ARTIGOS DE OPINIÃO: Viciação de resultados – escândalos, lições e desenvolvimentos políticos de 2012/13 – parte 3 (EN)

In the final part of this three part article by Kevin Carpenter, Kevin reviews the discrete areas in the field of match-fixing that will be under the spotlight this year, including lie-detector testing, sanctions and the role of sponsors.

Is lie-detector testing a potent and legitimate weapon or a worrying infringement on the presumption of innocence?

Lie-detector (polygraph) testing is being seen as an increasingly attractive tool to use in combating match-fixing despite concerns about the validity of the methods employed. The Korean K-League introduced this to the league back in 2011 after a major scandal in the summer of the same year [1] , but it has been its Asian counterparts in Singapore that have been extolling the virtues of the lie-detector on the global stage in 2012.

Winston Lee, general secretary of the Singapore Football Association, says that since compulsory lie-detector testing was introduced into the players’ code of conduct back in 2001 there has not been a repeat of the revelations prior to 2001 that several matches had been fixed. [2] Players have to sign a form agreeing to random lie-detector testing. Singapore is considered a high risk country for match-fixing due to the prevalence of illegal gambling rings using the country as a hub to attempt to influence not just Singaporean games but also others around the world.

Lie-detector testing is also being seen in Europe as actors in the fight are becoming increasingly non-plussed as to how to stop the scourge taking a grip of their national game. For instance in Bulgaria, the owner of leading club Lokomotiv Plovidiv told his players to take lie-detector tests after a surprise 1-0 defeat to bottom club Botev Vratsa raised concerns about match-fixing. [3]

Lie-detector testing will always be controversial as it can never be 100% accurate, although in recent times the opportunity to ‘cheat’ the test has become less of a risk. [4] Regardless, very tight safeguards need to be in place to ensure such evidence is safe. So long as the way in which the lie-detector testing is carried out does not infringe the accused’s human rights then it can be an important additional evidential tool. However, it should not be relied upon in isolation to secure a successful sporting conviction.

Has proportionality been jettisoned for match-fixing sanctions?

In the past couple of years, and certainly in 2012, the consensus of sports governing bodies (‘SGBs’) and the Court of Arbitration for Sport (‘CAS’) to the sanctions meted out for match-fixing, especially for first time offenders, has been to issue life bans. This is far more severe than sanctions for doping, the ‘standard sanction’ for a first offence being two years [5] , which begs the question: is this approach fair? Does it strike an appropriate balance between punishing offenders and the belief that they can redeem themselves through rehabilitation and return to their sport with their integrity restored?

To illustrate the assertion that first time match-fixers are treated more harshly than their doping counterparts here are some recent sanctions handed down:

Name Sport Role Offence Ban Appeal
Kevin Sammut Football Player Fixing an international match 10 years Extended to life by UEFA Appeals Body
Salman Butt Cricket Player Orchestrating spot-fixing by two team-mates 10 years(5 suspended) Pending to CAS
Daniel Kollerer Tennis Player Contriving or attempting to contrive the outcome of an   event Life Ban confirmed by CAS
Oleg Oriekhov Football Referee Failure to report approach Life Ban confirmed by CAS
David Savic Tennis Player Contriving or attempting to contrive the outcome of an   event Life Ban confirmed by CAS

If you look at CAS decisions on match-fixing prior to 2010 [6] the court gave proper consideration to the need for proportionality of the sanction. For instance, in the final paragraph of the judgment of M. v ATP Tour Inc. the court says, “General prevention…is best achieved by imposing a just (individual) sanction. If the term of ineligibility and the amount of the fine are not reduced, the punishment imposed upon the Appellant places the proportionality of the sanction in question and vitiates the preventive purposes which it intends to achieve. For this reason, the Panel deems that a reduction of the term from nine (9) months to seven (7) months is fair and appropriate.” [7]

Yet by 2012 CAS seems to have been convinced by SGBs that the only proportionate sanction is a life ban from all activities within the sport in question, focusing its attention on the deterrent effect such a ban has [8],“After careful deliberation, the Panel sees no option other than to confirm the lifetime ban imposed…the sport of tennis is extremely vulnerable to corruption as a match-fixer only needs to corrupt one player. It is therefore imperative that, once a Player gets caught, the Governing Bodies send out a clear signal to the entire tennis community that such actions are not tolerated. This Panel agrees that any sanction shorter than a lifetime ban would not have the deterrent effect that is required to make players aware that it is simply not worth the risk.”[9]

