Best practice for sports organisations when managing betting compliance risks (the Rob Howley case)
The sports betting industry is growing at an unparalleled rate. Thanks in no small part to the US Supreme Court opening the door to legal sports wagering across the USA, it is predicted that the value of the global sports betting market will reach approximately $155.49 billion by 20241. While such growth presents significant opportunities for many different organisations, it also heightens the potential risk of corruption and match-fixing. Indeed, efforts to address betting-related corruption in sport have gathered momentum in recent years, as incidents involving several high-profile sporting fixtures – such as the 2008 Singapore Grand Prix, the 2010 England-Pakistan test series, and the final day of the 2019 La Liga – cast doubt over the integrity of some participants in these events.
The seeds of a similar episode began to grow on the back pages ahead of this autumn’s Rugby World Cup in Japan. It emerged that Rob Howley, Wales’ backs coach, had been asked to return home2 by the Welsh Rugby Union (WRU) amidst allegations that he had breached World Rugby’s betting rules (the Allegations). Public information about the Allegations remains limited3 and time will tell whether they are substantiated. With investigations ongoing, the matter has triggered public interest in the rules applicable to betting on sports. Importantly, the episode has highlighted the need for those involved in sports, and organisations more generally, being aware of the best practices for ensuring compliance with applicable rules and regulations, managing crisis situations, and handling the implicated individual during the investigation itself.
Accordingly, this article analyses World Rugby’s regulations on betting and the Howley case, before reflecting more broadly on how sports organisations can best address betting compliance risks, including:
strategies to ensure compliance with the regulatory framework;
strategies for crisis management and response; and
striking the right balance when managing suspensions.
What are World Rugby’s rules on betting?
The World Rugby Regulations set out the rules for betting offences in rugby union. Regulation 6 (Anti-Corruption and Betting) (the Regulation) acknowledges the importance of preserving faith in the sport by creating a global framework to regulate betting by individuals connected with rugby.
The creation of this framework has been largely successful, with the Regulation typically incorporated by reference into the rules of each individual nation’s governing body (the Unions). Indeed, for the purposes of the Allegations, the Regulation is incorporated by reference into the WRU’s Code of Conduct via Rule 2.1(e)4.
The key definitions
Regulation 6.2 sets out a list of key definitions for interpreting the Regulation. Relevant to the Allegations are the following:
Connected Person – “Any International Player, Contract Player, International Match Official, Contract Player Support Personnel, any coach, trainer, selector [amongst other positions] engaged in relation to the Game by a Union… ”.
Connected Event – an “Event with which a Connected Person… and/or Union… is involved with, connected to or engaged with .”
Contract Player Support Personnel – “A Connected Person who is involved with and/or engaged by a Contract Player, a Club, Rugby Body, team [including the] personnel of Unions, Clubs and Rugby Bodies which engage Contract Players …”
Event – a “Match, tournament, Series of Matches, league, and/or competition at any level of the Game ”.
In addition, Regulation 4.5.7 defines Contract Players as “registered players who are currently receiving, or who have received payment in respect of their participation in rugby”.
The specific offences under Regulation 6.3
Regulation 6.3 identifies a number of different offences that can be “Anti-Corruption Breaches”. The WRU has confirmed that its investigation is focusing on “betting on rugby union” and the offence relevant to the Allegations is set out in Regulation 6.3.1 entitled "Prohibited Betting".
Crucially for the purposes of the investigation, the "Prohibited Betting" offence – as with all the offences under Regulation 6.3 – is one of strict liability, so that:
It is not necessary that intent, fault, negligence and/or knowing commission… be demonstrated in order to establish that [a breach] has been committed.
The "Prohibited Betting" offence can be broken down into four separate sub-offences. First, Regulation 6.3.1(a) specifies that the ‘Betting by a Connected Person on a Connected Event’ sub-offence occurs when Connected Persons:
directly or indirectly, Bet and/or Attempt to Bet on the outcome or any aspect of any Connected Event and/or receive and/or Attempt to receive part or all of the proceeds of any such Bet and/or any other Benefit in relation to a Bet.
