In the first of a regular series of columns on sports law and sports integrity, Dr Laila Mintas, CONCACAF Director of Integrity, examines the scale and threat of match manipulation to football globally, the difficulties encountered in effectively fighting it, and the urgent need for countries to bring in national legislation to battle the organised crime syndicates.
There can be no doubt that corruption in sports, particularly, match manipulation (or ‘match-fixing’ as it is often named) is one of the greatest threats to the integrity of sport competitions worldwide that also have the potential to affect the sporting industry globally. If the outcome of a game is determined before it started, football stands to lose a lot more than just its credibility. Allegations of match-fixing and corruption, have already led to cancellation of sponsor contracts and, longer term, fans will stay away.
When the first initiatives to prevent match manipulation were instituted a few years ago the focus was on raising awareness about the phenomenon. With the increase of match-fixing scandals worldwide and its adverse impact on the integrity of Football but also on other sports such as Tennis, Snooker, Cricket, Badminton, Volleyball, Horse Racing it is progressively accepted that a multi-faceted approach to match manipulation is essential and that a comprehensive strategy that addresses this challenge successfully must be embraced by all stakeholders in unison, if the game is not to be reduced to a farce.
Manipulation in sports competitions has been in existence since time immemorial – for as long as human beings have challenged each other through sports there has always been attempts to influence the outcome of the competitions. The first cases of sport manipulation go back to antiquity. However, in the 21st Century it has taken on an aggressive and widespread dynamic with the advent of sophisticated technological developments which has established a new dimension of threat to sports.
Match manipulation and the betting market
In general, match manipulation is defined as any act of influencing the course or result of a match in a manner contrary to sporting ethics. Every agreement about the match must be prohibited, irrespective of the purpose. There is a distinction between two different forms of match manipulation depending on the reason for the fix. One is the sport manipulation that happen because of ‘sporting reasons’ or ‘tactics’. An example in football is the agreement between two teams in order to avoid the relegation of one team. Usually, no financial exchanges take place between the parties and all persons concerned are subject to the regulations of the football organisations. Thus, within the autonomy of sports, football organizsations are able and obliged to handle these cases by themselves.
The other, more dangerous match manipulation is the one that is linked to the betting markets. Criminals offer money to persons involved in the sport, for example, players or referees in exchange for influencing the course or result of a match in a certain way and in order to then bet on the agreed outcome and to earn unjustified winnings in the international betting market.
Betting on sports in general and on football in particular has become a significant industry. Apart from ‘pre-match betting’ – where the bet is placed before the football match started, so called ‘live betting’ has become more popular as the bet can be placed while watching the game. In addition betting is no longer limited to the outcome of football matches, but has now progressed to placing wagers also on single events that occur during a game such as the first yellow card, the number of corner kicks or penalties given during the game or halftime by the referee (often referred to as ‘spot-fixing’). Since not only the final result of a game can be fixed for betting purposes but also those ‘small events’ during a game, it is more precise to speak of ‘match manipulation’ instead of the more popular term ‘match-fixing’ as the final outcome of a game might not be influenced.
According to Sportradar AG, the market leading supplier of sports and betting-related data services, it is estimated that a total of $925 billion is bet worldwide every year on various sporting events only by licensed bookmakers. Of this $925 billion, around $490 billion of turnover is generated by bets placed on football. This amounts to 53% of all global betting activity. These figures reflect football’s dominance as the world’s most popular sport.
It is estimated that around 70% of all sports betting now takes place in the Asian markets. When defining the type of betting transaction, it is very difficult to evaluate the classification of the Asian markets. This is because bets are mainly placed with credits and paid in cash, and on these grounds the financial transactions usually occur offline, even if bets may be placed online. Further to Sportradar, online betting accounts for approximately 35% of global betting turnover, excluding the Asian markets. However, it is estimated that the ratio of online/offline betting will move closer to 50/50 in the next 10 years due to the continued growth of the online gambling industry worldwide.
