Sport, corruption and the criminal law: the need for an expert investigative bodyTim Owen QC
On October 2nd 1919, the opening day of Game One in the World Series, the Philadelphia Bulletin published a poem whose central theme would soon seem slightly wide of the mark:
Still it really doesn’t matter
After all, who wins the flag.
Good clean sport is what we’re after,
And we aim to make our brag
To each near or distant nation
Whereon shines the sporting sun
That of all our games gymnastic
Baseball is the cleanest one!
A year later, eight members of the Chicago White Sox (including star hitter “Shoeless” Joe Jackson) and five gamblers were indicted by a grand jury on charges of conspiracy to defraud.1 The allegation was that an organised criminal gang, headed by Arnold “The Brain” Rothstein, had paid members of the White Sox deliberately to lose the World Series to the Cincinnati Reds. The Sox had been the hot favourites and the bizarre circumstances of their defeat (pitcher Claude “Lefty” Williams lost three games all on his own, a Series record, and many others made numerous fielding errors) strongly suggested that simple stage fright was not the explanation.
After a trial in 1921, all eight White Sox players and the gamblers were acquitted. But the very next day newly appointed National Commissioner of Baseball, Kenesaw Mountain Landis, announced his decision to ban the White Sox eight for life from Major League baseball on the basis that, while they may have been acquitted in court, no one could dispute they had broken the rules of baseball. This high profile criminal prosecution of some of baseball’s most famous players followed by firm action by the sport’s regulator succeeded in all but eliminating the problem of illegal gambling in baseball for decades. The moral of the story is clear. Resort to the criminal law when evidence of corruption in sport emerges can be the most effective deterrent in the regulatory toolbox.
More recently the US Department of Justice demonstrated its determination to tackle the stench of corruption that has long emanated from FIFA. Since marching into the Baur au Lac hotel in Zurich early one May morning last year and arresting a string of FIFA officials on corruption charges, a long list of current and former football executives have been indicted on some 92 charges alleging racketeering, wire fraud and money laundering conspiracies.
Last December former Concacaf President Jeffrey Webb pleaded guilty to money laundering, wire fraud and racketeering and agreed to forfeit $6.7m. Of the 92 counts, allegations include embezzlement of funds by Webb and Jack Warner provided by FIFA for disaster relief as well as embezzlement of funds from FIFA’s Goal programme intended for developing youth academies and infrastructure in the poorest regions. A more recent 236 page indictment2 alleges that some 27 defendants engaged in various schemes involved in selling lucrative media and marketing rights to football tournaments and matches. US attorney general Loretta Lynch said in the wake of the May 2015 raid that:
"[T]he betrayal of trust set forth here is outrageous. The scale of corruption alleged herein is unconscionable. And the message from this announcement should be clear to every culpable individual who remains in the shadows, hoping to evade our investigation. You will not wait us out; you will not escape our focus."2
It can reasonably be assumed that the FBI’s bold and decisive action, in the wake of a three year investigation, will have a major deterrent effect on those who achieve high office in the world of football regardless of the outcome in the forthcoming criminal trial process. It can equally be assumed that anyone intending to engage in illegal gambling or other forms of corrupt behavior in relation to sporting events in the UK or elsewhere has little to fear from the criminal law of England and Wales in light of the striking failure of the police and prosecuting authorities to bring cases of corrupt betting and match fixing before the courts.
On any view, the record of our police and prosecuting authorities in exposing criminal conduct linked to sport is dismal. In December 2007, former champion jockey Kieran Fallon together with two fellow jockeys and three others were cleared of race fixing after the trial Judge upheld a submission of on a charge of conspiracy to defraud customers of Betfair.4 The ruling was a serious embarrassment for the Crown Prosecution Service because the principal basis for throwing out the charge arose from the fact that the Crown’s principal witness, Australian racing steward Ray Murrihy (who claimed to have found fault with the jockeys in 13 of 27 disputed races) admitted he knew little of the culture and rules of British racing. Declaring his evidence inadmissible, Mr Justice Forbes commented that it was “abundantly clear that Murrihy’s evidence fell far short of establishing a prima facie breach of UK racing rules”.
Of course it is not the case that every acquittal means that a prosecution should never have been brought but the terms of Forbes J.’s ruling strongly suggested that the CPS had not properly thought through how to present its case in what was plainly a novel and difficult challenge. The impact of the Fallon case was almost certainly to deter the CPS from deploying the criminal law in horse racing cases on the basis that it was better left to the regulators.
