Punishment & redemption: consistency in sanctions for doping & match-fixing

Published 16 November 2012 | Authored by: Kevin Carpenter

It has always seemed to me that doping is viewed as far more heinous than match-fixing by stakeholders in sport, these being the two principal integrity offences in sport. Yet if you look at the general trend for the sanctions metered out for the two, especially for first time offenders, those for match-fixing are far more severe. Is this fair? Does it strike a consistent balance between punishing offenders and the belief that they can redeem themselves through rehabilitation and return to their sport?

Despite the undoubted good work WADA does around the world as regards the fight against doping using its Code, both WADA and national anti-doping agencies are hamstrung by the sanctions the Code provides (Article 10). The CAS decisions released in the last twelve months in USOC v IOC (2011/O/2422) and subsequently BOA v WADA (2011/A/2658), although decided correctly in law, highlighted how the universal sanction of 2-years ‘ineligibility’ for a ‘first violation’ of the Code (Article 10.2) is a nonsense. Indeed the Comment to Article 10.2 admits as such for instance in terms of the sensible argument that different lengths of ban should apply to different sports. However the Comment to Article 10.2 mentions this in relation to ‘harmonization’ of sanctions, which is precisely the opposite of what sport needs. Sports governing bodies (‘SGBs’) need a far wider discretion in relation to sanctions for ‘first violations’ rather than having to rely on the rarely used Article 10.6 (Aggravating Circumstances Which May Increase the Period of Ineligibility), which in any event only allows an increase up to a maximum of 4 years.

There is of course no WADA-equivalent body regulating match-fixing on a worldwide basis. Therefore there is no certainty of sanction whatsoever for match-fixing offences in an individual country. Now is this worse than the WADA Code, is flawed guidance better than no guidance at all? To illustrate my assertion at the beginning that first time match-fixers are treated more harshly than their doping counterparts here are a few recent sanctions handed down:

Name

Sport

Role

Offence

Ban

Appeal

Kevin Sammut

Football

Player

Fixing an international match

10 years

Pending

Salman Butt

Cricket

Player

Orchestrating spot-fixing by two team-mates

10 years 

(5 suspended)

Pending to CAS

Daniel Kollerer

Tennis

Player

Contriving or attempting to contrive the outcome of an event

Life

Ban confirmed by CAS

Oleg Oriekhov

Football 

Referee

Failure to report approach

Life

Ban confirmed by CAS

David Savic

Tennis

Player

Contriving or attempting to contrive the outcome of an event

Life

Ban confirmed by CAS

 

The 2-year ‘standard sanction’ for doping is underpinned by the belief that those convicted can learn from their punishment, change their ways and return to compete clean. A clear acknowledgement that punishments need to be proportionate. This argument is raised in nearly all match-fixing appeals and yet rejected out of hand. Why can’t it be the case that a convicted match-fixer is punished, learns the error of his/her ways and can return to a sport to earn a living? In Europe, as a lawyer representing a person banned for life for match-fixing, I would advise him/her to go the European Court of Justice and argue that such a sanction amounts to an unlawful restraint of trade. It would be interesting to see the outcome.

The solution? I think two things need to happen to bring the sanctions for both types of integrity offences mentioned within the realms of proportionality: 

  1. For issues of doping and match-fixing there should be the criminal standard of proof applied ‘beyond reasonable doubt’ rather than that of ‘comfortable satisfaction’; and
  2. Upon a successful conviction using that heightened standard of proof the SGB should use new international sanctioning guidelines which grade each offence into categories A, B, C etc with each category carrying a wide discretion in terms of a ban and/or a fine. This is similar to the approach taken with the table in Article 10.7 of the WADA Code (‘Multiple Violations’). I mean, looking at the above table, should a failure to report carry the same ban as actually fixing matches? You can guess my view.

In reality there is certainly going to be a review of the 2-year standard ban for first time dopers in the near future, extending it to at least 4 years, therefore covering at least one Olympic Games. As I have suggested in this blog, this revision would not go far enough and would retain the Code’s current inflexibility. Regrettably I cannot envisage SGBs taking a more holistic view and developing proportionate and fairer doping and match-fixing sanctions policies together.   

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About the Author

Kevin Carpenter

Kevin Carpenter

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.

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