Bad week for boxing…again

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Professional boxing attracted much adverse publicity – it’s good at that – in the past week or so.

First, Amir Khan’s rematch with Lamont Peterson has been called off by his promoter following Peterson’s failed drugs test. The American tested positive for synthetic testosterone after both fighters agreed to random testing before their 19 May light-welterweight rematch in Las Vegas. The issue has been referred to the Nevada State Athletic Commission.

 Second, after a pulsating victory over Miguel Cotto on 5 May, one of the sport’s leading lights, Floyd Mayweather, now faces another challenge – and not, as  all fans hope, against Manny Pacquiao. Mayweather is set to serve an 87-day jail sentence at the Clark County Detention Center in Las Vegas from June 1. Mayweather has to report to the Detention Center on June 1. He was sentenced after pleading guilty last month to assaulting his ex-girlfriend, Josie Harris, in 2010. With charges initially calling for maximum 34-year prison sentence, Mayweather entered a plea of no contest on two harassment charges and reached a plea bargain for a reduced domestic violence charge that resulted in the 87-day sentence.

Third, was the announcement of a fight between British heavyweights Dereck Chisora and David Haye at Upton Park on 14 July. Neither boxer holds a British licence (Haye relinquished his on his recent “retirement”) and Chisora’s was suspended by the British Boxing Board of Control following a brawl between the pair.

The summer bout is being licensed by the Luxembourg Boxing Federation, and the British Boxing Board of Control has threatend sanctions against all invovled.

Reflecting on the above, one blogger has stated, with  exaggeration typical of the sport, that “if boxing were a person, it would be taken outside and shot.”

 From a regulatory perspective, the lack of a global and centralised governing body for the sport remains one of its greatest weaknesses, and in that vacuum boxers and promoters have long exploited “flag of convenience” jurisdictions in order to obtain licences. 

Is such a unifying body on the horizon? The answer is a resounding no and in its absence the sport will continue to be pushed to the margins and lose out to better regulated rivals and especially the various mixed martial arts governing bodies – who are largely well organised and well marketed.

 Having said all that, professional boxing continues to have a significant fan base and is  a complex, unsettling attraction for many – including me. 20,000 tickets have already been sold for the Haye-Chisora fight and if Mayweather fights Pacquiao then expect all sorts of box-office/pay-per-view records to be broken.

Children First: Child Protection Law and Sport in Ireland

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Although the leading and better resourced sports organisation in the (Republic of) Ireland already have detailed polices in place regarding child safety and protection, the proposed requirements detailed this week in the heads of the Children First Bill, which can be accessed here, are likely to prove onerous for smaller sports organisations.

 

What follows is a summary of the main proposals.

 

First, the overarching policy objectives of the proposed Children First Bill is the raising of awareness of child abuse, the recognition and reporting of child abuse, and the management of child safety concerns.

 

The vast majority of organisations providing services to children will come under the proposed legislation, ranging from large statutory agencies to small local services such as a local Hip Hop dance club. Some of these agencies are in receipt of State funding and have a formal relationship with the State; many others operate independently. There is currently no requirement for agencies/organisations providing services to children to notify the State of their services. (All such agencies in ROI should, however, be operating in accordance with the good practice principles set down in Children First: National Guidance for the Protection and Welfare of Children

 

It follows that the majority of organisations whose employees or volunteers have access to children, or work directly with children, and where a child can attend without a parent or guardian will come under the proposed Children First legislation. Again, these are organisations ranging from professional well-established organisations such as educational institutions and national sporting organisations to the more ad hoc community groups that arrange local sporting or leisure activities for children.

 

The latter include schools, pre-schools, health and social care facilities delivering services to children and An Garda Síochána, to faith based organisations, sports and youth clubs and arts and leisure organisations. Such organisations will include those with a residential element for children and transport services provided specifically for children e.g. the school bus service.

 

It must be noted that the definition of “volunteer” is not intended to include a person’s involvement in a school run, or collecting children from sports events, or parents supervising their own children’s activities with friends or any such like activities.

 

To reiterate, the underlying purpose of the legislation is to ensure that children are protected while present at, or availing of the services of, an organisation falling within its scope.

 

Centrally, under the proposed legislation sports organisation will now have a statutory duty to develop and implement a child protection and reporting protocol in accordance with the guidelines provided by the legislation and relevant government agencies.

 

For instance, sports organisations will be asked to appoint a “Designated Officer” to ensure that there is a single and clearly identifiable point of authority and responsibility relating to child safeguarding within the organisation; and to ensure the proper implementation of the proposed legislation and including the maintenance of records and responsibility for staff vetting and training in recognising the signs of abuse and/or neglect.

The proposed legislation is to provide that an employee or volunteer of an organisation is to report to the Designated Officer any concerns or allegations of child abuse which come to their attention in the course of their employment, i.e. the obligation to report arises if the concern or allegation comes to the employee’s knowledge while they are engaged in the activities of the organisation

 

Where an employee fails to report any concern or allegation which should have been reported under the legislation that employee must be treated in accordance with labour legislation and where a volunteer fails to report any concern or allegation, he or she may be prohibited from working as a volunteer in that organisation, at the discretion of the Designated Officer following an enquiry and having regard to fair procedures.

 

The controlling regulatory body under the Bill will be the Irish Health Service Executive (HSE). Where the HSE is of the opinion that there is occurring or likely to occur an activity which involves or is likely to involve a risk to a child in the organisation, the HSE may give written directions to the Designated Officer, requiring him/her to provide an Improvement Plan e.g., an outline of remedial action to be taken by the club or organisation.

 

Where the HSE is of the opinion that there is occurring or is likely to occur a failure to implement child protection policies which involve, or is likely to involve, a risk to the safety or welfare of a child the HSE may serve a Prohibition Notice on the Designated Officer of that organisation.

 

 A Prohibition Notice is to inform the organisation that the HSE is of the opinion that there is occurring or is likely to occur a failure to implement child protection policies which involves, or is likely to involve, a risk to the safety or welfare of a child and the reasons for that opinion. The Notice is also to specify the activity in respect of which that opinion is held, where in its opinion the activity involves a contravention, or likely contravention, of any of the relevant statutory provisions, and specify the relevant statutory provision(s).

 

A Prohibition Notice may prohibit the carrying on of the activity concerned until the matters which give rise, or are likely to give rise to the risk, are remedied. The Prohibition Notice may include directions as to the measures to be taken to remedy any contravention or matter to which the notice relates or to otherwise comply with the Notice e.g., withdrawal of state funding or even, it seems, ultimately, the shutting down of the club.

 

A Designated Officer, on receipt of a Prohibition Notice may appeal against the Notice to the District Court. In determining the appeal the Judge may confirm, vary or cancel the Notice.

 

Where an Improvement Notice or a Prohibition Notice is served, the notice is to be brought to the attention of any persons affected by the notice and displayed in a prominent place in the organisation.

 

This week also saw the release in Dublin of details on the so-called Criminal Justice (Withholding of Information on Offences against Children and Vulnerable Persons) Bill 2012.  

 

This Bill establishes in Irish law an offence of withholding information in relation to specified offences committed against a child or vulnerable person. The offence arises where a person knows or believes that a specified offence has been committed against a child or vulnerable person and he or she has information which would be of material assistance in securing the apprehension, prosecution or conviction of another person for that offence and fails without reasonable excuse to disclose that information as soon as it is practicable to do so to a member of the Garda Síochána.

