Sports Law
This paper provides a rethink of the interaction between our criminal processes and gambling led corruption in sport on an international platform. Using an economic framework, a fresh understanding of how match fixing manifests itself is presented. This establishes the shortcomings of the manner in which the law currently interacts with match fixing in sport. The paper considers who is best placed to approach the issue, how the issue should be approached and concludes with various proposals of reform to better manage the problem.
The global gambling industry was estimated to have generated revenue of $423 billion in 2014[1] and in the UK between April 2016 and March 2017, the total gross gambling yield was £13.8 billion.[2] With a massive industry, generating such an enormous revenue, come issues of fraud, corruption and bribery. It follows that criminal organisations have long been attracted to the concept of manipulating sporting outcomes in order to profit from synchronised bets. Thus, an abundance of sporting matches have been ‘fixed’ and the inherent principle of fair competition of sport undermined. This dangerous corruption threatens to degrade not only a particular match, but the individual sport and sport as a whole. Moreover, the proceeds of this criminal activity are being used by organised crime groups for other immoral activities such as trade of counterfeit goods and trafficking.[3] The law and sport have long grappled with how to control this inherently corrupt issue. Accordingly, this paper seeks to address the shortcomings of the current approach to controlling gambling-led corruption in sport, using an economic framework to better inform civil and criminal procedures in order to combat match-fixing on a global level.
This paper will address the main question as to the effectiveness of the current legal response to match-fixing in sport. In reaching this conclusion, the paper will also consider the questions of who should handle the issue of gambling led corruption in sport and what should they do to combat it? In order to understand the widespread issue of match-fixing, this research paper will address whether economic theories of regulation provide a better lens through which we might understand the reason why match-fixing has developed to such a major issue on a global scale.[4] The final question that will be considered, is the possibility for reform and an analysis of whether a new model of combatting match fixing would be useful and feasible, so that the problem is better dealt with by our legal systems.[5]
This desk-based research takes a largely subjective approach to the issue of match-fixing, culminating the views of many different commentators and assessing the interaction of different bodies to the issue. The decisions of legal entities in different jurisdictions will be considered and legislative measures will to an extent be compared, in order to understand the effectiveness of the approaches of said bodies’ status quo. An economic framework will be utilised in order to present the case for a recalibration of efforts, the theories applied will develop a new methodology for stakeholders to consider in combatting the match-fixing problem. The purpose for this approach, is that if we are able to understand the reasons why the issue has developed to its current state, we are better placed to formulate a response to the problem that deals effectively with the difficulties outlined. This will then allow the author to suggest the best approaches for reform based on a reasoned consideration of the shortcomings of our current platform of controlling match-fixing.
Chapter two begins with a brief summary of the literature on the current debate on match fixing in sport; this opens with the broad issue and narrows down to consider who should lead the fight against corruption and what they should do. The many differences of opinion outlined in this section show the need for research in this area and more specifically a rethink of the manner in which the law interacts with match fixing in sport. This is followed by a descriptive analysis of the economic theory that may be applied to understand the issue, that of ‘Game Theory’, which incorporates the Prisoner’s Dilemma and Deterrence Theory. The Game theory explanation of match fixing shows that athletes are presented with a ‘prisoners dilemma,’ therefore there is a need to change the current legal approach to the issue to make match fixing less lucrative and deter potential criminals. This framework demonstrates that the purpose of the criminal law as it applies to match fixing is clear, make the potential benefits of match fixing seem not worthwhile due to a high probability of being detected and sanctioned such that the ‘means’ do not justify the ‘ends’.
Chapter three outlines the background to the match-fixing problem with a brief history of how we have arrived at the current state of affairs. This chapter then considers in greater depth the issue of who is best placed to combat match fixing in sport. It is concluded that an attitude of synergy from all stakeholders is the most practicable, but ultimately the criminal law has at its disposal the powers to investigate and sanction the briber or athlete accordingly. A brief case commentary is then provided on two major criminal decisions of two different jurisdictions to understand the approach taken by the criminal law to differing match fixing circumstances. This section will not seek to make a comparative analysis of these decisions, but merely to outline the difficulties that individual jurisdictions are having, when dealing with match fixing on an individual basis.
Chapter four applies the economic theory to the issue outlined in chapter three. This provides an original viewpoint on the issue and develops a new way of thinking of the problem of match fixing on a quasi-economic legal basis. The case is made for a recalibration of the criminal law’s approach to match-fixing, to focus instead on the criminal briber as opposed to the sporting athlete. The four main stages of detection, investigation, sanction and deterrence are analysed in depth which pave the way for the final section that submits proposals for reform based on the analysis provided.
Chapter five concludes the paper with a summary of the research and answers the research questions posed in chapter one.
The hypothesis of this paper is that match fixing in sport is insufficiently managed by the law in its current state. The responsibility of who should control and sanction gambling led corruption in sport should fall upon the criminal law. Using an economic framework, penalties for match fixing should be sufficiently stringent so as to deter a potential white collar criminal from bribing an athlete. There is a need for reform; that reform being a rethink of how to combat match fixing by focusing on the bribing criminals themselves. This is best facilitated through the implementation of a global body to govern the issue of sporting integrity issues.
The approach broadly taken by our legal systems internationally on issues of sporting rule breaking is that of self-regulation.[6] Sports’ national governing bodies (NGBs) are considered to be best placed to make decisions based on their own investigations and issue sanctions to participants based on their specific knowledge;[7] this derives from the contractual obligations between sports participant and sports body.[8] Issues within sport become more of a concern when domestic, criminal or civil law is breached as a result of a sporting integrity issue.[9] Along these lines, match fixing is a sporting integrity issue that has links with illegal gambling and crime-rings.[10] Further, commentators have argued that match fixing is far worse than doping, since the latter at least involves ‘cheating to win’, while the former involves ‘cheating to lose’;[11] this undermines the very purpose of sport. This author submits however that the stage at which our legal systems engage with match fixing, is too ‘reactive’ as opposed to ‘proactive’.
In the Council of Europe’s Convention on the Manipulation of Sports Competitions, the purposes of the convention are stated to be ‘prevention, detection and sanction.’[12] However this leaves out the vital stage between these mechanisms, that of the investigation; whose duty is it to investigate the issue and at what point this must occur. Weatherill argues that sport cannot ‘have it both ways’[13] in reaping the fruits of sport’s commercialisation whilst keeping European Community law entirely at bay.[14] Indeed, it has been argued that sport as a whole is openly engaging in ‘commercial exploitation’ in avoiding regulation or relationship with competition law.[15]
This author acknowledges the unusual features of sport which do not lend themselves to an application of ordinary legal procedures.[16] Sporting autonomy is a vital principle that allows sports to maintain independent disciplinary procedures that are proportionate to the rule infringement committed. However equally so, commentators have submitted that in the context of sporting corruption and bearing in mind the rapid commercialisation of sport and its complexity, sporting autonomy is obsolete.[17] Furthermore, it has been said that arbitration should not be autonomous, or even a ‘law unto itself’.[18] Regardless, it appears to be common ground that autonomy of sport must mean an acceptance by both NGBs and the regulator, that they both have a role to play in combatting sports’ integrity issues.[19]
Dr Van Rompuy argues that focusing on criminal prosecution could be unproductive in match fixing cases, arguing that disciplinary procedures are quicker and do not encounter cross-jurisdictional issues.[20] However Carpenter focuses on the legal and regulatory loopholes, which ultimately mean that without specific criminal match-fixing legislation, organised criminals are able to thrive. He concludes that national governments must lead the fight against this corruption.[21] This is a view that is shared by the International Olympic Committee and the United Nations Office on Drugs and Crime[22] who state that the issue of match fixing raises questions of ‘corruption, organised crime and money-laundering’, which require ‘dire’ attention by our legal tools. They submit that when the issue is dealt with by criminal law, it becomes less of a simple breach of the rules of a sport, but an offence against the public in a broader sense.[23]
The solution has been stated in many forms. Whilst Van Rumpuy argues for a two-track approach for regulation on the part of both the regulator enforcing criminal law and the NGB enforcing the sport’s laws,[24] others believe it should be left to the NGB.[25] The issue with this approach is that the amount of money that is spent by NGBs on regulating integrity is arguably too low[26] and further, NGBs may not wish to bring their sport into disrepute.[27] Conversely, if this is the attitude of NGBs, they are likely to bring sport as a whole into disrepute with their non-action. Carpenter outlines a few proposals including clear guidelines on how to manage match fixing, compliance procedures for athletes, surveillance to detect match fixing and education for athletes to encourage whistleblowing.[28] This encourages compliance on the part of the sports person, but what of the criminal who bribes the sportsperson in the first place? In 2014, a Private Member’s Bill was put forward by Lord Moynihan, former Olympic Silver Medallist and Chairman of the British Olympic Association.[29] This would have increased the maximum prison sentence for cheating at gambling from two years to ten, in order to address the issue of corruption in sport. This seems only reasonable when we pay heed to the words of INTERPOL Secretary General Noble who at the FIFA press conference on match fixing stated;
‘organised criminals frequently engage in loan-sharking and use intimidation and violence to collect debts, forcing their desperate, indebted victims into drug smuggling and their family members into prostitution.’[30]
There is no better time to rethink the framework for regulation of match-fixing in sport.