Next, Regulation 6.3.1(b) specifies that the "Soliciting by a Connected Person of Betting on a Connected Event" sub-offence occurs when Connected Persons:
Attempt, directly or indirectly, to solicit, offer, induce, entice, instruct, persuade, encourage, agree with and/or facilitate any other party to Bet and/or Attempt to Bet on the outcome or any aspect of any Connected Event.
The first two sub-offences are specifically confined to the activities of “Connected Persons” in respect of “Connected Events”. The second two sub-offences are broader and relate to betting by anyone involved in professional rugby.
The third offence (set out in Regulation 6.3.1(c)) specifies that the "Betting by a Contract Player or Contract Player Support Personnel on an Event" sub-offence occurs when a Contract Player or Contract Player Support Personnel:
directly or indirectly, Bet and/or Attempt to Bet on the outcome and/or any aspect of any Event and/or receive and/or Attempt to receive part or all of the proceeds of any such Bet and/or any other Benefit in relation to a Bet.
Finally, Regulation 6.3.1(d) specifies that the "Soliciting by a Contract Player or Contract Player Support Personnel of Betting on an Event" sub-offence occurs when a Contract Player or Contract Player Support Personnel:
Attempt, directly or indirectly, to solicit, induce, entice, instruct, persuade, encourage, agree with and/or facilitate any other person to Bet and/or Attempt to Bet on the outcome or any aspect of any Event.
Most international rugby coaches are engaged by their relevant Union and so are Connected Persons. As such, their placing or attempting to place a bet on any rugby match in which their country’s national team is involved (being a Connected Event), would be contrary to Regulation 6.3.1(a). If, instead, they made another person place a similar bet, the coaches will have acted contrary to Regulation 6.3.1(b).
Furthermore, as international coaches are Connected Persons involved with international rugby teams (being teams that engage Contract Players), they would also be deemed Contract Player Support Personnel. As such, should they have placed a bet or attempted to place a bet on any rugby match at any level of the sport (being an Event), they would have acted contrary to Regulation 6.3.1(c). If, instead, they made another person place a similar bet, the coaches will have acted contrary to Regulation 6.3.1(d).
Process and sanctions
Regulation 6.7.5 stipulates that an individual can be charged with one or more of the sub-offences described above. As part of this, that individual can provisionally be suspended by the relevant Union pending the case’s final determination (though it is open to that individual to contest the suspension pursuant to Regulation 6.8.2).
Under Regulation 6.7.7, an independent judicial panel will be tasked with making any necessary decisions at a hearing. The panel’s decisions may include whether the allegations are made out, or (where charges are admitted) simply a determination as to the appropriate sanction. Either way, pursuant to Regulation 6.6., the standard of proof is the civil law “balance of probabilities”.
According to Regulation 6.10.2, the applicable sanctions for the "Prohibited Betting" offence range from a reprimand and/or a warning to a five-year suspension and an unlimited fine. In addition, Regulation 6.10.5(f) states that anyone suspended under the Regulations must attend an anti-corruption education programme.
When determining the appropriate sanction, the judicial panel may take into account a variety of aggravating and mitigating factors. Pursuant to Regulation 6.10.3, relevant aggravating factors include:
a high degree of fault;
previous anti-corruption offences;
whether the sums of money involved were substantial; and
whether the results of any Events could have been affected.
By contrast, pursuant to Regulation 6.10.4, relevant mitigating factors include:
a low degree of fault;
prompt admission of culpability and/or remorse;
a good disciplinary record/good character; and
whether the offence had no effect on any Events.
Guidance as to the application of such factors comes from two previous cases in which Regulation 17 of the English Rugby Football Union’s Regulations, which mirrors the Regulation, was applied.
