Diplomstudium Rechtswissenschaften
The Distinction Between Legal and Illegal Betting in the Context of the Convention on the Manipulation of Sports Competitions with Reference to The Netherlands, Finland, Switzerland and Austria
Diplomarbeit aus Public International Law
zur Erlangung des akademischen Grades eines Magister der Rechtswissenschaften an der Paris Lodron Universität Salzburg
eingereicht von Stephan Victor Small Matrikelnummer 00007814
Betreuer: Ao. Univ.-Prof.Dr.Michael Geistlinger
Salzburg, September 2017
1 Table of Contents Page
1. Introduction 5
2. Terminology 7
3. Lotteries 9 3.1 Lotteries from the beginning 9 3.2 Current Status of Lotteries 11
4. Gambling in Sport 14 4.1 Ancient Rome-1960 14 4.2 1960-Present 15
5. Manipulation of Sports Competitions 17 5.1 Introduction 17 5.2 Tennis, cricket and baseball 18 5.3 Match-fixing in Football 19 5.3.1 Arrangement fixes 20 5.3.2 Gambling Fixes 20 5.4 Selected Cases of Match-Fixing in Football 22 5.5 Money Laundering in Football 24
6. International Initiatives to combat Match-Fixing and the Macolin Convention 26 6.1 Introduction 26 6.2 Match-fixing in football in Austria, Finland, The Netherlands and Switzerland 27 6.3 Compliance of Austria, Finland, The Netherlands and Switzerland to the 30 Recommendations of the Macolin Convention
7.Match-fixing in Europe 39
8. Borderline between legal and illegal betting in Austri100a, Switzerland, The Netherlands and Finland 42 8.1 Austria 42 8.2 Switzerland 43 8.3 The Netherlands 44 8.4 Finland 45 8.5 Axis of Evil: the Asian illegal betting market 45
9. Combatting Illegal Betting: National Interpretations and Compliance with the Macolin Convention 46 9.1. Control of the Betting Market 47 9.2. Sanctions and Measures and Criminal Offences 49 9.3. Money Laundering 51
10. Conclusions 52
11. Private Communications 57
12. Bibliography and documents 58
2
13. Appendices 73 Appendix I: Council of Europe Convention on the Manipulation of 73 Sports Competitions Appendix II: Explanatory Report to the Council of Europe Convention on the 91 Manipulation of Sports Competitions
3 Abbreviations
ARJEL Autorité de Régulation des Jeux En Ligne BASPO Swiss Federal Office for Sport BGS Swiss “Bundesgesetz über Geldspiele” FATF Financial Action Task Force FIFA Fédération Internationale de Football Association FIFPro Fédération Internationale des Association de Footballeurs Professionnels FINCIS Finnish Center for Integrity in Sports GLMS Global Lottery Monitoring System GRECO Group of States Against Corruption ICC International Criminal Court ICSS The International Centre for Sport Security IOC International Olympic Committee KNVB Koninklijke Nederlandse Voetbal Bond KSA Dutch Gambling Authority LG Lotteriegesetz LV Lotterieverordnung MLB Major League Baseball OECD Organisation for Economic Co-operation and Development ÖFB Österreichischer Fußballbund SAFP Swiss Association of Football Players SFL Swiss Football League SFV Swiss Football Federation SLP Finnish Football Association SOGA Soccer Gambling TIU Tennis Integrity Unit UEFA Union of European Football Associations UNODC United Nations Office on Drugs and Crime UWG Gesetz gegen den unlauteren Wettbewerb VETO Europol Operation Codename WLA World Lottery Association
4 1. Introduction Sport is a democratizing human activity; it crosses social and national barriers and opens up opportunities to anyone with athletic talent. This is very much the case in football, which features players from diverse economic and social backgrounds. Moreover, sport ties together all members of the human race and as such contributes to the maintenance of peace. It is for this reason that so much attention has focused on preserving the integrity of sport worldwide.
Sport integrity faces a major threat from the link of sport and especially football with the betting industry. While gambling on the outcome of sporting events has been a popular pastime for at least two millennia, the rapid growth and globalization of the sport gambling market over the last few decades has fostered the parallel increase in cheating and corruption. Criminals exploit football in two ways: to launder money, via the acquisition of weak clubs and by “arranging” the outcome of matches, by so called “match-fixing” for gambling purposes.1
The potential profits for match-fixing are high: according to recent estimates the annual turnover of the Asian sports gambling market (mainly illegal) which represents 60% of the global market amounted to $450 billion, compared to $100 billion for the Asian pharmaceutical industry.2 Because of the internationality of sport, the close collaboration between national agencies and international non-governmental organizations is essential to preserve the integrity of sport, to promote fair play and, in particular, to fight corruption.
This is underlined in a statement from the UNODC report from 2016: “For the majority of people, sport forms an integral part of daily life, whether as active participants or passive spectators, providing many positive impacts on society as a whole. Corrupting sport through match-fixing seeks to destroy this positive influence on society and is one of the key costs of corruption.” 3
The phenomenon of match-fixing has been justly identified as a universal evil threatening the integrity of sport by many prominent international organizations: The United Nations
1 Hill D, The Insider’s Guide to Match-Fixing in Football, Toronto 2013, 46. 2 Hill D, The Revolution. Asser International Sports Law Series, Sports Betting: Law and Policy, The Hague 2012, 11. 3 UNODC, Resource Guide on Good Practices in the Investigation of Match-Fixing, 15
The Macolin Convention and the international organizations provide useful guidelines and training schemes, but none of them has the judicial authority for making arrests and imposing punishment. As the Executive Secretary of FATF stated in a speech in 2016: “You can’t effectively combat corruption without laws and regulations …… you also can’t combat corruption unless you enforce these laws and regulations effectively and proportionately”.5
In short, each country needs to establish effective procedures itself to fight criminality in sport. Only through a tight collaboration between national sport bodies, betting agencies, the police and the judiciary can match–fixing be eliminated. The present thesis reviews the current policies adopted by four European countries, Austria, Finland, The Netherlands and Switzerland, to tackle match fixing in football and illegal gambling in sport.
Chapters 3 and 4 provide background reviews of the history of gambling, in lotteries and in sport. Chapter 5 outlines the means by which different types of sport competitions have been manipulated, with a focus on arrangement and gambling fixes in football. Chapter 6 reviews the measures taken by the four selected countries to adopt the recommendations of the Macolin Convention and Chapter 7 compares the situation with other countries in Europe. The borderline between legal and illegal betting is discussed in Chapter 8 and national measures to address illicit gambling and corruption in Chapter 9. Finally, an appraisal of the current situation and future challenges are presented in the conclusions, Chapter 10.
4 Council of Europe Convention on the Manipulation of Sports Competitions, Macolin 2014
Match- fixing: “covers any intentional and improper alteration of the course or result of a sports competition in order to remove all or some of the uncertainty associated with this competition, with a view to obtaining an undue advantage for oneself or for others.” 7
Integrity of sport: “is understood as an ethical fundamental value in the sport movement characterized by credibility, transparency and fairness as well as by the unpredictability of sports competitions results.” 8
Fairness: “refers to practising a sport while faithfully respecting the rules of competition, and to providing everyone with an equal chance of taking part in sport.” 9
Sports betting: “refers to the predictions made by wagering a stake on an event occurring during a sports competition in order to obtain winnings.”10
Sports betting operators: “covers all kinds of operators providing sports betting services, landbased or remote, publicly or privately owned, specialised in sports betting or not (bookmakers, specialised sports betting operators, gambling operators and lotteries offering sports betting services).”11
Illegal sports betting: “refers to any sports betting whose type or operator is not allowed
(such as by exclusive rights, a licence or automatic recognition of licences granted by certain third countries) by virtue of applicable law in the jurisdiction of the Party where the gambler is located.”12 Regulatory authority: “refers to a public authority or authorities tasked
6 Explanatory Report to the Council of Europe Convention on the Manipulation of Sports Competitions
Bookmaker: a person who accepts and pays out amounts of money risked on a particular result.14
Lottery: a system of selling numbered tickets and giving prizes to those people whose numbers are chosen by chance.15
Totalizator (mainly in horseracing): the betters do not play against the bookmaker but against each other and the winner gains the pool. If there are more winners they share the pool.16
Live betting: in live betting as well as spot betting bets can be placed on specific events like the number of red or yellow cards, penalties or corners at any moment during a game.17
Proposition betting: bets placed on an outcome of a match that is not related to the final score, for example number of goals scored by a star player.18
Betting odds: the ratio of the final payout on a winning bet compared to the stake.19
Money laundering: laundering allows criminals to transform illegally obtained money into seemingly legitimate funds.20
Whistleblower: “a person who reports suspicious activities to the competent bodies of the sports organization, or to the authorities”.21
13Explanatory Report (fn 6), 15. 14 Cambridge Dictionary, bookmaker
Lotteries have a long history; “lots” are well documented in the Old Testament and the Roman Emperors used lotteries for entertainment as well as for the repair of Rome.22 Augustus (31BC- AD14) believed strongly in lots and used them to distribute prizes at dinner parties; later, Nero included slaves in the prize list.23 Lotteries reappeared in Europe in the 15th century, mainly as a means to raise revenue for the state.24 The famous Venetian lotteries were founded in 1522 and the “Lotto di Genua” in 1643.25 King Francis I of France discovered the lotteries during his campaigns in Italy and decided to organize lotteries of his own to improve state finances.26 In France the first lottery took place in 1660 and despite opposition to forbid them the first „Lottery Royale“ was launched in 1700. Since then the lottery in France thrived and influenced other European countries.27 Maria Theresia was likewise impressed by the “Lotto di Genua” and introduced a lottery in Austria in 1752. There was a parallel appearance of lotteries in Germany and Switzerland, of so-called „Glückshafen“ or „Glückstöpfe“.28 Lotteries were forbidden by Pope Benedict 13th but were reinitiated in Rome, followed by Venice in 1734 and Genoa in 1735. Lotteries appeared later in Scandinavia, in Sweden in 189629 and in Denmark in 1887, the prizes in the latter case being restricted to groceries!30
In the English-speaking world the use of lotteries to raise money as an alternative to taxation was initiated by Queen Elisabeth I, in 1566.31 The funds raised were to be used for the repair of harbors and for other “publique good workes”.32 The proceeds of lotteries were also used to pay ransom to release British sailors captured and kept in slavery by the Turks in 1674. 33
22 History Buff, The History of the Lottery in the United States
In colonial America lotteries were used extensively to raise money for the building of roads, bridges, schools, churches and so on.44 The first authorized lottery took place in Boston in 1745, with the purpose of settling the debt incurred by the cost of military activity to protect the state coasts as well as the royal province of Nova Scotia.45 On January 9, 1745 the General
34 Ashton (fn 31), 42. 35 Ashton (fn 31), 79. 36 Ashton (fn 31), 50. 37 Ashton (fn 31), 76. 38 Kruckeberg R.D., The Wheel of Fortune in Eighteenth-Century France: The Lottery, Consumption, And Politics
3.2. Current status of Lotteries
As cash cows for themselves, charity and other projects, lottery organizations bloomed during the 20th century. Aside from National Associations there is now a World Lottery Association (WLA)54 and a European Lotteries Association (ARJEL).55 These organizations collaborate with the Global Lottery Monitoring System (GLMS) in a fight against the manipulation of sports competitions.56 According to the Austrian federal law on Games of Chance (§ 14/6 Glucksspielgesetz) 57a single license is granted to a lottery operator up to a maximum of 15
46 Massachusetts Lottery (fn 45). 47 Yale Law School, Public Finance And The Fortunes Of The Early American Lottery
In Switzerland lotteries are supervised and licensed by the Inter-Cantonal Lottery and Betting Board (Comlot) established by the cantons in 2006.60 The supervision, approval and the use of proceeds of Inter-Cantonal and national lotteries and gambling are regulated according to Art. 14 (Inter – Cantonal Agreement)61 and Art. 10 LG (national lottery law)62 both from 2005.
According to Dutch law (Articles 8 and 9, BGA) the national lottery is subject to an exclusive license according to which 60% of the stakes are returned to players as prizes and the revenues generated used for state benefit63 and other purposes. Proceeds from the Netherland State Lottery were recently used to fund the rescue of ancient manuscripts from Timbuktu, threatened with destruction by Al Qaida rebels. In Finland, betting in lotteries and sport is regulated by the Lotteries Act (1047/2001) amended in 2010 and 2012 and operated by state owned monopolies.64 In the UK, lotteries were legalized by “The Betting and Lotteries Act” of 1934, now replaced by the “Gambling Act” of 2005.65
The National Lottery, established in 1994 is run by a private company (Camelot) but is regulated by the National Lottery Commission. A major part (95%) of the revenue raised in the National Lottery is channeled into health, education, sport, arts and environment projects as well as into charities.66 Despite the control mechanisms set in place, Camelot was, in 2016,
58 BGBl. Nr. 620/1989 (fn 57). 59 Bundesministerium für Finanzen, Konzessionäre und Ausspielbewilligte in Österreich für Lotterien, Online- Glücksspiel, Spielbanken und Landesausspielungen mit Glückspielautomaten
Lotteries in the USA saw a dramatic revival following the creation of the New Hampshire lottery in 1964.69 The growth of state lotteries was much stimulated by public opposition to increases in taxes and they now provide an important source of revenue, especially for infrastructure projects and education. Up until 1987 there was no national lottery so that each state has jurisdiction over its own lottery.70 The California State Lottery Act (1984) states (Article 1, §8880.1): “Revenues of the state lottery shall be allocated so as to maximize the amount of funding allocated to public education…”.71 In 2016, lottery sales were close to $6.3 billion, of which $1.5 billion was earmarked for California’s public schools.72 Unfortunately, money corrupts and the national lottery “Lotto America” created in 1987 and covering 51 states is now at the center of a major scandal. The former “security director” of the Multi State Lottery Association currently faces a 10year sentence for manipulating numbers via rogue software that he secretly installed in the random number generator system.73
The recent lottery scandals point to corruption possibilities within the lottery provider organizations, rather than from external operators. Fraudulent claims from bogus charities for lottery proceeds also feature as a modern development.74
67 Camelot breach notice
75 Hicks (fn 23), 9. 76 Encyclopedia Britannica, Gambling
Gambling in football was relatively modest up to the1950s. For example, in the UK in 1954 football gambling revenues were comparable to those for greyhound racing and several times smaller than those for horse racing.90 Although football originated in England, The Fédération Internationale de Football Association (FIFA) was founded in 1904 by a consortium of seven other European countries: France, Belgium, Denmark, The Netherlands, Spain, Sweden and Switzerland, joined later in 1904 by Austria and Germany. The UK joined the following year, but did not take part in the World Cup until 1950.91 Betting in football (Toto) was introduced first in England in 1921. In Germany and Austria betting in sport was legalized after the Second World War to compensate for the lack of money for sporting activities. In Austria, the Sport-Toto law was passed in 1948, in the same year as the founding of the "Staatliche bayrische Fußballtoto".92
4.2. 1960-Present After the passing of the Betting and Gaming Act in the UK in 1960 and the legalisation of betting shops in 1961 up to 10,000 shops (now termed “Bookmakers”) opened in the first 6 months.93 Following subsequent merging in the industry there were around 9,000 registered bookmakers in the UK in 2013.94 The legality of bookmakers varies from country to country.95 After facing resistance in Germany in 1983, the German run bookmaker Intertops moved to
86 Pferderennen-Wetten.net, Die Geschichte der Pferderennen im Überblick
Owing to its international popularity football rapidly developed into big business for sport gambling with a yearly turnover estimated in 2013 at around 125 billion pounds (140 billion Euro) Worldwide.101 In Germany in 2010, betting in football accounted for 54.5% of the total sport gambling market, far ahead of tennis in second place, with 17%.102 While much attention has been given to the regulation of the gambling market, by the creation of National Agencies and the revision of betting laws, the criminal manipulation of the results of sport competitions to capitalize on gambling stakes currently threatens the integrity of sport itself.103 In the following section I will review the current status of gambling with respect to corruption in sport and especially in football, which is the focus of the present study.