In order to assess the problem of match fixing, this author submits that we must consider the economic basis to the issue. If match fixing is left without being dealt with by our legal systems, not only does it send out the wrong message to those who have committed the crime,[31] but so too does it disrupt the idea of the level playing field[32] that is so inherent to any sporting platform.[33] It is currently almost impossible to prevent match fixing from occurring on a global level due to the underlying links to the criminal underworld.[34] Therefore, if contemporary cases of match fixing can be strictly dealt with by our legal systems, not only will it deter those who may be tempted by the prospect, but it will also ‘shrink the target’[35] that sporting competitions would pose to a potential white collar criminal.
Accordingly, this chapter now seeks to examine the theoretical framework that may be applied by the regulator when considering best practice to combat of match fixing. Economic ‘Game Theory’[36] will be applied to understand how to achieve compliance in sport with reference to the ‘prisoner’s dilemma’[37] and deterrence economic principles. It is ultimately submitted that when we consider the issue of match fixing in sport through the lens of economic theory, we can better understand the circumstances of match fixing itself. Consequently, preventative measures can be put in place to ‘shrink the target’ and if this is coupled with an effective deterrence framework from the criminal law, the regulation of match fixing in sport becomes more effective.
So what is ‘Game Theory’ and how can this help when thinking about the effective regulation of a sporting integrity issue? John Von Neumann (an American mathematician) along with Oskar Morgenstern (an economist), were the first people to develop the Game Theory model of economics.[38] They submitted that economics are similar to a game, where players must anticipate the other’s moves.[39] For our purposes, game theory illustrates that if we do not allow (or even tempt) either party to act in a unilateral manner, they are forced to cooperate and not act in their own self-interest. In short, in order to foster compliance, we must encourage ‘players’ to act in a mutually beneficial manner. This, according to game theory is known as the ‘saddle point’ or the Nash Equilibrium.[40]
The Nash equilibrium is reached when the players in the game act in a manner that benefits all parties.[41] In the context of sport, this would mean that the players compete fairly with the concept of a ‘level playing field’ being maintained. However, as Picker stated in his Chicago lecture, in any one game there may be multiple Nash Equilibria and equally so there may be ‘no good means’ for the players to cooperate in them all.[42] This will become relevant when determining the possible effects of applying the Game Theory framework to match fixing in sport. Furthermore, in cases such as the present, this concept of cooperation to maintain a positive result is ‘unstable’[43] as the cooperation is difficult to maintain, therefore the positive result may not be sustainable.
The ‘Prisoner’s Dilemma’ is a concept within the framework of the Game Theory and it takes many forms.[44] It was illustrated by Albert Tucker[45] in a lecture in 1950 as follows:
‘Two gangsters, Row and Col, have been arrested for a serious crime. The district attorney gives them one hour to either confess or deny the charges. The district attorney, who took a course in game theory at university, explains that if both prisoners confess, each will be sentenced to ten years in prison. However, if one confesses and the other denies the charges, then the prisoner who confesses will be rewarded and get away with serving just one year. The other prisoner will get twenty years. Finally, if both prisoners deny the charges, each will be sentenced to two years. The prisoners are kept in separate rooms and are not allowed to communicate with each other.’[46]
Note that in this example, there was a near certainty that both Row and Col would be convicted of a lesser offence regardless and so the chance of an acquittal was minimal if at all.[47]
Tucker’s ‘Prisoner Dilemma’ is a ‘colourful illustration of a general point’,[48] Row and Col are rationally required to confess to their crimes regardless of the other player’s decision. As such, if Col confesses, then ten years in prison is better than twenty for Row and if Col denies, then one year in prison is better than two for Row. However this seems counterintuitive if, when both gangsters deny the charges, they will only receive two years imprisonment which is better than ten. The key being, neither Row not Col dare risk making the wrong decision. Hence the dilemma occurs; as long as both gangsters may be considered rational, there seems no reasonable way in which they would reach this intuitive decision.[49]
Therefore, the lesson that is to be taken from this illustration is that whenever two players (or perhaps in our case teams) are presented with different outcomes and their preferences have a sensible and similar structure, the decisions that most benefit the individual do not benefit the group. We can distil this game theory concept into the following statement: that ‘when each person in the game pursues his private interest, he does not promote the collective interest of the group.’[50] To ensure the collective interest is promoted, the duty of the law is clear: make the risk so high for the potential criminal to commit the crime, that the ‘ends’ do not justify the ‘means’ and ultimately they are deterred from acting in an unlawful manner.
A concept more akin to law and criminal justice, but still connected with game theory, is that of deterrence. The Criminal Justice Act provides that the purpose of sentencing involves ‘the reduction of crime (including its reduction by deterrence).’[51] Many commentators argue for stricter sentencing for white collar crimes because of the calculated nature of the crimes, which make them ideal for deterrence.[52] Such academics argue that if the cost of such white collar crime is increased, then the risk is too high and it would become unprofitable and so cease.[53]
Deterrence theory suggests that crime can be prevented when punishment is certain, severe and quick.[54] Bentham was responsible for the earliest formulations of the criminal deterrence theory; he was convinced that crime arose from a conscious, rational consideration.[55] Therefore, when an individual is contemplating the commission of a crime, they undertake a cost-benefit analysis and only commit the crime if the benefits sufficiently outweigh the expected costs.[56] This cost benefit analysis is the inherent principle of the prisoner’s dilemma of Game Theory. If the cost is too high, the criminal is less likely to commit the crime. Thus, according to this model of criminal justice, the task of law makers and enforcers is clear; make the costs (or risks) for the potential criminal so great that the criminal would have much more to lose than to gain from committing the crime.[57] It follows that a criminal would be deterred from committing the crime as the risk is too high. Punishment therefore creates ‘conscious and unconscious inhibitions against crime’[58] and means that society as a whole becomes more compliant. This model not only helps to deter crime, but also goes a long way to explain and prevent criminal behaviour.
Conclusively, this author submits that the economic framework of game theory is best defined as a delicate balancing act whereby the law must seek to achieve an equilibrium through which the interests of the wider group as a whole are promoted; those interests being the lawful abidance of the same rules and not cheating. More specifically, the participation in the interests of the wider group, are best encouraged when the cost of a party acting in their self-interest, no matter how intuitive, is so high and indeed certain that it outweighs the potential benefits. As such, the participant in the game is deterred from acting in their self-interest if the more rational decision is in favour of the wider group.
This chapter will now outline the issue of match fixing in sport and the problems with the current manner in which match fixing is presently being dealt. The chapter begins with a brief background to the issue, followed by a discussion of who is best placed to control the issue and finishes with some short observations on the current state of how the criminal law interacts with match fixing in sport. It will ultimately be submitted that the current way in which the law, sport and the gambling regulator deal with the problem of match fixing is insufficient. There is a need for a co-ordinated approach from all stake-holders across all jurisdictions, with the criminal law at the heart of the matter, investigating and sanctioning not only the sportsperson, but the criminal who bribed the sportsperson in the first place.