Although proportionality of the sanction is almost always raised in match-fixing appeals it is often rejected out of hand by SGB appellate bodies and CAS. Why can’t it be the case that a convicted match-fixer is punished, learns the error of his/her ways and can return to a sport to earn a living? One possible explanation why proportionality of the sanction is often given short shrift by tribunals is the way in which the arguments are pleaded and/or argued in the lead up to and at the hearing.

My suggested solution to bring the authorities approach to match-fixing sanctioning within the realms of proportionality is two-fold:

  1. The criminal standard of proof of ‘beyond reasonable doubt’ should be applied rather than that of ‘comfortable satisfaction’; and
  2. Upon a successful conviction using that heightened standard of proof the SGB should use new international sanctioning guidelines which grade each offence into categories A, B, C etc with each category carrying a wide discretion in terms of a ban and/or a fine. Looking at the above table, should a failure to report carry the same ban as actually fixing matches?

Finally on sanctioning, as part of the fallout from the 2006 Claciopoli scandal in Italy, which was a non-betting related case, a court has ordered the referees involved to pay in total US$5.25 million in damages to the Italian Football Federation. [10]

Is there a significant appetite for a worldwide match-fixing agency?

A further aspect of match-fixing that the aforementioned Chris Eaton has shown himself to have strong views on is the much discussed possibility of a an independent organisation along the lines of the World Anti-Doping Agency (‘WADA’) to be the central body to fight match-fixing. Eaton would not go as far as to model such a body on WADA, rather he favours, “an independent organisation with some sort of global funding apparatus, a bit like WADA except that it needs to be an intelligence organisation.” [11] He describes it more fully as, “an intelligence-collecting, analysing and information sharing multi-agency global body – more similar to a Financial Action Task Force (‘FATF’) type of structure – that would be tasked to provide timely advice to governments, police and sport bodies and to provide direct support to any ad-hoc international investigative task forces.” [12]

I strongly believe that funding is the critical hurdle to the establishment of a worldwide match-fixing body in any form. With the continuing grim economic climate globally how will governments, who ultimately need to show willingness to contribute to the pot, economically and politically justify spending money on such a body? Furthermore SGBs themselves cannot agree on who should be responsible for driving out the scourge with Eaton having this to say, “It’s about avoiding paying for it, because there’s a significant cost to doing these things and ultimately they will have to do it anyway [eventually], so my suggestion is that the earlier they invest in this, the less it will cost them.”[13] Even if a worlwide body were to be set-up I suspect it would be lacking in teeth anyway until countries like the United States of America, India and China, that currently encourage illegal sports gambling and are considered the big closed danger markets [14] , are convinced politically to take a stand.

Sponsors needed to add the impetus for long lasting change

Having worked in the field and communicated with those on the front line it has become apparent that the seemingly established triumvirate of clear guidelines, compliance and surveillance and education to combat match-fixing is not working as well as it should in practice. Having thought more studiously about it my view is that commercial rights holders, be they sponsors or broadcasters, as stakeholders in sport with ever increasing influence, should be leading the charge and shaping policy to a greater degree. Especially with SGBs who are still viewed as the, “first line of defence in preventing corruptors from destroying their sports.”[15]

Regrettably, as with the entirety of match-fixing, there is a lack of published research on the impact that scandals have on sponsorship and broadcasting revenues. [16] This is also a consequence of the difficulty of measuring the return on investment from obtaining the commercial rights in a sport. Yet there is visible evidence in some competitions that, “Stadiums previously full of supporters are now empty and falling into disrepair because sponsors are no longer dare to invest in an area so blighted by crime.” [17]

There have been recent examples of where sports have had to be mindful of the impact match-fixing may have on commercial rights holders and their reaction:

