Should we be comfortably satisfied with the standard of proof for match-fixing?Kevin Carpenter
In this blog I have previously discussed the sanctions for match-fixing offences. I now intend to put the horse back before the cart and briefly examine another aspect of match-fixing cases, the standard of proof.
I felt compelled to pen a short note on this having read in full the excellent Sport Resolutions arbitration decision in World Professional Billiards and Snooker Association ('WPBSA') v. Stephen Lee (SR/0000540006) presided over by the sole arbitrator, Adam Lewis QC. The match-fixing alleged in that case was, in the view of Mr Lewis QC, proved on the balance of probabilities and he sanctioned Mr Lee to the maximum twelve year ban from snooker which effectively ends Mr Lee's career. Mr Lee is currently appealing both the proven finding and the sanction itself. The fundamental question I wish to discuss leading on from this case is: should applying a civil standard of proof for allegations of match-fixing be sufficient to ground what is often the end of a sports person career?
There is no universal approach to the standard of proof applied in match-fixing cases across the world. Indeed for such cases there is what seems to be, depending on the sport, a sliding scale. This ranges from the civil standard on the balance of probabilities (or preponderance of the evidence test in tennis), via the comfortable satisfaction test all the way through to, in essence, a criminal standard of beyond reasonable doubt. The majority of sports stop short of applying a criminal standard for the simple fact that given the stigma attached to a criminal conviction, and weight of evidence required, it should be left to the criminal prosecuting authorities in each country. It is beyond the scope of this blog to say too much about concurrent sporting and criminal proceedings for match-fixing, other than a lower standard of proof is applied to often similar evidence to secure a conviction through the sporting disciplinary procedure.
What exactly is the balance of probabilities standard? Put simply the question a judge or arbiter asks him/herself is it more likely than not that the offence occurred? This is a low threshold in comparison to the seriousness of the offence in my opinion. This is not a criticism of any sporting judges as they are simply applying the rules as decided by the sports themselves. Indeed Mr Lewis QC refers to the standard of proof throughout his Decision, which is helpful to remind all parties involved in the case what the standard is (see paragraph 86 for example), and is not done often enough.
There is a general tendency to punish suspected match-fixers strongly and this is achieved through a combination of both the standard of proof applied and the sanctions handed down. The two are very much inter-related. Furthermore the trend in recent years has been to sanction match-fixers for the maximum period allowed under the rules of any sport, often a life ban from participating in the sport in any way, thereby taking away the athlete's livelihood forever. To that end, to apply merely a civil standard of proof, and then have a very narrow range of high end sanctions all of which lead to long term damage to the athlete in question, seems inappropriate to me. Is it therefore time to have a universal standard of proof applied to match-fixing cases across all sports?
I submit it is and would favour the use of the idiosyncratic comfortable satisfaction test. This is used extensively in doping cases, the other principal integrity offence. The comfortable satisfaction standard is often described as somewhere in between the civil (over 50%) and criminal (over 75%) standards. One sport in which the comfortable satisfaction standard is currently used is in cricket. A description of its application can be found in Article 3.1 of the ICC Anti-corruption Code for Participants. Even then it is not straightforward because whether the Tribunal is comfortably satisfied that the alleged offence has been committed, bearing in mind the seriousness of the allegation that is being made, the standard proof shall be determined on a sliding scale from a minimum of a mere balance of probability up to a proof of beyond reasonable doubt for more serious offences.
What does the Court of Arbitration for Sport ('CAS') case law say? The comfortable satisfaction standard is used by UEFA and has been confirmed by CAS on a number of occasions, for instance O. v. UEFA (CAS 2010/A/2172). Another UEFA case which supported this was FK Pobeda, Aleksander Zabrcanec, Nikolce Zdraveski v. UEFA (CAS 2009/A/1920) where at paragraph 85 a significant statement, and judicial affirmation of my proposition, was made, "the Panel is of the opinion that cases of match fixing should be dealt with in line with the CAS consistent jurisprudence in disciplinary doping cases. Therefore, the UEFA must establish the relevant facts "to the comfortable satisfaction of the Court having in mind the seriousness of the allegation which is made" (CAS 2005/A/908 nr 6.2)."
In addition, at paragraph 8.32 of the Savic award (CAS 2011/A/2621) the CAS repeats what the Swiss Federal Tribunal, which has jurisdiction over the CAS, has said in that the criminal standard "beyond reasonable doubt" does not apply in a disciplinary case in the context of a private association (i.e. a sport), to approach it otherwise would be to confuse sport proceedings with the public law of the state. A similar point was argued in the recent Asif case (CAS 2011/A/2632) but was rejected by the Panel as the argument was framed that the original Tribunal had misdirected itself as to the meaning of "beyond reasonable doubt", rather than challenging the standard itself it on the basis of incompatibility with Swiss law.
I submit that the balance of justice has swung too far in favour of the sports' governing bodies and against the accused athlete in match-fixing cases. This may not be a popular view with those who view match-fixing as a cancer to sport, which indeed it is, but in any event we need to be open to the fact that the threat match-fixing poses does not justify departing from proper judicial principles in sporting actions.
In the majority of sports, including football and rugby, the balance of probabilities test for match-fixing offences still appears in the regulations. I advocate a change to a universal comfortable satisfaction test being used across the board. I believe this will strike the appropriate balance between securing sufficient convictions on the evidence, which the police do not seem to be able to do often under the criminal law, and yet giving the accused the proper chance to present their defence given the cataclysmic effect a proven verdict and subsequent sanction will often have on their career.
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- Tags: Court of Arbitration for Sport (CAS) | cricket | match-fixing | snooker | UEFA | 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.