It is difficult to ascertain the first instance of match-fixing in sport, but the issue has been traced back as far as the ancient Greeks in the second century.[59]A 1,700 year old Greek contract was recently discovered dating from 267 AD. The contract pertained to a wrestling match, the final of the 138th ‘Great Antinoeia’ in which the father of one competitor contracted with the trainer of the other competitor to ‘fall three times and yield’ and in turn he would receive ‘three thousand eight hundred drachmas of silver of old coinage.’[60] Other early corruption examples are that of Eupolus of Thessaly who bribed boxers in the 98th Olympiad, Callippus of Athens who bribed the competition in order to win a pentathlon during the 112th Olympic festival and the two Egyptian boxers, Didas and Sarrapammon, who were fined for fixing the 226th Olympics.[61]
Perhaps the earliest reference to match-fixing in England and Wales is the ‘Good Friday betting scandal’ in which a number of Liverpool players received lifetime bans for fixing a football match against Manchester United.[62] Shortly after this, across the Atlantic came the ‘Black Sox scandal’ in baseball in 1919 which resulted in eight players from the Chicago White Sox receiving life-time bans for throwing the 1919 World Series for a bribe.[63] Bringing this to the present day, on 23 March 2018, Rajan Nayer, ex Cricket Zimbabwe Director received a 20 year ban from all cricket activity after offering the Zimbabwe cricket captain $30,000 to fix a match.[64] Also following a recent investigation by BuzzFeed News and the BBC, documents from the Tennis Integrity Unit show evidence of betting syndicates in Russia, Italy and Sicily making hundreds of thousands of pounds by betting on matches that investigators thought were fixed; three of which were at the Wimbledon Championships.[65]
It is evident from the foregoing that match fixing has long been on the radar of sporting NGBs and the law and that corruption still happens. This is pertinent to this paper, as despite the extensive body of corrupt occurrences in sport, the issue is yet to be tackled in a manner which truly gets to the heart of the problem. Subsequently, as Van Rompuy suggests, it is the duty of both the law and the sporting institutions themselves to formulate a response to the issue in a manner that will benefit the interests of everyone.[66]
The main issue surrounding gambling-led corruption in sport is: which of the various stakeholders or bodies should address the issue? The three main bodies that have been proposed in this respect are, the NGB (through disciplinary procedures), the betting companies (or bodies such as the UK Gambling Commission’s Sports Betting Integrity Unit) or the legal system (through domestic criminal offences).[67]
In the study of the European Commission, it was found that criminal law provisions seem to have the most effective deterrent value for doping offences and many commentators make the assertion that this could just as easily apply to match-fixing.[68] However, there is empirical evidence to suggest that the perceived likelihood of detection and enforcement – rather than the severity of the sanctions imposed – contributes more to complicit behaviour.[69] In the UK, the National Crime Agency is able to pursue match fixers through the bribery laws[70] with reasonable success.[71] However, it is not just the criminal law that may be invoked, commentators have argued that betting legislation could equally serve as a beneficial preventative policy tool on the issue of match fixing.[72]
It has likewise been argued that the NGBs are best placed to address the problem as they have all the available facts readily available. The key problem with this approach is that NGB hearings and disciplinary procedures may not be taken as seriously by the parties involved as a criminal investigation.[73] Furthermore, the sanctioning of an NGB may be considered flimsy compared to that of the criminal law. However the sporting offences are judged on a balance of probabilities as opposed to the criminal standard of beyond reasonable doubt, which may make it easier to make out a case before the NGB. Although, the collection of that evidence may be difficult without the powers that would be available to public authorities.[74] Inherently though, the argument will always be made that an NGB will not want to show their sport in a bad light, so as Beloff eloquently put it, ‘what should be a vigilant eye becomes a blind eye.’[75] The argument in favour of the betting industry (or any national body regulating said industry) addressing the issue, is that they can identify strange betting behaviour and identify trends. This is true, but a mere betting trend will not be sufficient to impose any substantive sanction on a criminal or sportsperson.[76] Therefore the singlehanded work of the betting regulator would not be sufficient to secure convictions in terms of match-fixing.
One important group in the fight against sporting corruption is the athlete or sportspersons themselves, whistleblowing should be encouraged and indeed fostered across all sporting fields and in all jurisdictions.[77] Perhaps though the most effective driver in respect of who is considered best placed to combat the issue of sports integrity, is synergy. The ideal approach must be, a mechanism of interaction for the exchange of information between the NGBs, betting regulators and public authorities responsible for investigation and sanction. This facilitates the one common aim, which is the zero tolerance approach to sport-manipulation.[78] This paper will now focus on the criminal response to sporting integrity in order to analyse the economic framework approach as it applies to this sporting issue.[79]
The leading authority in the context of match fixing in the UK is the case of R v Asif.[80] This was a Court of Appeal decision on appeal from Southwark Crown Court[81] which found three Pakistani cricketers guilty of conspiracy to do acts to enable others to cheat at gambling.[82] This followed a News of the World reporter’s investigation, who posed as a member of a gambling syndicate and approached Mazhar Majeed, who represented a number of Pakistani cricket players, to fix a test match against England. Majeed approached Salman Butt (the captain) to convince Asif and Amir to bowl ‘no balls’ at pre-determined occasions, each of the four would take a share of the money from the reporter. Majeed was sentenced to 32 months in prison, Butt 30 months and a ten year playing ban, Asif 12 months and a seven year ban and Amir six months and a five year ban. In this case, the court heard that there was a one in 1.5 million chance of guessing the exact stage in which three ‘no balls’ would happen. This is termed as ‘spot-fixing’ – betting on individual fixed occurrences within a match, this shows the breadth of the problem, there are many different ways in which synchronised gambling can ‘pollute’ sport.
This author submits that the vital flaw in this case is its very design. The News of the World reporter took on the role of the match fixer and almost ‘trapped’ the athlete. This does not remedy the situation at all, neither does it exemplify the standard form of fixing more generally. Once these sportspersons are caught in this manner, someone else will equally fall victim of a criminal’s bribery or corruption. The source of our issue was ignored in this case – that being the person who actually does the bribing themselves. In short, the offence was stimulated, which proves nothing more than a willingness on the part of the players; this may not have been the outcome in a real case.
In Germany, the prosecutor uses fraud legislation in order to convict match fixing,[83] in a recent decision by the Bochum Regional Court in 2011[84] a major actor in a transnational criminal organisation (who were instigating corruption in sport by rigging bets) was sentenced to five years and six months imprisonment. Sapina, a Croatian native (alongside his brother Ante) used a five star system to denote which games were best to bet on based on the number of players that he had bribed.[85] In that case, 50 people were arrested and charged with manipulating over 320 football matches across ten jurisdictions, these included international and European cup games. Notably, also in that case, Cvrtak received five years and six months imprisonment and Mihrlic received one year and six months imprisonment.[86]
Whilst it was a landmark case in sanctioning Sapina, Hill describes this case as the ‘jetsam and flotsam of a huge tide in global gambling’.[87] This ‘globalisation of the gambling business’ as he calls it, is making it far more difficult to obtain convictions such as these. Whilst this case prompted convictions in Switzerland and Turkey, it should be noted that this conviction stemmed from an investigation into prostitution and narcotics, and were it not for such an investigation, these white collar criminals might never have been caught. The irony of course is that just five years previously Sapina had been sentenced to 35 months imprisonment for his hand in the bribery of German National-League referee, Robert Hoyzer.[88] Therefore, how effective actually is the current criminal response to match fixing as a deterrence to the criminal?
These two simple examples bring with them many issues when we compare the approach taken between just two jurisdictions. This paper does not seek to show the many different approaches that are taken by different jurisdictions, however to establish a workable framework, it is useful to consider how cases have been dealt with in the past and how our legal systems engage with the issue.[89] For reference though, an in depth comparison of the criminal offences and penalties within EU jurisdictions is provided at Appendix 1 and a comparison of the features of national legislation globally is provided at Appendix 2.