  • Sponsors of football clubs implicated in the recent Turkish football shenanigans, including famous brands such as Toyota, were said to be monitoring the scandal closely as it unfolded.[18]
  • The recent developments in the ‘Asiagate’ scandal led the South African Football Association to meet with its sponsors (including Absa, SAB, Tsogo Sun and Tiger Brands) to assure them that they are treating the matter with the upmost seriousness and that it “will not be swept under the carpet”.[19] Indeed it has been rumoured (although subsequently denied) that perhaps the biggest sponsor of South African football, Puma, had dropped the association as a result.[20]

Commercial rights holders should take a hard stance and say that they will not renew their agreements, or more drastically withdraw, whilst there is a significant perception that the sport is beset by match-fixing. Perhaps a good example to follow is that of Emirates, a major official sponsor of FIFA, who, following the numerous corruption scandals (including bribery and vote rigging) to have faced the organisation in the past 12 or so months, have said that it wants evidence FIFA is eradicating corruption and its public image is improving before renewing its current $195 million, eight-year sponsorship.[21] Its senior vice president Boutros Boutros had this to say, “Our research is to see how people perceive our brand – how they perceive our relationship with FIFA, how they look at it…I am yet to see the outcome of these measures and we are waiting and watching.” [22]

Where does this leave sport moving into 2013?

Some will say that great strides have been made in 2012 to lessen the impact of match-fixing on sport worldwide, and they would be right. This is a result of a variety of stakeholders taking new and innovative ways to tackle what is still an issue really in its infancy in terms of research an understanding.

The threats that remain moving into 2013 are many and wide ranging however. This is despite the fact that the global sports communities’ view of match-fixing appears to have become nuanced over the past 12 months. The principal example of this is a greater awareness of the difference between betting and non-betting (sporting) related match-fixing. Undoubtedly there has been far greater focus on the former, which is understandable given the overarching and menacing presence of ‘organised crime’, a term which has a greater impact on key stakeholders (particularly politicians) than ‘match-fixing’, and that it is suggested by INTERPOL that sports betting has become a $1 trillion industry.[23] This will still be the focus of all those interested and affected by match-fixing because transnational criminal organisations continue to take advantage of changes in regulations, flaws in legal and judicial systems, the opening-up of borders and the growth of free trade, all of which are direct consequences of globalisation.[24] Not to mention that the world of sport, as we have seen by the number of scandals detailed in Part 1 of this article, is still not as familiar as it should be with the risks to which it is exposed because it does not always fully understand the world of betting and gambling. [25]

With the grim economic climate showing no signs of abating, not just for 2013 but for some years to come, people will look to make a quick buck from sports betting (particularly illegal sports betting) which will fuel its growth. More significantly the economy will provide the biggest challenge in finding the necessary resources that all actors need to effectively tackle match-fixing. This is undoubtedly the largest issue yet to be resolved or even properly addressed.

For all the good work being done by INTERPOL, the Council Of Europe and others, the key broker in the continuing progress against this crucial threat to the integrity of sport is the International Olympic Committee (‘IOC’) because it is seemingly the only body with the necessary political, social and sporting clout. All other stakeholders should heed the experience the IOC gained during the London Olympics, particularly with the Joint Assessment Unit, to provide a coherent, powerful and above all effective strategy for 2013 and beyond.

Kevin Carpenter

Fonte: lawinsport

Kevin Carpenter

Kevin Carpenter

Kevin is a consultant and member of the editorial board for LawInSport, having previously acted as editor. He is a sports lawyer for international law firm Hill Dickinson LLP advising on commercial and regulatory issues. Kevin has become renowned in the fields of sports integrity, match-fixing and sports betting.

Kevin is also a prolific writer and speaker internationally on sports law and has been quoted in a report for the European Commission. In addition he has been interviewed by Primetime News Asia in Singapore and twice recommended by INTERPOL’s Integrity in Sport unit. He has his own regular sports law blog which looks at a variety of sports law issues. As well as his sports legal career, he is a qualified football referee officiating at the semi-professional level in the 11-a-side game and at the national level in futsal. He is also a qualified referee tutor, mentor and coach. Kevin is a keen follower of all sports, especially football, rugby, motorsport, tennis and NFL. You can connect to Kevin on LinkedIn.

kevin.carpenter@lawinsport.com @KevSportsLaw

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