96 Österreichischer Buchmacherverband< http://www.obmv.at/> (31.07.2017) 97 Landesrecht konsolidiert Vorarlberg: Gesamte Rechtsvorschrift für Wettengesetz, LGBl. Nr. 46/2017
Group 1 Group2 Group 3 High Risk Low Risk Very Low Risk
Baseball Aquatics Airsports Basketball Archery Chess Cricket Bobsleigh, Draughts Football Tobogganing Fistball Rugby Cycling Polo Tennis Darts Racketball Floorball Sleddog Sports Gymnastics Sport Climbing Hockey Muaythal Netball
Table I: Sports grouped according to the estimated risk of match fixing.106
Those sports where large amounts of money or prestige are involved feature as high risk on the corruption scale. Accordingly, match–fixing in sport has been compared with insider trading on the stock market.107 In the following sections, prominent cases of sport manipulation in tennis, cricket and baseball will first be highlighted, before turning to the main topic, football and the related problem of money laundering in the football sector.
104 History Stories, Five Myths About the Ancient Olympics
Professional cricket is littered with match-fixing scandals. Indian and Pakistani players have been particularly susceptible to corruption, but players from the UK, South Africa and Australia have also not been immune to match-fixing.112 Hansie Cronje of South Africa was charged with accepting money from a bookmaker to arrange for members of his team to underperform in a match against India in 2000 and was banned for life by the South African Cricket Board. In the same year, Mohammad Azharuddin of India was likewise charged with collusion with a bookmaker to fix matches and received a lifetime ban. In response to these scandals, the Imperial Cricket Conference (ICC), the governing body of world cricket published a “Code of Conduct” for players and officials in 2016 and established an Anti- Corruption Unit (ACU) to maintain the integrity of cricket.113
108 TIU, Daniel Koellerer Anti-Corruption Disciplinary Hearing
American baseball has a sordid history of match fixing that dates back to the 19th century. In 1876 George Bechtel conspired with his teammates to lose a game for a reward of $500.114 In the famous “Black Sox Scandal” in 1919 eight members of the Chicago White Sox were charged with receiving money from gamblers for intentionally losing the 1919 World Series. More recently (1989) Pete Rose, manager of the Cincinatti Reds was accused of having links with gamblers and illegal bookmakers, charges he denied until finally confessing in 2004.115 To combat illegal gambling in baseball Major League Baseball (MLB) has hired Genius Sports (London) to monitor gambling activity using computer algorithms to spot unusual betting patterns.116
5.3. Match –Fixing in Football The number of countries-209-represented in FIFA, the international football association is more than those represented in the United Nations. According to present estimates, the cost of the 2022 World Cup in Qatar will top US$200 billion.117 In short, football is big business and has a strong attraction for the criminal mind. According to the fixed match database of 2013, there were a recorded number of 301 fixed matches in 60 countries.118 Match fixing comes in two varieties:
1. Arrangement match-fixing; when corruptors manipulate a football match to ensure that one team wins or draws the match.
2. Gambling match-fixing; when corruptors manipulate a football match to profit maximise on the gambling market.
In the first case the team can benefit in the short term, whereas in the second case the team can sabotage itself in seeking personal profit.119
Examples of the two types of “fixes” will be discussed in the following sections, taking as the main reference the pioneering work of Declan Hill.
5.3.1 Arrangement Fixes In arrangement fixes the team administrators and players are the primary corruptors. The aim of an arrangement fix is to gain an advantage in a league or a tournament. The idea is not new. As early as 1909, in the Scottish Cup final between Rangers and Celtic the fix was so obvious that 6000 fans raided the pitch, causing intervention of the fire brigade as well as the police.120 A famous, more recent case is that of the “arrangement” made between the Austrian and West German teams in the opening rounds of the 1982 World Cup. To ensure that both teams moved to the next round they arranged to play for a draw, to the disadvantage of the team from Algeria.121 The fix was so obvious from the relaxed play after scoring that a German fan burned his flag in disgust.122
5.3.2. Gambling Fixes A simplified scheme indicating the steps and agents involved in a gambling fix is indicated in Fig. 1.123 Here the team players and the referees are the primary targets of the corruptors, the criminal elements behind the fraud.
120 The Guardian, Firm enemies – Rangers and Celtic, 1909-2009
Fig. 1
As outlined by Hill a gambling fix is organized according to a five-step process: Access, Set-up, Calling the Fix, Performance, Payment.124 Access to the players can be achieved by a corruptor posing, for example as a journalist, who books into the same hotel as the team players, preferably into a room on the same floor. Otherwise, an intermediary or “runner” is employed. Bars or clubs frequented by team players are ideal venues for making contact and establishing the susceptibility of players and referees to bribery. Set-Up refers to success in gaining the cooperation of players/referees in agreeing to a fix. The acceptance of a bribe at this stage by a player signals the point of no return. Or in the words of a convicted corruptor “if they take the money once, it is over. They can never turn back because the gamblers will say; if you don’t do it we will let the people know that you took the money”. 125
124 Hill (fn 1), 91. 125 Hill (fn 1), 113. 21 “Calling the Fix” refers to spreading the bets on the gambling market. At this stage the corruptors have to avoid detection by the early warning systems of the bookmakers. This can be achieved by spreading the bets and using third parties to place the bets, referred to as mules, runners or beards. The term “beards” was used in the 19th century for agents who disguised themselves using false beards to avoid identification by the bookmakers. To maximise profit and to avoid suspicion, the corruptor can arrange for a last minute signal to the team to go ahead, or not with the fix. This can be done, for example, by using a “runner” who goes onto the pitch with a T-shirt of a particular colour. To avoid the possibility of the runner giving the wrong signal and making a side bet on the fix, only the corruptor and the team know the meaning of the colour signal.126 Performance refers to the tactics of the players or referee to achieve the fix. A referee can give extra penalties or remove a player from the team to make losing more probable. Players need to adopt subtle changes in their tactics, for example by taking the wrong position on the field or keeping the ball too long, so that the other team takes possession. A notable feature of fixed games is that there are no surprise goals in the last few minutes and the number of penalties given by the referee is almost twice that given in honest games.127 Payment for fixing is of course unregulated and the figures not well publicised. In one report on English football referees may be corrupted for 20,000 pounds and players for 70,000 pounds. A map from 2013 documents the number of arrests for match fixing made in 11 countries: Australia, 10; Brazil, 3; China, >50; Finland, 10; Germany, 15; Hungary, >50; Italy>40; Singapore, 14; Turkey, 30; UK, 6; Zimbabwe, 1.128
5.4. Selected Cases of Match-Fixing in Football In the following some selected cases of match-fixing (see Table II) will be discussed to illustrate the general tactics of the corruptors involved.
126 Hill (fn 1), 151. 127 Hill (fn 1), 215. 128 The Telegraph, Football match-fixing: countries where recent scandals have been uncovered
22 Table II: Selected cases of match-fixing in football
Incidents Country Year Fix Sanction Illegal Crime/ Earnings/ Disciplinary body Betting Fine Jimmy Gauld UK 1960’s 4 Years jail 3275 £5000 Conspiracy to defraud GF
Europe 2005 GF 2 years and 11 unknown €1.8 Corporate Fraud months Mill Canada
Ante Sapina Europe 2009 GF 5 years €2.3 Mill Unknown Corporate Fraud
Asia
Juventus Italy 2006 AF Relegation unknown 50.000 League -Ranking Fix/ and stripped of 2 “Calciopoli” Euro CDN/FIGC series A titles scandal
Cremonese Italy 2011 GF 5 year ban unknown Club Illegal Betting/ Marco Paoloni Goalie/team 30.000 CDN/FIGC Club: Season “Scommessopo point deduction Euro li” scandal
Wilson Singapore 2007- GF 6 years unknown unknown International Match Raj Perumal, imprisonment: Fixing (FA Cup; FIFA /Hungary 2011 Singapore World Cup) Fixer Finland/Hungary
Abbreviations: GF, Gambling Fix; AF, Arrangement Fix; CDN, National Discipline Commission; FIGC, Italian Football Federation. See text for further details.
An early case of match-fixing involved the former football player Jimmy Gauld in the 1960s. After a broken leg had brought to an end his unremarkable football career he corrupted a network of football players to engage in a series of match fixes for gambling purposes.129 At the Nottingham Assizes Judge Lawton sentenced Gauld to four years in prison and made the following statement: “It is my duty to make it clear to all evil-minded people in all branches of sport that this is a serious crime. You are responsible for the ruin of players of distinction”.130 Ironically Gauld sold his story to a newspaper and received a 7000 pounds fee.131 The most prominent recent case of match-fixing is that of Ante Sapina, a drop out student of economics
129 The Football Pink, The Men Who Sold The Dream
5.5. Money Laundering in Football Football offers two channels to launder the proceeds of criminal activities: through gambling, including match fixing and through the acquisition of a football club. The Financial Action Task Force report from 2009137 describes how criminals exploit weak football clubs to launder their money and gain legitimate social status. Clubs in financial difficulties pay less attention to the credibility of a potential sponsor. But respectable clubs can also fall victim to criminals’ as was the case of Birmingham City Football Club in the UK. An apparently respectable tycoon from Hong Kong who purchased a stake in the club in 2007 was committed in 2014 to six years in jail
132 Welt, Ante Sapina muss 1.8 Millionen Euro zahlen
According to the Financial Action Task Force (FATF) report in 2009 on money laundering through the football sector: “As the biggest, truly global, high value sport, football seems to be confronted with various forms of crime and corruption - including money laundering---- The influx of big money, in combination with some specific factors has made football one of the many sectors that can be attractive for criminals to launder proceeds of crime.”140
In general modern football is susceptible to money laundering activities by criminal organisations or groups. These organisations benefit from the vulnerabilities of the football sector. One can distinguish between the vulnerabilities related to the sector’s structure, the vulnerabilities related to the sector’s finance and the vulnerabilities related to the sector’s culture.141
In relation to the structure the market is easy to penetrate and the stakeholders involved form a complicated network, which makes it easier to conduct fraudulent actions. In connection with the sectors’ finance considerable sums are involved, making weaker clubs with unpredictable futures particularly attractive targets for money laundering. Some players are especially vulnerable, in particular younger players. Further, the societal role of football makes players, referees or other stakeholders reluctant to report fraud in their community. Money laundering is also an issue in connection with betting activities especially with match-fixing.142 In the operations SOGA I and II of Interpol, more than 1000 persons were arrested for money laundering activities, underlining the international dimension of illegal gambling in soccer.143 Bookmakers in Asia are in principle “professional and well organised companies” that can be exploited by criminals located elsewhere. Criminals situated in Europe, as illustrated in the Sapina case can manipulate matches by luring players or referees and place their bets on the Asian betting market. Stakes from € 100.000 to 2 million per match are possible.144
138 The Conversation, Off the pitch and off the books: professional Football’s money laundering problem
6. International Initiatives to combat Match-Fixing and the Macolin Convention 6.1. Introduction The severity of the match-fixing problem is emphasised by the number of international organizations concerned with stamping out this unilateral threat to sport. In June 2016, the International Olympic Committee (IOC, Lausanne), in collaboration with the United Nations Office on Drugs and Crime (UNODC) issued a document on the “Criminal Law Provisions for the Prosecution of Competition Manipulation”147. This was followed, in August 2016 by the “Resource Guide on Good Practices in the Investigation of Match Fixing” issued by the United Nations Office on Drugs and Crime (UNODC- Vienna) in collaboration with the International Center for Sport Security (ICSS)148. In the same year Transparency International issued their “Global Corruption Report: Sport”.149
All these documents refer to and commend the initiative in September 2014 of the Council of Europe at a meeting in Macolin, in initiating a “Convention on the Manipulation of Sports Competitions”, otherwise known as the “Macolin Convention”.150 In the following I will highlight incidences of match fixing in four chosen European countries and thereafter compare the efforts of each country to adopt the requirements of the Macolin Convention (Appendix 1).151
145 FATF (fn 137), 25. 146 FATF (fn 137), 25. 147 UNODC IOC Booklet For Legislators, Model Criminal Law Provisions From The Prosecution Of Competition Manipulation
Rather than introduce specific, new laws against match-fixing Austria has chosen to establish a “Play Fair Code” involving collaboration between sports and betting organizations. The mission of this consortium encompasses prevention, awareness-raising, risk assessment and stakeholder coordination.154 The Austrian Football Association (ÖFB) has clauses in its regulations that include sanctions against members involved in illegal betting or match fixing.155 A law company has also been named as an ”Ombudsman” to provide help or consultation.