Firstly and perhaps most importantly, in R v Asif, the defendant was the participant, however in the German Sapina case, the defendant was the originating criminal – the briber. The methodology of collecting evidence was equally dissimilar; in the UK case, an undercover journalist was used to obtain the evidence whereas in the German case, the criminal briber was caught as a result of the police investigating a wider criminal corruption issue. The German case of Sapina, taken on face value shows perhaps an inherent flaw in the way in which the criminal was dealt with; something clearly hasn’t worked correctly because five years later, the defendant committed a glaringly similar crime in a different match. Another observation arising out of the German jurisprudence is their utility for other jurisdictions in helping address a similar issue.[90]
This multi-jurisdictional element to sport is one that can be a stumbling block when we consider how to implement a uniform criminal framework to the issue.[91] With the increased use of technology to gamble on sport, it is much more difficult to regulate the betting industry on the part of one jurisdiction.[92] Even in the Sapina case, the defendant stated ‘in the normal markets it is just not possible to make the kind of money you can win in Asia.’[93] However in the context of the German jurisprudence, the international element actually helped to foster criminal justice. This relates back to the idea that many commentators have proposed – the bulk of successful investigations into match fixing all result from ‘spill-overs’ from other jurisdictions.[94]
The common thread that has ran through each of these investigations[95] is that either, convictions have stemmed from spill overs from other jurisdictions[96] (sometimes equally, they have helped to encourage investigation in other jurisdictions, as in the German case) or have involved a cross jurisdictional argument at first instance or on appeal.[97] Even Britain, considered to be one of the most liberal jurisdictions in terms of gambling and the best regulated by the Gambling Commission, are still grappling with how to combat the jurisdictional issue.[98] Commentators are divided, Peurala has argued for an international instrument which contains mandatory provisions covering match-fixing,[99] whilst the International Olympic Committee and UNDOC paper submits that jurisdictions themselves need to implement specific match-fixing legislation.[100]
As Secretary General Noble of INTERPOL put it in a recent summit, ‘as corruption in sports has become a global concern, our response must also be global and holistic. We need to bring together all stakeholders to develop a proactive and sustainable approach to fight this scourge.’[101] Nonetheless, international policing is currently ill-equipped to deal with the issue of match fixing.[102] So the time may then be right for an equivalent to the World Anti-Doping Agency (WADA) for sports integrity with a code of uniform, universally accepted rules.[103] Although the argument has been put forward, that a major part of match fixing requires intervention by the criminal law of the state, by police and through the legal framework of the particular jurisdiction,[104] consequently it is almost impossible to harmonise the existing criminal processes through the implementation of a code.[105] Ultimately though, the main concern to this author is that while the problem of match fixing has gone global – the legal reaction to the problem however remains bound by jurisdictional differences of approach.
In sum it is extremely important that the NGB, the gambling regulator and the law are all involved in the fight against match-fixing. However, the criminal law has at its disposal the ability to investigate through whatever means necessary the issue of match-fixing. What is more, a legal response to the issue can impose sanctions on the criminal (that being the actual originating criminal, not solely the sportsperson) that are proportionate to the crime that has been committed. This author agrees with the submission of Van Rumpuy[106] that the issue requires a coordinated response by all the stakeholders, however the ability to strike at the heart of the corruption falls upon criminal law. The major shortcoming of this approach, is the restriction of the criminal response’s influence to the legal framework of the individual jurisdiction. This does not sufficiently account for the rapid internationalisation of sport betting and necessitates a recalibration of the method of addressing gambling led corruption in sport.
As outlined in chapter three, there are various deficiencies with the current approach that is taken to match-fixing in sport in general.[107] This author does not wish to remedy them all, however the simple illustration of the prisoner’s dilemma from chapter two is useful to demonstrate the broad problem with the current model of controlling the issue of match fixing. The aim will always be compliance – establishing the ‘saddle point’ that Nash coined; whereby all participants act in the interest of the group as a whole, in our context that means playing by the rules and not cheating. This paper contends that there is a lack of such an equilibrium in the current approach.
Why do both Row and Col confess to their crimes in Tucker’s illustration?[108] The key to this nexus of positive decisions is that the district attorney presents the pair with a set of outcomes, some of which are extremely negative, some of which are quite amicable and some which strike a fair balance between the two – the ‘safe decision’. The risk of one person denying whilst the other confessing is too high for either person to make the unstable decision of denying their crimes, regardless of the fact that if both persons decided to deny, the results are extremely profitable. Therefore the most rational decision that is left is the middle ground, the saddle point that nurtures compliance.[109]
This author submits that the current approach to controlling match fixing does not present the athlete, nor the briber with such a set of circumstances. As such the athlete is presented with a ‘prisoner’s dilemma,’[110] not a dilemma that strikes a fair balance between the negative and positive outcomes, but one that makes it all too easy for the crime to be committed, the profits gained and the probability of detection (never mind conviction) minimal. The main issue being, the current state of play with match fixing has led to our current circumstance whereby crime pays, the purpose of the framework to control the issue of bad sporting integrity should foster the principle that crime does not pay.
When one takes a step back again, it is impossible for this dilemma to even be presented to the potential criminal in the first place if the crime goes unnoticed due to a flawed investigation process, lack of specialist knowledge, absence of cross-jurisdictional coordination or perhaps just a reluctance to admit that there is an issue in the first place! The simple lesson that is taken from theories of deterrence is that the perceived likelihood of detection and enforcement contributes to complicit behaviour, not only the severity of the sanctions imposed.[111] The control measures in place for match fixing on a prima facie basis are insufficient to deter a criminal and when we study deeper, although athletes would clearly be better off in a fix-free world, the advantages of accepting a bribe so outweigh the likelihood of getting caught that the system works to ensure that athletes continue to engage in a ‘cheating game’.[112]
Accordingly, using the economic framework to establish a new method of combatting the prevalent match-fixing issue, this paper will now consider what changes must be made in order to better control the problem. The paper will use the main objectives that were included in the Council of Europe Convention on the Manipulation of Sports Competitions as headings; being detection, sanction and deterrence,[113] but with the addition of the proposed middle ‘investigation’ stage. Put simply, this author proposes that a rethink of the model of combatting match-fixing internationally, will create a more robust method of control which will not only generate better legal certainty, but also provide for a better vehicle for deterrence to the modern day match fixing criminal.
The case for specific sports manipulation legislation has been made out by many authors[114] however this has been pitted against the opinion that if such a piece of legislation were to go on the statute books, it would be a mere exercise to capture headlines rather than misconduct.[115] The way in which to reconcile these two differences of opinion is to combine the work of an international body with an identifiable code (akin to that of the WADA)[116] with a robust domestic framework of legislative and procedural reform.
At its most basic level, such a body could be ‘called upon’ by various jurisdictions to avail of its specific knowledge and expertise to investigate a suspected fix based on data from worldwide sources. This would not only overcome the jurisdictional issue (such a body would bring about cohesion between national sporting bodies, national gambling regulators and the legal systems of jurisdictions worldwide) but help the law to keep up with such a fast developing issue (the body could hold a database of historical investigations in order to better understand the structures and methodologies of the crime networks engaged in match fixing and assist future investigations). A further developed approach however, would be if legal jurisdictions were to confer statutory powers of detection and investigation on such a body – this would overcome the argument put forward by this paper that our legal responses to match fixing are too reactive and do not prevent or deter a match fix from happening.
Inherent to the game theory concepts that this paper applies to match fixing is the idea that in order for our legal systems to best interact with the issue of match fixing, we must be able to predict when (or indeed why) a match fix is happening. Tarasti outlines the 3 necessary requirements to detect with sufficient proof when a match fix has occurred.
‘(a)information on unusual procedures in a match or competition;
(b)information on unusual deviations in betting; and
(c)information on movements of money.’[117]
Without detection, the athlete or briber is presented with a prisoner’s dilemma; the probability of being detected, or sanctioned is so low that it has become far too easy for a criminal to successfully fix a match. This also adds to the framework of deterrence – if a criminal knows that the likelihood of being caught is low, they are less likely to comply and more likely to commit the crime.[118] Tarasti notes that the betting companies alone do not have sufficient evidence to obtain criminal convictions.[119] So the sensible solution is for such an international body to ‘pull resources’ and expertise so that evidence gathering from NGBs, the gambling companies or regulators and the legal investigatory bodies becomes seamless and coordinated, and the likelihood of detection increased.[120]
Linked to the issue of detection is the problem of investigation. It has been suggested that investigation needs to start with the disciplinary procedures.[121] There is merit in this approach, however this author submits that the investigation must not top there. As already presented, the sporting disciplinary burden is on the balance of probabilities whilst the criminal burden is that of beyond reasonable doubt, so perhaps the threshold is easier to meet. This presents the need for clear provisions for investigatory powers included in the disciplinary procedures that are contracted between sportsperson and sporting body. The issue with a heavy focus on disciplinary procedure is twofold: first, the sanctioning power of a sporting body is arguably too low and second, a sporting body cannot follow through with investigations of the originating criminal – the briber themselves.
