Match-fixing and the potential ‘Matuzalem effect’Kevin Carpenter
Regular readers of my sports law blog will be aware of my strong feelings about the sanctions handed down to those found guilty of integrity offences, particularly for match-fixing.
In a previous blog I questioned the proportionality and consistency of sanctions for those found guilty of match-fixing offences compared to those found guilty of doping offences. Now, following the WADA Conference in South Africa last week, Article 10.2 of the new WADA Code 2015 reads, "For Specified Substances, the period of Ineligibility is four years, where the Anti-Doping Organization can prove that the violation was intentional." So the mandatory ban for an intentional first time doper has been extended from 2 years to 4 years so as to cover an Olympic cycle. This is a positive step but there is still no acknowledgment of the effectiveness of such a sanction to each sport. For instance, a four year ban for a runner is likely to be far more penal in practice than the same ban applied to an equestrian rider who can have a longer career at the top of their sport. The key issue is proportionality.
One case where proportionality is likely to be examined in the sporting courts in the coming months is that of Kevin Sammut, a former player for the Maltese national football team who was implicated in the fixing of a game in the UEFA European Championship qualifying game against Norway in 2008. Initially the sanction handed down by the UEFA Control and Disciplinary Body in August 2012 was a 10 year ban, which for any football player is in essence the end of their playing career, especially for Mr Sammut who at the time was 31 years old. That sanction was subsequently extended to a life ban after UEFA appealed its own Disciplinary Body's decision. To make matters worse for Mr Sammut, as is usually the case, his life ban was extended worldwide by FIFA upon a request by UEFA. Mr Sammut has appealed this to the final appellate body available to him, the Court of Arbitration for Sport ('the CAS'). The date for that hearing has now been set for 12 February next year.
In a previous blog I stated: "I am strongly of the opinion that a case will come before the CAS whereby arguments on the proportionality of a life ban [for match-fixing] will win through." Could this come to fruition in the Sammut case?
My opinion stems from the Swiss Federal Supreme Court's ('FSC') final ruling in the now infamous Matuzalem series of cases.1 It was the first time that a decision of the CAS has been overturned by the FSC in this way, despite their having been previous appeals to the FSC being the only body who has supervisory jurisdiction over the CAS. In the final ruling the FSC decided that a worldwide ban on a player was a breach of public policy, in the sense that it was "an excessive commitment" under article 27, paragraph 2 of the Swiss Civil Code.2 Matuzalem was actually a case relating to the FIFA Regulations on the Status and Transfer of Players with the FSC saying that the decision of FIFA (upheld by the CAS) to impose an additional sanction upon Mr Matuzalem for his breach of his playing contract with his previous club, namely an indefinite playing ban as he had failed to pay the fine FIFA had judged he owed to his previous club, was a sanction that rendered the payment of the money impossible as he had no means to earn a living.
Therefore, when we look at a case such as Mr Sammut's regarding match-fixing sanctions, it is clear that, in the legal sense Matuzalem is not 'on all fours'. However, the principle that can be extracted from Matuzalem and applied to Mr Sammut's CAS appeal is whether it is proportional to impose a life ban and the heavy restrictions on the rights of the individual associated with it? In the criminal law, and indeed in the anti-doping sanctioning regime, there is the recognition that a person found proven of the charges brought can reform during their time of being sanctioned. The current sanctioning regime for match-fixing offences does not contain the same recognition as lifetime bans have become seemingly mandatory for first time offences (where the sporting regulations allow it).
I would submit that, to borrow words from the Swiss legal system, a decision by the CAS to uphold a sanction from a sports governing body of a lifetime ban for a first time match-fixing offence involves an obvious and serious violation of that person's human rights.
My last blog stressed the need for sports to protect their integrity reputation, and the perception of such. However, the importance of protecting the reputation and integrity of a sport must be balanced against the rights of the individual to earn a living from perhaps the only career they know. I am not completely pro-player in this sense, but I do feel that there has been a shift too much in favour of draconian lifetime bans which do not actually serve the interest of the sport. Life bans breed fear amongst participants rather than providing a sufficient deterrent so that they, as those most under threat from match-fixing approaches, will still work with and alongside sports governing bodies. Therefore, we should seek a holistic view of how best to develop a disciplinary system in sport, which fosters cooperation and trust between all stakeholders who want to work together to fight the ills of match-fixing.
I wait with anticipation to see if Mr Sammut's legal counsel will put forward such arguments on the proportionality of sanctions should his substantive appeal be rejected. However, if the CAS do, as has been the case in recent times, fully support and uphold UEFA's decision, it will remain to be seen if he takes his case to the FSC and whether it would feel justified applying the principles it laid down in Matuzalem to match-fixing.
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- Tags: Anti-Corruption | Court of Arbitration for Sport (CAS) | FIFA | Football | Integrity | Match-Fixing | Swiss Federal Supreme Court (FSC) | Switzerland | UEFA | World Anti-Doping Agency (WADA)
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- Match-fixing and the rights of individual sports participants: The Stephen Lee appeal
- Should we be comfortably satisfied with the standard of proof for match-fixing?
About the Author
Kevin is a advisor and member of the editorial board for LawInSport, having previously acted as editor. In his day-to-day work he has two roles: as the Principal for his own consultancy business Captivate Legal & Sports Solutions, and Special Counsel for Sports Integrity at leading global sports technology and data company Genius Sports.