Although Finland ranks among countries with a low index of corruption, it has not been immune to match fixing. The major incident of Wilson Raj Perumal, already mentioned above was preceded by three other match fixing cases: Pesapallo (2001); Nissinen (2008); and Mitschuk (2009), each ending with imprisonment.156 Although charges were made, Finnish law does not have specific legislation dealing with match fixing and the sentences given in the preceding cases were passed according to the existing bribery laws (Finland criminal code: Chapter 30(769/1990)-Business offences).157 To address this problem and in line with the
152 Der Standard, Aufrüsten im Kampf gegen den Wettbetrug
The Netherlands, like Finland was a victim of the criminal activities of the match-fixer Wilson Raj Perumal. In cooperation with Perumal a player at WillemII Tilburg, Ibraham Kargbo, promised the team captain and another player 25,000 Euro each to throw a match against Utrecht in 2009.161 Unfortunately, The Netherlands has not introduced any specific criminal provisions to combat match fixing.162 The Royal Netherlands Football Association (KNVB), which regrets the absence of laws covering match-fixing, has an integrity unit that collaborates closely with UEFA and FIFA. Through UEFA, KNVB takes advantage of the Betting Fraud
158 Match-Fixing in the Nordic Countries
Swiss football has fallen victim to several cases of manipulation in association with illegal betting activities. In 2009 convictions for manipulation were imposed in connection with eleven games of the second division involving six teams: FC Thun, FC Gossau, FC Wil 1900, FC St. Gallen, FC Biel, FC Fribourg.171 In the case of two teams the German Croat and committed criminal Ante Sapina was the ringleader.
Under Article 146 of the Swiss criminal code, five players were charged with corruption and attempted commercial gain.172 Subsequently, the charges were revoked on the grounds that Article 146 only refers to fraud when a human being and not an electronic system is misled. As a result the accused players were discharged.
163 KNVB (fn 162). 164 The European Lotteries, Dutch Football Association Expresses Thanks To GLMS For Its Support In Dealing With Match-Fixing Suspicions < https://www.european-lotteries.org/announcement/dutch-football-association- expresses-thanks-glms-its-support-dealing-match-fixing-sus-0> (16.08.2017) 165 Prof. MR.M. (Marjan) Olfers
Within current Swiss legislation match-fixing could fall under Article 2 of the unfair competition law (UWG).173 However, the report on corruption and match-fixing in sport came to the conclusion that174:
“Game- and betting manipulation, when associated with economic– and competition related behaviour can fall under Article 2UWG. According to this clause, however, the imposition of sanctions is not legally possible”.
In response to this unsatisfactory situation a new document concerning match fixing in sport was presented in Bern in September 2016.175 This document covers in a comprehensive way all the clauses of the Macolin Convention from 2014, as indicated in the analysis below. A more detailed survey of the responses to the clauses dealing with illegal betting is presented in Chapter 8.
6.3. Compliance of Austria, Finland, The Netherlands and Switzerland to the Requirements of the Macolin Convention
The response of each country to selected paragraphs of the Macolin Convention 176(see also Appendix 1) is presented below. For convenience, the text of the selected paragraphs of the Macolin Convention is reproduced in an abbreviated form where considered appropriate.
II/4 2. Domestic Coordination: “Each Party, within its jurisdiction, shall encourage sports organisations, competition organisers and sports betting operators to co-operate in the fight against the manipulation of sports competitions and, where appropriate, entrust them to implement the relevant provisions of this Convention.“
Austria: According to the initiative of the Austrian minister of sports and the Austrian football associations a Play Fair Code has been established with the triple mission of prevention, information and awareness raising as regards corruption in sport.177
173 Bundesgesetz gegen den unlauteren Wettbewerb
II/6 Education and awareness raising: “Each Party shall encourage awareness raising, education, training and research to strengthen the fight against manipulation of sports competitions.”
Austria: Within the mission of the Play Fair Code information and teaching programs are organised.181 Finland: The Finish betting agency Veikkaus Oy, the Ministry of Education and Culture, the Finnish Sports Federation FSF, and Transparency Finland arranged a Finnish Sport Integrity Day seminar in October 2012.182 The Finnish Center for Integrity in Sports (FINCIS) established in 2011 organizes “high-quality education for stakeholders in sports”.183 The Netherlands: The Football Association KNVB provides information to referees, players and clubs about match-fixing.184 Switzerland: Education and awareness raising is the obligation of the sport organisations and the promoters of sports competitions.185
II/7 Whistleblower :” Each party shall introduce effective mechanisms to facilitate the disclosure of any information concerning potential or actual cases of manipulation of sports competitions, including adequate protection for whistle blowers”.
178 Match Fixing in the Nordic Countries (fn 158), 17. 179KNVB (fn 162). 180 Sport promotion law, 4903
2e- appointment at the latest possible stage: “Each party shall employ procedures to appoint referees and judges as late as possible before a sporting event to minimize the possibility of intervention of corruptors”.
Austria: There are no procedures in place for the late appointment of referees. Finland: As with Austria no arrangements have yet been made for the late appointment of referees. The Netherlands: Likewise, the Dutch Football Association makes no provisions for the later appointment of referees. Switzerland: Sport organizations should be encouraged to adopt this practice.191
3 - proportionate and dissuasive disciplinary sanctions and measures to infringement of their internal rules: “Each party shall encourage national and international sports organizations to introduce effective and dissuasive internal sanctions and regulations to combat manipulation of sports competions.”
186 Play Fair Code, Ombudsstelle
II/8 /2 Measures to help sport organizations to combat match fixing: “Each Party shall consider the possibility of helping sports organisations to combat the manipulation of sports competitions, including by funding appropriate mechanisms.”
Austria: The Play Fair Code provides a forum for sport organisations to seek legal advice and assistance in cases of suspected fraud.195 Finland: FINCIS, the Finnish Center for Integrity in Sports assists sports organizations to detect and prevent manipulation in sport by serving as a national information center.196 The Netherlands: No state assistance is provided to KNVB but a close collaboration with UEFA and FIFA includes access to the Betting Fraud Detection System (BFDS).197 Switzerland: According to “Artikel 11 (Subventionsgesetz 1990)” the public authorities can demand transparency from organisations that receive federal support. According to “Artikel 32 Absatz 1 d SpoFög” BASPO can withhold subsidies from sports organisations if they fail to fulfil their obligations in connection with a fair and secure sport.
II/9 Measures regarding the betting regulatory authority or other responsible authority or authorities: “Each party shall identify an authority responsible for the regulation of sports betting and for combatting the manipulation of sports competitions. To include: advanced information exchange about suspicious sports betting; exclusion of sports betting on inadequately organized events or those involving participants under 18 years of age;
192 Play Fair Code (fn 154). 193 KNVB (fn 162). 194 BASPO, The nine principles of the Charter of Ethics
Austria: The judicial authorities are committed to collaborate with the Play Fair Code association.198 Finland: The national gambling company in Finland (Veikkaus) is tightly regulated and is included in the Nordic initiative to combat match-fixing.199 The Netherlands: The national Gaming Authority has been given the task of addressing the problems of illegality and criminality in the gaming industry.200 Switzerland: Comlot is authorised to oversee and control sport betting according to Articles under the E-BGS.201
II/10- 11 Sports betting operators: misuse of inside information; conflict of interest: the fight against illegal sports betting: ”Each party shall adopt measures to combat illegal operators of sports betting by actions such as: closure or restriction of access of operator; blockage of financial flows between consumers and such operators; prohibition of advertising by illegal operators; raising of consumer awareness of the risks associated with illegal sports betting.”
Austria: The Play Fair Code includes a commitment of national betting organisations as stakeholders (Austrian Lottery, Tipp 3, Admiral, Cashpoint, tipico)202 to fight illegal betting. Finland: The report of the Nordic countries describes the measures implemented (Monitoring/alerting) to report and take action on illegal betting activities. Veikkaus, the Finnish Betting Agency and SPL have introduced procedures to communicate on suspicious betting activities and SPL additionally receives information of suspicious matches from UEFA and FIFA.203 The Netherlands: The Dutch Gambling Authority KSA takes action against illegal betting operators and imposes fines on external non-registered betting providers. ( see also section 8.3)204
198 Play Fair Code (fn 195). 199 Match Fixing in the Nordic Countries (fn 158),16. 200 The Netherlands Gaming Authority, Strategic Summary
III/13 National platform :” Each party shall identify a national platform addressing manipulation of sports competitions that, according to domestic law: coordinates and disseminates information relevant to the fight against match-fixing; issues alerts, where appropriate, on suspicious betting activities; provides information of possible law infringement to public authorities as well as to sport organizations and betting operators; communicates its name to Secretary General of the Council f Europe.”
Austria: The Play Fair Code serves as the national platform in Austria to coordinate the fight against manipulation of sports competitions.206 Finland: FINCIS serves as the national platform in Finland.207 The Netherlands: KNVB is the national platform concerned with match-fixing in football and obtains assistance from UEFA and FIFA in the identification of suspicious betting activities.208 Switzerland: The inter-cantonal authorities are obliged to communicate illegal activities to the prosecuting authorities and to collaborate with other authorities involved, according to Art 108 E-BGS.209
IV/15- criminal offences relating to the manipulation of sports competitions: “Each Party shall ensure that its domestic laws enable to criminally sanction manipulation of sports competitions when it involves either coercive, corrupt or fraudulent practices, as defined by its domestic law”.
Austria: Fraud is punishable under § 146 and §147 of the Austrian criminal code210 and has been used in the case of match-fixing.211
205 Draft, Federal Law on Gambling
IV/16- Laundering of the proceeds of criminal offences relating to the manipulation of sports competitions: “Each party shall adopt legislative and other measures to establish money laundering as a criminal offence under its domestic law. Sports betting operators should be required to keep records and report any activities potentially linked to money laundering”.
Austria: The Austrian Financial Investigation Unit (A-FIU) is responsible for combating money laundering and collaborates with the Financial Action Task Force (FATF).216
V/21-Protection measures (witnesses): “Each party shall consider adoption of legal measures to protect persons (and family members) who provide information or give testimony on suspected cases of match-fixing”.
Austria: No provisions so far, but whistleblowers are protected by anonymity through the Ombudsman’s office of The Play Fair Code.223 Finland: Specific measures to protect witnesses have not yet been introduced. The Netherlands: A Whistle Blower Act224 came into force in 2016 which includes legal protection measures, but is applicable only to civil servants and company employees Switzerland: According to Art. 149-151 StPO of the state law from 2011, witnesses under threat can be questioned and heard outside court.225
217 Match Fixing in the Nordic Countries (fn 158), 16. 218 The Criminal Code of Finland (fn 146). 219 ICLG, Netherlands, Gambling 2017
Of the four countries discussed here only Switzerland has introduced new laws covering the manipulation of sport competitions as well as those concerning money laundering, under ArtVI/16 of this convention above. Offenders face fines and imprisonment of at least one year, as well as extradition.
VII-International cooperation in judicial and other matters “All parties shall cooperate in the application of international and regional legal instruments for the purpose of investigation and judicial procedures leading to prosecution and other effective measures including seizure, confiscation and extradition.”
For all the countries concerned INTERPOL assists national police forces in matters of identification, arrest and extradition of persons involved in crime.226
Austria: Austria collaborates with FATF in the area of money laundering227 and ÖFB is a member of FIFA. Finland: The Finnish Football association (SPL) receives information relating to suspicious matches from both UEFA and FIFA.228 The Finnish Center for Integrity in Sports (FINCIS) is responsible for cooperation with international organizations.229 The Netherlands: In 2009, The Netherlands co-headed a team on a project organized through FATF dealing with “Money Laundering through the Football Sector”230. The KNVB collaborates with UEFA in the analysis of potential match fixing incidents using the Betting Fraud Detection System(BFDS)231. The Dutch National Police have provided funds to INTERPOL to support their fight against match fixing.232 Switzerland: The headquarters of UEFA is situated in Switzerland facilitating close collaboration and information exchange in the area of sport integrity.
226 INTERPOL, notices < https://www.interpol.int/INTERPOL-expertise/Notices> (17.08.2017) 227 FATF (fn 137), 12. 228 Asser Institute, Final Report (fn 159), 69. 229 FINCIS (fn 183). 230 FATF (fn 137), 5. 231 KNVB (fn 162). 232 INTERPOL, Integrity in sport
7. Match-fixing in Europe Of the four countries reviewed here only Switzerland has introduced laws specifically tailored to match fixing. Austria and Finland have opted for codes of conduct and collaboration between football associations, betting providers and the police. The Netherlands has opted for “self-regulation” of the betting providers and football associations and on existing laws against corruption. In all cases, the football associations have been given a major responsibility to take action against match fixing and the gambling institutions are gladly cooperating, as primary victims of this type of fraud.
The different response of the four countries above to match-fixing compares with the likewise varied actions of other EU member states, with differences in emphasis on the criminalization of sport and gambling.233 Italy introduced new laws in 2014 to combat hooliganism and match fixing with prison sentences of up to 6 years and fines of up to 100,000 Euro.234 France has banned online betting through Betfair235 and Germany has introduced a specific law to address match fixing.236 Likewise, The Swedish Gambling Authority, the Swedish Sports Confederation, the police and Svenska Spel initiated a joint effort to protect sport from match fixing in 2016.237
After a brief period of internal corruption UEFA appears to have restored its own integrity and is now pursuing a no tolerance program on match-fixing, including consultation with Europol, the Council of Europe, law enforcement and gambling authorities throughout Europe.238 In partnership with Sportradar, UEFA has introduced a “betting fraud detection system” that monitors both pre-match and in-game betting activities of major bookmakers in both Europe
233 KEA, European Affairs, Verdict: guilty. Criminal law applies for match-fixing
The current analysis applies to four wealthy European countries, with healthy economies. Owing to the global economic crisis many football clubs were in debt and the players were not paid on time, creating a breeding ground for match-fixing.
This situation was emphasised by the FIFPro survey of 2016, which found242: “players in lower income brackets were twice or three times more likely to be approached by match fixers”.