A world integrity body would be able to coordinate investigations on a global scale and not be confined by either jurisdictional issues or confined to one sport. The advantages of investigating the originating criminal (the briber themselves) are self-explanatory. Rather than our current legal framework of investigating individual athletes, whereby a briber will simply move on to a different jurisdiction, different sport or another athlete, a world body could strike at the heart of the criminal issue. This would prevent further corruption by investigating and sanctioning the corrupt, bribing criminal themselves. Moreover, such an approach will result in a better knowledge of the criminal organisations who are at play and even uncover other offences or implicate other criminals. This process would be tightened even more if jurisdictions were to give such an international body statutory powers to detect and investigate the issue more deeply.
The lines between disciplinary sanction and legal sanction are perhaps not altogether clearly drawn; in some instances, courts take into account the sanctions of disciplinary proceedings.[122] Ultimately however, the likelihood of sanction is too low[123] and indeed there is a lack of harmony across jurisdictions as to what severity of sanction is appropriate.[124] This paper not only acknowledges such a disparity but submits that such an inherently corrupt crime as match fixing, the proceeds of which are laundered through other criminal means and used to fund other criminal activity, should be sanctioned heavily by our criminal law.
All legal jurisdictions must acknowledge the magnitude of the issue of match-fixing that severs not only the very basis upon which sport is founded, but amounts to a myriad of criminal offences such as bribery, gambling offences, corruption, fraud, criminal collusion, criminal conspiracy and in some cases a contravention of specialist sports legislation.[125] Once this is recognised, a harmonised legislative process should sufficiently and proportionately sanction the criminal.[126] In application of the prisoner’s dilemma to this aspect of our legal process, if the sanctions for such an offence were more stringent and certain, the ‘ends’ would not justify the ‘means’ and the potential criminal would be deterred. The prisoner’s dilemma would be removed from match fixing as the potential benefits of fixing a match would no longer outweigh the risk of being caught and sanctioned heavily. Therefore the equilibrium of game theory would be restored and so too would the idea of a level playing field and fair competition within the context of the sports match.
At jurisdictional level, there must exist an understanding of the scale of the issue of match fixing. Criminal law and disciplinary proceedings must take a bright-line rule approach to the issue which cultivates legal certainty. This may mean the adoption of specific sports law legislation with explicit reference to gambling-led corruption or even the simple application of existing criminal offences in a clear manner so as to send out the clear message that the criminal law will not take the issue lightly. Perhaps though, a recalibration of focus, placing emphasis on the investigation and sanction of the briber themselves would be the most advantageous in striking at the heart of the match fixing epidemic.
NGBs must take an equally stringent approach – the zero tolerance attitude should ring true from all stakeholders. If an athlete is aware of the possible outcomes of accepting a bribe, the allure of the crime becomes a lot less appealing. Equally so, facilities to ‘whistle blow’ must be made clear and accessible not only to protect the integrity of the sport, but to assist in the investigation of the briber under criminal law. Furthermore, communication between gambling companies and the relevant gambling regulator should be seamless; in a world in which a bet can be placed ‘in-play’ in a split second on a mobile device - detection must be equally quick and certain.
The main proposal of this paper however is this, with such a wide ranging issue that affects many stakeholders, many jurisdictions and many sports, the argument for an international body to regulate this problem is clear. For too long, individual jurisdictions have tried to grapple with the problem of match fixing only to realise that a more deep-seated and untoward criminal process is at play. If we are to truly eradicate the issue of match fixing in sport (as has been done to a certain extent with doping), an international response is the most workable. Such a body would be the ‘go to’ in issues of match fixing in sport, holding a database that can assist with investigations, with information from gambling regulators, sporting bodies and criminal investigations. This would make communication between the relevant bodies seamless, on an international level and would be proportionate to the criminals’ rapid internationalisation. The emphasis would remain on the briber, but investigations into the actions of the athletes themselves to assist the NGBs in their disciplinary process would also be necessary. This body would cut across all sports and all jurisdictions to coordinate a specialist approach to match-fixing. Furthermore, facilities for whistleblowing would be provided by the body in order to unify the best approach.
At its basic level, a body such as this would be available to the jurisdiction in question to avail of its specialist knowledge and expertise – a ubiquitous resource for a criminal jurisdiction or an NGB to use. Ideally though, if jurisdictions were to give such a body statutory power, it could operate at a more meaningful level, not only assisting with the investigatory process, but equally with detection and (within reason) sanction. This nurtures a ‘pro-active response’ to match fixing instead of the current, somewhat lethargic ‘reactive response’ after a match fix has occurred. The beauty of such a body however is its ability to focus on the briber themselves; when we remove the confines of criminal jurisdiction, an international body can focus efforts on investigating the briber whose actions cause such corruption and exploitation of an activity whose social, economic and cultural utility is immense.
This paper has demonstrated the utility of applying an economic framework to the issue of gambling led corruption in sport. Having established a summary of the literature on the subject of sporting regulation and more specifically, match fixing in sport, the paper outlined the theoretical framework found in economics. Game Theory[127] principles were used to understand how match fixing manifests itself as a result of the corrupt practices of white collar criminal organisations. This demonstrated that athletes are placed in a ‘prisoners dilemma’ whereby seemingly the most lucrative option is to accept a bribe and to fix a match. The way to reconcile this issue is found in principles of deterrence – if the certainty and severity of punishment is sufficiently high, the criminal will be deterred from fixing a match.
The issue of who should manage the issue of match fixing in sport was discussed and the sensible conclusion came in the form of synergy. A coordinated approach from all stakeholders is necessary to develop an effective response to match fixing. However, the duty ultimately lies with the criminal law, whose investigatory and sanctioning powers far outweigh any civil responses. The paper analysed the approach taken by two separate legal systems by way of an illustration of the shortcomings of the criminal law. The only way to effectively remedy this multi-jurisdictional issue and to keep up with the internationalisation of the gambling sector would be for an international body to coordinate the response to match fixing across all jurisdictions.
In application of the economic framework to the contemporary match-fixing issue, the need for a recalibration in the focus of our legal response was outlined. In order to remove the sportsperson’s dilemma, procedures must be tightened. At its primary stage, match fixing must be detected; the requisite elements of a criminal charge necessitate a harmonised approach which gathers data from all stakeholders. Once an international body was given responsibility to detect and investigate a match fix, the certainty of being caught increases and the allure of the crime becomes less profitable. Investigation must not only focus on the athlete, but strike at the heart of the problem by sanctioning the criminal briber whose actions are so malicious and corrupt, that they necessitate a stringent penalty for their crimes.
The main argument in favour of a criminal response to match fixing is their ability to sanction heavily and proportionately to the crime committed. This paper has submitted that once legal systems appreciate the magnitude of the issue of match fixing, stringent penalties must be enforced to sufficiently deter both the athlete and bribing criminal. It was therefore recommended that all stakeholders must coordinate their response to match fixing globally and the best way for this to happen is through the introduction of an international body to aid legal jurisdictions in their criminal processes of combatting match fixing. The basic function of which would be to assist the jurisdiction, but a more effective approach would be the conferment of statutory powers on such an international body so that they may operate at a more meaningful level across all sports and jurisdictions. The purposes and effectiveness of such a body is an area that requires further research beyond the scope of this paper.
In sum, it is clear from the volume of cases that make the headlines around corruption in sport, that the issue needs to be better addressed by our legal systems. A coordinated approach is necessary to detect and investigate the issue. The sanctioning power however falls on the criminal law. This paper has concluded in answer to the initial research question, that the current legal response to match fixing is insufficient, the major reasons being twofold. First, the criminal law has been unable to keep up with the rapid internationalisation of the gambling market which has meant that criminals can disappear to the cover of a different jurisdiction and avoid being sanctioned. Second, the focus tends to be on the athlete instead of the more insidious acts of the instigating bribing criminal. The economic framework as it applies to the issue of match fixing tells us that our response must be that of zero tolerance that leads to the probability of being caught and sanctioned outweighing the potential benefits of fixing a match. The solution of the issues raised in this research paper is the implementation of a world body to harmonise a more focused approach to issues of sporting integrity and gambling led corruption. This would not only generate greater coordination, but allow the clear message to be sent out to potential white collar criminals that match fixing will not be tolerated and as such the legal response is one that is informed, effective and stringent.
