Proportionality of athlete sanctions - A review of the Nick Lindahl match-fixing caseKevin Carpenter
In December 2017, the Court of Arbitration for Sport (CAS) heard the appeal of Professional Tennis Integrity Officers (PTIOs) v. Nick Lindahl1, concerning the appropriate sanction for a match-fixing charge brought by the PTIOs (who form the Tennis Integrity Unit, TIU) against former professional tennis player, Mr. Nick Lindahl. The case attracted significant media interest, as Mr. Lindahl and his co-conspirators were also subjected to criminal proceedings in Australia. It is also noteworthy for sports lawyers in light of its broader relevance to the issue of proportionality of athlete sanctions.
This article reviews the case, and looks specifically at:
Background to events
Summary of submissions to the CAS
CAS findings and author’s analysis
What was an “appropriate” sanction under the relevant rules?
What matters should properly be taken in to account?
Was the sanction in this case proportionate?
The role fines should play in proportionate sanctioning
The author represented Mr Nick Lindahl in the appeal. Any quotes from the award that are underlined is emphasis added by the author.
The offences related to a tennis match Mr. Lindahl had played against Andrew Corbitt in September 2013, held in the Australian Futures Tournament at Toowoomba, Queensland, Australia, which he lost in straight sets: 6-3, 6-2.
The TIU received suspicious information [para 7] after the match and began an investigation in October 2013. When interviewing Mr. Lindahl, he admitted he had told a third party (another player, Mr. Matthew Fox) that he would deliberately lose the match, but he refused to hand over his mobile phone for a forensic download, which was a requirement of Article F.2.c. of the Uniform Tennis Anti-Corruption Program (TACP) in force at the relevant time:
“If the TIU believes that a Covered Person may have committed a Corruption Offense, the TIU may make a Demand to any Covered Person to furnish to the TIU any information regarding the alleged Corruption Offense, including, without limitation, (i) records relating to the alleged Corruption Offense (including, without limitation, itemized telephone billing statements, text of SMS messages received and sent, banking statements, Internet service records, computers, hard drives and other electronic information storage devices), and (ii) a written statement setting forth the facts and circumstances with respect to the alleged Corruption Offense. The Covered Person shall furnish such information within seven business days of the making of such Demand, or within such other time as may be set by the TIU [...]”
As a result of this refusal, Mr. Lindahl was suspended indefinitely until he complied with the request.
In December 2014 and April 2016, the TIU obtained recordings from the related criminal court proceedings in which Mr. Fox confirmed he had received corrupt information from Mr. Lindahl about
the match in order to place wagers on the match. In the recordings, Mr. Fox also said that Mr. Lindahl had encouraged him to hide/destroy evidence.2
Mr. Lindahl formally retired from professional tennis in January 2015. He was then formally charged by the PTIOs in September 2016 with the two offences of “deliberately losing his match” and “[refusing] to provide his phone for forensic download”, neither of which he disputed. [paras 15, 16 and 17]
Due to the criminal investigation, which almost always take precedence over the sport’s process when allegations of match-fixing arise, the first instance decision by the Anti-Corruption Hearing Officer (AHO), the well-known Mr. Richard H. McLaren, was not handed down until 9 January 2017. Mr. Lindahl received a 7-year ban, and US$35,000 fine pursuant to the 2013 version of the TACP for the offences.
The PTIO appealed the sanction to the CAS, arguing that it was appropriate in the circumstances to impose a sanction of permanent ineligibility (i.e. a life ban) upon Mr. Lindahl.
SUMMARY OF THE SUBMISSIONS TO THE CAS
In their submissions to the CAS, the PTIOs made a number of general statements about the gravity of match-fixing as an offence, as well as the hindrance to an investigation caused by a lack of co-operation. [para 56] But of more interest were the following aggravating factors, which they stated should “mandate permanent ineligibility”:
Nine years as a professional tennis player;
Involving other players in the “scheme”; and
Encouraging one of the other players to destroy evidence.
Although he had retired from playing tennis professionally, Mr. Lindahl had expressed a desire to remain involved in the sport in a coaching capacity, even if only in junior tennis, once his ban had been served. This was why he was keen to contest the PTIOs appeal.