In countries with weak economies, for example Cyprus, Portugal, Greece and Ukraine, the problem of match fixing is especially acute and not readily solved by regulations.243 Match- fixing suspicions in 2017 accompanied games in Ukraine in May244 and in Portugal in February.245 The case in Ukraine follows the passing of an anti-corruption law against match-
239 UEFA, Betting Fraud Detection System
A primary conclusion from the present and other analyses is that education programs alone are not going to eradicate corruption in football. Football clubs themselves must be required to manage and maintain a healthy business model, in collaboration with transparent sponsors. As outlined in the 2016 Deloitte “Annual Review of Football Finance” the revenue of football clubs varies considerably, with even premier league clubs in the UK facing debts ranging up to 1M Euro.249 All clubs are dependent on broadcasting and advertising rights that are subject to large fluctuations, according to the success of the club. Tax relief for a sponsor with a profitable business who takes over the debts of a club or who pays for advertising rights, are two ways of attracting investors to keep clubs solvent.250 In the UK financial support in the form of “parachute payments” have been introduced to provide financial cushions to clubs that drop from the Premier League to the Football League Championship.251 More initiatives in this direction are needed to protect clubs from accepting support from dubious and likely criminal sources.
A major challenge in the battle against match-fixing continues to be corruption facilitated by the globalization of the sport betting industry252 as we have already seen in the Sapina case.
246 Futbolgrad, Ukraine Passes Anti-Corruption Law to Fight Match Fixing
8. Borderline between legal and illegal betting in Austria, Switzerland, The Netherlands and Finland Whether or not a sport bet is legal or illegal depends on the law prevailing in the country where it is placed. A brief overview of the legal situation in the four countries covered by the present analyses is presented below. Thereafter follows a critique of these national measures in the context of the recommendations outlined in the Explanatory Report of the Macolin Convention.
8.1 Austria In Austria, betting in sport is not considered as a game of chance but as a game of skill.254 As such sport betting falls under the laws regulating totalizers and bookmakers, whereby differences exist according to the county of jurisdiction. For the present analysis a comparison of the regulations will be restricted to sport betting and money laundering.
Bookmakers must be registered according to county regulations. Depending on the county the maximum stake for an unregistered person is limited ranging from 70 to 2.500€ with for example 500 € in Salzburg.255 Higher stakes must be accompanied by customer identification, including a photograph. Live betting on a football match is generally forbidden in all counties, with the exception of bets on the scores at half time and full time.256 Bookmakers must document any suspicious money transfers and in particular (§ 16 SWuG Salzburg) when the winnings exceed 2000 euros. Moreover, any suspicion that the bookmaker may have of money laundering by a client must be reported immediately to the authorities (§4/2 Bundeskriminal-
253 Forrest David, The Threat of Football from Betting-Related Corruption, International Journal of Sport Finance 2012,7, 99-116, West Virginia University, 110. 254 Spieler-info.at, Sportwetten
8.2 Switzerland According to Art.106 paragraph 3 lit.b of the Swiss Constitution the Cantons are responsible for overseeing and issuing permits for sports betting. Article 106, paragraph 6 BV (Bundesverfassung) requires the Cantons to ensure that the net profit from betting activities is used for the public good, for culture, social activities and sport. The commercial operation of lotteries and betting agencies is generally forbidden. However, after article 34 LG (Lotteriegesetz), Cantons have the right to allow betting with totalizers on specific sports, including horse racing, boat racing and football. Totalizers are allowed on the basis that players compete against each other for a common pot. In contrast, betting shops, namely bookmakers are forbidden (article 33LG). Any agent that offers bets or negotiates bets for another agency can face criminal proceedings, resulting in imprisonment of up to 3 months or a fine of 10.000Francs (articles 33 and 42LG).
Article 43 Zi. 2 of the lottery act (LV) defines which types of lotteries fall under the law (LG). According to the formal restrictions for commercial sport betting with odds, like Sporttip is forbidden (Art. 33 LG). If offered by the inter-cantonal betting authorities, Swisslos and Lottery Romande whereby the proceeds contribute to charity Sporttip can, however be classified and approved as similar to a lottery.260 The Lottery and Betting Commission (COMLOT) is unable to prevent the infiltration of foreign betting organizations in the Swiss market. However, it can intervene when such organizations advertise their activities in Switzerland as happened at the beginning of the European Football Championships.261 Private betting by individuals over betting websites is, however tolerated262 but a new gambling law due to come into force in
257 Salzburger Wettunternehmergesetz (fn 255), 20. 258 Salzburger Wettunternehmergesetz (fn 255), 9. 259 Play Fair Code (fn 154). 260 Scherrer Urs, Remus Muresan, 2014- Handbuch zum schweizerischen Lotterie- und Wettrecht, Zürich/St.Gallen, 147. 261 SRF, Das illegale Geschäft mit den Sport-Wetten
8.3. The Netherlands According to the Dutch Act on Games of Chance (Article 16/1) only a single license can be allocated for sports betting games, namely to the National Sports Totalizator Foundation (de Lotto). After distribution of prizes (at least 47,5 % of the proceeds) the net profit must be allocated to sport, culture, social welfare and public health. Youths under the age of 18 are forbidden to take part in sports betting.264 Horse racing comes under the jurisdiction of a different provider, Scientific Games, which is obliged to contribute 50% of the proceeds of the totalizator to non-profit organizations linked to equestrian sports and other charities.265
De Lotto offers four sports betting options, namely the weekly lotto, the Euro Lottery, the daily lotto and the instant lottery as well as TOTO, which focuses on football.266 In The Netherlands the placing of bets on online websites is officially forbidden but evidently tolerated.267 Providers including Ladbrokes and Betfair have challenged the Dutch Laws compliance with the EC-Treaty Article 49 on the freedom to provide services. Their case has however been rejected in court,268 according to the Dutch requirement to protect consumers against fraud, illegal gambling and gambling addiction.269 The Dutch gaming regulator Kansspelautoriteit also imposed fines on other betting operators including ONISAC Ltd and Mansion Online Casino Ltd. who both offered Dutch language websites and payment options through the Dutch e- commercial system iDeal.270 Recent legislation expected in 2017 will allow online betting in The Netherlands according to strict requirements including specific taxes on the providers.271
263 Botschaft zum Geldspielgesetz
8.5 Axis of evil: the Asian illegal betting market Both Hill275 and Forrest276 have emphasized the ideal opportunities offered to criminals by the illegal betting markets in Asia for organizing football gambling fixes in Europe. The Asian- European recipe, pioneered by Sapina and others continues to be employed in the absence of any laws suitable to control illegal betting.277
The unregulated Asian betting market has flourished since the bookmakers charge lower fees than their European counterparts and offer bets on minor league matches as well as betting options mainly forbidden in Europe.278 Bets may be made on more than 30 features of a match, including the number of red or yellow cards, number of corners, the identity of the first scorer and so on.279 Live bets placed during a game are also popular and represent a significant proportion of the stakes. The offering of live bets adds to the problem of detecting manipulation of the game, since the corrupt players may not necessarily need to make their team lose by their action. As pointed out by Forrest advanced knowledge of the outcome of a match can be compared with insider trading on the stock market, leading to considerable profit. The size of stakes that can be placed on the Asian betting market are also essentially unlimited and can accumulate by being passed up the Asian betting pyramid from the small
272 Pentaho, Case Study, Veikkaus Raises Its Game Using Pentaho Data Integration
In the absence of effective international measures the threat of match–fixing in European football through illegal gambling channels remains unabated. The Federbet report from 2015 lists over 60 matches in Europe that were classified as being fixed!283 In May 2017 yet another match fixing incident was exposed, this time in Ireland in a game of the First Division. Irregular betting patterns on Asian markets involving large wagers above 400.000Euro prompted a criminal investigation involving UEFA, the Football Association of Ireland and the Irish Garda Economic Crime Bureau.284 Unregulated betting in Asia is evidently the evil that will continue to haunt European Football until measures are taken in Asia to legalize their own market.
9. Combatting Illegal Betting: National Interpretations and Compliance with the Macolin Convention Over the last 50 years football has grown into a major international entertainment industry. With their international exposure and appeal football clubs serve as desired status symbols and useful launch pads for cultivating business and political connections. Premiere football clubs are now owned by Arab, Russian, Chinese and other multi-millionaires with businesses mostly registered in offshore locations.285 The tax advantages offered by offshore locations have likewise been exploited by betting providers. The legality of all these arrangements is an issue of constant concern, especially since they offer opportunities for corruption. A main part of the Macolin document is concerned with the control of the betting market, especially in relation to match fixing and money laundering. In this last chapter, the responses of the four countries will be discussed in more detail and appropriate conclusion drawn. A summary of
280 Forrest D. (fn 253), 110. 281 BBC, Sport, Football betting - the global gambling industry worth billions
9.1. Control of the Betting Market (58-61 and 110-111): “The Report defines three types of betting activities: illegal, irregular and suspicious. Whether or not a given type of sports betting is illegal or legal will depend on the national jurisdiction where the consumer is located when placing the bet. An irregular bet is one that is inconsistent with the usual betting patterns in the market and should be detected by information exchange between any organization or authority involved in surveillance of the betting market or through an alert of the betting monitoring system. A suspicious bet is one that appears unusual in the framework of the national betting market and the sport in question. In paragraphs 110- 111 the Report lists procedures that could be adopted to restrict illegal operators, including the blocking of money transfers and access to websites as well as prohibition of advertising.”
Surveillance of the betting market is appropriately highlighted as an important factor in identifying illegal and suspicious betting activities. Since the credibility, growth and existence of registered sport betting companies are dependent on the maintenance of sport integrity it is not surprising that betting organizations themselves have taken up the initiative to fight illegal gambling associated with match fixing. This is being achieved through several bodies briefly mentioned in previous sections (ESSA, Federbet, Sportradar, BFDS and GLMS). In view of the requirements of The Report it is pertinent here to emphasize the central role that each of these non-governmental organizations is playing in the monitoring and surveillance of the gambling market. ESSA, the “European Sports Security Association”, was created in 2005 by a consortium of 25 betting providers to monitor betting markets, with the aim of identifying suspicious betting and alerting sporting bodies. ESSA has information sharing agreements with sports governing bodies, including FIFA and, as already indicated was a partner in the 2016 European Union project “Keep Crime Out of Sport”. In 2016 ESSA reported 15 cases of suspicious betting activity in European football, based on feedback from its own members. Where appropriate, such reports are passed on to the relevant sports governing body or regulatory authority.286 Federbet is a non-profit federation created in Belgium in 2011 to represent the interests of consumers and operators in the gaming sector. It provides assistance to bookmakers to identify suspicious betting activity287 and produces an annual
286 Essa, Sports Betting Integrity
As a matter of necessity, the betting organizations have established collaborations with national bodies to combat fraud and match fixing in sport. In Austria, the Play Fair Code organization has created a partnership with national betting providers and as a member of the World Lottery Association Austria has access to GLMS, which was upgraded in 2015 through a collaboration with SportRadar to fight match fixing more effectively.290 SportRadar likewise monitors the betting market in Finland, together with UEFA and GLMS.291 The success of GLMS to identify match-fixing incidents was illustrated by the case, mentioned previously, of the game in Spain between a Dutch and an Albanian team.292 A further initiative to monitor betting in football was marked in 2017 by an agreement between Sportradar and Genius Sports and members of the European Professional Football Leagues, including those of Austria, Switzerland and the Netherlands.293 Further, in Switzerland the new gambling law to combat the manipulation of sports competitions, due to become operational in 2019/20 will be supervised through Comlot (The Swiss Lottery and Betting Board).294
The initiatives outlined above show that a great deal has been achieved to control betting in sport in relation to match fixing, at both national and international levels. However, the threat presented by access to betting providers in Asia indicates that more has to be done worldwide
288 THE SPORTS INTEGRITY INITIATIVE, Analysis: Federbet report shows failure to respond to fixing attempts < http://www.sportsintegrityinitiative.com/analysis-federbet-report-shows-failure-to-respond-to-match-fixing- attempts/> (14.09.2017) 289 THE EUROPEAN LOTTERIES, THE GLOBAL LOTTERY MONITORING SYSTEM FOR SPOPRTS BETTING HOLDS ITS FIRST GENERAL ASSEMBLY < https://www.european-lotteries.org/announcement/global-lottery-monitoring- system-sports-betting-holds-its-first-general-assembly> (14.09.2017) 290 GAMING INTELLIGENCE, New global lottery monitoring system launches with Sportradar
As indicated in the EU report of the “Expert Group on Match Fixing”296 the initiatives taken by betting organizations must be supported by the appropriate legal bodies responsible for law enforcement and prosecution.
9.2. Sanctions and Measures (190-201) and Criminal Offences (129-134): “Each party is required to establish effective and dissuasive sanctions and punishments under their domestic law for crimes committed in the framework of the manipulation of sports competitions. Sports organizations are likewise encouraged to introduce disciplinary sanctions. Punishment should include monetary sanctions, seizure, confiscation of assets, extradition and imprisonment according to national criminal law.”
Of the four countries reviewed here Austria, Finland and the Netherlands have chosen to comply to the Macolin Convention through the application of existing laws to the problem of match fixing. In Austria match fixing is punishable under the fraud paragraphs § 146 and §147 of the Austrian criminal code297 with penalties of imprisonment from six months to ten years, in addition to fines. As in Austria, cases of match fixing in Finland are punishable under sections of the Finnish criminal code dealing with fraud or aggravated fraud, with sentences of up to two years or four years respectively. The convicted match fixer Wilson Raj Perumal298 was sentenced in Finland to two years imprisonment under “Chapter 36 Section 1 – Fraud” of
295 sportradar (fn 282). 296 European Commission, Expert Group on Match Fixing, EU Work Plan for Sport, 2014-2017
It is notable that only Switzerland has adopted a law specifically addressing match fixing. The advantage of the new law is that it deals comprehensively and specifically with all aspects of match fixing. As such it sends a clear message to the criminal community about the consequences of any attempts of manipulation of sporting events for financial gain. For this reason, other countries would be well advised to adopt the initiative taken by Switzerland on this issue.