 

A “vulnerable person” is defined as a person who is suffering from either a mental, intellectual or physical disability which is of such a nature as to severely restrict the capacity of that person to guard against serious exploitation or abuse or, in the case of physical disability, to report such to the Garda Síochána.

 

The maximum penalty under the proposed legislation is five years’ imprisonment. It must be noted that the Bill provides for various defences e.g., if a child or vulnerable person against whom the offence was committed makes it known that they do not want the offence to be reported to the Garda Síochána, though the person accused of an offence under this Bill must show that they knew and relied on that view. In addition, the Bill acknowledges that certain victims may not have the capacity to make their views as to disclosure or otherwise known.

Therefore, a rebuttable presumption that a child under 14 does not have capacity to form a view as to whether the offence or information relating to it should be disclosed to the Garda Síochána is included. Similarly, a rebuttable presumption as to the lack of capacity of a vulnerable person is included.

 

Finally, the obligations that might be imposed by the above are no doubt onerous on sports organisation, especially those of a smaller scale; nevertheless, The frequency, source, denials and trauma associated with child abuse in Ireland in recent times has been a national shame.  This proposed legislation is a small start in ensuring that it never happens again. Sport is not immune and the debate on both Bills in the Oireachtas should be monitored closely by all of Irish sport.

 

Landmark Cases in Sports Law

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Back after a two week break for Easter but really working on the final stages of an edited collection called Landmark Cases in Sports Law (for TMC Asser Press, forthcoming by end of 2012, hopefully!!). The underlying idea of the book is to account for over 20 of the most influential cases in international sports law, as written by some of the leading authorities in the area. Writers from  Europe, the United States, Australia, South Africa, Canada and New Zealand trace the evolution of this emerging discipline of law through an analysis of individual cases, as discussed under a number of key debates and themes in contemporary sports law, including:  the “public” nature of legal disputes in sport; player employment mobility litigation; doping and the spirit of sport; TV rights holding proceedings; and enduring themes in sports law such as on-field violence, spectator safety, animal welfare and gender equality.

 

Below is a working table of contents for the book. If successful, I hope to edit for a second volume and any suggestions as to what cases might go in that are most welcome!

 

  1. A.    INTRODUCTION

 

PART I: The Emergence of Sports Law

 

  1. 1.         Abbot v Weekly (1665) 83 ER 357; 1 Lev 176

Jack Anderson, Reader, School of Law, Queen’s University, Belfast

 

  1. 2.         Federal League Baseball Club of Baltimore v National League et al 259 US 200 (1922)

Roger I Abrams, Richardson Professor of Law, School of Law, Northeastern University, Boston

 

  1. 3.         Case C-36/74 Walrave and Koch [1974] ECR 1405

Richard Parrish, Professor of Sports Law and Director of the Centre for Sports Law Research, Department of Law and Criminology, Edge Hill University  

 

  1. CAS 92/A/63 Gundel v FEI

Ian Blackshaw, International Sports Lawyer and a Visiting Professor at the Law School, Staffordshire University, Stoke on Trent, Staffordshire ST4 2DE, UK

 

B. KEY DEBATES IN SPORTS LAW

 

 PART II: Player Mobility v Contractual Stability

 

5.         Eastham v Newcastle United FC Ltd [1964] Ch 413

Simon Boyes, Senior Lecturer, Nottingham Law School, Nottingham Trent University

 

6.         From Bosman to Bernard C-415/93; [1995] ECR I-4921 to Case C-325/08; [2010] ECR I-2177C-325/08

Stefaan Van den Bogaert, Professor of European Law and Director of the Europa Institute, Leiden Law School, Leiden University, Netherlands

 

PART III: When the Private Business of Sport becomes the Public Business of Law

 

7.         Finnigan v NZRFU (No 1) [1985] 2 NZLR 159

Chris Davies, Associate Professor, School of Law, James Cook University, Queensland, Australia

 

10.       NCAA v Tarkanian 488 US 179 (1988)

Professor Paul Anderson, National Sports Law Institute, Marquette University, US

11.       R v Disciplinary Committee, Jockey Club (Ex p Aga Khan) [1993] 1 WLR 909

            Michael Beloff QC, International Sports lawyer, Academic and Arbitrator

12.       Case C-519/04 Meca Medina [2006] ECR I-6991

            Professor Stephen Weatherill, University of Oxford,

 

PART IV: Doping and the Spirit of Sports Law

 

  1. Modahl v British Athletic Federation Ltd (1996)-(2001)

            Dr Hazel Hartley, Leeds Metropolitan University, England

 

  1. CAS 98/211 B v FINA

            Dr Neville Cox, Trinity College Dublin, Ireland

  1. 15.       CAS 2004/O/645 USADA v Montgomery  

            Dr John O’Leary, Anglia Ruskin University, England

 

  1. 16.       CAS 2009/A/1912-1913 Pechstein, DESG & ISU

            Dr David McArdle, University of Stirling, Scotland

PART V: Contemporary Issues in Sports Law

 

17.       CAS 2008/A/1480 Pistorious v IAAF

            Professor Steve Cornelius, University of Pretoria, South Africa

 

18.       American Needle Inc v NFL 130 S Ct 2201 (2010)

            Professor Matthew J Mitten, National Sports Law Institute, Marquette Univ, US

19.       Cases T-385/07, T-55/08 and T68/08 FIFA and UEFA v Commission, 17 Feb 2011

Dr An Veermesch, University of Ghent, Belgium, and Katrien Lefevere, Catholic University of Leuven, Netherlands

 

20.       Cases C-403/08 and C-429/08 FA Premier League Ltd and Others v QC Leisure and Others; and Karen Murphy v Media Protection Services Ltd, 4 Oct 2011

            Tassos Kaburakis

 

21.       R v Amir & Others (2011)

            Mr Simon Gardiner, Leeds Metropolitan University

 

 

 

 

 

  1. C.    CONCLUSION

 

PART VI: Enduring Themes in Sports Law

 

22.       Trade and Competition

            News Ltd v Australian Rugby Football League Ltd (1996) 139 ALR 193

            Mr Hayden Opie, University of Melbourne, Australia

 

23.       Football and Crowds

Gough and Smith v Chief Constable of Derbyshire [2002] QB 1213

 Dr Geoff Pearson, University of Liverpool, England

 

24.       Player Violence and Compensation for Injury

R v Barnes [2005] 1 Cr App Rep 507

Dr Mark James, University of Salford, Manchester, England

 

 

25.       Animal Welfare and Blood Sports    

R (on the application of Countryside Alliance) v AG [2008] 1 AC 817

Ms Laura Donnellan, University of Limerick, Ireland

 

26.       Gender and Equality

            Sagen v VANCO 2010 (2009) BCCA 522

            Dr Hilary Findlay, Brock University, Ontario, Canada

 

Take him out: bounty programmes, sport injuries and the law

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Earlier in the month the NFL announced harsh penalties against the New Orleans Saints for the team’s so-called “bounty programme”, which gave cash incentives to players for targeting and injuring opposing players.