In response, Mr. Lindahl submitted that, principally, he should only be sanctioned on the basis of what the PTIOs had charged him with (i.e. match-fixing and a failure to co-operate), not for encouraging others to destroy evidence, and that he had a legitimate expectation that this would be the case. In essence, where investigators into allegations of corruption find evidence of further wrongdoing, be it through relevant criminal proceedings some two years later or any other admissible means (which is not unusual given match-fixing by its very nature involves a degree of concealment), after a charge(s) has been made investigators should then have serve an additional notice of charge.
As for the length of the sanction, Mr. Lindahl submitted that:
The AHO had a significant margin of discretion under the TACP which should not be interfered with; and
The seven-year playing suspension was proportionate and clearly achieved the aims of being a significant punishment and deterrent, when all factors that may be legally taken into account had been considered. [para 58]
THE CAS’ FINDINGS3 AND AUTHOR’S ANALYSIS
This section explains how the CAS answered the main questions at hand. The author will, in addition, provide some commentary after certain questions for the interest of all stakeholders in sport who may be involved in similar matters.
What was an “appropriate” sanction under the 2013 TACP?
In balancing the discretion given to the AHO in the TACP, against previous CAS awards in tennis in which life bans had been handed down, the Panel stressed,
“The Panel does not view the cited cases or other case law as mandating a sanction of permanent ineligibility for match-fixing and believes that such a sanction, in order to be considered appropriate and proportionate, must be based on the given circumstances in each case.” [para 69]
The Panel agreed with Mr. Lindahl’s submission that within the framework of the discretion given to AHO,
“the overriding principle of proportionality must be the principal consideration when deciding on the appropriate sanction, guided by the PTIOs stated aim for the sanctions to be both a punishment and a deterrent.” [para 76]
As a result, they found in Mr. Lindahl’s favour on this first issue and agreed that,
“CAS panels should ensure that the AHO considered all the relevant elements of each given case including factors presented to him in connection with sanctioning. Other than that, the Panel should not replace its discretion with that of the AHO unless the sanction is evidently and grossly disproportionate to the offense.” [para 78]
What matters should properly be taken in to account?
Given that view, the next stage in the CAS’ analysis was to consider whether or not the AHO had in fact considered all the relevant facts, in light of the PTIOs grounds of appeal. The PTIOs objected to the refusal of the AHO to consider the extra conduct which had not been the subject of a formal charge. In doing so, they sought to rely on Florida law, the governing law of the TACP, which they claimed allows a sentencing judge to consider a defendant’s uncharged crimes for sentencing purposes [para 85]
However, Mr Lindahl argued that this point had been considered and dealt with fully at first instance by the AHO as follows,
“The difficulty with [the PTIOs] submissions is that…the sanction must be connected to the admitted facts and Corruption Offences…All the aggravated circumstances cannot be added at the stage of making a submission on the sanctions when they were based on facts which were not part of the original Notice against which the admission was made…What cannot be taken into account, without a revision to the Notice and an admission to that revised Notice, is the TIU interview in January 2015 and particularly destroying evidence relevant to the investigation of Lindahl and Fox.” [para 84]
The Panel upheld the AHO’s reasoning in this regard,
“The Panel agrees that while additional facts may be considered for sanctioning purposes, in the circumstances such as in the present case in which completely separate legal charges could have been brought against the Player, and for substantial matters at that, it would be wrong to avoid litigation of these separate actions, not providing the Player with an opportunity to present his case and introduce evidence and to let the same matters enter through the "back door" solely for the purposes of sanctioning.” [para 88]
Looking at this specific issue from a governing body perspective, in the author’s opinion, this is a stark reminder that the charges brought against a participant must be properly drafted and updated where new information comes to light (from whatever source) during the investigation. Such matters regarding the standard operating practices of the PTIOs will hopefully be addressed in the impending Independent Review of Integrity in Tennis4 5 report (for which the author was interviewed).
Was the sanction in this case proportionate?
The final matter for the CAS Panel to consider was whether or not the sanction imposed upon Mr. Lindahl was evidently disproportionate in the specific circumstances of the case? Ultimately, the Panel maintained the seven-year suspension,
“The decision appears to strike a balance of proportionality in ending the professional playing career of the player, and therefore being a significant deterrent, while allowing him to return to the sport as a reformed character in a different capacity once the long period of suspension has been served.” [para 93]
To provide some further context and background, this reasoning by the CAS supports something the author wrote back in November 2013 in relation to the match-fixing case involving Maltese football player Kevin Sammut,
“the principle that can be extracted from Matuzalem and applied to Mr Sammut’s CAS appeal is whether it is proportional to impose a life ban and the heavy restrictions on the rights of the individual associated with it? In the criminal law, and indeed in the anti-doping sanctioning regime, there is the recognition that a person found proven of the charges brought can reform during their time of being sanctioned. The current sanctioning regime for match-fixing offences does not contain the same recognition as lifetime bans have become seemingly mandatory for first time offences (where the sporting regulations allow it).”6
Since the Sammut award, in which a life ban was reduced by the CAS to ‘only’ 10 years7, up to and including this case, the CAS have taken a far more analytical and balanced approach to the need to deter corrupt conduct whilst also not being unduly restrictive about a participant’s right to potentially reform and return to the sport in question in another capacity (i.e. properly applying the principle of proportionality).
