Bribery in football and corruption at the IAAF – How does the Bribery Act 2010 apply?

Published 09 March 2017 | Authored by: Neil Swift, Gareth Farrelly, Craig Hogg

The turn of 2016/2017 saw several high-profile corruption allegations levelled against football and athletics executives.

These instances, outlined in more detail below, raise questions firstly about the nature of the allegations, and secondly how the Bribery Act 2010 might apply in such circumstances.  Accordingly, this article looks at:

  • The Daily Telegraph football sting and the resulting police investigation into bribery;
  • The IAAF’s findings against its former deputy general secretary, Nick Davies;
  • The Bribery Act 2010 and how it might apply in such circumstances.

 

Daily Telegraph football sting and resulting bribery investigation

On 11 November 2016 it was announced that a criminal investigation has been launched following an undercover sting carried out by the Daily Telegraph newspaper, after it uncovered what it described asrevelations about greed and corruption at the heart of English football.[1]

After concluding their review of material gathered by the newspaper, detectives from the City of London Police Economic Crime Directorate have reportedly commenced an investigationinto a single suspected bribery offence”.[2] This followed secretly filmed discussions between reporters for the paper, posing as a Far East consortium of football agents and senior football managers.

The Telegraph has stated that it is likely that any inquiry will focus on Tommy Wright, the former assistant manager of Barnsley Football Club, who was dismissed after being filmed accepting a £5,000 cash bribe in return for persuading players at his club to hire the newspaper’s fake agents. Mr Wright allegedly also recommended that Barnsley sign other players represented by the consortium. Mr Wright has categorically denied any criminal wrongdoing, or breach of FA or FIFA rules.[3]

The fallout from the sting has already been felt elsewhere: the England manager, Sam Allardyce, resigned from his position after only 67 days in charge after being filmed in discussions with the undercover reporters. Jimmy Floyd Hasselbank, also named by the paper, and although backed by his club QPR at the time has also since been dismissed following a run of bad results. Other individuals named in the inquiry included Eric Black, Southampton assistant manager, and Leeds chairman Massimo Cellino. 

The City of London Police have confirmed that Sam Allardyce is not under criminal investigation, and the identities of the individuals who are under investigation have not yet been released.[4] Allardyce has released a statement stating he was always confident that this would be the case and has asked that The FA deal with their investigation expeditiously.[5]

 

IAAF findings against Nick Davies

More recently in the world of athletics, on 31 January 2017, it was reported that Nick Davies, former deputy general secretary of the International Association of Athletics Federation (“IAAF”), had been expelled by the organisation’s Ethics Committee over allegations he was one of three officials who took money to delay naming Russian drug cheats.[6]

According to reports, Mr Davies allegedly lied to investigators about receiving secret payments totalling €30,000 from former IAAF consultant, Papa Massata Diack (the son of the disgraced former IAAF President Lamine Diack) during the investigation into the mishandling of doping cases and abnormal athlete biological passport findings concerning Russian athletes.[7] Payments were allegedly made in two cash instalments of €25,000 and €5000, the former for PR expenses aimed at dealing with the negative stories relating to the results, and the latter constituting a bonus payment for work done. 

The larger sum was paid into Mr Davies’ bank account with the remaining €5,000 paid into a joint account held by Mr Davies and his wife, Jane Boulter-Davies, who worked in the IAAF anti-doping department. A further “concealed” payment of €10,000 from was allegedly made to Dr Pierre-Yves Garnier, IAAF medical manager, in related circumstances.

Despite the finding, Mr Davies was cleared of corruption by the IAAF, and remains free to work in the sport. Ms Boulter-Davies was given a six-month suspension backdated to June 2016. However, she remains able to return to her position at the IAAF with immediate effect. Dr Garnier was given a three-month suspension, backdated to September 2016.

 

Bribery Act 2010

The IAAF proceedings were regulatory in nature. However, the Daily Telegraph revelations demonstrate the potential prosecutorial application of the Bribery Act 2010 (the “2010 Act”) in these circumstances, which provides the criminal law framework for tackling corruption in both public and private sectors. 

The 2010 Act makes it an offence to both give and be in receipt of bribes. It applies where the conduct takes place in the UK, or where the act does not take place in the UK but the act or the omission would be an offence if it took place in the UK and the person concerned has a “close connection” with the UK (e.g. is a British Citizen).  

The 2010 Act sets out a number of ways in which the offence can be committed, but central to all offences is the concept of performing a relevant function improperly in return for an advantage, financial or otherwise.

Relevant functions are public functions, business activities, activities performed in employment, or activities carried out for a company or unincorporated body where the person performing is under a duty to perform in good faith or impartially, or is in a position of trust by virtue of performing it.

 

2010 Act applied to Telegraph Sting & IAAF Decision

Individuals professionally connected to English football clubs and athletic bodies will fall squarely within the ambit of the offence if their conduct is related to their club or organisation. A person will be in breach of the standard expected of them by a comparison to the notional “reasonable person”.[8] The offence is made out if a financial or other advantage is given, promised or requested, either directly or via a third party.[9] 

Also central to the offence is the requirement that the bribe brings about or rewards “improper performance”, i.e. that the person suspected has acted not in good faith or impartially, or has acted in breach of trust. 

Ultimately the question will be one of evidence. In the footballing context, decisions made by those working within clubs, who are responsible for deciding which players to sign, and for how much, are highly subjective. Football is a game where everyone has an opinion, and the decision-making process itself may have multiple participants. Accordingly, a criminal prosecution may run into difficulty where several people express a positive opinion about a player, only one of whom is acting improperly (say, influenced by the promise of an advantage).

Similar evidential difficulties are been encountered in the regulatory context in the IAAF actions. Lord Coe, former president of the organisation, has denied any knowledge of serious allegations of corruption, even after an email was released last month by the Department of Culture, Media and Sports Select Committee, which showed that he was aware of “serious allegations” in 2014. [10]

The mild evidential impact of this email revelation is an indication of the difficulty regulators, and criminal prosecutors, sometimes face in evidencing improper behaviour in the sporting context. That being said, it is likely that any charging body would give consideration to the findings of the IAAF Ethics Board in deciding whether to pursue a criminal case against Mr Davies, and those others also embroiled in his case.

 

Conclusion

What these investigations show is that conduct within sport is not beyond the scope of the 2010 Act. The penalties for breaches of the 2010 Act are very severe: unlimited fines and/or up to ten years’ imprisonment. Signs of greater willingness to engage the criminal law in sport would therefore be very welcome.

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About the Author

Neil Swift

Neil Swift

Neil Swift is a Partner in the business crime department at Peters & Peters Solicitors LLP. He qualified in 1999 and became a Partner in 2010.  He has a broad range of experience in the fraud area, advising individual and corporate clients in relation to investigations and prosecutions by all major law enforcement bodies, including in particular the Serious Fraud Office, HM Revenue & Customs, and the Office of Fair Trading (now Competition and Markets Authority).
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Gareth Farrelly

Gareth Farrelly

Gareth joined Peters & Peters in 2015, following a successful career as a Premiership and international footballer. He is currently a Trainee in the firm’s Business Crime Department, where he is gaining experience in a wide range of white-collar crime matters, including SFO investigations and corporate compliance.

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Craig Hogg

Craig joined Peters & Peters in 2015 and is currently a Trainee Solicitor in the Business Crime Department.

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