Saints’ players apparently supplied their own cash and contributed to a pool where it was paid out to reward hits on opponents. Defensive players were paid a basic $1,500 for “knockouts” and $1,000 for “cart-offs”, as they targeted opposition stars. Their rewards doubled or more during the play-offs, and reached as high as $50,000 during the Saints’ 2009 championship season.

A hit on the St Louis Rams’ quarterback, Kurt Warner, during the 2010 playoffs– one which effectively ended that player’s career – is supposed to be an example of this.

The NFL have suspended the Saints’ head coach, general manager, and the defensive coordinator who organised the system, as well as fining the team $500,000 and denying them two second round draft picks.

For some the NFL itself is vulnerable to charges of hypocrisy in that, although there is, on the one hand, a safety concern here and especially regarding the premeditated targeting of players, on the other hand, many of the so-called bounty tackles were perfectly legitimate within the playing rules of the sport.

 The legal implications for the New Orleans Saints may not stop there and there have been rumours that some current and former players, who were injured on plays that may have involved the bounty programme, are considering claims based on an intentional tort such as battery.

Moreover, these claims would not necessarily be against the injuring player but, through the doctrine of vicarious liability, the coaches and club might also be sued if it were shown that an ethos of aggressiveness even violence towards others was engendered “at the workplace”.  

 An interesting case on point here is Canterbury Bankstown Rugby League Football Club Ltd v Rogers [1993] Aust Torts Reports 81-246. That case arose as a result of injuries sustained in the course of a professional rugby match in New South Wales, Australia. In holding a professional rugby club liable for the deliberate tortious conduct (an illegitimate, high arm tackle) of one of its players, the court stated:

“It was within the scope of [the defendant’s] employment, i.e., it was one of the things that as a player he was to do, to grapple with [the plaintiff], stop him and bring him to the ground. He was allowed to do this by using his forearm against [the plaintiff’s] chest or shoulders; that was proper under the rules. But it was contrary to the rules of the Rugby League to do it by applying his forearm to [the plaintiff’s] head. That is agreed. In the relevant sense, what [the defendant] did was to do to the head what he was authorized to do to the body and he did it for the purpose for which he was employed by the Club. That, in my opinion, supports the conclusion that the Club is liable upon the scope of employment basis.”

The Australian court also noted:

“Rugby league is a professional game: it may be inferred that the club benefits from the success of its players; that the players are paid for what they do; and that they are apt to be paid more if they are successful in doing it. Therefore there is, to put the matter no higher, a temptation to do what will win games and ensure that the player appears of use to the club in achieving its purposes. In the circumstances of this case there was, I believe, a clear risk that a player who was “revved up” might yield to the temptation to “stop” [the plaintiff] by whatever means could be employed. These things are, on one view, obvious. But it is proper that, having regard to the way in which the case has been conducted, they be spelled out. And they are, in my opinion, relevant in determining the responsibility of the Club. The court may take a degree of notice of the role which “motivation” or the like may play in achieving success in sporting and other areas of activity. It may be that, in professionalised sport, winning, and not playing, is the object. But motivating to win carries with it consequences. The risk that motivation will, in some, lead to illegitimate means of winning is, I believe, plain. There is a line between what is permitted and what is not. If an employer encourages action close to the line he may, in such circumstances, have to bear the consequences of action over the line. These matters are not conclusive. But, in my opinion, they are relevant in determining, inter alia, whether what was done was within the scope of the employment.”

In sum, a useful means of deterring on-field violence in professional sport might be to spell it out to coaches and clubs that they themselves might face personal, legal liability for the egregious misconduct of one of their players.

 Moreover, the sporting extension of the doctrine of vicarious liability was seen to extend to semi-professional sport in the English case of Gravil v Caroll & Redruth RFC [2008] EWCA Civ 689 (where  a club was found liable for the actions of one of its semi professional players who had punched and seriously injured another during an off-the-ball incident in a match).

Finally, the harsh penalty imposed on New Orleans Saints must also be seen in the context of it facing numerous multimillion dollar claims from retired players who claim that their extant memory loss, chronic headaches and other neurological disorders stem from mismanaged concussion during their career and further that the NFL knew about the chronic dangers of concussion for a considerable period of time but did nothing about it. The NFL has consistently argued that it always followed all medical protocols appropriate to the time.  

 Medical and legal developments on this issue of concussion treatment in sport are awaited with interest on this side of the Atlantic and may have some relevance for rugby in particular.

 

 

Modern Sports Law in Three Dimensions: Violence, Corruption and Doping

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Modern Sports Law in Three Dimensions: Violence, Corruption and Doping

I had to draft another arbitration award during the week, so again a short blog. The arbitration, which will be available shortly on http://sportsdra.ie as DRA 3 of 2012, concerned an appeal by a player who had been sent off in the semi-final of a competition and thus would miss the final. Apart from the usual procedural/natural justice arguments, an interesting facet of the arbitration was the argument that the player had been sent off by the referee on the “hearsay” advice of a linesman and thus such “evidence” was inadmissible. The player’s appeal was rejected but his team managed to draw the final and he will be eligible for the replay.

 Earlier in the week, March 20, I gave a lecture entitled “Modern Sports Law in Three Dimensions: Violence, Corruption and Doping” to the ISDE, Madrid LLM in International Sports Law at Wolfson College, Cambridge. Three related pieces that appeared during the week on the above include:

Corruption

Mike Atherton’s interview with Pakistan cricketer and spot-fixer Muhammad Amir, some of which can be seen here. The thrust of Amir’s argument appears to be that he was naive rather than corrupt but the interview gives an interesting insight into how vulnerable players can be to approaches of this kind.

Doping

A fascinating blog by the BBC’s chief sports writer Tom Fordyce who was given access to the recently reconfigured ADAMS system used as part of WADA’s anti-doping system and including how the whereabouts rule actually works. It’s called, simply, “Inside the new anti-doping system.”

Violence

It was reported from various sources this week that in American football the NFL commissioner had dealth harshly with the New Orleans Saints for their “bounty” system over the past three seasons. The system awarded cash to players for targeting and hitting certain opponents. The NFL suspended, among others on the coaching staff, the Saints’ head coach without pay for the entire 2012 season .The franchise was also fined and stripped of their second-round draft picks for both this year and next.

Apparently, Saints players supplied their own cash, contributing to a pool where it was paid out to reward hits on opponents. Defensive players were paid a basic $1,500 for “knockouts” and $1,000 for “cart-offs”, as they targeted opposition stars. Their rewards doubled or more during the play-offs, and reached as high as $50,000 during the Saints’ 2009 championship season.

The harsh penalty was in line with NFL rules, but is also part of the NFL’s long term battle against the perception that the sport, whilst increasingly popular in terms of commercial consumption, is becoming more dangerous for the players at the elite level and less attractive for parents and children as an option for sports participation.  In the short term, it was also noted in reports that the NFL is facing 39 lawsuits from 850 former players claiming that it failed in the past to protect its athletes.

Bits and Bobs

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Busy on the arbitration front at the minute so this is a short blog. On Wednesday 7 March, I sat as part of an arbitration tribunal for the GAA’s Disputes Resolution Authority – which lasted 5 hours from 8pm to 1 in the morning. The decision (DRA 2 of 2012) will be published on the DRA’s website shortly, so see what you think at http://sportsdra.ie

In essence, a team was up on a “disruptive conduct by players” charge and the hearings body, who had a discretion on penalty, decided that the appropriate sanction was that the offending team would forfeit their next home match advantage to the opposition. In many ways, the basic question was whether this type of penalty was an intra vires, proportionate and fair use of the sanctioning discretion.