But what does all this mean for the threat of match manipulation? Not every match worldwide is offered on the international betting market of course. The bookmakers usually evaluate which matches might be of interest to their customers and provide odds for these matches accordingly. As it needs a betting offer that can be abused in order to earn money illegally through placing a bet on a manipulated game, it can be generally assumed that as soon as a match is offered on the betting market, there is a potential risk for it to be manipulated. Thus, being offered on the international betting market means that there is lot of interest by the community on the specific game or tournament, but it can also put the game also into the focus of criminals to be targeted for match manipulation. However, in this context it should also be noted that betting can have a positive impact on sports as the industry players generate significant sponsorship income – common practice, for example, in Europe. But is the betting industry paying twice? It usually has to pay out the unjustified winnings to the criminals that fixed games and thereby suffers financial damage. The betting operators might have information that is needed to investigate manipulation cases and that can be shared with football and law enforcement. For these reasons, the betting industry should be understood as a potential partner in the fight against match manipulation.
According to the International Criminal Police Organization INTERPOL, match-fixing has now morphed into a significant business for Organised Crime. It has become such a lucrative business that the criminals that were involved in crimes like human trafficking or drug dealing are shifting to match-fixing. Due to the fact that in some of the low or not regulated betting markets, for instance in Asia, huge stakes can be bet on the outcome of one single game, these observations are not surprising. It has been noted that players, referees and other officials worldwide have been approached by criminals in order to manipulate matches in exchange for monetary benefits.
Can football alone fight match-fixing effective?
Football organisations can implement different measures to prevent, investigate and sanction match manipulation cases under their jurisdiction. There is no doubt that the organiser of a sporting event need to make every effort within its power to safeguard its competitions from being influenced in any negative way. Getting involved in match-fixing can also pose a serious danger to the life of sports persons. This vulnerable group of people in the football family must be educated about this threat in order to protect them. Broad education and prevention programmes are necessary as well as efficient regulations and strong partnerships with all stakeholders.
But the powers of sports organisations in general are limited. The experience has shown that the criminals that approach players and referees are usually people from outside the football family and therefore are not subject to any sporting regulations which means that the sports organisations have no legal basis to conduct investigations against such people; they cannot force them to submit documents or to appear for interviews or to sanction them in any way. To get to these people the support of law enforcement authorities is essential, in particular, investigations must be conducted by state authorities while the football organisations can help through providing important information.
Regarding sports persons, that are subject to the sporting regulations such as players and referees, the instruments that sports organisations have at their disposal are also very limited. As sports organisations are private organisations operating under civil law, they have no police rights that allow them, for example, to wiretap phones or to conduct searches in the homes of suspects. However, depending on the regulations of the football body, it is possible to force the members to establish facts and support investigations by providing private information such as bank statements and telephone records. Once the involvement in match manipulation has been evidenced, they can be sanctioned with a lifetime exclusion from participating in the sports competitions, and if applicable a monetary fine.
These remarks might have already illustrated that it can be difficult for football organisations to fight match manipulation as they operate under private law only and have no competence to punish people outside the football family. In order to investigate and punish the people that offer benefits to sports persons in exchange for manipulating a football match it needs the support of the national prosecuting authorities. Strong partnerships with reliable partners within law enforcement are obviously very essential.
One of the key elements within the FIFA INTERPOL Integrity Initiative is to support the football associations in connecting with the local prosecuting authorities. Also FIFA Confederations have signed important agreements such as CONCACAF with INTERPOL and UEFA with Europol.
Is a specific national law against match manipulation needed?
Building strong relationships between football and local law enforcement authorities is a very fruitful step towards investigating manipulation in football but practical problems might occur if match-fixing is not a criminal act under the national law. Police support for example can only be granted if the behavior is relevant according to the law in place. This might sound bizarre but just the act of offering someone a financial or other monetary benefit in exchange for fixing the course or result of a football match is not a criminal offence under national law in many jurisdictions worldwide. For example, under criminal law in Germany, FIFA World Cup Winners in 2014, it is not an illegal act to go to a player and offer him $5,000 to lose a football game on purpose. In some cases worldwide, criminal procedures against the accused was abandoned because match manipulation was not covered by the national law.