In the first case, dating back to 2015, former Leicester Tigers defence coach, Phil Blake, placed four bets on two matches involving the Premiership team for whom he worked received a six-month suspension and a £699 fine (along with a bill for the costs of the hearing), with the coach receiving credit for his prompt admission, remorse, exemplary disciplinary record and the fact that the offence did not affect the results of either match5.
In the second case, Matt Hart, the agent of several high-profile players, received a two-year ban after placing 1,746 bets on rugby matches, with the agent being penalised for the sums of money involved, the frequency and duration of the betting, and his lack of cooperation with the investigation6.
Best practice for sports organisations when managing betting compliance risks
The Howley incident highlights the importance of organisations and people acting in compliance with the rules and the need for sports organisations to have a regime which supports and rewards compliance. The risks of non-compliance are high. Indeed, in certain contexts (such as with the "Prohibited Betting" offence described above), even the smallest inadvertent breaches can open the door to financial penalties, inspections and audits, reputational damage and a whole host of other disruptions.
In sport, the impact of allegations of illegal betting will differ widely. In addition to any other potential future reputational or other ramifications that a Union might face following an incident matter similar to the Allegations, some damage may already have be done; the loss of a coach on the eve of the World Cup is likely to have a detrimental impact on any team’s performance and morale.
Strategies for ensuring compliance
There are ways in which organisations can design and implement a compliance regime that is bespoke effective and not unnecessarily intrusive. Key to achieving this is to take time to assess what is likely to work for the organisation given its culture and staff and tailoring it to the needs and risks that have been identified. An effective risk assessment exercise at the outset can simplify and focus the steps to be taken very effectively.
Accessibility - A good framework should have written policies that are easily accessible to staff. These policies can come in a variety of forms, ranging from documents clearly setting out the applicable rules to procedural frameworks specifying the actions that should be taken if an individual believes they may be running the risk of a breach.
Clarity - When drafting policies, clarity is the ultimate goal. Indeed, in many industries, the applicable rules and regulations are complicated and need to be drafted to break down complex language or jargon. Furthermore, in certain cases, emphasis will need to be placed on the fact that "innocent" or "inadvertent" breaches, or apparently minor breaches, may still constitute actionable breaches.
The "Prohibited Betting" offence described above is a good example of this: the strict liability regime set out in Regulation 6.3 means that an individual will be considered to have committed an offence even if they had no idea what they were doing was wrong. Policies and training are needed to ensure individuals know and understand the rules that apply to them.
Speaking-up (whistleblowing) policies - Speaking-up policies may also prove invaluable. In most workplaces, it is likely that the individuals most aware of a colleague’s wrongdoing are those with whom that colleague works closely. In many situations, however, it is natural that such individuals are reluctant to "speak up" about their colleagues’ misconduct. This poses a problem for organisations: when bystanders remain silent, they inadvertently help normalise and condone problematic work environments and practices.
Effective and accessible speaking-up policies that help facilitate bystander intervention can be crucial. These policies set out the framework for individuals to raise concerns internally and at a senior level, and to disclose information that they believe shows malpractice or impropriety within the organisation. They also encourage good compliance and assist internal controls, making it easier to address concerns at an early stage and avoid more serious regulatory breaches, fines and reputational damage. For more information, please see this LawInSport article on designing effective whistleblowing policies7.
Training - Training is another very effective method of ensuring understanding and compliance among staff. Individuals benefit from regular sessions that keep them up to date with what they need to know to carry out their roles. Targeted and focussed training, offering practical examples and advice, can be a very effective way of supporting individuals and organisations alike.
An effective programme will often include some form of regular and random testing. Knowledge that testing is taking place can have a positive impact on how individuals behave. Taking time to design and implement a review or testing regime that is visible to staff can be time that is very well spent.