Regarding sanctions against persons involved in manipulation, the Macolin convention encourages the implementation of disciplinary sanctions by the sporting bodies. The Austrian Football Association has introduced penalties, including suspension and fines for players who place bets on matches of their own teams or on those in the same league or who fail to report such offences.303 The Finnish Football Association, Suomen Palloliitto (SPL) has established regulations to combat match fixing, including the prohibition of betting by officials or team members on competitions in the same league. In addition, the leaking to outsiders of inside information on club-related matters is forbidden. Penalties include suspension of players, annulment of a match and exclusion of a team from forthcoming competitions.304 In the Netherlands The Royal Dutch Football Association (KNVB) has likewise introduced legislation to refrain players, referees and trainers who can influence the outcome of a game from placing bets on these competitions as well as placing bets on clubs in which the relevant persons are members. In addition, bets on games in junior leagues are forbidden.305 According
299 KEA (fn 212), 76. 300 Criminal Code, Netherlands (fn 169). 301 Sport Promotion Law, Pending (fn 214), 195. 302 Swiss Criminal Code (fn172), 53. 303 Play Fair Code (fn 154). 304 Asser (fn 159),67. 305 Asser (fn 159), 86. 50 to “Article 13bis” of the Swiss Football Association (SFV) regulations any natural or legal person is punishable for match fixing, for disseminating insider information or for failing to report criminal activities.306 Clubs as well as players are liable to fines of up to 1 million and 100.000 francs respectably in addition to other penalties for players and functionaries, including suspension and cancellation of their operating license.307
The collaboration between judicial and sporting bodies to fight match fixing in each of the countries above represents an important development in the mission to eliminate this virus in sport. At the same time the different approaches taken by the four countries to combat match fixing raises the interesting question as to which of these arrangements will be most effective. The steps taken by Switzerland are by far the most comprehensive and in time may provide the best guarantee for the maintenance of integrity in the football sector.
9.3. Money Laundering (135-142): “Parties are encouraged to adopt in their domestic law the same legislation as laid down in current European and United Nations conventions against organized crime, money laundering and corruption associated with drug trafficking, illegal arms and terrorism. The international standards in this area have been defined and presented by the Financial Action Task Force (FATF).”
Given the general limitation of the maximum bets taken by European bookmakers it appears that money laundering through registered European gambling providers is not an attractive option for organized crime. Nevertheless, in Austria, where betting on sports is regulated differently in each county, provisions combatting money laundering are included in the individual county legislations. In Vienna for example the bookmaker is required to inform the A-FIU (Austrian Finance Intelligence Unit) in cases of suspicious activity.308 The new draft laws in Switzerland concerning match fixing include a paragraph Art.9 §1d dealing with the
306 Swiss Football Association, Auszug aus der Rechtspflegeordnung des SFV
As far as football is concerned the problem of money laundering is likewise relevant in connection with transactions associated with the acquisition of football clubs and the transfer of players. In a welcome response to this problem the Dutch National Bank issued guidelines in 2017 for monitoring the football sector, including in-depth customer surveys and the mapping of transaction networks.313 But as long as there are football clubs struggling with debts, the problem of money laundering through them by exiled oligarchs and criminal networks will not go away. In 2016, the Portuguese police, with the support of Europol’s Finance Intelligence Group uncovered an organized crime group of mainly Russian citizens who purchased a struggling Portuguese Football club for money laundering purposes.314 The case of an apparently respectable millionaire who acquired a stake in the Birmingham City Football Club in the UK in 2007, mentioned in Chapter 5.5 above, is another example of the lack of proper legislation to screen and approve potential sponsors.
10. Conclusions As outlined in the foregoing, a variety of initiatives have been taken at national and international levels, by governmental and non-governmental organizations to address the problem of sports betting and corruption. The time is now ripe for coordinating efforts on all fronts through efficient networking procedures together with the creation of a centralized body with the authority to channel information to the appropriate national bodies for immediate action. INTERPOL already has a “Match-fixing Unit”, but as detailed above the warnings of match fixing incidents have come from different sources. The expertise collected
309 Erläuternder Bericht (fn 185). 310 ICLG, the Netherlands (fn 219). 311 POLIISI; General information on the supervision of gambling
The wide spectrum of wealth, from poor to rich among football clubs, both nationally and internationally poses a serious, unresolved threat to integrity on the playing field. At one extreme, star players and clubs attract massive sponsorship through advertising and media contracts and there is fierce competition between clubs to reach and remain in the lucrative premiere leagues. Even within the five, top European league clubs (England, France, Italy, Germany and Spain) there is a three-fold difference in club revenues.315 According to the same financial report from Deloitte, league revenues for the Netherlands are around three times those for Austria, whereby the Netherlands ranks below the premier league with their best team AFC Ajax in position 38 on the football “brand” scale.316 The 2015/16 annual revenue for the Austrian league of 150mEuro compares with 480mEuro for The Netherlands and 4,900mEuro for England317. According to another report, the annual revenue of the Turkish Cypriot Football League in 2008/2009 was 6.3mEuro.318 From this gross disparity in wealth of football clubs it is not difficult to see where corruptors will be looking for dissatisfied players open to earn extra money.
The Macolin convention outlines the need for awareness and education programs that have since been adopted by football associations and national sporting bodies. But if players in a club are paid poorly or irregularly they may eventually succumb to temptations from criminal elements, as already discussed. Penalties for match-fixing, including fines and suspension have been introduced, but are these alone sufficient? If a club is unable to provide financial security to its team members then betting on its games should be forbidden. The management of football clubs should be brought to a standard that offers confidence to potential investors and a business oriented operation open to regular scrutiny by the appropriate authorities. Only then should the club be registered for betting purposes.
315 Deloitte, Annual Review of Football Finance 2017
As emphasized in the Macolin convention the maintenance of integrity in football requires attention at all levels of organization and especially at the grass roots level of youth promotion and community involvement. In Switzerland the Sport-Toto Company donated 5.1M francs to the Swiss Football League for the promotion of talented junior players, both male and female, as well as for the advanced education of trainers and referees.319 According to the EU report on the “Financing of Sport” from 2012, The Netherlands’ national team donates 1MEuro per year for the financing of grassroots clubs.320 In Finland, 75% of the state funding for sport is allocated for grass roots activities and otherwise the Finnish Sport Federation administers funds for special purposes321. The Finnish Football Foundation also provides small grants to promote the development of football.322 In Austria the government has donated 80MEuro since 2010 for the promotion of sport from the profits of the state lottery.323 The efforts taken by the UK provide additional guidelines as to what can be achieved. The largest sports charity, the “Football Foundation” is jointly funded by the Premier League, the Football Association and the Government and has a comprehensive program aimed at supporting and promoting all aspects of football, including assistance to clubs in the efficient utilization of their assets.324 All the above efforts represent important national initiatives for promoting and preserving integrity in the football sector.
The development of data analysis protocols to identify whether or not a match is being fixed is a particularly important area already being explored and tested through the efforts of private companies. Sportradar has taken the initiative to analyze the change of betting patterns during the course of a game and has identified features specific for suspicious betting. Their efforts to translate these results into action are however being hampered by the non-transparency of the Asian Betting market.325 Another data analysis approach relies on methods to computerize
319 Sport-Toto-Gesellschaft, Die Partnerschaft mit der Sport-Toto-Gesellschaft
Since the prime reason for match fixing stems from financial gains and money laundering through the mainly illegal gambling market it is surprising that the recommendation of the Macolin convention to block financial flows through this market have not been heeded. Why is gambling on European matches in Asia and offshore places like Malta and the Isle of Man tolerated? What pressures are being put by European governments on the regulatory authorities in these tax-free havens to close down these illegal operators? Only recently has Switzerland accepted the obvious dangers that secret bank accounts represent to World security, through their protection of potential criminals and terrorists hiding illegally gained assets. The same threat is posed by offshore havens that allow rich individuals, international agencies and betting organizations to avoid taxation. Betting organizations should only be allowed to operate as companies registered on the mainland and that contribute through normal taxation to national budgets. In addition, trans-European, or better global measures should be introduced to enforce international action of the banking industry to collaborate with legal authorities in the fight against illegal betting by adopting the Macolin recommendation. The recent initiative of a Dutch bank to identify money laundering associated with match fixing as a priority concern is an important step in the right direction.329
It is too early to tell which of the four countries listed here have adopted the best policy to combat match fixing in football and the illegal betting and money laundering associated with
326 Kotzbek Gilbert, Kainz Wolfgang, FOOTBALL GAME ANALYSIS: A NEW APPLICATION AREA FOR CARTOGRAPHERS AND GI-SCIENTISTS ?
330 FIX THE FIXING
I thank the following persons for their willingness in providing useful comments, documents and weblinks related to the latest national laws and regulations on gambling and match fixing:
Dr. Antoine Duval, Asser Institute, The Netherlands
VT, LL.M. Olli Rauste, Finnish Ethical Centre for Sports
MLaw Thomas Haeny, Lotterie- und Wettkommission (Comlot), Bern, Switzerland
Jitse Talsma, Huis Voor Klokkenluiders (Whistle Blower Authority), The Netherlands
Antti Koivula, Tallinn Law School, Estonia
Legal Director Petteri Lindblom, SUEK, FINCIS, Helsinki, Finland
Dr. Marjan Olfers, Amsterdam Univesity, The Netherlands.
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72 11. Appendices
Appendix I
Council of Europe Treaty Series - No. 215
Council of Europe Convention on the Manipulation of Sports Competitions
Magglingen/Macolin, 18.IX.2014
Preamble
The member States of the Council of Europe and the other signatories to this Convention,
Considering that the aim of the Council of Europe is to achieve a greater unity between its members;
Considering the Action Plan of the Third Summit of Heads of State and Government of the Council of Europe (Warsaw, 16-17 May 2005), which recommends the continuation of Council of Europe activities which serve as references in the field of sport;
Considering that it is necessary to further develop a common European and global framework for the development of sport, based on the notions of pluralist democracy, rule of law, human rights and sports ethics;
Aware that every country and every type of sport in the world may potentially be affected by the manipulation of sports competitions and emphasising that this phenomenon, as a global threat to the integrity of sport, needs a global response which must also be supported by States which are not members of the Council of Europe;
Expressing concern about the involvement of criminal activities, and in particular organised crime in the manipulation of sports competitions and about its transnational nature;
Recalling the Convention for the Protection of Human Rights and Fundamental Freedoms (1950, ETS No. 5) and its protocols, the European Convention on Spectator Violence and Misbehaviour at Sports Events and in particular at Football Matches (1985, ETS No. 120), the Anti-Doping Convention (1989, ETS No. 135), the Criminal Law Convention on Corruption (1999, ETS No. 173) and the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism (2005, CETS No. 198);
Recalling the United Nations Convention against Transnational Organized Crime (2000) and the protocols thereto;
Also recalling the United Nations Convention against Corruption (2003);
Recalling the importance of effectively investigating without undue delay the offences within their jurisdiction;
Recalling the key role that the International Criminal Police Organization (Interpol) plays in facilitating effective co-operation between the law-enforcement authorities in addition to judicial co-operation;
73 CETS 215 – Manipulation of Sports Competition, 18.IX.2014
Emphasising that sports organisations bear the responsibility to detect and sanction the manipulation of sports competitions committed by persons under their authority;
Acknowledging the results already achieved in the fight against the manipulation of sports competitions;
Convinced that an effective fight against the manipulation of sports competitions requires increased, rapid, sustainable and properly functioning national and international co-operation;
Having regard to Committee of Ministers Recommendations to member States No. R(92)13 rev. on the revised European Sports Charter; CM/Rec(2010)9 on the revised Code of Sports Ethics; Rec(2005)8 on the principles of good governance in sport and CM/Rec(2011)10 on promotion of the integrity of sport to fight the manipulation of results, notably match-fixing;
In the light of the work and conclusions of the following conferences:
– the 11th Council of Europe Conference of Ministers responsible for Sport, held in Athens on 11 and 12 December 2008;
– the 18th Council of Europe Informal Conference of Ministers responsible for Sport (Baku, 22 September 2010) on promotion of the integrity of sport against the manipulation of results (match-fixing);
– the 12th Council of Europe Conference of Ministers responsible for Sport (Belgrade, 15 March 2012) particularly in respect of the drafting of a new international legal instrument against the manipulation of sports results;
– the UNESCO 5th International Conference of Ministers and Senior Officials Responsible for Physical Education and Sport (MINEPS V).
Convinced that dialogue and co-operation among public authorities, sports organisations, competition organisers and sports betting operators at national and international levels on the basis of mutual respect and trust are essential in the search for effective common responses to the challenges posed by the problem of the manipulation of sports competitions;
Recognising that sport, based on fair and equal competition, is unpredictable in nature and requires unethical practices and behaviour in sport to be forcefully and effectively countered;
Emphasising their belief that consistent application of the principles of good governance and ethics in sport is a significant factor in helping to eradicate corruption, the manipulation of sports competitions and other kinds of malpractice in sport;
Acknowledging that, in accordance with the principle of the autonomy of sport, sports organisations are responsible for sport and have self-regulatory and disciplinary responsibilities in the fight against manipulation of sports competitions, but that public authorities, protect the integrity of sport, where appropriate;
Acknowledging that the development of sports betting activities, particularly of illegal sports betting, increases the risks of such manipulation;
Considering that the manipulation of sports competitions may be related or unrelated to sports betting, and related or unrelated to criminal offences, and that it should be dealt with in all cases;
Taking note of the margin of discretion which States enjoy, within the framework of applicable law, in deciding on sports betting policies,
2 CETS 215 – Manipulation of Sports Competition, 18.IX.2014
Have agreed as follows:
Chapter I – Purpose, guiding principles, definitions
Article 1 – Purpose and main objectives
1 The purpose of this Convention is to combat the manipulation of sports competitions in order to protect the integrity of sport and sports ethics in accordance with the principle of the autonomy of sport.
2 For this purpose, the main objectives of this Convention are:
a to prevent, detect and sanction national or transnational manipulation of national and international sports competitions;
b to promote national and international co-operation against manipulation of sports competitions between the public authorities concerned, as well as with organisations involved in sports and in sports betting.
Article 2 – Guiding principles
1 The fight against the manipulation of sports competitions shall ensure respect, inter alia, for the following principles:
a human rights; b legality; c proportionality; d protection of private life and personal data.
Article 3 – Definitions
For the purposes of this Convention:
1 “Sports competition” means any sport event organised in accordance with the rules set by a sports organisation listed by the Convention Follow-up Committee in accordance with Article 31.2, and recognised by an international sports organisation, or, where appropriate, another competent sports organisation.
2 “Sports organisation” means any organisation which governs sport or one particular sport, and which appears on the list adopted by the Convention Follow-up Committee in accordance with Article 31.2, as well as its continental and national affiliated organisations, if necessary.
3 “Competitions organiser” means any sports organisation or any other person, irrespective of their legal form, which organises sports competitions.