REFERENCES
[1] Muhammed Cohen, ‘As VIP Play Shrinks And Shifts, Morgan Stanley Upbeat On Global Gaming’ (Forbes, 7 April 2015) <https://www.forbes.com/sites/muhammadcohen/2015/04/07/as-vip-play-shrinks-and-shifts-morgan-stanley-upbeat-on-global-gaming/#552d899333c1> accessed 15 April 2018.
[2] The Gambling Commission, ‘Industry Statistics’ (The Gambling Commission, 15 January 2018) < http://live-gamblecom.cloud.contensis.com/PDF/survey-data/Gambling-industry-statistics.pdf> accessed 15 April 2018.
[3] The Economist, ‘The fix is out’ (The Economist, 15 May 2014) <https://www.economist.com/blogs/gametheory/2014/05/crime-and-sport> accessed 15 April 2018.
[4] Farrukh B. Hakeem, ‘Sports-Related Crime: A Game Theory Approach’ in M.R. Haberfeld and Dale Sheehan (eds), Match-Fixing in International Sports Existing Processes, Law Enforcement, and Prevention Strategies (Springer International Publishing Switzerland 2013) 247.
[5] For example, see: The Sports Betting Integrity Panel, ‘Report of the Sports Betting Integrity Panel’ (Sports Betting Group, February 2010) < http://www.sportsbettinggroup.org/downloads/Report%20of%20the%20Sports%20Betting%20Integrity%20Panel%20-%20Feb%202010.pdf> accessed 15 April 2018.
[6] For a good outline of the debate on the regulatory mix between public actors and private actors, see: Tamás Sárközy, ‘Regulation in Sport as a Borderline Case between State and Law Regulation and Self-Regulation’ [2001] 42 T. Acta Juridica Hungarica 159. cf. Gordon Hylton, 'How FIFA Used the Principle of Autonomy of Sport to Shield Corruption in the Sepp Blatter Era.' [2017] 32 Md J Int'l L 134, 145.
[7] Andrew Holden, 'Judicial Control of Sporting Bodies.' (1965) 1(1) Otago L Rev 34, 34-35.
[8] Mark James, Sports Law (3rd edn, Palgrave Law Masters 2017), 29. Also note that NGBs are private bodies and not available for judicial review: R v Disciplinary Committee of the Jockey Club (ex parte Aga Khan) [1993] 1 WLR 909 and: Jack Anderson, 'An Accident of History: Why the Decisions of Sports Governing Bodies Are Not Amenable to Judicial Review' [2006] 35(3) Comm L World Rev 173. However courts do imply contracts between participants and NGBs; Modahl v British Athletic Federation Ltd [2001] EWCA Civ 1447, [2002] 1 WLR 1192.
[9] ibid 37. Similarly for doping see: Jack Anderson, Modern Sports Law (Hart Publishing 2010) 119.
[10]For example: R. v Majeed (Mazhar) [2012] EWCA Crim 1186, [2013] 1 WLR 1041. The case involved Majeed, who represented some of the cricketers on the Pakistani Cricket Team organising to fix an English test match. He received 32 months’ imprisonment. See: [3.4.1] of this paper for a deeper analysis.
[11] Paul Scotney, ‘Establishing an Effective Anti-Corruption Strategy’ 11(4) World Sports Law Report 14. cf. Richard McLaren, ‘The Role of CAS in Sports Fraud’ [2014] International Sports Law Review 35.
[12] Council of Europe Convention on the Manipulation of Sports Competitions [2014] 18.IX.2014 a.1. (not yet ratified under EU law, but will be signed by the UK this year) cf. European Scrutiny Committee, International Cooperation to Combat Match-Fixing (HC 2017-19, 301-xix) 5-7.
[13] Stephen Weatherill, ‘The Helsinki Report on Sport’ [2000] ELR 282, 291.cf. Case C-415/93 URBSFA v. Bosman [1995] ECR I-4921. This decision banned restrictions on foreign EU players within national leagues and allowed players in the EU to move to another club at the end of a contract without a transfer fee.
[14] Richard Parrish, Sports Law and Policy in the European Union (Manchester University Press 2003) 160.
[15] Erika Szyszczak, ‘Competition and Sport’ [2007] E. L. Rev 95, 95.
[16] For a discussion of the ‘lex sportiva’ autonomy of sport doctrine of traditional sports throughout the twentieth century, see: Jean-Loup Chappelet, ‘Autonomy and Governance: Necessary Bedfellows in the Fight Against Corruption in Sport’ (2016) Global Corruption Report: Sport <https://www.transparency.org/files/content/feature/1.3_AutonomyAndGovernance_Chappelet_GCRSport.pdf> accessed 5 December 2017.
[17] Michaël Mrkonjic, ‘Sports Organisations, Autonomy and Good Governance’ (2013) Action for Good Governance in Sport Organisations Final Report 133 <http://www.playthegame.org/fileadmin/documents/Good_governance_reports/AGGIS_Final_report.pdf> accessed 5 December 2017.
[18] Jonathan Mance, ‘Arbitration: a Law Unto Itself?’ (2016) 32 (2) OUP <https://academic.oup.com/arbitration/article/32/2/223/1741464> accessed 5 December 2017.
[19] Tom Serby, ‘Sports Corruption: Sporting Autonomy, Lex Sportiva and the Rule of Law’ [2017] 15(1) Entertainment and Sports Law Journal 2, 6.
[20] Ben Van Rompuy, ‘Effective sanctioning of match-fixing: the need for a two-track approach’ (2013) 1 ICLS< https://www.renevanmaarsseveen.nl/wp-content/uploads/overig3/effective%20sanctioning%20matchfixing.pdf> accessed 5 December 2017.
[21] Kevin Carpenter, ‘Why are countries taking so long to act on issues of match-fixing?’ (2016) Global Corruption Report: Sport < http://captivatelegalsports.com/wp-content/uploads/2015/08/Feature_TakingLongMatchFixing_Carpenter_GCRSport.pdf> accessed 5 December 2017.
[22] United Nations Office on Drugs and Crime and International Olympic Committee, ‘Criminalization approaches to combat match-fixing and illegal / irregular betting: A global perspective’ (UNDOC, July 2013), 301<https://www.unodc.org/documents/corruption/Publications/2013/Criminalization_approaches_to_combat_match-fixing.pdf> accessed 3 April 2018.
[23] ibid.
[24] Van Rumpuy (n 20).
[25] For an outline of the EU member states who do not have any domestic match-fixing legal framework, see: Council of Europe Committee on Crime Problems, ‘Feasibility study on criminal law on promotion of the integrity of sport against manipulation of results, notably match-fixing’ [2012] CDPC 1, 3.
[26] Kevin Carpenter, ‘Match Fixing – the biggest threat to sport in the 21st century?’ [2012] 2 ISLR 13, 17.
[27] Emmanuel Bayle & Leigh Robinson, ‘A Framework for Understanding the Performance of National Governing Bodies of Sport’ [2007] 7 European Sport Management Quarterly 249, 259.
[28] Carpenter (n 26) 9.
[29] The Governance of Sport HL Bill (2014) 20 s9 (3c) b.
[30] FIFA Media Release, ‘FIFA’s historic contribution to INTERPOL in fight against match-fixing’ (FIFA, 9 May 2011) < http://www.fifa.com/governance/news/y=2011/m=5/news=fifa-historic-contribution-interpol-fight-against-match-fixing-1431884.html> accessed 19 December 2017.
[31] Pertaining to criminal sanctioning of violence, but nonetheless relevant, see: Jeffrey Standen, ‘The Many Sports: The Problematic Use of Criminal Law to Regulate Sports Violence’ [2009] 99 Journal of Criminal Law and Criminology 619, 637.
[32] Richard McLaren, 'Is Sport Losing Its Integrity' [2011] 21(2) Marq Sports L Rev 551, 557.