Strategies for crisis management and response
Advanced planning - A reasonably small amount of planning about how to manage a crisis or major incident can make a significant difference. Organisations can issue policies and put in place strategies to tackle certain risks, but not all eventualities can be anticipated. As such, having a clear framework through which attempts can be made to combat the unexpected is vital.
Transparency and effective communication - The level of transparency that exists around sports means that how people respond to a crisis in scrutinised, as well as what they decide to do. Some planning and communications in advance about who will have which responsibilities when an incident occurs will mean that people can act positively in line with an agreed chain of command. An internal and external communications framework that is agreed in advance can also make a big difference to how public perceive an incident. Preparation (and training) in advance of a crisis can be crucial in a response that gains the trust of all involved, as well as the media and the public.
Lessons can be drawn from the WRU’s response to the Allegations. The WRU appeared to acknowledge that the level of scrutiny and publicity surrounding the incident (and the World Cup more generally) meant that the issue could not just be evaded. Instead, the WRU seemed to employ honesty and candour while maintaining the necessary discretion in respect of more sensitive information and firmly and clearly requesting that the media afford all relevant individuals space and time so as to facilitate the investigation. Furthermore, by acting clearly and decisively as regards taking a decision on Howley’s continued presence in Japan, and by allowing certain players (and the replacement coach, Stephen Jones) to offer their thoughts on how the Allegations had affected the team and their game, the risk of ongoing speculation appeared to be mitigated and the focus looked to shift away from the incident and onto the rugby itself.
As high-profile cases can attract significant media attention, there is a delicate balance for organisations to strike to ensure that a fair and thorough investigation takes place. Indeed, from a best practice standpoint, care needs to be taken with the way and manner in which actions are communicated to the public.
Take, as an example, any decision to implement a suspension. That decision may be considered necessary as a means of facilitating the investigation. However, even though a suspension is technically a neutral act, third parties may make assumptions that its imposition represents a disciplinary action. Organisations need to give careful thought to the manner in which suspensions are communicated to others (internally and externally) so as not to imply guilt. Circumstances will vary from case to case that might lead to an impression being given in either direction.
Indeed, in high-profile cases where reporting on a suspension could cause reputational harm to an employee, organisations will need to be aware of the potential for employment claims to be brought for loss suffered as a result. It may be decided that it is necessary to keep any suspension private and ensure there are safeguards in place to prevent it getting out.
Organisations should ensure that suspensions are carried out in a fair manner and using a demonstrably fair process. Suspensions should also only be implemented where they appear to be truly necessary and only last no longer than is essential. A failure to do so could lead to another employment claim on the grounds that the term of mutual trust and confidence implied into every employment contract has been breached.
In what may now be described as the beginning of a "golden age" for sports betting, the fight to preserve integrity in sports and all its participants is likely to intensify. The rise of the US market is likely to result in increased vigilance on the part of the relevant authorities. Organisations from across the sporting universe (and beyond) need to consider the lessons to be learned from the Howley case in the context of how best they can operate to protect their sport, their brand and their future business.
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- Tags: Betting | Gambling | Japan | Rugby | Rugby World Cup | Wales | Welsh Rugby Union (WRU) | World Rugby | World Rugby Regulations
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Partner, Morgan Lewis
Louise Skinner provides sophisticated, strategic advice on all aspects of employment law, with particular focus on regulatory employment matters. Described as “truly exceptional and insightful” by clients in The Legal 500 UK guide, Louise advises on issues including investigations, contractual disputes, whistleblowing, discrimination and restraint of trade. Louise has particular experience in the financial services, life sciences, and sports, media and entertainment sectors.
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Chris Warren-Smith represents clients in investigations and disputes matters, including corporate investigations, commercial and international litigation and arbitration and dispute resolution, and regulatory enforcement proceedings. Representing clients across all sectors, Chris has worked on many high-profile issues and crises that have arisen over the years. He serves as deputy chair of the firm’s white collar and corporate investigations practice and as a member of its global crisis management team.