4 “Manipulation of sports competitions” means an intentional arrangement, act or omission aimed at an improper alteration of the result or the course of a sports competition in order to remove all or part of the unpredictable nature of the aforementioned sports competition with a view to obtaining an undue advantage for oneself or for others.
5 “Sports betting” means any wagering of a stake of monetary value in the expectation of a prize of monetary value, subject to a future and uncertain occurrence related to a sports competition. In particular:
3 CETS 215 – Manipulation of Sports Competition, 18.IX.2014
a “illegal sports betting” means any sports betting activity whose type or operator is not allowed under the applicable law of the jurisdiction where the consumer is located;
b “irregular sports betting” shall mean any sports betting activity inconsistent with usual or anticipated patterns of the market in question or related to betting on a sports competition whose course has unusual characteristics;
c “suspicious sports betting” shall mean any sports betting activity which, according to reliable and consistent evidence, appears to be linked to a manipulation of the sports competition on which it is offered.
6 “Competition stakeholder” means any natural or legal person belonging to one of the following categories:
a “athlete” means any person or group of persons, participating in sports competitions;
b “athlete support personnel” means any coach, trainer, manager, agent, team staff, team official, medical or paramedical personnel working with or treating athletes participating in or preparing for sports competitions, and all other persons working with the athletes;
c “official” means any person who is the owner of, a shareholder in, an executive or a staff member of the entities which organise and promote sports competitions, as well as referees, jury members and any other accredited persons. The term also covers the executives and staff of the international sports organisation, or where appropriate, other competent sports organisation which recognises the competition.
7 “Inside information” means information relating to any competition that a person possesses by virtue of his or her position in relation to a sport or competition, excluding any information already published or common knowledge, easily accessible to interested members of the public or disclosed in accordance with the rules and regulations governing the relevant competition.
Chapter II – Prevention, co-operation and other measures
Article 4 – Domestic co-ordination
1 Each Party shall co-ordinate the policies and action of all the public authorities concerned with the fight against the manipulation of sports competitions.
2 Each Party, within its jurisdiction, shall encourage sports organisations, competition organisers and sports betting operators to co-operate in the fight against the manipulation of sports competitions and, where appropriate, entrust them to implement the relevant provisions of this Convention.
Article 5 – Risk assessment and management
1 Each Party shall – where appropriate in co-operation with sports organisations, sports betting operators, competition organisers and other relevant organisations – identify, analyse and evaluate the risks associated with the manipulation of sports competitions.
2 Each Party shall encourage sports organisations, sports betting operators, competition organisers and any other relevant organisation to establish procedures and rules in order to combat manipulation of sports competitions and shall adopt, where appropriate, legislative or other measures necessary for this purpose.
4 CETS 215 – Manipulation of Sports Competition, 18.IX.2014
Article 6 – Education and awareness raising
1 Each Party shall encourage awareness raising, education, training and research to strengthen the fight against manipulation of sports competitions.
Article 7 – Sports organisations and competition organisers
1 Each Party shall encourage sports organisations and competition organisers to adopt and implement rules to combat the manipulation of sports competitions as well as principles of good governance, related, inter alia to:
a prevention of conflicts of interest, including:
– prohibiting competition stakeholders from betting on sports competitions in which they are involved;
– prohibiting the misuse or dissemination of inside information;
b compliance by sports organisations and their affiliated members with all their contractual or other obligations;
c the requirement for competition stakeholders to report immediately any suspicious activity, incident, incentive or approach which could be considered an infringement of the rules against the manipulation of sports competitions.
2 Each Party shall encourage sports organisations to adopt and implement the appropriate measures in order to ensure:
a enhanced and effective monitoring of the course of sports competitions exposed to the risks of manipulation;
b arrangements to report without delay instances of suspicious activity linked to the manipulation of sports competitions to the relevant public authorities or national platform;
c effective mechanisms to facilitate the disclosure of any information concerning potential or actual cases of manipulation of sports competitions, including adequate protection for whistle blowers;
d awareness among competition stakeholders including young athletes of the risk of manipulation of sports competitions and the efforts to combat it, through education, training and the dissemination of information;
e the appointment of relevant officials for a sports competition, in particular judges and referees, at the latest possible stage.
3 Each Party shall encourage its sports organisations, and through them the international sports organisations to apply specific, effective, proportionate and dissuasive disciplinary sanctions and measures to infringements of their internal rules against the manipulation of sports competitions, in particular those referred to in paragraph 1 of this article, as well as to ensure mutual recognition and enforcement of sanctions imposed by other sports organisations, notably in other countries.
4 Disciplinary liability established by sports organisations shall not exclude any criminal, civil or administrative liability.
5 CETS 215 – Manipulation of Sports Competition, 18.IX.2014
Article 8 – Measures regarding the financing of sports organisations
1 Each Party shall adopt such legislative or other measures as may be necessary to ensure appropriate transparency regarding the funding of sports organisations that are financially supported by the Party.
2 Each Party shall consider the possibility of helping sports organisations to combat the manipulation of sports competitions, including by funding appropriate mechanisms.
3 Each Party shall where necessary consider withholding financial support or inviting sports organisations to withhold financial support from competition stakeholders sanctioned for manipulating sports competitions, for the duration of the sanction.
4 Where appropriate, each Party shall take steps to withhold some or all financial or other sport- related support from any sports organisations that do not effectively apply regulations for combating manipulation of sports competitions.
Article 9 – Measures regarding the betting regulatory authority or other responsible authority or authorities
1 Each Party shall identify one or more responsible authorities, which in the Party’s legal order are entrusted with the implementation of sports betting regulation and with the application of relevant measures to combat the manipulation of sports competitions in relation to sports betting, including, where appropriate:
a the exchange of information, in a timely manner, with other relevant authorities or a national platform for illegal, irregular or suspicious sports betting as well as infringements of the regulations referred to or established in accordance with this Convention;
b the limitation of the supply of sports betting, following consultation with the national sports organisations and sports betting operators, particularly excluding sports competitions:
– which are designed for those under the age of 18; or – where the organisational conditions and/or stakes in sporting terms are inadequate;
c the advance provision of information about the types and the objects of sports betting products to competition organisers in support to their efforts to identify and manage risks of sports manipulation within their competition;
d the systematic use in sports betting of means of payment allowing financial flows above a certain threshold, defined by each Party, to be traced, particularly the senders, the recipients and the amounts;
e mechanisms, in co-operation with and between sports organisations and, where appropriate, sports betting operators, to prevent competition stakeholders from betting on sports competitions that are in breach of relevant sports rules or applicable law;
f the suspension of betting, according to domestic law, on competitions for which an appropriate alert has been issued.
2 Each Party shall communicate to the Secretary General of the Council of Europe the name and addresses of the authority or authorities identified in pursuance of paragraph 1 of this article.
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Article 10 – Sports betting operators
1 Each Party shall adopt such legislative or other measures as may be necessary to prevent conflicts of interest and misuse of inside information by natural or legal persons involved in providing sports betting products, in particular through restrictions on:
a natural or legal persons involved in providing sports betting products betting on their own products;
b the abuse of a position as sponsor or part-owner of a sports organisation to facilitate the manipulation of a sports competition or to misuse inside information;
c competition stakeholders being involved in compiling betting odds for the competition in which they are involved;
d any sports betting operator who controls a competition organiser or stakeholder, as well as any sports betting operator who is controlled by such a competition organiser or stakeholder, offering bets on the competition in which this competition organiser or stakeholder is involved.
2 Each Party shall encourage its sports betting operators, and through them, the international organisations of sports betting operators, to raise awareness among their owners and employees of the consequences of and the fight against manipulation of sports competitions, through education, training and the dissemination of information.
3 Each Party shall adopt such legislative or other measures as may be necessary to oblige sports betting operators to report irregular or suspicious betting without delay to the betting regulatory authority, the other responsible authority or authorities, or the national platform.
Article 11 – The fight against illegal sports betting
1 With a view to combating the manipulation of sports competitions, each Party shall explore the most appropriate means to fight operators of illegal sports betting and shall consider adopting measures, in accordance with the applicable law of the relevant jurisdiction, such as:
a closure or direct and indirect restriction of access to illegal remote sports betting operators, and closure of illegal land-based sports betting operators in the Party’s jurisdiction;
b blocking of financial flows between illegal sports betting operators and consumers;
c prohibition of advertising for illegal sports betting operators;
d raising of consumers’ awareness of the risks associated with illegal sports betting.
Chapter III – Exchange of information
Article 12 – Exchange of information between competent public authorities, sports organisations and sports betting operators
1 Without prejudice to Article 14, each Party shall facilitate, at national and international levels and in accordance with its domestic law, exchanges of information between the relevant public authorities, sports organisations, competition organisers, sports betting operators and national platforms. In particular, each Party shall undertake to set up mechanisms for sharing relevant information when such information might assist in the carrying out of the risk assessment referred to in Article 5 and namely the advanced provision of information about
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the types and object of the betting products to the competition organisers, and in initiating or carrying out investigations or proceedings concerning the manipulation of sports competitions.
2 Upon request, the recipient of such information shall, in accordance with domestic law and without delay, inform the organisation or the authority sharing the information of the follow-up given to this communication.
3 Each Party shall explore possible ways of developing or enhancing co-operation and exchange of information in the context of the fight against illegal sports betting as set out in Article 11 of this Convention.
Article 13 – National platform
1 Each Party shall identify a national platform addressing manipulation of sports competitions. The national platform shall, in accordance with domestic law, inter alia:
a serve as an information hub, collecting and disseminating information that is relevant to the fight against manipulation of sports competitions to the relevant organisations and authorities;
b co-ordinate the fight against the manipulation of sports competitions;
c receive, centralise and analyse information on irregular and suspicious bets placed on sports competitions taking place on the territory of the Party and, where appropriate, issue alerts;
d transmit information on possible infringements of laws or sports regulations referred to in this Convention to public authorities or to sports organisations and/or sports betting operators;
e co-operate with all organisations and relevant authorities at national and international levels, including national platforms of other States.
2 Each Party shall communicate to the Secretary General of the Council of Europe the name and addresses of the national platform.
Article 14 – Personal data protection
1 Each Party shall adopt such legislative and other measures as may be necessary to ensure that all actions against the manipulation of sports competitions comply with relevant national and international personal data protection laws and standards, particularly in the exchange of information covered by this Convention.
2 Each Party shall adopt such legislative or other measures as necessary to guarantee that the public authorities and organisations covered by this Convention take the requisite measures in order to ensure that, when personal data are collected, processed and exchanged, irrespective of the nature of those exchanges, due regard is given to the principles of lawfulness, adequacy, relevance and accuracy, and also to data security and the rights of data subjects.
3 Each Party shall provide in its laws that the public authorities and organisations covered by this Convention are to ensure that the exchange of data for the purpose of this Convention does not go beyond the necessary minimum for the pursuit of the stated purposes of the exchange.
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4 Each Party shall invite the various public authorities and organisations covered by this Convention to provide the requisite technical means to ensure the security of the data exchanged and to guarantee their reliability and integrity, as well as the availability and integrity of the data exchange systems and the identification of their users.
Chapter IV – Substantive criminal law and co-operation with regard to enforcement
Article 15 – Criminal offences relating to the manipulation of sports competitions
1 Each Party shall ensure that its domestic laws enable to criminally sanction manipulation of sports competitions when it involves either coercive, corrupt or fraudulent practices, as defined by its domestic law.
Article 16 – Laundering of the proceeds of criminal offences relating to the manipulation of sports competitions
1 Each Party shall adopt such legislative or other measures as may be necessary to establish as criminal offences under its domestic law the conduct as referred to in Article 9, paragraphs 1 and 2, of the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism (2005, CETS No. 198), in Article 6, paragraph 1 of the United Nations Convention against Transnational Organized Crime (2000) or in Article 23, paragraph 1 of the United Nations Convention against Corruption (2003), under the conditions referred to therein, when the predicate offence giving raise to profit is one of those referred to in Articles 15 and 17 of this Convention and in any event, in the case of extortion, corruption and fraud.
2 When deciding on the range of offences to be covered as predicate offences mentioned in paragraph 1, each Party may decide, in accordance with its domestic law, how it will define those offences and the nature of any particular elements that make them serious.
3 Each Party shall consider including the manipulation of sports competitions in its money laundering prevention framework by requiring sports betting operators to apply customer due diligence, record keeping and reporting requirements.
Article 17 – Aiding and abetting
1 Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally, the aiding and abetting of the commission of any of the criminal offences referred to in Article 15 of this Convention.
Article 18 – Corporate liability
1 Each Party shall adopt such legislative or other measures as may be necessary to ensure that legal persons can be held liable for offences referred to in Articles 15 to 17 of this Convention, committed for their benefit by any natural person, acting either individually or as a member of an organ of the legal person, who has a leading position within the legal person, based on:
a a power of representation of the legal person; b the authority to take decisions on behalf of the legal person; c the authority to exercise control within the legal person.
2 Subject to the legal principles of the Party, the liability of a legal person may be criminal, civil or administrative.
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3 Other than in the cases already provided for in paragraph 1, each Party shall take the necessary measures to ensure that a legal person can be held liable when lack of supervision or control by a natural person referred to in paragraph 1 has made possible the commission of an offence referred to in Articles 15 to 17 of this Convention for the benefit of that legal person by a natural person acting under its authority.
4 Such liability shall be without prejudice to the criminal liability of the natural persons who have committed the offence.
Chapter V – Jurisdiction, criminal procedure and enforcement measures
Article 19 – Jurisdiction
1 Each Party shall adopt such legislative or other measures as may be necessary to establish jurisdiction over the offences referred to in Articles 15 to 17 of this Convention where that offence is committed:
a in its territory; or b on board a ship flying its flag; or c on board an aircraft registered under its law; or d by one of its nationals or by a person habitually residing in its territory.
2 Each State or the European Union may, at the time of signature or when depositing its instrument of ratification, acceptance or approval, by a declaration addressed to the Secretary General of the Council of Europe, declare that it reserves the right not to apply, or to apply only in specific cases or conditions, the rules on jurisdiction laid down in paragraph 1, sub- paragraph d of this article.
3 Each Party shall take the necessary legislative or other measures to establish jurisdiction over offences referred to in Articles 15 to 17 of this Convention in cases in which an alleged offender is present on its territory and cannot be extradited to another Party on the basis of his or her nationality.