In many jurisdictions the act of bribery – offering someone an unjustified advantage for an act or omission – often requires that the approached person belongs to a certain group of people that is related to state authorities, like a civil servant. Therefore, offering a civil servant money in exchange for a certain act or omission is prohibited as it is an act of bribery. But as a referee or player is not acting as an official for the state authorities, there is often no specific law that classifies the behavior of offering him an advantage for a certain behavior as an act of bribery.
Even if just the act of offering benefits for losing a match isn’t punishable by most legal systems, match manipulation that is linked to the betting market often can be classified as fraud in accordance with the national law. Regularly, the behavior becomes a criminal act by national law when a bet was placed on the outcome of the specific match that was concluded to be fixed. In this case, the bookmaker that has offered bets on the manipulated game usually suffers a financial loss due to the fact that the winnings must be paid out. The bookmaker wouldn’t have accepted the bet if he had known about the agreement about the outcome of the game. He was willfully deceived. Therefore, the entire act can be classified as fraud.
This could make the idea for implementing a specific law that covers the act of offering money to a player or referee obsolete. Or not? Punishing someone who has offered money to a player in exchange for losing a match intentionally in order to place a bet on the international betting market and to earn money with it illegally, is not that simple in practice. In order for a court to establish the evidence of the allegations, it must usually be verified that an agreement was made about the course or result of the specific match between the athlete and the criminal, that a bet was placed by the criminal on the outcome of the game with a bookmaker and that the betting company has suffered a loss because it had to pay out the illicit winnings. Manifesting these points in a criminal procedure can be problematic.
Due to the fact that it is estimated that around 10,000 different sports betting operators are currently available online and that there are vast unregulated markets exist in Asia, it can be very challenging to rebuild the facts of an individual case and to prove that a corresponding bet was placed. Furthermore, some bookmakers might not lose money when the matches that they offer on the betting market become fixed as they calculate their odds in order to have their ‘books balanced’. In addition, match manipulation is an international phenomenon. The cases are often linked to different jurisdictions – depending on where for instance the players or referees involved in the fix are from, where the bookmaker is located, where the match took place etc. The exchange of information cross-border between different states for criminal proceedings is still complex and is time-consuming. To make a long story short: it can be very challenging and take a lot of effort to prove all these circumstance especially if not all people involved are cooperative.
Therefore, national laws are urgently needed that make the manipulation of sport competition that are linked to betting a specific criminal offense. This is becoming vital to fight this threat effectively and to avoid loopholes in the national law. Several countries in Europe such as Austria, Bulgaria, Great Britain, Italy, Spain and Turkey for example, have already established such laws and they can serve as a good practice and a model for other countries to follow. Such laws need to require only the evidence that an agreement was made to influence the course or result of a specific match in a certain way between two parties for undue advantage. If the evidence about these circumstances can be established before court, the elements of the crime are fulfilled and the accused can be sanctioned in an appropriate way.
Council of Europe’s Convention on the manipulation of sports competitions
Certainly a milestone in the fight against match manipulation is the Council of Europe’s Convention on the manipulation of sports competitions that can be theoretically signed by its 47 member and also by non-members. The Convention aims to prevent, detect, punish and discipline the manipulation of sports competitions, as well as enhance the exchange of information and national and international cooperation between the public authorities concerned, and with sports organizations and sports betting operators. The Convention calls on governments to adopt various measures, including legislation.
However, the Convention overlooked the problems that the state authorities face when they try to prove match manipulation with the link to the betting market:
The Convention mentions in its Chapter IV, specifically in articles 15 and 22 that the parties shall take the necessary legislative or other measures to ensure that the manipulation of sports competitions, when committed by natural persons, are punishable by effective, proportionate and dissuasive sanctions, including monetary sanctions, taking account of the seriousness of the offences. Article 15 of the Explanatory Report to the Convention contains the following explanation:
‘Article 15 of the convention seeks to make sure that manipulation of sports competitions may be criminally sanctioned when it either involves coercion, corruption or fraud, as defined by domestic law. It does not require the establishment of a specific and uniform offence for the manipulation of sports competitions. Depending on the definition of existing offences and the related case law, the Parties may decide to rely on existing general criminal legislation (e.g. on extortion, corruption or fraud), or to establish new offences (e.g. on manipulation of sport competitions) so that the conduct concerned (alternatively of manipulations involving either coercion, corruption or fraud) is covered appropriately. This means that if the mentioned practices are criminalised by either one of the offences, it is not required to criminalise them by (one of) the others too.’