The role fines should play in proportionate sanctioning
There was one remaining issue which concerned the fine that had also been imposed upon Mr. Lindahl in addition to his suspension. The Panel had already expressly considered this element of the overall sanction in terms of the proportionality of it,
“The Panel cannot conclude that the seven-year period of ineligibility imposed by the AHO on the Player is evidently disproportionate to the offense and thus not within the AHO's discretion. This is particularly so in this case in which the Player's effective suspension began some two and a half years before the imposition of the seven-year suspension, a suspension which has in practice ended the Player's career as a professional tennis player, and in which a substantial fine of US$ 35,000 has also been imposed on the Player (as stated in the Appealed Decision, the ban will continue until the fine is paid in full).” [para 93]
This particular CAS Panel declined to entertain the level of the fine. They considered the point to be inadmissible as neither the CAS Code or the TACP provided for cross-appeals to be made.
In accordance with several first instance and CAS appeals, the author questions the purpose of a fine in such cases as these, given first the arbitrariness and inconsistency as to whether the PTIOs seek a fine8910, and secondly the consistent line of CAS awards setting aside fines for corruption offenses?1112 As above, the point was not discussed by the Panel as they considered it to be inadmissible. In the author’s view, what this reasoning fails to take into account however, is that Mr. Lindahl was not provided with legal representation until long passed the deadline set in the TACP, and therefore, in the author’s opinion, the cross-appeal should have been allowed.
Interestingly, the Panel did then go on to consider an issue not raised by either party, namely the fact that although the Australian Criminal Court did convict Mr. Lindahl, it only imposition a small criminal fine of AUS$1,000 (c.560 GBP / 770 USD) and Good Behaviour Bond for a period of 12 months [para 102], when the law allowed for a prison sentence of up to 10 years.13 What was unusual about the CAS Panel’s deliberation, and what was stated in the award, was that it was only by a majority that they decided it should not be decisive when considering the sport’s separate and distinct disciplinary proceedings. [paras 95-106]
One may wonder whether a participant (in most cases an athlete) would prefer a greater fine and lesser ban in such circumstances? They could still earn money in another job and pay the fine off in instalments in good time, to return to the sport in a different capacity (e.g. coaching) once the period of ineligibility has expired.
Crucially this award confirms that, no matter how deliberate the offending actions or omissions are, the participant should only receive a sanction that is proportionate. By comparison, and to further strengthen this approach, for all its other shortcomings, proportionality is built into the WADA Code, “The Code has been drafted giving consideration to the principles of proportionality and human rights.”14 In addition, CAS awards which expressly consider proportionality when it comes to the appropriate sanction for a first doping offence (although the application of it can differ)15. In fact, it can be said that although,
“the WADA Code [has] mechanisms by which sanctions could be reduced or eliminated…the CAS has made clear that the introduction of these mechanisms does not remove the obligation of disciplinary panels to measure the sanctions applied in any particular case against the principle of proportionality.”16
As a result, why should those who have engaged in another form of corrupt sporting conduct (i.e. match manipulation, governance corruption or other conduct contrary to the integrity of sport) receive a lifetime ban for a first offence?
For more on the topic of proportionality of sanctions for integrity offences, please see the author’s following LawInSport articles:
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- Tags: Anti Corruption | Australia | CAS Code | Court of Arbitration for Sport (CAS) | Dispute Resolution | Match Fixing | Professional Tennis Integrity Officers (PTIOs) | Tennis | Tennis Integrity Unit (TIU) | Uniform Tennis Anti-Corruption Program (TACP)
- Match-fixing and the potential ‘Matuzalem effect’
- Should we be comfortably satisfied with the standard of proof for match-fixing?
- Punishment & redemption: consistency in sanctions for doping & match-fixing
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.