Otherwise, and outside of work, the BBC has some interesting sports related material on over the past few weeks including a documentary called “Fire in Babylon”, telling the story of how the West Indies cricket team triumphed over its colonial masters (the BBC’s words) through the achievements of one of the most gifted sides in sporting history (still on the BBC iplayer at the time of writing as part of the Storyville series). Also saw a fascinating TV documentary called QPR: The Four Year Plan – produced by Ad Hoc Films – which revealed how Bernie Ecclestone, Flavio Briatore and Lakshmi Mittal succeeded in “leading” Queens Park Rangers into the Premier League within 4 years. In addition, BBC Radio 4’s Law in Action programme had an edition on sports law (basically an extended interview with Michael Beloff QC) which can be accessed here.

On the gambling-led corruption front, very interesting coverage by the Sunday Times on 11 March about corruption in cricket and note also Interpol’s secretary general Ron Noble reservations about the regularity of Olympique Lyon’s 7-1, Champions League away win against Dinamo Zagreb last December. See further the report in the Irish Times here.

Finally, and linking in with Cheltenham week!!!, one of the challenges for sport from gambling is the growth of in-play betting and it is of interest to note that Betfair profits have recently been lifted by the growth of this type of betting; read further here.

The 19th Hole: bandit country or defaming a person’s sporting integrity?

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The drink in the club house after a round of golf is a place of analysis – sometimes funny; sometimes, let’s be honest, mind numbingly boring but, rarely, of any lingering consequence. In contrast, 21 days of golf-related deliberations of an altogether different kind took place last month when Mr Justice Herbert of the High Court sat in Court 10 of the Four Courts complex in Dublin listening to argument in Talbot v Hermitage Golf Club & Ors.

The claimant is a 75-year old who is suing his former golf club, the club’s then handicap secretary and the Golf Union of Ireland in defamation claiming that, by lowering his handicap by 7.7 shots between 1999 and 2004, the club has damaged his reputation. The defendants argued that under GUI Rule 19 it had to reduce a handicap if it believed it was too high relative to the player’s ability.

The claimant, who represented himself, is seeking €10 million in damages (that is not a misprint). The damages in defamation are for reputational compensation and also in part for the claimant’s stress relating to his allegation that as a result of the handicap issue he was often left isolated and partner-less on competition days at the golf course – I know the feeling, I think it’s because of my hurley swing and wearing my socks outside my trousers.

Happily, Mr Talbot has told the media that, if successful, he will share the compensation with his extended family.

The amount also seems to be linked to a High Court case from November 2010 in which a former company executive was awarded a record €10 million damages by a High Court jury after they found he was defamed by a press release issued by the company about an “incident” in Mozambique in which he sleep-walked naked to a female colleague’s bedroom and made what the (defamatory) press release implied were “inappropriate advances”.

One or two sports-related defamation cases have come to the fore in recent times. A personal favourite is Dee v Telegraph Media Group Ltd (No 2) [2010] EWHC 924 (QB). In that case, the Daily Telegraph printed a short front-page story on Dee in April 2008, which began: “A Briton ranked as the worst professional tennis player in the world after 54 defeats in a row has won his first match.” The article also made reference to a fuller article in the sports section.

The essential thrust of the story, and one which numerous other media services also covered, was to point out that Dee had not won a single match during his first three years on the professional tennis circuit, touring at an estimated cost of £200,000 but noting that his dismal run had recently ended when he beat an unranked 17-year-old at a minor tournament in Barcelona.

Dee sued numerous media organisations for defamation, arguing that the coverage, in tone and content, exposed him to ridicule and damaged his ability to work in the tennis world in the future.

Apparently, more than 30 news outlets agreed to settle with Dee with Reuters’ solicitors subsequently telling a hearing of the House of Commons’ Culture, Media and Sport Select Committee in 2008 that the news agency felt that it had really no option but to settle because it was faced with potential costs of trial of £1.2 million. In the end, it appears that Reuters was asked to pay Dee’s costs of £250,000, compared with its own legal costs of £30,000.

The Daily Telegraph did not settle and sought to dismiss the case on the basis of “justification” i.e., that the facts were true.

The English High Court agreed and  Mrs Justice Sharp held: “The incontestably true facts are that the Claimant [Robert Dee] did lose 54 matches in a row in straight sets in his first three years on the world ranking ITF / ATP tournaments on the international professional tennis circuit, and that this was the worst ever run” and thus the description “world’s worst” was “simply a consequence of his unprecedented record of defeats.”  

The Daily Telegraph subsequently reported its victory under the headline “World’s worst’ tennis player loses again” and made a big play out of “how newspapers can be held to ransom by litigants spurred on by lawyers promising to work on a no win, no fee basis.”

 To be fair, the Telegraph does triumphalism very well.

In fact, in this case Dee did have a no win/no fee agreement with his lawyers but only to 50%. With Dee’s potential personal liability in mind if he lost and of course their own potential losses, the Telegraph to be fair (again) did propose a costs cap of £50,000 and a neutral evaluation of the dispute but the claimant did not bite.  In the end Dee lost. His estimate of costs was just over £500,000 as against the defendant’s base costs estimate of £90,000.  If the normal rule of legal costs applied i.e., the loser pays, Dee may have been facing a bill of nearly £300,000 in legal costs  – ouch.

Returning to Talbot, although no win no fee arrangements are not a feature of the Irish jurisdiction (yes, really), it is estimated that the combined costs for the golf club and GUI in this case will be in the region of €500,000 – with the GUI having the larger share at €300,000. And even if the defendants win and the normal rule on costs apply and is enforced, how likely is it that Mr Talbot will be able to pay?

No doubt some sort of neutral evaluation, mediation or alternative dispute resolution mechanism would have been the better option but the Talbot proceedings also reveal a limit in the use of ADR and that is where one party, as is their constitutional right, seeks their “day in court”. In short, ADR mechanisms do not always provide what the courts do for some claimants; a public declaration, sometimes vindicated by compensation, that they were “wronged” by the other party.

A ruling is expected from Herbert J within the month. Meanwhile Mr Talbot has announced that he is joining another golf club for a short period. His current handicap is 21.

 

 

Black Whistles

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Black Whistles

Apparently this week’s trade visit of Xi Jinping, Chinese Vice President (effectively President elect), to Ireland received considerable coverage in the news cycle in China. Ireland was only one of three countries (the United States and Turkey) visited by, in effect, the President-elect of China.