[33] Ian Blackshaw, 'Match Fixing in Sport: A Top Priority and Ongoing Challenge for Sports Governing Bodies’ [2013] 46(4) De Jure 945, pp. 946-946.
[34] Andrew Smith, 'All Bets are Off: Match Fixing in Sport - Some Recent Developments’ [2011] 9(1) ESLJ 62, 63.
[35] Ronald Knoble, ‘Foreword’ in Haberfield and Sheehan (eds), Match Fixing in International Sports, Existing Processes, Law Enforcement and Prevention Strategies (Springer International Publishing Switzerland, 2013).
[36] For an overview of the theory see: Roger Myerson, Game Theory: Analysis of Conflict (first published 1991, Harvard University Press) 1.
[37] Albert Tucker, ‘The Mathematics of Tucker: A Sampler’ [1983] 2 The Two Year College Mathematics Journal 228.
[38] First developed in their publication, John Von Neumann and Oskar Morgenstern, The Theory of Games and Economic Behaviour (first published 1984, Princeton University Press 2004) 1.
[39] Farrukh B. Hakeem, ‘Sports-Related Crime: A Game Theory Approach’ in M.R. Haberfeld and Dale Sheehan (eds), Match-Fixing in International Sports Existing Processes, Law Enforcement, and Prevention Strategies (Springer International Publishing Switzerland 2013) 247.
Also see: Avinash Dixit and Barry Nalebuff. ‘Game Theory’ The Concise Encyclopedia of Economics. David R. Henderson, ed. Originally published as, The Fortune Encyclopedia of Economics, (Warner Books 1993). Library of Economics and Liberty <http://www.econlib.org/library/Enc1/GameTheory.html> accessed 29 December 2017.
[40] John F. Nash, ‘Equilibrium points in n-person games’ [1950] 36 PNAS 48, 49.
[41] Proof of the existence of this was found in Kakutani’s fixed point theorem, see; Shizuo Kakutani, ‘A generalisation of Brower’s Fixed Point Theorem’ [1941] 8 Duke Math J 457.
[42] Randal C. Picker, ‘An Introduction to Game theory and the Law’ [1994] Coase-Sandor Institute for Law & Economics Working Paper No. 22 <https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1049&context=law_and_economics> accessed 29 December 2017.
[43] Charles Holt and Alvin Roth, “The Nash Equilibrium: A Perspective” [2004] 101 PNAS 3999, 4000.
[44]Ken Binmore, “Why All the Fuss? The Many Aspects of the Prisoner's Dilemma” in Martin Peterson (ed), The Prisoner's Dilemma (Cambridge University Press 2015) 16.
[45] Tucker (n 37).
[46] Martin Peterson, “Introduction” in Martin Peterson (ed), The Prisoner's Dilemma (Cambridge University Press 2015) 1.
[47] ibid.
[48] Peterson (n 46) 1.
[49] László Mérő, ‘The Prisoner’s Dilemma’ In: Moral Calculations. (first published Springer-Verlag New York, Inc. 1998, Springer New York 1998) 28. László describes the prisoner’s dilemma as the “rubber bone” of game theory; it can be chewed over forever.
[50] Avinash Dixit and Barry Nalebuff. ‘Prisoners’ Dilemma’ The Concise Encyclopedia of Economics. David R. Henderson, ed. Originally published as, The Fortune Encyclopedia of Economics, (Warner Books 1993). Library of Economics and Liberty <http://www.econlib.org/library/Enc1/PrisonersDilemma.html> accessed 29 December 2017.
[51] Criminal Justice Act 2003, s142(1) (b).
[52] Stephanos Bibas, ‘White-Collar Plea Bargaining and Sentencing after Booker’ [2005] 47 William and Mary Law Review 721, 724.
[53] See generally: Richard Posner, An Economic Analysis of the Law (New York: Little, Brown and Company 2007).
[54] See: John Eassey and John Boman, ‘Deterrence Theory’ in W. G. Jennings (ed.), The Encyclopedia of Crime and Punishment (Wiley Blackwell 2016).
[55] Jeremy Bentham, Principles of Penal Law (W. Tait 1843).
[56] See also, Johannes Andenaes, Punishment and Deterrence (The University of Michigan Press 1974).
[57] Kevin Kennedy, ‘A Critical Appraisal of Criminal Deterrence Theory’ [1984] 88 Dick. L. Rev. 1, 2.
[58] Johannes Andenaes, ‘General Prevention: Illusion or Reality?’[1952] 43 J. Crim. L. 176, 179.
[59] Arthur Harris, Greek athletes and athletics (London: Hutchinson, 1964).
[60] For a report on the archaeological findings, see Owen Jarus, ‘Body Slam This! Ancient Wrestling Was Fixed!’ (Live Science, 16 April 2014) <https://www.livescience.com/44867-ancient-wrestling-match-was-fixed.html> accessed 15 January 2018.
[61] Christian Habicht, Pausanias’ Guidebook to Ancient Greece (University of California Press 1998). See also, Karen Jones, ‘Compliance Mechanism as a Tool for Prevention?’ in M.R. Haberfeld and Dale Sheehan (eds), Match-Fixing in International Sports Existing Processes, Law Enforcement, and Prevention Strategies (Springer International Publishing Switzerland 2013) 199, 201.
[62] Tom Airey & Paul Burnell, ‘Man Utd v Liverpool: The 1915 Good Friday betting scandal’ (BBC News, 3 April 2015) < http://www.bbc.co.uk/news/uk-england-manchester-32152534> accessed 15 January 2018.
[63] Encyclopædia Britannica Editors, ‘Black Sox Scandal’ (Encyclopædia Britannica, 4 March 2014) <https://www.britannica.com/event/Black-Sox-Scandal> accessed 15 January 2018.
[64] BBC Sport, ‘Zimbabwe official given 20-year ban for match-fixing attempt’ (BBC News, 27 March 2018) <http://www.bbc.co.uk/sport/cricket/43555387> accessed 27 March 2018.
[65] Simon Cox, ‘Tennis match fixing: Evidence of suspected match fixing revealed’ (BBC News, 18 January 2016) < http://www.bbc.co.uk/sport/tennis/35319202> accessed 27 March 2018.
[66] See: Ben Van Rompuy, ‘Effective sanctioning of match-fixing: the need for a two-track approach’ (2013) 1 ICLS.
[67] For a good description of the interaction between these bodies, see: Salomeja Zaksaite, ‘Match-fixing: the shifting interplay between tactics, disciplinary offence and crime’ [2013] 13 In Sports Law J 287.
[68] Alexandre Husting et al, ‘Match-fixing in sport: a mapping of criminal law provisions in EU’ (27 Study for the European Commission 2012).
[69] Christine Parker, ‘Criminal Cartel Sanctions and Compliance: The Gap Between Rhetoric and Reality’ in Caron Beaton-Wells and Ariel Ezrachi (eds), Criminalising Cartels Critical Studies of an International Regulator Movement (Hart Publishing 2011) ch 11.
[70] Bribery Act 2010.
[71] Claire Duffin, ‘Business men jailed for five years for match fixing scandal’ (The Telegraph, 20th June 2014) <https://www.telegraph.co.uk/sport/football/10914440/Businessmen-jailed-for-five-years-over-match-fixing-scandal.html> accessed 27 March 2018.
[72] Alexandra Veathey, ‘Match-fixing and governance in cricket and football: what is the fix?’ [2014] 14 Int Sports Law J 81, 107. cf. Simon Gardiner & Urvasi Naidoo, ‘On the front foot against corruption’ [2007] 15 Sport Law J 16, 23.
[73] Lauri Tarasti, ‘First international convention against sport manipulation’ [2015] International Sports Law Review 20, 24.
[74] Ken Foster, ‘Is there a Global Sports Law?’ in Robert Siekmnn & Janwillem Soek (eds), Lex Sportiva: What is Sports Law? (The Hague, 2012), pp 40-41.
[75] Michael Beloff QC, ‘Sport, ethics and the law’ [2017] International Sports Law Review 3, 4.
[76] Tarasti (n 73) 23.
[77] ibid 23.
[78] Laila Mintas, ‘Integrity: FIFA’s early warning system: the fight against match fixing’ [2012] 10 World Sports Law Rep 10. See also the Italian legislation in this regard, ‘Legge 13 Dicembre 1989, n. 401’ (Law of 13 December 1989, Nr 401).
