International Sports Law Review Sport, Ethics and the Law1

Page1 International Sports Law Review 2017 Sport, ethics and the law1 Michael J. Beloff QC* Subject: Sport . Other related subjects: Criminal law. Jurisprudence. Keywords: Cheating at gambling; Corruption; Ethics; Misuse of drugs; Organised crime; Sporting organisations; Sportspersons *I.S.L.R. 3 In 2011 I was sitting in the stadium in Daegu, the city which was hosting the World Athletics Championships, eagerly anticipating the final of the men’s 100m, the blue riband event of track and field. I was in the company of Sir Craig Reedie, a Vice President of the International Olympic Committee and currently the Chairman of the World Anti-Doping Agency. As those of you who follow the sport of track and field may remember, Usain Bolt, the much-medalled Jamaican sprinter, false started and was disqualified. This was a tribute to the integrity and resolve of the Korean official in charge of the start who insisted on the rules being observed, even though at the same time he disappointed millions of spectators throughout the world. But immediately after this dramatic incident, Sir Craig turned to me and said "Michael, I would be very interested tomorrow to see the trends in the Asian betting markets". I hasten to say that there is not the slightest evidence that Mr Bolt’s false start was deliberate or designed to assist a sophisticated gambling conspiracy. It was obviously an unfortunate error by an over-enthusiastic athlete determined to give not the slightest advantage to his competitors. But that so worldly-wise and experienced a sports administrator as Sir Craig could even suggest that the false start might be other than accidental shows how deep run the concerns about whether we sports fans are being constantly deceived by what we see on track, pitch, road or across country, in stadium, velodrome or pool. Sport’s attraction depends upon its unpredictability. By contrast, in other forms of entertainment, theatrical or musical performances, the outcome is pre-ordained. But is it the case that we are watching competitions, whose results are not fashioned by a combination of talent, application, tactics, playing conditions and, of course, sometimes luck, but instead manufactured by some form of unacceptable manipulation? A few years ago Jacques Rogge, the then President of the International Olympic Association, said that corruption was now a bigger threat to the integrity of sport than drugs. The two in fact have much in common. Both undermine in their different ways fair competition which is—or should be—sport’s overriding objective. Indeed, sometimes these two evils coincide. An independent enquiry by the World Anti-Doping Association (WADA) whose report was published in January 2016 found that doping violations by Russian athletes had been regularly concealed with the help of officials in the Russian federation. In one instance a Page2 Russian female athlete, Liliya Shobukhova, had been blackmailed by officials in the Russian federation to pay bribes for such concealment in order to allow her to continue to compete on the lucrative marathon circuit.2 Similar allegations have been made in respect of Kenyan athletes. The key difference of course is that whereas doped athletes are seeking to win, athletes (or teams) involved in match fixing are seeking to lose. Corruption in sport is not new. A document, transcribed and translated from a cache of 500,000 fragments of papyrus at a rubbish dump in the ancient Egyptian settlement near modern Cairo, reveals that a wrestler, managed by his father, agreed to accept a bribe of 3,800 drachmas to lose to his opponent at a regional sporting contest3 called the Great Antinoeria. As it was with sportsmen so it was with officials. The most famous classical Olympic controversy involved the notorious Roman Emperor Nero in the Games of AD 67. Not only did Nero bribe Olympic officials to postpone the Games by two years, he also bribed his way to several Olympic laurel wreaths. On one occasion Nero competed in the races with a 10-horse team, only to be thrown from his chariot. But even though he did not complete the race—no Ben Hurhe—he was still proclaimed the winner on the grounds that he would have won had he been able to finish. In modern times the examples of corruption contaminating the field of play are many and various. They span all sports. They illustrate the many ingenious ways in which competitive results can be distorted. Let me start with baseball. In 1919 the favoured White Sox lost in the final of the World Series to the Cincinnati Reds after a promise by a crime syndicate of US $100,000 to eight of their players. They were acquitted in the courts, but banned for life by the baseball commissioner with the unusual name of Kenesaw Mountain Landis. He was right to ban them. No less than five of the