One of the images relayed was of Xi Jinping kicking a Gaelic football and playing hurling at Croke Park (pictured). While as a sporting act it did not measure up to the 34-under-par all time golf record set by the late and unlamented North Korean leader Kim Jong Il, the image was interesting for the Chinese given the Vice President’s long-standing interest in the woeful state of football in China. Although there are many structural and cultural reasons for the fact that China’s national football team are so lowly ranked, gambling-led corruption and bribery also play a part. An interesting article on the background in the Economist from December can be found here and, of course, the legend that is Declan Hill has written on similar in neighbouring parts of the world for many, many years at www.howtofixasoccergame.com

 This week corruption in Chinese football was again to the fore. Lu Jun, the first Chinese referee to take charge of a World Cup match (in 2002) was sentenced to over five years in jail for taking bribes to fix matches for gambling purposes and often involving wrongly-awarded penalty. Apparently, even a number of international friendly matches were also fixed. Lu Jun, once dubbed the “Golden Whistle” of Chinese refereeing (corrupt referees in China are called Black Whistles), was only one of nine people convicted of charges related to corruption inside Chinese football. The bribes involved a number of clubs, including Shanghai Shenhua, who have recently signed Nicolas Anelka.

 Later in the week a former deputy-chief of the Chinese Football Association, was sentenced to just over 10 years in prison for taking bribes, though apparently even his attorney admitted that the sentence was on the light side given that corruption by public servant in China can result in the death penalty i.e., there will be no appeal!!   

 A former director of the Chinese Football Association was sentenced to 12 years on various corruption-related charges including the allegation that he had taken money from Shanghai Shenhua and helped them win the 2003 league.

 In total 39 people were sentenced in this later trial, including a number of former present or general managers of leading clubs, which is a bit of an embarrassment for the Chinese Super League, the top flight domestic competition as it attempts, in effect, to re-launch itself for the new season which kicks-off on March 10.

Finally, Xi Jinping, the Chinese Vice President, flew from Ireland to Turkey. On 14 February a major match-fixing corruption trial, involving almost 100 Turkish football officials, began in Istanbul. One of the principal accused is the Fenerbahçe President Aziz Yıldırım, Fenerbahçe, who won the 2011 Turkish League championship, has seen about a dozen its members charged. Fenerbahçe went unbeaten through the second half of last season and beat Trabzonspor to the title on goal difference. They have already been banned from this season’s Champions League. Eight other clubs are also involved including Beşiktaş (stripped on the Turkich Cup, 2011) and Trabzonspor.

 In sum, it seems that corruption in sport knows no borders – corruption sans frontières….

 

Gambling-led corruption in sport

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Gambling-led corruption in sport

 My current research interest is in gambling-led corruption in sport and I did some work last year on it in Australia as part of a visiting fellowship to the Australian Research Council’s Centre of Excellence in Policing and Security (CEPS) in Brisbane (hard life). The work I did there was summarised in a CEPS briefing paper which can be accessed here and below is a slightly updated version of same.

 It is, unfortunately, a topical area. Last month a former Essex County cricketer, Mervyn Westfield, (pictured above) admitted liability under the Prevention of Corruption Act 1906 by “bowling in a manner calculated and intended to allow the scoring of runs” during a NatWest Pro40 one day game between Essex and Durham in September 2009. In light of the Westfield proceedings, the England and Wales Cricket Board have offered an amnesty to players who report past match-fixing approaches. Westfield was jailed for four months today.

In 2011, the President of the International Olympic Committee, Jacque Rogge, identified gambling-related corruption as the biggest single threat to the integrity of international sport. Recent events have highlighted that Australian sport is not immune from such corruptive behaviour. Moreover, the threat posed is not confined to sport. By utilising online gambling platforms, recognised international crime syndicates have the capacity to launder money and to engage in assorted secondary criminality of a financial nature including identity theft, economic conspiracy and fraud.

 

Against this backdrop, the Australian Research Council’s (ARC) Centre of Excellence in Policing and Security (CEPS) co-ordinated and hosted a one-day workshop in July 2011 with partner organisations, sports bodies and researchers to discuss the following: the vulnerability of sport to betting-led corruption; risk management and preventative measures currently in place in Australian and international sport; and future resilience enhancement mechanisms that could be applied through the sports industry. Further, an objective of the workshop was to identify and agree areas where academic research could strengthen the understanding and expertise on sport’s vulnerability to gambling-led corruption and how that could inform a coordinated and more effective response by sport and relevant government agencies in an effort both to underpin the integrity of sports events and undermine the illicit, online behaviour of criminal syndicates. What follows is a thematic (and updated) review of the workshop’s deliberations including the author’s keynote address.

 

The workshop, held at the Queensland Cricketers Club on 27 July 2011 was entitled “Combating Serious Crime and Corruption in Sport: International and Comparative Perspectives”. For further details on both the work of CEPS and this workshop, including an accompanying briefing paper (Issue 6, Nov 2011) see www.ceps.edu.au/about/publications. The author thanks CEPS Director, Professor Simon Bronitt for his support with this project. 

 

Historical overview and context

 

Two brief historical and contextual points need to be highlighted on the topic of gambling-led corruption in sport.

 

First, cheating in, and the fixing of, sports events have a history that is almost as old as organised sport. Modern sports organisations have developed quite sophisticated, if largely private, self-regulatory mechanisms in identifying cheats and fixers. In particular, the manner in which international sport, as directed by the World Anti-Doping Agency, monitors, internally prosecutes and sanctions those who take prohibited performance enhancing drugs is instructive as to how sport might deal with the integrity threat posed by illicit, online gambling and match-fixing. In addition, the relationship between gambling and sport is long in history. The manner in which the oldest organised professional sport, the horse racing industry, monitors, internally prosecutes and sanctions those associated with gambling-inspired corruption is again highly instructive as to how sport deals with betting-led conspiracies.[1]

 

This institutional history notwithstanding, it is the combination of cheating and betting in sport, based on inside information supplied by officials or players and placed upon online and offshore gambling platforms, that poses a significant integrity threat to modern sport and also reveals certain regulatory vulnerabilities within international sport to such activities such that certain sports betting platforms are being used as a conduit for transnational financial crimes, cross border money laundering and associated economic criminality or fraud.

 

The second contextual point lies in an explanation of the meaning of an “integrity” threat. Borrowing from the Australian Sport Commission’s definition of the “Essence of Australian Sport, integrity in competitive sport has four essential elements: fairness; respect; responsibility; and safety.[2] Put simply, integrity in this regard concerns a respect for the core values of fair and open competition in the game or event in question. In the context of modern professional sport, however, integrity has, for sports governing bodies, a meaning that extends beyond the playing field and is related to modern sport’s business model and branding.

 

Taking Australia’s leading sports as an example, revenue streams – gate receipts, associated merchandising, sponsorship and, crucially, TV and media rights deals – in the world’s leading sports leagues remain relatively robust with the primary financial stability threat tending to be internal (in the form of spiralling player wages) rather than external (in the form of the global economic downturn). Nevertheless, sports governing bodies across the world are acutely aware that professional sport’s business model is based fundamentally on an implied contract of trust and confident with its spectators and sponsors. That contract or bond is predicated on supporters and sponsors believing in the “controlled unpredictability” of what occurs on the sport field. Accordingly, if that trust is undermined because, for instance, supporters and sponsors suspected that players’ actions are motivated for nefarious reasons, then consumers and sponsors will quickly move their money elsewhere and thus destabilise that sport’s financial viability. In this, leading sports governing bodies are aware that in today’s highly competitive sports market (again epitomised by the various codes in Australia) there are a number of alternatives for this support and money.