The CPS enjoyed greater success in the more recent conviction of three Pakistan cricketers for “spot-fixing” during the England/Pakistan test series in 2010 (together with the separate prosecution of Essex cricketer Mervyn Westfield for spot-fixing in a Nat West pro 40 match in 20095). In each case, charges were formulated by reference to section 1 of the Prevention of Corruption Act 1906 and a conspiracy to cheat at gambling contrary to section 42 of the Gambling Act 2005. The gist of the charges was that a corrupt agreement had been reached to pay the cricketers for playing in a specific, previously agreed manner, for example bowling in a manner calculated and intended to allow the scoring of runs. The Court of Appeal firmly rejected the argument that the 1906 Act was incapable of covering the alleged misconduct and were equally dismissive of the argument that there was no jurisdiction to try the Gambling Act offences because the unlawful gambling in issue had taken place abroad. In other words, a clear endorsement of the reach of the offence of cheating at gambling contrary to the 2005 Act.
But it is hard to see the case of the “Pakistan Three” as a triumph of police investigative work given that the evidence was presented to them on a plate thanks to a sting operation conducted by the News of the World. The fact that a newspaper was able to uncover blatantly corrupt conduct by high profile sportsmen, their agents and organised criminal betting syndicates would tend to indicate that a properly resourced, dedicated team of trained police investigators might be equally capable of identifying those guilty of engaging in what most informed observers regard as the systemic problem of corrupt gambling and criminal match fixing in certain sports. Can it really be the case that, despite the growing awareness of the corruption that now affects all major sporting events, only a handful of cases deserving criminal intervention have been brought before the courts ?
The problem is clearly not that the domestic criminal law of England and Wales is incapable of addressing all but the most obscure forms of sports related corruption. The Gambling Act 2005, the Fraud Act 2006, the Bribery Act 2010 and the Criminal Law Act 1977 together with the common law offence of conspiracy to defraud provide an extremely broad range of criminal offences which are capable of catching the vast majority of match or spot fixing (or indeed other forms of corrupt behavior). The Sports Betting Group (whose membership is drawn from leading sports governing bodies) is on record as attacking the existing legislative scheme, specifically asserting that s.42 of the Gambling Act is out of date and that the CPS’s failure to achieve a string of successful prosecutions for match fixing demonstrates the need for legislative reform. But in light of the ruling in R v. Majeed it is hard to see why a legislative lacuna is the source of the problem. As Lord Judge CJ said in Majeed:
"[T]he offence contrary to section 42 [of the Gambling Act 2005] is committed at the moment when “anything” is done “for the purpose of enabling or assisting “anyone else to cheat at gambling. It has nothing to do with the proper regulation of gambling: it simply creates an offence of cheating."
The simple and obvious truth is that the only way that corruption in sport will be effectively tackled and deterred via the criminal law is by a well-resourced, expert investigative body capable of monitoring and investigating the kind of activity, communications and patterns of behaviour which are associated with the fixing of sports events. In other words, a body capable of gathering evidence which the CPS can then use to convict the guilty.
The difference between crimes such as burglary, robbery, assault, sexual offences and murder as compared with complex fraud and corruption is that the former invariably involve an obvious, identifiable victim who demands an immediate, active police investigation whereas the latter category requires an effective regulatory system to identify that a crime has been committed at all. The answer therefore is not more laws but rather an effective means of gathering evidence to prosecute under our existing legislative scheme. But of course investigative work by well informed, trained experts who understand the terrain in which they work does not come cheap and in light of the wave of public expenditure cuts drastically affecting both the police and the CPS it is obvious that corruption in sporting events will not be high on the list of the National Crime Agency or the Serious Fraud Office.
In his judgment in Majeed, Lord Judge CJ commented that the prizes for successful gambling can be very great and the scope for corruption is therefore considerable. He went on to say that “for the health, indeed the survival of the game of cricket as a truly competitive sport, it must be eradicated.” But the truth is that unless and until corruption in sport is given a high priority in terms of the creation of a dedicated national police investigative unit, properly resourced and supported so as to reflect the global nature of international sport, we may as well forget about the idea that the criminal law can have a meaningful role to play in the struggle to achieve Lord Judge’s highly desirable goal.
This article was written for Matrix Chambers’ “Road to Rio” series and republished with permission of the author. Find out more about the sports team at Matrix Chambers at matrixlaw.co.uk.
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- Tags: Anti-Corruption | Baseball | Bribery Act 2010 | Cricket | Criminal Law Act 1977 | FIFA | Football | Fraud Act 2006 | Gambling Act 2005 | Major League Baseball (MLB) | Prevention of Corruption Act 1906 | Russia | UEFA | United Kingdom (UK) | United States of America (USA)
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About the Author
Tim Owen QC is a barrister at Matrix chambers and his practice spans the fields of fraud, financial and business crime, regulatory and disciplinary, sports, public, police and human rights law.