Against the background of the prior mentioned need for a specific offence that covers match manipulation in order to avoid problems in proving the evidence of the crime, the position of the Convention is not convincing. Relying only on “fraud” as the only offence that is applicable in cases of match-fixing, can raise problems in practice. Neither the Convention itself nor the 53-page large Explanatory Report to the Convention contains the reference to the difficulties of proving the manipulation in sport competition. Whilst the Convention only can reflect the ‘minimum consent’ of all stakeholders involved, at least a remark in terms of this problem would have been necessary in order to sensitise the audience.
This was especially to be expected because of the fact that for example its member Switzerland – where several international sports organizations are based – had this bitter experience recently. On 13 November 2012, the Swiss Federal Criminal Court had to acquit two former goalkeepers from football Club FC Gossau and one player from FC Thun from being charged with fraud. One of the goalkeepers had even confessed to having manipulated matches. The player had admitted to having taken money in exchange for manipulating a match, but stated that he never carried out his instructions. In case of the third accused, it could not be proven that the goalkeeper had ever been involved in manipulation. In its reasoning, the court stated that facts and circumstances of the indictment are too fragmentary to substantiate an act of deception towards the betting companies in Asia which had accepted the wagers on manipulated matches. Inter alia, it was uncertain whether representatives of the betting company had checked the incoming wagers in terms of match manipulation. This again shows the immense effort of such proceedings and how difficult it might be within the national law to prove that a fraud was committed. In contrast to the court, the Swiss football association (SFV) suspended one goalkeeper from FC Gossau for life and the player from FC Thun for two years from taking part in any football-related activity, based on their football regulations.
This case demonstrates how challenging it can be for a court to prove match manipulation taking the offence of fraud as the legal basis. Depending on the national law different problems might occur. Unfortunately, the Convention does not encourage national legislators to create a law that fights specifically manipulation in sport competitions. While the sports organisations can sanction people under their jurisdictions themselves, the criminals that offer benefits to players and referees in exchange for the manipulation can often not be sanctioned as they are not under the umbrella of the football family.
Conclusion
The phenomena of match manipulation related to the betting market is an international problem that needs to be combated by all stakeholders involved. It is a very specific crime that challenges the national authorities in investigating and sanctioning such cases. The application of the criminal offence of fraud in order to sanction match-fixing cases might lead to criminal liability loopholes depending on the national regulation. In fact, match manipulation will often require a specific law in order to enable the national authorities to investigate and to punish all people involved, inside and outside the football family. Through the implementation of relevant and specific national legislation against the manipulation in sport competitions, the requirements to evince the offence could be reduced and only the agreement between the parties about the manipulation of a specific match for undue advantage would need to be proved in order to sanction all people involved. As manipulation in sport competitions with links to the betting markets are regularly part of organised crime syndicates with an international dimension, the states should be encouraged to implement robust and enforceable regulations. Money received through illegal betting winnings will be reinvested in illegal activity. It is a vicious circle which has not only a serious impact on sports, but also on society as a whole.
While several Football organisations worldwide have already started to sanction people under their own governing regulations for being involved in match manipulation, they are completely powerless to sanction people outside the sports organisations. This leads to the unsatisfactory situation, that the backers that approach players and referees often face no sanctions. Once a player and referee is sanctioned by the football organisation, they just approach another one. Therefore, it still needs an efficient legal framework by national legislators in order to eradicate the problem at its roots.
Dr. Laila Mintas is Director of Sports Integrity at CONCACAF. A lawyer, she was formerly Head of Legal and International Development for FIFA’s Early Warning System (EWS) in Zurich. She previously practised law at international law firm White & Case LLP, headquarters in New York, and has lectured law at the Humboldt University of Berlin. She is a professor for Sports Law at St. Johns University/ISDE in New York.