Parallel sporting and criminal match-fixing investigations: The Anglo-Welsh approachKevin Carpenter
From advising clients and presenting on the topic of match-fixing around the world the one area that causes the most controversy and raises numerous questions is that of the relationship between sports law and the criminal law.
In practice this means how allegations of match-fixing are investigated and prosecuted both by sports governing bodies ('SGB') and law enforcement (principally the police). I spoke about this area of match-fixing policy, amongst others, in a recent podcast recording I did with the University of Westminster in front of a live audience. During this podcast I mentioned a document that was signed only two days before Christmas, the 'Protocol on the Appropriate Handling of Incidents Falling Under both Criminal and Football Regulatory Jurisdiction' ('the Protocol'). The signatories to this document are:
- The Crown Prosecution Service ('CPS');
- The Association of Chief Police Officers ('ACPO');
- The Football Association ('the FA'); and
- The Football Association of Wales ('FAW').
The Potocol seeks to address, in a formal manner, the thorny issue of concurrent jurisdiction and proceedings where there is both a regulatory aspect and also a criminal element under the current UK criminal regime to football incidents. Having recommended to SGBs and national law enforcement agencies around the world to enter into such agreements allegations of match manipulation / betting integrity I was highly intrigued when this document came to my attention. However, upon reading this Protocol, or more accurately in legal parlance the "Memorandum of Understanding" ('MoU'), my enthusiasm soon was tempered. In this blog I do not intend to critique each line of the Protocol but highlight some of the salient points.
It is important to state at this juncture that this Protocol is not intended to cover anything to do with hooliganism or spectator behaviour, this is covered by a range of other legislative and regulatory measures. The scope of the Protocol is to cover conduct by "individual Participants [and] is primarily aimed at on-field incidents" rather than those off-field (Section 1). I understand that when this particular document was drafted and negotiated that match-fixing is one of the "on-field incidents" that the Protocol is intended to cover.
The six purposes of the Protocol (Section 2) all have close communication and co-operation at their heart. It is my opinion that one of the overriding considerations for SGBs when dealing with the many challenges of concurrent proceedings for match-fixing related allegations is to think in terms of flexibility versus control. In all instances of suspected match manipulation it is imperative for SGBs to be able to act quickly to preserve the reputation and perception of integrity of their sport. SGBs have the opportunity to do this due to the differences in the standards of proof applied for sporting and criminal proceedings. Sections 3 and 8 of the Protocol discuss this in more detail.
The applicable standard of proof in football disciplinary proceedings is the civil standard of the 'balance of probabilities' (50 plus 1% i.e. is it more likely than not). However for law enforcement any criminal charge has to be proved beyond reasonable doubt (c.95%) and also be in the public interest. This latter point about the public interest is extremely important because the two standards of proof reflect differing objectives of sporting regulations and the criminal law. I have mentioned in a previous blog that for instances of spot-fixing (micro manipulation), for example, it is not proportionate, as regards both time and resources, for the police to take action against individual participants. Indeed there is a tacit recognition of this in Section 3 of the Protocol in terms of sanctions, "the financial penalty likely to be imposed by the relevant FA may be greater than the maximum financial penalty available to the Court. In addition, some FA sanctions not available to the Court, including suspension from playing or a points deduction for their club, which may in some circumstances be a more effective punishment...and deterrent."
Yet, with standards of proof and sanctions being very closely linked, both SGB disciplinary tribunals and the Courts should be wary of the following words in Section 8 of the Protocol, "prosecutors will...take account of any relevant FA sanction which may be, or has already been imposed". This is the approach Cooke J took as reflected in his Sentencing Remarks in the criminal trial for the infamous Pakistan cricketers back in November 2011. However, in August 2013 I wrote that this is not an approach I favour given the differing standards of proof, public interest and the theoretical reasoning underpinning the two sets of proceedings and sanctioning regimes. For those reasons I feel strongly that rulings on culpability and any subsequent sanction in both the sporting and criminal proceedings should be kept entirely separate.
Section 4 is initially encouraging as it is headed "early consultation" and the first paragraph says that the parties agree that it is "essential that sporting justice and the imposition of any sporting sanction takes place as soon as possible". However, soon after there does appear to be a suggestion that where the police feel it necessary to get involved and investigate the matter themselves then the FA have to defer to the police, rather than acting alongside the police and working together with them (towards different standard of proofs), and have to act in deference to them, because "the fair enforcement of the criminal law is of paramount importance".
Two of the factors the police and the CPS will apply when considering whether it is appropriate to commence a criminal investigation or prosecution into, for example, a match-fixing incident are closely linked and worth further brief discussion. (Section 5) One is the availability and willingness of potential victims and witnesses to support either or both a criminal or disciplinary prosecution. This highlights the paramount importance of the protection of witnesses and anonymous whistleblowing mechanisms. Both sporting regulations and the criminal law in an individual country must allow for those who are either fearful or under threat from, for example, organised criminals which pervade this area, to come forward with vital information to prevent the slew of failed prosecutions for match manipulation in England in recent times. The second is the admissibility of evidence. Rather than admissibility I often talk about the collection of evidence in terms of SGBs sporting regulations giving themselves quasi-criminal powers to obtain, for example, telephone and banking records. This is extremely important because prosecutions often fail in both the sporting and the criminal spheres due to the difficulty in obtaining strong enough evidence to put before a sporting tribunal or judge/jury.
Section 6 of the Protocol highlights the difficult related issues of data protection and confidentiality. The relevant signatories will "endeavour to assist one another by sharing data and evidence" yet currently there is a tendency to hide behind the vast amount of European legislation on data protection and the political sensitivity to the topic. Specific sports laws and criminal laws should be introduced to make sure that the sharing of vital evidence as witness statements for instance are automatically available to the other investigative parties for use in their own match-fixing proceedings. The tone of this particular section suggests there is some element of mistrust between the signatories as to how they would first prepare and secondly control such evidence.
Despite what may have come across in this blog as a somewhat negative attitude to the Protocol, I am encouraged by the fact that such guidance, although not specific to match-fixing but very much on point, has come to fruition following dialogue between the four signatories. It is certainly one step further than the majority of countries have managed to achieve and all stakeholders who have contributed to the Protocol deserve praise. However, I hope that some of the issues I have raised will be discussed when this MoU is reviewed, which is stated to be no later than 12 months from the date upon which it is signed. By which time it will be interesting to compare and contrast similar arrangements between SGBs and law enforcement, not just in football but in other sports and countries around the world, which are already in place or will be in the near future.
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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.