[79] Chapter 4 will then apply the economic theory framework to the example of match-fixing in sport in order to assess the utility of the framework as it applies in this context.
[80] R v Asif [2013] EWCA Crim 1153, [2013] WL 3353686. See also the other appeals; R v Majeed [2012] EWCA Crim 1186, [2013] 1 WLR1041, R v Amir [2011] EWCA Crim 2941, [2012] 2 Crim App R (S). Note that all of the appeals were dismissed and the convictions were safe.
[81] R v Majeed, Butt, Asif and Amir (unreported) Southwark Crown Court, 3 November 2011. cf. Re Quinn, Fitzsimmons, Doe, Fairley, Milczarek and Others (Decision of the British. Horse Race Authority, 15 December 2011). The major contrast being that this case was dealt with entirely by the NGB despite evidence of conspiracies to defraud and to cheat at gambling. This illustrates the strange nexus in the UK between NGB disciplinary procedures and the remit of the criminal law.
[82] Prevention of Corruption Act 1906 s.1(1) and Gambling Act 2005 s.42 – cheating at gambling.
[83] The Criminal Code 1871 (last amended by Article 6(18) of the Law of 10.10.2013), (Federal Law Gazette I p 3799).
[84] LG Bochum 12 KLs 35 Js 141/10 – 16/11.
[85] Thomas Feltes, ‘Match Fixing in Western Europe’ in M.R. Haberfeld and Dale Sheehan (eds), Match-Fixing in International Sports Existing Processes, Law Enforcement, and Prevention Strategies (Springer International Publishing Switzerland 2013) 15, 23.
[86] LG Bochomn (n 84).
[87] Declan Hill, The Fix (McClelland & Stewart: Toronto 2010).
[88] LG Berlin (512) 68 Js 451/05 Kls (42/05) and (512) 68 Js 451/05 Kls (25/05).
[89] For a comparative work on the criminal law provisions in the EU member states, see: Alexandre Husting et al, ‘Match-fixing in sport: a mapping of criminal law provisions in EU’ (27 Study for the European Commission 2012). cf. The international comparisons which can be found in: International Olympic Committee and United Nations Office on Drugs and Crime, Criminalization Approaches to Combat Match-Fixing and Illegal/Irregular Betting: A Global Perspective (Lausanne: IOC, 2013) 1 <www.olympic.org/Documents/Commissions_PDFfiles/Ethics/Publication-Criminalization- approaches-to-combat-match-fixing.pdf> accessed 5 December 2017.
[90] That particular case sparked investigations in Switzerland, Belgium and Turkey, see: BBC Sport, ‘European Match Fixing Gang Sent to Prison in Germany’ (BBC Sport, 19 May 2011). <http://www.bbc.co.uk/sport/football/13462375> accessed 10 April 2018.
[91] Hill (n 87).
[92] See generally: International Olympic Committee and United Nations Office on Drugs and Crime, Criminalization Approaches to Combat Match-Fixing and Illegal/Irregular Betting: A Global Perspective (Lausanne: IOC, 2013) 1 <www.olympic.org/Documents/Commissions_PDFfiles/Ethics/Publication-Criminalization- approaches-to-combat-match-fixing.pdf> accessed 5 December 2017.
[93] Eric Pfanner, ‘Corruption Eroding Level Playing Fields of Europe’ (The New York Times, 7 January 2011) <https://www.nytimes.com/2011/01/07/sports/soccer/07iht-match07.html> accessed 20 January 2018.
[94] Van Rumpuy (n 66).
[95] Husting (n 89).
[96] Van Rumpuy (n 66).
[97] In R v Majeed [2012] EWCA Crim 1186, [2013] 1 WLR1041, one of the main grounds of appeal was whether the UK had jurisdiction to convict under the Gambling Act 2005.
[98] ibid.
[99] Johanna Peurala, ‘Match-manipulation in football – the challenges faced in Finland’ [2013] 13 Int Sports Law J 268, 282.
[100] IOC (n 92).
[101] Interpol Media Release, ‘Keeping sport clean needs enhanced policing prevention, INTERPOL chief tells summit’ (INTERPOL, 25 April 2012) < https://www.interpol.int/en/News-and-media/News/2012/PR036> last accessed 10 April 2018.
[102] Andy Brown, ‘Sport must tackle betting-related corruption’ (World Sports Law Report, November 15 2013) <http://e-comlaw.com/sportslawblog/template_permalink.asp?id=538> accessed 5 December 2017.
[103] Matthew Mitten & Hayden Opie, ‘Implications for the Development of International, Comparative and National Law and Global Dispute Resolution’ in Robert Sekmann & Janwillem Soek (eds.), Lex Sportiva: What is Sports Law?’ (The Hague 2012), pp. 182-185.
[104] Tarasti (n 73) 27.
[105] However, the significance of the EU convention will go a long way to align members’ interests: Council of Europe Convention on the Manipulation of Sports Competitions [2014] 18.IX.2014 a.1.
[106] Van Rumpuy (n 66).
[107] See: Kevin Carpenter, ‘Why are countries taking so long to act on issues of match-fixing?’ (2016) Global Corruption Report: Sport < http://captivatelegalsports.com/wp-content/uploads/2015/08/Feature_TakingLongMatchFixing_Carpenter_GCRSport.pdf> accessed 6 April 2018.
[108] Albert Tucker, ‘The Mathematics of Tucker: A Sampler’ [1983] 2 The Two Year College Mathematics Journal 228.
[109] John F. Nash, ‘Equilibrium points in n-person games’ [1950] 36 PNAS 48, 49.
[110] Ken Binmore, “Why All the Fuss? The Many Aspects of the Prisoner's Dilemma” in Martin Peterson (ed), The Prisoner's Dilemma (Cambridge University Press 2015) 16.
[111] Christine Parker, ‘Criminal Cartel Sanctions and Compliance: The Gap Between Rhetoric and Reality’ in Caron Beaton-Wells and Ariel Ezrachi (eds), Criminalising Cartels Critical Studies of an International Regulator Movement (Hart Publishing 2011) ch 11.
[112] Jack Anderson, ‘Doping, sport and the law: time for repeal of prohibition?’ [2013] INT JLC 135, 142.
[113] Council of Europe Convention on the Manipulation of Sports Competitions [2014] 18.IX.2014 a.1.
[114] Laura Tarasti, ‘First international convention against sport manipulation’ [2015] ISLR 20.
[115] Ben Van Rompuy, ‘Effective sanctioning of match-fixing: the need for a two-track approach’ (2013) 1 ICLS < https://www.renevanmaarsseveen.nl/wp-content/uploads/overig3/effective%20sanctioning%20matchfixing.pdf> accessed 6 April 2018.
[116] For a good outline of the work of the World Anti-Doping Agency, see: < https://www.wada-ama.org/en/what-we-do> accessed 6 April 2018.
[117] Tarasti (n 114) 21.
[118] Parker (n 111).
[119] Tarasti (n 114) 5.
[120] Van Rumpuy (n 115). This is almost an extension of Van Rumpuy’s two track approach, but with a vital difference; all stakeholders must assist in the fight and this must be done internationally.
[121] Van Rumpuy (n 115).
[122] Johanna Peurala, ‘Match-manipulation in football – the challenges faced in Finland’ [2013] 13 Int Sports Law J 268, 282.
[123] Alex Raskolnikov, ‘Probabilistic Compliance’ [2017] 34 Yale J. on Reg. 491. Raskolnikov submits in this article that legal certainty is deterrence – if the certainty of the legal processes (in our case detection, investigation and sanction) is clear, the potential criminal will be deterred from committing the crime.
[124] Alexandre Husting et al, ‘Match-fixing in sport: a mapping of criminal law provisions in EU’ (27 Study for the European Commission 2012). In this European study, penalties for sports corruption ranged from a fine, to 13 years imprisonment.
[125] ibid.
[126] The difficulty being that without harmonisation, criminals may choose specific jurisdictions whose penalties are less stringent and match-fixing would become a localised issue that completely corrupts sports in a specific jurisdiction.
[127] Roger Myerson, Game Theory: Analysis of Conflict (first published 1991, Harvard University Press) 1.
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