 

In sum, it is the credibility or integrity of the brand that is of the utmost importance to sports bodies and thus the associated anxiety of leading sports bodies, as led by the IOC, with the issue at hand. Analogies abound from the world of sport about the corrosive impact that (lack of) integrity issues can have on a sport’s brand and goodwill and, as a corollary, on the difficulties a sport can have in trying to regain that trust and confidence of supporters and sponsors. The regulatory corruption that has led to the demise of professional boxing as a mainstream sport is noteworthy. The allegations of corruption surrounding the administration of the Indian Premier League have seen turnover figures for that cricket tournament decline markedly in the last year. The reputational difficulties that athletics and professional cycling have with regard to doping continue, despite recent progress in cleaning up the sports in question.

 

Applying this to gambling, the integrity threat emerges where doubts or suspicions arise about, for example, an unusually slow run rate in cricket or a high number of dropped balls in the field; a decision by a player to take a tap rather than a kick at goal in rugby; a tennis or snooker result that is at odds with the form or ranking of those involved; idiosyncratic positional moves by a coach; or the inconsistent decision-making of a referee during the course of a game. Although all of the above may be underpinned by perfectly rationale explanations, recent gambling related events illustrate that on occasion certain happenings on the pitch may be underpinned by a more sinister rationale or, at the very least, attract the suspicion of betting-led conspiracy.

 

Betting + Sport = Corruption?

 

Does the close relationship between betting and/on sport lend itself to corruption? The answer to this question is no, not necessarily so, and certainly not always. Nevertheless, and drawing from five brief case studies of examples of betting corruption (from international cricket, European soccer, major league sport in the United States and Australian sport);  identifiable patterns begin to emerge. These common features, which have also been referred to in other research – notably the research commissioned by the EU Sports Platform, Examination of Threats to the Integrity of Sport (2010) – can assist sports governing bodies both in identifying and isolating their regulatory vulnerabilities to the threat and in instigating  preventative and investigative mechanisms to address the problem.[3]

 

Case Studies

 

Case Study A: NBA, United States

Tim Donaghy was a referee in the National Basketball Association from the mid 1990s until his resignation in 2007. His resignation related to a FBI investigation into allegations that Donaghy gambled on games that he had officiated and made decisions affecting the point spread in those games, so as to facilitate spread-betting patterns on the games. In July 2008, Donaghy was sentenced to 15 months in federal prison on charges relating to the investigation.[4]

 

Case Study B: Rugby League, Australia

Two minutes into a NRL game between the North Queensland Cowboys and the Canterbury Bulldogs in August 2010, the Bulldog’s Ryan Tandy was penalised for a delaying offence. Ordinarily, the Cowboys would have taken a kick at goal but elected to tap the ball and eventually scored a try. Irregular betting patterns involving significant amounts of money were identified by betting operators on a Cowboys’ penalty goal to be the first scoring play. An investigation by the NSW Casino and Racing Investigation Unit has led to four arrests including Ryan Tandy and his agent. The charges were based on economic conspiracy and obtaining money by deception and, in the player’s case, relate to providing false and misleading information to a parallel investigation by the NSW Crime Commission. In December 2011, Tandy was found guilty on the “knowingly providing false evidence” charge and received a six month, non custodial sentence. 

 

Case Study C: Rules Football, Australia

In July 2011, Heath Shaw a player with leading AFL club Collingwood was suspended for eight matches and fined Aus$20,000 after being involved in a betting scandal also involving Collingwood captain Nick Maxwell. Shaw and a friend bet Aus$10 each on Maxwell kicking the first goal of a league game against Adelaide, knowing that Maxwell was to start the game not in his usual position but in the forward line. Shaw also passed the information to friends who also laid a series of minor bets. Maxwell was fined Aus $5,000. Three members of Maxwell’s close family also placed bets. There was evidence that betting odds in the markets on Maxwell scoring came in from 100-1 for the first goal to 25-1.

 

Case Study D: Cricket, International

In October 2011, three Pakistan cricketers and their agent faced trial in London on charges relating to economic conspiracy, accepting corrupt payments and cheating at gambling. The charges emanated from accusations that the players received money for deliberately bowling no-balls at pre-determined times during as Test match against England in August 2010. They received custodial sentences.[5] An International Cricket Council anti-corruption investigation had previously imposed lengthy playing sanctions on the players in February 2011. That decision has since been appealed to the Court of Arbitration for Sport.  

 

Case Study E: Football, Finland

In June 2011, nine players from Zambia and Georgia, and a Singaporean man accused of bribing them, went on trial in Finland in a match-fixing investigation into that country’s football league. The players were charged with accepting bribes of up to Aus$70,000 to influence the outcome of matches. A series of other bribery related scandals involving individual players and the suspension of a leading Finnish club, Tampere United, for an unexplained amount of Aus$400,000 on its balance sheet from a Singaporean company, has lead to an investigation into the league by the Finnish authorities, as well as a Court of Arbitration of Sport hearing into Tampere’s breach of FIFA’s regulations on third party investment in clubs.

 

Identifiable Patterns

 

  1. Evolving sophistication of the betting market

 

Traditional forms of gambling fixes, for example, a boxer taking a dive or the nobbling of the favourite in a horse race, appear somewhat quaint to the contemporary eye. In the horse racing example, for instance, the fix had to be quite elaborate: the horse in question had to be “got at” physically; the money placed on laying the favourite or backing another horse or both had to be put on in a conspiratorial manner so as not to attract the suspicions of an irregular betting pattern by the relatively small and highly risk aware bookmaker community; and finally the fix had to come off in the sense that the favourite duly had to lose.

 

Contrast this with today’s online betting environment. The where, when and what a gambler can bet on is virtually unlimited. Wireless and telecommunication developments mean that a punter can, and on various multimedia platforms, bet incessantly and do so from home or in the pub or at the event itself. This flexibility and anonymity lends itself to betting conspiracies. Moreover, while in the traditional form of betting, the punter gambled on the final outcome of the event i.e., who might or might not win, the various different in-play forms of betting now available mean that punters can engage in bets on much more defined aspects of the game itself such as spot-bets or spread-betting.

 

It follows, and as illustrated variously by case studies B, C and D above and building on the investigations of Declan Hill and others, that if a third party can convince a player to do something particular at a specific time in a game, which need not necessarily impact on its final outcome (and thus cause no great moral hesitancy for the player), this inside information can be used to the advantage of that third party on betting exchanges.[6] Again it must be stressed that, although bets of the kind outlined appear somewhat “exotic” in nature, a quick perusal of online betting exchanges and spread betting facilities illustrates that the combination and category of bets available to the modern punter are bewilderingly broad. Put simply, no matter how exotic a bet appears, there is nearly always a market online for the punter’s money.

 

  1.  Vulnerable players

 

Player education and awareness, as supplemented by strict sanctioning, is a central preventative measure in dealing with this activity. Players are sometimes unaware that seemingly innocuous information, such as positional or tactical changes for a forthcoming game, may be used to the betting advantage of third parties.

 

Players also need to be educated as to the undue influence that might be placed on them for such information be it through a commercial agent or their wider social entourage. Matters such as the profiling of vulnerable players (such as those from countries where corruption is a facet of everyday life) and the regulation of sports agents is of importance here, as is – and as illustrated by case study E above – the proper regulation of and financial accountability for, the entry of private equity into sport and particularly on the ownership of individual clubs.