4 When more than one Party claims jurisdiction over an alleged offence referred to in Articles 15 to 17 of this Convention, the Parties involved shall, where appropriate, consult each other with a view to determining the most appropriate jurisdiction for the purposes of prosecution.
5 Without prejudice to the general rules of international law, this Convention does not exclude any criminal, civil and administrative jurisdiction exercised by a Party in accordance with its domestic law.
Article 20 – Measures to secure electronic evidence
1 Each Party shall adopt legislative or other measures to secure electronic evidence, inter alia through the expedited preservation of stored computer data, expedited preservation and disclosure of traffic data, production orders, search and seizure of stored computer data, real- time collection of traffic data and the interception of content data, in accordance with its domestic law, when investigating offences referred to in Articles 15 to 17 of this Convention.
Article 21 – Protection measures
1 Each Party shall consider adoption of such legal measures as may be necessary to provide effective protection for:
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a persons who provide, in good faith and on reasonable grounds, information concerning offences referred to in Articles 15 to 17 of this Convention or otherwise co-operate with the investigating or prosecuting authorities;
b witnesses who give testimony concerning these offences;
c when necessary, members of the family of persons referred to in sub-paragraphs a and b.
Chapter VI – Sanctions and measures
Article 22 – Criminal sanctions against natural persons
1 Each Party shall take the necessary legislative or other measures to ensure that the offences referred to in Articles 15 to 17 of this Convention, when committed by natural persons, are punishable by effective, proportionate and dissuasive sanctions, including monetary sanctions, taking account of the seriousness of the offences. These sanctions shall include penalties involving deprivation of liberty that may give rise to extradition, as defined by domestic law.
Article 23 – Sanctions against legal persons
1 Each Party shall take the necessary legislative or other measures to ensure that legal persons held liable in accordance with Article 18 are subject to effective, proportionate and dissuasive sanctions, including monetary sanctions and possibly other measures such as:
a a temporary or permanent disqualification from exercising commercial activity; b placement under judicial supervision; c a judicial winding-up order.
Article 24 – Administrative sanctions
1 Each Party shall adopt, where appropriate, such legislative or other measures in respect of acts which are punishable under its domestic law as may be necessary to punish infringements established in accordance with this Convention by effective, proportionate and dissuasive sanctions and measures following proceedings brought by the administrative authorities, where the decision may give rise to proceedings before a court having jurisdiction.
2 Each Party shall ensure that administrative measures are applied. This may be done by the betting regulatory authority or the other responsible authority or authorities, in accordance with its domestic law.
Article 25 – Seizure and confiscation
1 Each Party shall take the necessary legislative or other measures, in accordance with domestic law, to permit seizure and confiscation of:
a the goods, documents and other instruments used, or intended to be used, to commit the offences referred to in Articles 15 to 17 of this Convention;
b the proceeds of those offences, or property of a value corresponding to those proceeds.
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Chapter VII – International co-operation in judicial and other matters
Article 26 – Measures with a view to international co-operation in criminal matters
1 The Parties shall co-operate with each other, in accordance with the provisions of this Convention and in accordance with the relevant applicable international and regional instruments and arrangements agreed on the basis of uniform or reciprocal legislation and with their domestic law, to the widest extent possible for the purposes of investigations, prosecutions and judicial proceedings concerning the offences referred to in Articles 15 to 17 of this Convention, including seizure and confiscation.
2 The Parties shall co-operate to the widest extent possible, in accordance with the relevant applicable international, regional and bilateral treaties on extradition and mutual assistance in criminal matters and in accordance with their domestic law, concerning the offences referred to in Articles 15 to 17 of this Convention.
3 In matters of international co-operation, whenever dual criminality is considered to be a requirement, it shall be deemed to have been fulfilled, irrespective of whether the laws of the requested State place the offence within the same category of offence or use the same term to denominate the offence as the requesting State, if the conduct underlying the offence in respect of which legal mutual assistance or extradition is requested is a criminal offence under the laws of both Parties.
4 If a Party that makes extradition or mutual legal assistance in criminal matters conditional on the existence of a treaty receives a request for extradition or legal assistance in criminal matters from a Party with which it has no such treaty, it may, acting in full compliance with its obligations under international law and subject to the conditions provided for by its own domestic law, consider this Convention to be the legal basis for extradition or mutual legal assistance in criminal matters in respect of the offences referred to in Articles 15 to 17 of this Convention.
Article 27 – Other international co-operation measures in respect of prevention
1 Each Party shall endeavour to integrate, where appropriate, the prevention of and the fight against the manipulation of sports competitions into assistance programmes for the benefit of third States.
Article 28 – International co-operation with international sports organisations
1 Each Party, in accordance with its domestic law, shall co-operate with international sports organisations in the fight against the manipulation of sports competitions.
Chapter VIII – Follow up
Article 29 – Provision of information
1 Each Party shall forward to the Secretary General of the Council of Europe, in one of the official languages of the Council of Europe, all relevant information concerning legislative and other measures taken by it for the purpose of complying with the terms of this Convention.
Article 30 – Convention Follow-up Committee
1 For the purposes of this Convention, the Convention Follow-up Committee is hereby set up.
2 Each Party may be represented on the Convention Follow-up Committee by one or more delegates, including representatives of public authorities responsible for sport, law- enforcement or betting regulation. Each Party shall have one vote.
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3 The Parliamentary Assembly of the Council of Europe, as well as other relevant Council of Europe intergovernmental committees, shall each appoint a representative to the Convention Follow-up Committee in order to contribute to a multisectoral and multidisciplinary approach. The Convention Follow-up Committee may, if necessary, invite, by unanimous decision, any State which is not a Party to the Convention, any international organisation or body, to be represented by an observer at its meetings. Representatives appointed under this paragraph shall participate in meetings of the Convention Follow-up Committee without the right to vote.
4 Meetings of the Convention Follow-up Committee shall be convened by the Secretary General of the Council of Europe. Its first meeting shall be held as soon as reasonably practicable, and in any case within one year after the date of entry into force of the Convention. It shall subsequently meet whenever a meeting is requested by at least one third of the Parties or by the Secretary General.
5 Subject to the provisions of this Convention, the Convention Follow-up Committee shall draw up and adopt by consensus its own rules of procedure.
6 The Convention Follow-up Committee shall be assisted by the Secretariat of the Council of Europe in carrying out its functions.
Article 31 – Functions of the Convention Follow-up Committee
1 The Convention Follow-up Committee is responsible for the follow-up to the implementation of this Convention.
2 The Convention Follow-up Committee shall adopt and modify the list of sports organisations referred to in Article 3.2, while ensuring that it is published in an appropriate manner.
3 The Convention Follow-up Committee may, in particular:
a make recommendations to the Parties concerning measures to be taken for the purposes of this Convention, in particular with respect to international co-operation;
b where appropriate, make recommendations to the Parties, following the publication of explanatory documentation and, after prior consultations with representatives of sports organisations and sports betting operators, in particular on:
– the criteria to be met by sports organisations and sports betting operators in order to benefit from the exchange of information referred to in Article 12.1 of this Convention;
– other ways aimed at enhancing the operational co-operation between the relevant public authorities, sports organisations and betting operators, as mentioned in this Convention;
c keep relevant international organisations and the public informed about the activities undertaken within the framework of this Convention;
d prepare an opinion to the Committee of Ministers on the request of any non-member State of the Council of Europe to be invited by the Committee of Ministers to sign the Convention in pursuance of Article 32.2.
4 In order to discharge its functions, the Convention Follow-up Committee may, on its own initiative, arrange meetings of experts.
5 The Convention Follow-up Committee, with the prior agreement of the Parties concerned, shall arrange visits to the Parties.
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Chapter IX – Final provisions
Article 32 – Signature and entry into force
1 This Convention shall be open for signature by the member States of the Council of Europe, the other States Parties to the European Cultural Convention, the European Union and the non-member States which have participated in its elaboration or enjoying observer status with the Council of Europe.
2 This Convention shall also be open for signature by any other non-member State of the Council of Europe upon invitation by the Committee of Ministers. The decision to invite a non- member State to sign the Convention shall be taken by the majority provided for in Article 20.d of the Statute of the Council of Europe, and by a unanimous vote of the representatives of the Contracting States entitled to sit on the Committee of Ministers, after consulting the Convention Follow-up Committee, once established.
3 This Convention is subject to ratification, acceptance or approval. Instruments of ratification, acceptance or approval shall be deposited with the Secretary General of the Council of Europe.
4 This Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date on which five signatories, including at least three member States of the Council of Europe, have expressed their consent to be bound by the Convention in accordance with the provisions of paragraphs 1, 2 and 3.
5 In respect of any signatory State or the European Union which subsequently expresses its consent to be bound by it, the Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date of the expression of its consent to be bound by the Convention in accordance with the provisions of paragraphs 1, 2 and 3.
6 A Contracting Party which is not a member of the Council of Europe shall contribute to the financing of the Convention Follow-up Committee in a manner to be decided by the Committee of Ministers after consultation with that Party.
Article 33 – Effects of the Convention and relationship with other international instruments
1 This Convention does not affect the rights and obligations of Parties under international multilateral conventions concerning specific subjects. In particular, this Convention does not alter their rights and obligations arising from other agreements previously concluded in respect of the fight against doping and consistent with the subject and purpose of this Convention.
2 This Convention supplements in particular, where appropriate, applicable multilateral or bilateral treaties between the Parties, including the provisions of:
a the European Convention on Extradition (1957, ETS No. 24);
b the European Convention on Mutual Assistance in Criminal Matters (1959, ETS No. 30);
c the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (1990, ETS No. 141);
d The Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism (2005, CETS No. 198).
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3 The Parties to the Convention may conclude bilateral or multilateral treaties with one another on the matters dealt with in this Convention in order to supplement or strengthen the provisions thereof or to facilitate the application of the principles embodied therein.
4 If two or more Parties have already concluded a treaty on the matters dealt with in this Convention or have otherwise established relations in respect of such matters, they shall also be entitled to apply that treaty or to regulate those relations accordingly. However, when Parties establish relations in respect of the matters dealt with in this Convention other than as provided for therein, they shall do so in a manner that is not inconsistent with the Convention’s objectives and principles.
5 Nothing in this Convention shall affect other rights, restrictions, obligations and responsibilities of Parties.
Article 34 – Conditions and safeguards
1 Each Party shall ensure that the establishment, implementation and application of the powers and procedures provided for in Chapters II to VII are subject to conditions and safeguards provided for under its domestic law, which shall provide for the adequate protection of human rights and liberties, including rights arising pursuant to obligations it has undertaken under the Convention for the Protection of Human Rights and Fundamental Freedoms, the 1966 United Nations International Covenant on Civil and Political Rights, and other applicable international human rights instruments, and which shall incorporate the principle of proportionality into its domestic law.
2 Such conditions and safeguards shall, as appropriate in view of the nature of the procedure or power concerned, inter alia include judicial or other independent supervision, grounds justifying the application, as well as the limitation of the scope and the duration of such power or procedure.
3 To the extent that it is consistent with the public interest, in particular the sound administration of justice, each Party shall consider the impact of the powers and procedures in these chapters upon the rights, responsibilities and legitimate interests of third parties.
Article 35 – Territorial application
1 Any State or the European Union may, at the time of signature or when depositing its instrument of ratification, acceptance or approval, specify the territory or territories to which this Convention shall apply.
2 Each Party may, at any later date, by a declaration addressed to the Secretary General of the Council of Europe, extend the application of this Convention to any other territory specified in the declaration and for whose international relations it is responsible or on whose behalf it is authorised to give undertakings. In respect of such a territory the Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date of receipt of the declaration by the Secretary General.
3 Any declaration made under the two preceding paragraphs may, in respect of any territory specified in such declaration, be withdrawn by a notification addressed to the Secretary General of the Council of Europe. The withdrawal shall become effective on the first day of the month following the expiration of a period of three months after the date of receipt of such notification by the Secretary General.
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Article 36 – Federal clause
1 A federal State may reserve the right to assume obligations under Chapters II, IV, V and VI of this Convention consistent with its fundamental principles governing the relationship between its central government and constituent States or other similar territorial entities, provided that it is still able to co-operate under Chapters III and VII.
2 When making a reservation under paragraph 1, a federal State may not apply the terms of such reservation to exclude or substantially diminish its obligations to provide for the measures set out in Chapters III and VII. Overall, it shall provide for a broad and effective enforcement capability with respect to those measures.
3 With regard to the provisions of this Convention, the application of which comes under the jurisdiction of each constituent States or other similar territorial entities that are not obliged by the constitutional system of the federation to take legislative measures, the federal government shall inform the competent authorities of such States of the said provisions with its favourable opinion, encouraging them to take appropriate action to give them effect.
Article 37 – Reservations
1 By a written notification addressed to the Secretary General of the Council of Europe, any State or the European Union may, at the time of signature or when depositing its instrument of ratification, acceptance or approval, declare that it avails itself of the reservations provided for in Article 19, paragraph 2 and in Article 36, paragraph 1. No other reservation may be made.
2 A Party that has made a reservation in accordance with paragraph 1 may wholly or partially withdraw it by means of a notification addressed to the Secretary General of the Council of Europe. Such withdrawal shall take effect on the date of receipt of such notification by the Secretary General. If the notification states that the withdrawal of a reservation is to take effect on a date specified therein, and such date is later than the date on which the notification is received by the Secretary General, the withdrawal shall take effect on that later date.
3 A Party that has made a reservation shall withdraw such reservation, in whole or in part, as soon as circumstances so permit.
4 The Secretary General of the Council of Europe may periodically ask Parties that have made one or more reservations for details about the prospects of withdrawal of such reservation(s).
Article 38 – Amendments
1 Amendments to articles of this Convention may be proposed by any Party, the Convention Follow-up Committee or the Committee of Ministers of the Council of Europe.
2 Any proposal for an amendment shall be communicated to the Secretary General of the Council of Europe and forwarded by him or her to the Parties, the member States of the Council of Europe, non-member States having participated in the elaboration of this Convention or enjoying observer status with the Council of Europe, the European Union, any State having been invited to sign this Convention and the Convention Follow-up Committee at least two months before the meeting at which it is to be considered. The Convention Follow- up Committee shall submit to the Committee of Ministers its opinion on the proposed amendment.
