Recent CAS trends in match-fixing cases following the Pakistan cricketers’ appealsKevin Carpenter
During the past three years the Pakistan cricketers Salman Butt, Mohammed Asif and Mohammed Amir have become three of the most famous (or infamous depending on your view) sports people on the planet for all the wrong reasons.
Having served time at Her Majesty’s pleasure in a UK prison, two of the three, Butt and Asif, recently had their final appeals heard by the Court of Arbitration for Sport (‘the CAS’). These were in response to decisions handed down by an International Cricket Council (ICC) Tribunal in February 2011. Both of them had their appeals dismissed in their entirety (Mr Butt’s full decision; Mr Asif’s full decision). However some interesting issues arose which reveals more about the CAS’s approach to match-fixing cases.
The events that transpired on that fateful day at the home of cricket, Lords Cricket Ground, are well documented however it is worth repeating the fact that Mr Butt was the captain of Pakistan for the game in which the spot-fixing took place. Mohammed Asif, who played international cricket for Pakistan between 2005 and 2010, was one of those under his leadership in August 2010.
The appeal of Mr Butt was purely in relation to the sanction the ICC Tribunal imposed upon him of ten years ineligibility, five years of which was suspended on the conditions that he committed no further breach of the ICC Code and he participated in an anti-corruption education programme. The effect of the sanction in practice meant that Mr. Butt could not be involved in cricket in any way whatsoever anywhere in the world for that period. Mr Asif was also found guilty by an ICC Tribunal and was given a sanction of seven years ineligibility, two years of which was suspended under the same conditions as for Mr Butt. Upon appeal, in contrast to Mr Butt, Mr Asif challenged the Tribunal's decision in front of the Panel as to the merits as well as the sanction imposed.
Mr Asif appealed the Tribunal's ruling on a number of grounds, with the CAS helpfully putting these into two separate categories: due process and substantive grounds. The CAS was not persuaded by any of the nine due process grounds put forward by Mr Asif, which ranged from prejudice under Article 6 of the European Convention on Human Rights to challenging evidence presented against him by the ICC as inadmissible and obtained in contempt of court. When it came to his substantive grounds it is interesting that the Panel seemingly became experts in the mechanics of fast bowling when discussing the so-called "run faster" defence put forward and Mr Asif's claim that a no ball is merely a "marginal infraction" which is well within the scope of error when trying to bowl a faster ball. This highlights the unique nature of acting as an arbitrator in sporting cases. It is also raises questions as to the suitability of certain arbitrators sitting on Panels for particular sports. The CAS stressed to Mr Asif that it did not matter whether he gained financially or not, his mere involvement in seeking to manipulate the match in question was sufficient. Despite Mr Asif's protestations the Panel were satisfied beyond reasonable doubt that he was also party to the conspiracy along with Mr Butt and Mr Amir (the third character in this dark sporting macabre).
When it came to sanctions, which was the entirety the appeal submitted by Mr Butt, CAS remained consistent with previous cases in refusing to put upon the ICC which, as the governing body, had "significant deference" as to the minimum level of sanction required to achieve its strategic imperatives in this controversial area. The CAS did however have some sympathy with Mr Butt's criticisms of the previous incarnation of the ICC Anti-Corruption Code (the Code') (under which he was charged) in claiming it was irrational that a more serious infringement under the Code carried a lesser sentence. This shows that sanctions have to be thought through just as carefully as the rules themselves.
As has been seen in previous recent cases the CAS was equally unwilling to put itself in the shoes of the ICC in deciding what a suitable period of illegibility was for the offences committed, save that the sanction handed down to Mr Butt was significantly shorter than those that had come before them in other sports, where it was usually a life ban. Indeed the Panel viewed this sanction as lenient because he had been the captain of the team, had the responsibility of a role model and the finding by the Tribunal that he was the "ring master" of the conspiracy. In addressing Mr Asif's pleas for this sanction to be removed in its entirety the Panel stressed the important deterrent effect of any sanction, particularly given the history of corruption in this particular sport.
Two further interesting points arose towards the end of Mr Butt's appeal. The Panel was not of the opinion that despite eventually admitting liability this should not be an exceptional circumstance that permitted the Panel to modify the minimum sanction applicable to him under the Code. However this may have been available to him had he done so far earlier in the proceedings. The Panel also discussed the issue of the interrelationship between the sanctions handed down by the ICC Tribunal and those by the UK criminal court. Upon reading the Sentencing Remarks from Mr Justice Cooke I recall being somewhat surprised that in handing down his prison sentence to each defendant he mentioned that the terms were not as long as they could have been because the defendants already had lengthy bans given to them by the ICC. Mirroring Cooke J, the Panel said that given Cooke J had thereby reduced the prison sentence to Mr Butt he already had the benefit of a reduction for what they termed the "same factual matrix". The Panel did not see why he should have this benefit twice.
It does not sit comfortably with me that the sanctions handed down in the separate proceedings, with significantly different consequences for the individual concerned, should be at all referred to or considered by the separate courts. For one the ICC Anti-Corruption Code is a worldwide sporting legal instrument which applies to all its members and has its own theoretical and policy underpinning, whereas the statutes under which the players were prosecuted in the UK have an entirely separate and more wide ranging public interest element. Should similar cases come before the CAS in the future I will be interested to see what a Panel comprised of different arbitrators makes of the interplay between sets of concurrent proceedings and the sanctions in each.
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- Tags: Court of Arbitration for Sport (CAS) | Cricket | ICC | International Cricket Council (ICC) | Match-Fixing | United Kingdom (UK)
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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.