eight players later admitted their guilt. Next to boxing. In 1965 Cassius Clay, later Mohammed Ali, knocked out Sonny Liston in their return bout in Maine in the first round. No serious student of the sport is convinced that it was the weight of Clay’s phantom punch that achieved *I.S.L.R. 4 that surprising result. It is far likelier that Liston was the subject of threats to life or limb if he did not deliberately fall down in the ring. Next to cricket. The International Cricket Council was constrained to set up a Code of Conduct Commission, which I chair, in the wake of scandals involving match fixing by such as Hansie Cronje, the captain of the South African team. But the most notorious example was provided by the three Pakistani test players who spot fixed during the Lords Test of 2011. The story in short was this. An undercover journalist pretending to representing a gambling syndicate bribed a greedy agent to persuade the three Pakistani cricketers to bowl three illegal balls at particular times in a match—something which is called spot fixing. The agent was therefore able to predict exactly when that would happen.4 Unfortunately for him the journalist secretly taped the agent making his predictions. Page3 After an investigation and hearing by a tribunal which I also chaired, the International Cricket Council banned all three from the sport for periods of 5–10 years. Later, two were tried in a London court and found guilty of charges related to the corrupt scheme. The third pleaded guilty to similar charges. All received prison sentences ranging from six to 30 months. The youngest, Mohammad Amir, served out both his criminal sentence and his cricketing ban and played a major part in the 2016 Test series between England and Pakistan. Lastly to tennis. In May 2016 the BBC broadcast a programme in which allegations were made that a significant number of players on the professional tennis circuit were fixing actual matches. The revelation prompted the various sports tennis governing bodies to set up an inquiry into whether they had been sufficiently diligent in dealing with such claims in the past. The Tennis Integrity Unit had, as recently as June, to defend itself against claims that it ignored evidence of potential match fixing involving 29 international players uncovered by a prosecutor in Cremona, a city in the North of Italy. What is the common thread that ties these various incidents taken from different decades and different sports together? In a word—money. Large sums can be made by betting on certainties. The sportsmen make profit either by gambling themselves or from being paid to cheat by professional gamblers who make still larger profits. Most of the match fixing or spot fixing takes place at the lower levels of the sport where the legitimate rewards are less and the temptation to act illegally are correspondingly greater.5 Players like Andy Murray or Roger Federer can become rich on prize money and sponsorship. The lower ranked players who compete on the second tier tennis challenger circuit cannot. This makes the cheating particularly difficult to detect, since obviously less attention is paid to less important games. Football is another sport where match fixing is rife. It does not happen at the World Cup but in lower leagues in national competitions.6 There is regrettably little coordination in terms of cross-sport responses. Self-regulation within a national framework is the usual mechanism. But self-regulation carries within it the seed of conflict of interest. The authorities’ desire to eliminate corruption collides with their desire to present the best image of their sport to the world. What should be a vigilant eye can become a blind eye. The problem is intensified where so much corruption, especially where linked to gambling, is international and often linked to sophisticated organised crime. Investigators for bodies such as FIFA or the International Association of Athletic Associations lack the powers available to law enforcement agencies: search, seizure, surveillance, subpoenas. They cannot compel potential witnesses to speak to them or obtain crucial documents such as bank accounts. They cannot require such agencies to make inquiries on their behalf or to share the findings of the inquiries of those agencies. Their regulatory powers stem from contract only between those bodies and those who participate in sport under their aegis. As the Chairman of the International Cricket Council’s Anti-Corruption Unit said when complimenting the newspaper on its successful entrapment of the Pakistani players, "We are not a police force. We cannot arrest and we cannot engage in undercover operations". But he could well have added words to the effect that it would be improper for sports bodies to indulge in entrapment at all.

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