 7.
659
See above Part 3, Title 2, Chapter 1, section 2, § 1, B, 3.
660
CAC/COSP/IRG/2013/6, March 22, 2013, cited above, § 16.
402
In addition, the implementation of the UN Convention against Corruption faces
several other challenges that affect both the substance and procedure. First, all States
Parties to the UN Convention criminalise the participation and attempts to commit
offences provided by the Convention under article 27. However, considerable variations
in the scope of this criminalisation have been noticed among the States. To mention
one example, in one State planning an offence was not criminalised because it did not
661
accord with basic principles of the national legal system. Second, the criminalisation
of money laundering also varies from one State Party to another. While most States
Parties had taken measures to criminalise money laundering, the laws implementing
these measures presented significant gaps and covered only part of the conduct
referred to in article 23 of the Convention. Furthermore, the purpose of money
662
laundering was not defined uniformly by the States Parties. Third, although almost all
States Parties were to establish the criminal liability of legal persons in accordance with
Article 26 of the Convention, there are again considerable differences between the
various legislations regarding the scope of this liability, because of the particularities of
national legal systems. For example, in some States the liability of legal persons was
limited to certain offences or behaviours such as money laundering and / or corruption
of domestic and foreign public officials. Some laws also impose an additional limitation
according to which the offences in question must be committed in the direct and
663
immediate interest of the legal person.
Similarly, and with few exceptions, national
systems of witness, victims and whistle-blowers protection are non-existent, largely
664
insufficient, or unclear.
Finally, some difficulties were encountered in the area of international judicial
cooperation. Even though States Parties have established domestic legislations on
665
extradition, their systems and practices are significantly different.
Concerning the
legal basis for receiving or submitting a request for extradition, the existence of a treaty
is not necessary in most cases, with the exception of reciprocity reservations made by
certain countries. In addition, although the Convention can be used by most States
Parties as the basis for extradition, in practice, it was almost never used for this
purpose, with States sometimes opting for implementing bilateral and multilateral
666
treaties. With regard to mutual legal assistance, national systems are currently also
667
quite divergent.
661
Implementation of Chapter III (Criminalization and law enforcement) of the United Nations Convention
against Corruption, Thematic report prepared by the Secretariat, CAC/COSP/IRG/2011,CRP.5, 24 August
2011 (only available in English), § 17.
662
11 June 2012, § 19; CAC/COSP/IRG/2012/7, 27 August 2012, § 19; CAC/COSP/IRG/2013/6, 22 March 2013,
§ 18.
663
11 June 2012, § 23; CAC/COSP/IRG/2012/7, 27 August 2012, § 23; CAC/COSP/IRG/2013/6, 22 March 2013,
aforementioned, § 21.
664
CAC/COSP/IRG/2011,CRP.5, 24 August 2011, aforementioned, §§ 28-30; CAC/COSP/IRG/2012/CRP.1,
11 June 2012, §§ 37-38, § 40; CAC/COSP/IRG/2012/7/Add.1, 27 August 2012, §§ 37-38, § 40;
CAC/COSP/IRG/2013/7, 22 March 2013, §§ 11-13.
665
Application of Chapter IV (International Cooperation) of the United Nations Convention against Corruption
Thematic report prepared by the Secretariat, CAC / COSP / IRG / 2012/8, 27 August 2012, §§ 6-27.
666
CAC/COSP/IRG/2012/8, 27 August 2012, §§ 17-19.
667
CAC/COSP/IRG/2011/CRP.6, September 2, 2011, §§ 29-47; CAC/COSP/IRG/2012/CRP.2, June 12, 2012,
§§ 34-54; CAC/COSP/IRG/2012/8, 27 August 2012, §§ 34-54; implementation of Chapters III (Criminalisation
and detection and repression) and IV (International Cooperation) of the United Nations Convention against
Corruption (review articles 46-50), Thematic report prepared by the Secretariat, CAC/COSP/IRG/2013/9,
March 26, 2013, §§ 1-23; CAC/COSP/IRG/2013/8, May 26, 2013, §§ 4-9.
403
However, unlike extradition, the use of the UN Convention as the legal basis for
668
mutual legal assistance now seems commonplace,
which is its most important
contribution in this area.
It is too early to know whether this lack of uniformity in the implementation of
the Convention by States will persist despite recommendations addressed to the
reviewed States. However, it is certain that a progressively consistent implementation of
this instrument could also have a very positive impact on the fight against the
manipulation of sports competitions, subject of course to its limitations regarding
669
applicability.
§ 2. Transnational Organised Crime
Among the various forms of corruption and fraud in sport, the manipulation of
sports competitions is now the most often committed by organised criminal networks
670
which, through online sports bets, seek, in addition to making money, to launder it as
well. This has also been recently reminded by the European Parliament resolution of 23
October 2013 on organised crime, corruption and money laundering. Indeed, it is not
uncommon for a criminal organisation that seeks to launder money from illicit activities
(e.g. drug trafficking) to manipulate a sports competition by acts of bribery of an athlete
or a referee. The organisation uses some of the dirty money for bribery and uses the
rest to place bet on the result of a competition, which had already been fixed, with one
or more legal betting operators, thus allowing it to make additional profits and launder
671
its dirty money while dissimulating evidence of its winnings.
Faced with such practices, the provisions of the UN Convention against
672
Transnational O

Part Three

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