 

Elite players in well-paid leagues, for example the English Premier League, are unlikely to be targeted in this regard, unless they have a gambling problem or related debts. These players are well paid but players further down the leagues and into the semi-professional leagues may be more susceptible. Further, note that in a league that has salary caps where, although leading players are well paid, the remainder of the roster may not be, the resulting inequality might heighten the vulnerability of the latter to illicit betting approaches.

 

  1. Vulnerable games

 

Sports that attract high betting volumes, such as football, may be targeted by illicit betting syndicates in an attempt to hide otherwise irregular betting patterns in the general weight of money bet on the particular game or event.

 

Episodic games, such as tennis or snooker, where an individual player can exert a significant amount of control over whether a set or frame is won or, more likely, lost, have been known to have resulted in betting-related conspiracies.

 

Similarly, games where there is little at skate, for example, so-called “dead rubbers” or games between teams who are untroubled by the play-offs but safe from relegation, can be vulnerable.

 

  1. Referees

 

As case example A above shows, a referee can control the point spread in a high scoring game and thus aid those who bet on spread-betting or points handicap betting markets. In a relatively low-scoring game, such as football, one decision (the award of a penalty kick) can decide or materially change the outcome of a game – and there have been celebrated examples of this in, for instance, football in Germany in 2005, which led to a large scale review of match-fixing in that sport.

 

Overall, in games as diverse as cricket, rugby and boxing how the referee “calls” a game can be of the utmost importance and therefore protecting referees who, in professional sport are usually the least paid person on the pitch, is critical.

 

  1. Poor regulatory ethos

 

Where a sport’s central governing authority is weak or sets a poor example, this may lessen the impact that its integrity regulations have on participants and even, in a gambling sense, open that organisation to targeting by criminal syndicates. Writing in the New York Times in July 2011, the Secretary General of Interpol, Ronald K Noble, noting that corruption in international football is “widespread”, argued that a central problem in addressing the problem was that “public confidence in FIFA’s ability to police itself is at its lowest.” In August 2011, Transparency International published a document entitled “Safe Hands: Building Integrity and Transparency at FIFA” in which it sets out an “integrity audit” agenda for FIFA.[7]  The recommendations include the creation of a multi-stakeholder group, an independent investigation of the past and a zero tolerance policy of bribery.

 

Similarly, in a recent review of corruption in Britain by Transparency International (UK), a survey ranked sport as the second most corrupt sector in British society – political parties were ranked first; parliament third.[8]

 

Sports bodies also have to reconcile their integrity anxiety relating to gambling with the heavy amounts of sponsorship accepted by such bodies from online betting companies. In addition, there may be a potential conflict of interest in a betting company sponsoring a club or league on which it takes bets.[9]

What can sports bodies do?

 

The answer here is that many sports organisations at national and international level are, in light of this integrity threat, already implementing quite sophisticated risk assessment strategies. Many of these strategies are based on those first established in the horse racing industry and typically combine programmes that have three central elements: education, investigation and sanctioning.

 

Dedicated player education programmes; codes of conduct; moral clauses in player contracts; anti-corruption compliance and investigative units; and lengthy sanctions are essential to the anti-corruption policy of any leading sports governing body. In Australia’s highly regulated horse racing industry, requirements that jockeys do not bet, statute-based investigative units and lengthy sanctions, epitomised by the “warning-off” penalty, are well established, as is the fact that administrators within racing’s integrity units provided specialised advice, and even personnel experienced in compliance matters, to other sports. 

 

The horse racing industry was also among the first to reach out to the licensed betting operators, entering into memorandums of understanding with them so that both early warning could be provided on a potential race-fix and further investigation facilitated.

 

The mutual benefits of this relationship remain central to the effective policing of match-fixing in all sports. As was seen to good effect in the Ryan Tandy case study outlined earlier, where substantial bets are taken on unusual, exotic bets, this can alert the receiving operator and that information can be passed onto the rest of the betting community and to the sports authorities in question.

 

It is in the licensed betting operators’ interest that their industry in not taken advantage of by match-fixers, as much as it is in the interest of sport itself.

 

The twofold approach of education and prevention has been adopted by football’s international governing body. This year, FIFA presented Interpol at its Singapore base with Aus$30 million to establish a training centre for education and preventative programmes for key stakeholders and officials in sport in the region as well as national law enforcement agencies. FIFA also has continued to develop its relationship with the European Sports Security Agency, which is an informational conglomeration of most of the leading online sports betting providers and which presents FIFA with research and early warning on matches that are revealing unusual betting patterns.

 

 

 

Implications beyond sport

 

The problems associated with sports betting have implications beyond the industry.

 

The transnational criminal law aspects to this issue were summarised by an Australian Crime Commission (ACC) submission to the Australian Parliament’s Joint Select Committee into Gambling Reform on 23 June 2011: “Online gambling is an identified money laundering risk and increasingly is also acknowledged as a risk for revenue and taxation fraud.”

 

Although, it appears that the ACC is satisfied that the threat to Australian sport is not yet systemic, nevertheless, individual participants may be at risk. Associating with a local sports star sometimes provides a medium for criminal elements to enhance their social, community and business status and thus engender them with an air of legitimacy. Further, as online betting in Australia grows rapidly – from an industry worth a little over Aus$100million in the mid-1990s to one that is projected to reach Aus$3billion by the end of this decade – the systemic risks increase, as aggravated by the online nature of the industry.

 

As with any financial service offered online, the danger is that at the margins of the industry, it can be difficult to police and regulate effectively, if at all, given the offshore, relatively anonymous nature of such activity and the huge resources needed to trace money flows through various identity theft and customer identification traps.

 

Furthermore, in a recent review by the Paris-based Financial Action Task Force on money laundering in the football sector, it is also of interest that FATF highlighted that in order to facilitate such activities international crime syndicates were establishing their own online gambling platforms on which to take a wide variety of bets.[10]

 

Unlicensed betting operators operating online and offshore have caused problems for the proper regulation of the industry in the UK, EU and United States and in Australia breaches of the Interactive Gambling Act (Cth) 2001 have been brought to the attention of the Australian Federal Police with increasing recent frequency.

 

What are governments doing?

 

 In 2011, the federal Minister for Sport in Australia, and his state and territory counterparts, had various meetings and correspondence with Malcolm Speed, the former chief executive of the ICC and now chairman of the Coalition of major Professional and Participation Sports, a union of chief executives from the AFL, NL, ARU, Cricket Australia, Tennis Australia and Netball. The policy that has emerged from this initiative is based largely on the model that exists in Britain and in the state of Victoria. It is four fold in nature.

 

  • The adoption of codes of conduct by sports;

 

  • The possibility that federal funding of sports would be made contingent on sports bodies implementing appropriate anti-corruption policies and practices;

 

  • That legal and licensing arrangements would be developed between betting companies and sports bodies that include obligations to share information and veto bets, as overseen administratively by a newly established National Integrity of Sport Unit;

 

  • That agreement would be pursued on achieving nationally consistent legislative arrangements and specifically with regard to a criminal offence of cheating at gambling, which would assist in targeting those involved in such conspiracies but who do not come within the regulatory remit of a sports body.

 

  • A commitment on behalf of all parties to continue to pursue an international solution and further international co-operation in the area.

 

The policy is welcome and correct, though it is a very early stage in its development. Moreover, problems can be envisaged in terms of obtaining, for example, a commonwealth consensus on the legislative framework.[11] Three further points are noteworthy about the proposal.

 

First, central to the policy will be the operation and funding of the National Integrity of Sport Unit (NISU). A NISU-type body would likely be quite resource intensive, requiring a diverse body of expert personnel from law enforcement agencies (economic crime units) and those with experience in sports administration (compliance units) and the betting industry (integrity units). A long-term, stable funding model would be central to NISU’s credibility. One suggestion under consideration is that sports bodies are given the right to exploit betting rights to their sport and part of the revenue raised by sports bodies from the betting companies in this regard would then be siphoned off to underwrite NISU.

 

The operation of NISU would also have to be premised on full cooperation from betting companies, in terms of supplying information on irregular betting patterns, and it would also have to have certain accountability mechanisms imposed on sports bodies to ensure that the information supplied to them by NISU would always be properly and pursued, irrespective of the consequences that might have for the sport in question. Without full compliance (from the betting industry) and accountability (from the sports industry) it is unlikely that law enforcement agencies such as the Australian Crime Commission would feel comfortable in, or be permitted to, supply any sensitive data or information that they might have, and thus the effectiveness of any putative NISU would be limited. 

 

Second, ultimately the solution to this problem lies in greater international cooperation between sports bodies and law enforcement agencies. Nevertheless, it is only when a country has its own “house in order” can it contribute materially and with due moral weight to the international debate. In this, the above commonwealth proposals are of the utmost importance and can ensure that Australia plays an influential role in the international resolution of this problem, and even in the formation of a World Anti-Corruption Agency.

 

Moreover, it must be stressed that countries such as Australia and the UK, where sports industries such as horse-racing are deep-rooted, have an important cultural education role to play in this debate. In many jurisdictions, such as in continental Europe, sports administrators do not have an intuitive or cultural understanding of betting and this may be resulting in leading sports bodies underestimating this integrity threat. In contrast, the integrity threat emanating from drugs in sport is clear to all and thus a settled ethical stance on it among all stakeholders was achievable, as manifested in the World Anti-Doping Agency. The ethical stance towards, even the understanding of, gambling is not so clear with the added problem that in many of the jurisdictions where the threat originates (such as in India or South East Asia) betting is largely illegal and unregulated and thus it is harder and politically sensitive to convince authorities that this is a matter that should be pursued or is even a threat in the first place.

 

In sum, Australia can play a critical advocacy role is this debate on the dangers of unregulated betting in sport.  

 

Conclusion

 

Finally, a recent review of corruption in UK sport by Transparency International highlighted three common risk factors, also alluded to in this briefing paper – the problem of self-regulation, the difficulty of regulating against international corruption, and links with organised crime. It is of interest that even in the UK where the matter of corruption and crime in sport appears to be well-regulated, and a sports betting integrity unit is already in operation, Transparency International nevertheless recommended “a full independent enquiry into corruption in UK sport commissioned by the UK governing bodies of major sports, with a view to setting up a coordinated response to corruption across all UK sports.”

 

Building on that, academic researchers would in the medium term be well placed to carry out a similar study in Australia and elsewhere with a view to assessing sport’s vulnerability to gambling-led corruption and informing a coordinated and more effective response by sport and relevant government agencies in an effort both to underpin the integrity of sports events and undermine the illicit, online behaviour of criminal syndicates.

 

 

 

 

 

 

 

[1] For an interesting Australian example of this, see Glesson Review of Sports Betting Regulation in the State of Victoria (2011); available through www.justice.vic.gov.au.

[2] www.ausport.gov.au/about/essence_of_sport.

[3] EU Sports Platform, Examination of Threats to the Integrity of Sport (2010); available through www.eusportsplatform.eu.

[4] See also CAS 2010/A/2172 Oleg Oriekhov v UEFA.

[5] R v Amir & Anor [2011] EWCA Crim 2914.

[6] Declan Hill, The Fix, McClelland & Stewart, 2008 and http://www.howtofixasoccergame.com/

 

[7] Transparency International, Safe Hands: Building Integrity and Transparency at FIFA (2011); available through www.transparency.org.

[8] Transparency International UK, Corruption in the UK (2011); available through www.transparency.org.uk.

 

[9] See the comments at Case C-42/07 Liga Portuguesa de Futebol  [2009] ECR I-7633, para  71. 

 

[10] Financial Action Task Force, Money Laundering through the Football Sector (2009); available through www.fatf-gafi.org

 

[11] Each state or territory has its own perspective on the problem and in New South Wales, for instance, see NSW Law Reform Commission, Consultation Paper on Cheating at Gambling (CP12, 2011); available through www.lawlink.nsw.gov.au/lrc.

 

Contador Loses CAS Doping Appeal

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Professor Ian Blackshaw, a member of the CAS, has provided the following comments on the Decision in this long-running doping case involving the Spanish international cycling champion, Alberto Contador:

This long-awaited Decision of the CAS in this controversial doping case, in which there seem to have been some Spanish political influences (including some tweets by the Spanish Prime Minster about Contador’s innocence) at work in the early phases following the announcement of the positive doping test for the banned substance clenbuterol during the 2010 Tour de France, has imposed on the Spanish cyclist, in the absence of any mitigating circumstances, the usual minimum suspension of two years under the WADA Anti Doping Code for a first doping offence. The full reasoning of the CAS in this complex case can be found in the Award, which runs to 98 pages, issued by the three-member CAS Panel on 6 February, 2012, and which can be accessed by logging onto the CAS offical website at www.tas-cas.org and is well worth reading. The suspension from competition is backdated to 5 August 2010, the date on which Contador was informed of his failed drugs test, which means that Contador is eligible to compete again in international cycling events on 5 August, 2012. And this means, of course, that Contador will miss this year’s Tour de France, which starts in July. Contador claimed that the presence of the banned substance in his system resulted from eating contaminated meat in Spain. However, the Panel did not accept this claim, stating that “…there were no established facts that would elevate the possibility of meat contamination to an event that could have occurred on a balance of probabilities.” Adding: ”[u]nlike certain other countries, notably outside Europe, Spain is not known to have a contamination problem with clenbuterol in meat. Furthermore, no other cases of athletes having tested positive to clenbuterol allegedly in connection with the consumption of Spanish meat are known. The panel concluded that both the meat contamination scenario and the blood transfusion scenario were, in theory, possible explanations for the adverse analytical findings but were, however, equally unlikely. In the panel’s opinion, on the basis of the evidence adduced, the presence of clenbuterol was more likely caused by the ingestion of a contaminated food supplement.” In addition to the suspension from competition, Contador, under the rules of the International Cycling Federation (UCI), is stripped of his 2010 Tour de France victory and all titles gained in 2011, which include the Giro d’Italia, and, thus, the runner up, Italian Michele Scarponi, will now take that title. But that is not the end of this sad story for Contador, as the CAS is still to rule on a hefty fine of at least €2,485,000, which the UCI wants to impose on him under Article 326 of their Anti-Doping Rules, and also, finally, the question of costs, which are also likely to be substantial, that the CAS under may impose on Contador under the provisions of Article R65.3 of the CAS Code of Sports-related Arbitration (Edition 2012). A sad story indeed for Contador and Spanish sport in general and Spanish cycling in particular!