3 The Committee of Ministers shall consider the proposed amendment and any opinion submitted by the Convention Follow-up Committee and may adopt the amendment by the majority provided for in Article 20.d of the Statute of the Council of Europe.
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4 The text of any amendment adopted by the Committee of Ministers in accordance with paragraph 3 of this article shall be forwarded to the Parties for acceptance.
5 Any amendment adopted in accordance with paragraph 3 of this article shall come into force on the first day of the month following the expiration of a period of one month after all Parties have informed the Secretary General of their acceptance thereof following their respective internal procedures.
6 If an amendment has been adopted by the Committee of Ministers, but has not yet entered into force in accordance with paragraph 5, a State or the European Union may not express their consent to be bound by the Convention without accepting at the same time the amendment.
Article 39 – Settlement of disputes
1 The Convention Follow-up Committee, in close co-operation with the relevant Council of Europe intergovernmental committees shall be kept informed of any difficulties regarding the interpretation and application of this Convention.
2 In the event of a dispute between Parties as to the interpretation or application of this Convention, they shall seek a settlement of the dispute through negotiation, conciliation or arbitration, or any other peaceful means of their choice.
3 The Committee of Ministers of the Council of Europe may establish settlement procedures which may be used by the Parties to a dispute, subject to their consent.
Article 40 – Denunciation
1 Each Party may, at any time, denounce this Convention by means of a notification addressed to the Secretary General of the Council of Europe.
2 Such denunciation shall become effective on the first day of the month following the expiration of a period of three months after the date of receipt of the notification by the Secretary General.
Article 41 – Notification
1 The Secretary General of the Council of Europe shall notify the Parties, the member States of the Council of Europe, the other States Parties to the European Cultural Convention, the non- member States having participated in the elaboration of this Convention or enjoying observer status with the Council of Europe, the European Union, and any State having been invited to sign this Convention in accordance with the provisions of Article 32, of:
a any signature;
b the deposit of any instrument of ratification, acceptance or approval;
c any date of entry into force of this Convention in accordance with Article 32;
d any reservation and any withdrawal of a reservation made in accordance with Article 37;
e any declaration made in accordance with Articles 9 and 13;
f any other act, notification or communication relating to this Convention.
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In witness whereof the undersigned, being duly authorised thereto, have signed this Convention.
Done in Magglingen/Macolin, this 18th day of September 2014, in English and in French, both texts being equally authentic, in a single copy which shall be deposited in the archives of the Council of Europe. The Secretary General of the Council of Europe shall transmit certified copies to each member State of the Council of Europe, to the non-member States which have participated in the elaboration of this Convention or enjoy observer status with the Council of Europe, to the European Union and to any State invited to sign this Conventi
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CETS 215 – Manipulation of Sports Competition, 18.IX.2014 Appendix II
Council of Europe Treaty Series - No. 215
Explanatory Report to the Council of Europe Convention on the Manipulation of Sports Competitions
Magglingen, 18.IX.2014
1. The Council of Europe Convention on the Manipulation of Sports Competitions, prepared by an intergovernmental Drafting Group set up by the Governing Board of the Enlarged Partial Agreement on Sport, was adopted by the Committee of Ministers at the 1205th meeting of Ministers’ Deputies on 9 July 2014. The convention was opened for signature by the member States of the Council of Europe, the European Union and the non- member States which participated in its drafting or enjoy observer status with the Council of Europe on 18 September 2014, in Magglingen/Macolin (Switzerland).
2. The text of the Explanatory Report prepared by the Drafting Group and transmitted to the Committee of Ministers of the Council of Europe does not constitute an instrument providing an authoritative interpretation of the text of the convention, although it might facilitate the understanding of the convention’s context and provisions.
Introduction
3. Recent years have shown time and again that sport, too, is susceptible to scandals, and that a growing number of these are related to “match-fixing”. This phenomenon, used within the framework of the present report under the more generic concept of “manipulation of sports competitions”, is neither confined to matches, i.e. contests in which two people or teams compete against each other, nor to the sole manipulation of the final outcome of a sports competition, but covers any intentional and improper alteration of the course or result of a sports competition in order to remove all or some of the uncertainty associated with this competition, with a view to obtaining an undue advantage for oneself or for others. Manipulation of sports competitions has taken on worrying proportions since the beginning of the new millennium.
4. Evidence on trends connected to the emergence of manipulation of sports results have been documented since the beginning of the 2000's in numerous studies, working papers and positions prepared by researchers, sports organisations, sports betting operators organisations and international organisations. Greater commercialisation of sport and the extensive media coverage given to it have led to an increase in the economic stakes involved in achieving certain sports results. This in turn has encouraged the development of new activities, both lawful and unlawful. Despite major efforts by sports organisations and in particular the Olympic movement to promote good governance, the sports movement is not immune to corrupt practices. At the same time, the phenomenal growth of the sports betting market due to technological improvements and the development of certain markets has created a new environment in which anyone can have a personal and direct financial interest (1) in the course or outcome of any given competition.
(1) See, for example: P. Boniface, S. Lacarrière, P. Verschuuren, “Sports betting and corruption: how to preserve the integrity of sport”, IRIS, 2012; “Interpol Integrity in Sport Weekly Media Recap” on the internet at their site: http://www.interpol.int/News-and-media/News ; D. Hill, “The Fix: Soccer and Organized Crime”, McClelland & Stewart, 2008.
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Explanatory Report – CETS 215 – Manipulation of Sports Competitions
5. This overall new context is undoubtedly one of the main reasons for the significant increase in the number of cases of manipulation of sports competitions since the early 2000s. This rise has gone hand in hand with two specific elements. Firstly, the proliferation of different types of betting provided, sometimes without being effectively supervised by the authorities responsible for the betting market, has created types of bets which are easier to manipulate and manipulations which are more difficult to detect. And secondly, the development of a large illegal market which gives customers a very high pay-out has attracted criminal groups, interested in manipulating the sports competitions on which bets are placed so as to exploit the information through betting, and in the course of this activity laundering criminal (1) finances.
6. The manipulation of sports competitions poses a challenge to the rule of law because it is linked to fraud, organised crime and corruption. Because it occurs in the sports sector and when linked to betting, the economic stakes are considerable. It also, however, poses a threat to the future of sport as a social, cultural, economic and political practice which is called into question every time doubts are raised about its integrity and values. In jeopardising sports ethics and the unpredictability that underlies every sporting contest, it calls into question the very nature of sport, and therefore the public’s interest in sport and the willingness of public and private sponsors to finance it.
Council of Europe initiative to promote the integrity of sport
7. The issue of corruption came under close scrutiny by the Council of Europe very early on because of the danger it poses to pluralist democracy, the rule of law, human rights and ethical principles. The Council of Europe’s standard-setting role in the face of growing corruption was recognised as far back as the Second Summit of Heads of State and Government of the Council of Europe, on 10 and 11 October 1997 in Strasbourg.
8. A reference Council of Europe instrument dealing with sport and its basic principles such as the integrity of sport and those involved in it was adopted in 1992 in the form of Recommendation No. R(92)13rev on the revised European Sports Charter. Two other recommendations, Recommendation Rec(2005)8 on the Principles of Good Governance in Sport and Recommendation CM/Rec(2010)9 on the revised Code of Sports Ethics, built on this initial document in an effort to improve the integrity of sport and ensure that it was in a stronger position and better governed.
9. In fulfilling its mission to defend ethical sport, the Council of Europe has played a key role in coordinating policies in the fight against doping. In the 1980s, this work led to the opening for signature of the Anti-Doping Convention (1989, ETS No. 135, hereafter “Convention 135”), which regulated the fight against an emerging threat to the integrity of sport. In 2007, Resolution CM/Res(2007)8 established the Council of Europe’s Enlarged Partial Agreement on Sport (hereafter “EPAS”) and assigned it the task of developing standards to deal with topical issues in sport at a pan-European level and following them up. EPAS provided an opportunity to continue the Council of Europe’s standard-setting work and paved the way for targeted action in certain areas. In the course of the preparations for and follow-up to the 11th Council of Europe Conference of Ministers responsible for Sport in Athens on 11 and 12 December 2008, the issues of ethics and autonomy in sport were explored by EPAS in greater depth.
10. It was at this conference that States made a clear political commitment to address issues relating to ethics in sport, in particular match-fixing, corruption and illegal sports betting. This is turn resulted in the adoption at the 18th Council of Europe Informal Conference of Ministers responsible for Sport, held in Baku on 22 September 2010, of the first resolution to deal specifically with the manipulation of sports results (namely, Resolution No. 1 on promotion of the integrity of sport against the manipulation of results). In this resolution, Council of Europe
(1) See, for example, C. Kalb and P. Verschuuren, “ White Paper – Money laundering: the latest threat to sports betting?”, IRIS, 2013.
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member States are called upon to adopt effective policies and measures aimed at preventing and combating the manipulation of sports results in all sports, while EPAS is called upon to continue work in this area with a view to the adoption of a recommendation of the Committee of Ministers to member States on the manipulation of sports results.
11. Such a recommendation, namely Recommendation CM/Rec(2011)10 on the promotion of the integrity of sport against manipulation of results, notably match-fixing, was later adopted by the Council of Europe’s Committee of Ministers on 28 September 2011. Pending the finalisation of the convention to combat the manipulation of sports competitions, it constituted the most detailed international standard to date, offering a full range of measures to combat the problem.
Reasons for preparing an international legal instrument
12. In its Resolution 1602 (2008) on the need to preserve the European sport model, the Parliamentary Assembly of the Council of Europe had noted that recent scandals in several European countries, involving illegal sports betting and manipulation of results, had seriously damaged the image of sport in certain countries, including in Europe. It called for the introduction of mechanisms to reduce the risk of match-fixing, illegal sports betting or other forms of corruption. It further emphasised that these problems would require more active involvement on the part of state authorities.
13. Furthermore, while certain important aspects of corruption in sport are already covered by existing international conventions on corruption and organised crime, namely the United Nations Convention against Transnational Organized Crime (2000) and the United Nations Convention against Corruption (2003), these international legal instruments do not specifically deal with cases involving manipulation of sports competitions, which may occur outside any transnational crime network and without any acts falling within the definition of corruption having been committed.
14. Two specific Council of Europe conventions in the field of corruption and money laundering, namely the Criminal Law Convention on Corruption (1999, ETS No. 173, hereafter “Convention 173”) and the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism (2005, CETS No. 198, hereafter “Convention 198”), may be used as standard-setting reference points in the definition of the mechanisms and legal means needed to combat the criminal organisations which bribe persons involved in sport in order to manipulate sports results, and use sports betting as a means of laundering money and as a source of financing for their activities. However, manipulation of sports competitions may involve corrupt practices that are not covered by Convention 173 or may even not involve corrupt practices at all. As for Convention 198, illegal sports betting and profits derived from the manipulation of sports results do not necessarily (1) fall within the scope of this instrument.
15. Under the terms of Recommendation CM/Rec(2011)10, the Secretariat of the Enlarged Partial Agreement on Sport (EPAS) of the Council of Europe was invited, in co-operation with other national and international bodies, to carry out a feasibility study on the possibility of adopting a legal instrument on match-fixing. This study, which was presented at the Council of Europe Conference of Ministers responsible for Sport in Belgrade on 15 March 2012, concluded that an international convention dealing with all preventive measures and sanctions aimed at suppressing the manipulation of sports competitions was the most logical option.
(1) See, for example, Criminalization approaches to combat match-fixing and illegal/irregular betting: a global perspective. Comparative study on the applicability of criminal law provisions concerning match- fixing and illegal/irregular betting, IOC / UNODC, Lausanne / Vienne, July 2013, pp. 276 ff.
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16. As an international organisation having a standard-setting function in many different fields, the Council of Europe was the ideal forum for preparing such an instrument, especially in view of the international scale of the problem.
Main features of the Convention
17. The advantage of an international convention in this area is that it promotes a risk- and evidence-based approach and allows commonly agreed standards and principles to be set in order to prevent, detect and sanction the manipulation of sports competitions. To achieve this, the convention involves all stakeholders in the fight against manipulation of sports competitions, namely public authorities, sports organisations and sports betting operators. To ensure that the problem is addressed in a global context, it allows states which are not members of the Council of Europe to be become parties by the convention.
18. More specifically, the following parts of the convention may be distinguished:
– prevention; – law enforcement; – international co-operation measures; – exchange of information; – follow-up to the convention.
19. As regards prevention, the aim of the convention is to pave the way for more systematic application of the measures adopted by sports organisations, sports betting operators and public authorities to enable them to jointly identify and prevent manipulation of sports competitions and ensure better co-operation between these stakeholders. While the convention recognises the autonomy of sports organisations and their role in the regulation of sports activities and competitions, in awareness-raising, training and information sharing, it also highlights the fact that sports betting operators have a responsibility within the implementation of the anti-fraud measures mentioned in Recommendation CM/Rec(2011)10 (manipulation of results, conflicts of interest and misuse of inside information). The convention also provides for the introduction of a mechanism to exchange information between the various national systems, the national platform. As regards public authorities, the convention encourages them to adopt the necessary legislative or other measures, including financial ones, to support any initiatives taken by other stakeholders and to combat illegal sports betting, but also to identify the authorities responsible for implementing the legal framework for the regulation of their sports betting market.
20. With regard to the various aspects of law enforcement, the convention seeks, inter alia, to identify those acts which should be prosecuted without, however, imposing the creation in each Party’s domestic law of a harmonised special criminal offence in the field. The purpose of clarifying which types of conduct are to be considered offences is to facilitate judicial and police co-operation between Parties. Specific references are also made to money laundering and to the liability of legal persons, which depending on the Parties’ applicable law can be criminal, civil or administrative. With a view to ensuring an efficient enforcement system, the convention considers a broad range of criminal, administrative and disciplinary sanctions. It also requires the Parties to ensure that sanctions are effective, proportionate and dissuasive.
21. Because of the transnational aspect of the manipulation of sports competitions and the need to combat criminal and other acts related thereto, it was deemed vital to step up international co-operation. The convention is concerned as much with enforcement as with prevention, including detection, exchange of information and education. Accordingly, international sports organisations are recognised as having a role to play as key partners of public authorities in combating the manipulation of sports competitions, in particular where disciplinary sanctions and exchanges of information are concerned. Sports betting operators are also recognised as key partners on prevention and exchange of information of betting- related manipulations. In providing for international co-operation in investigating and prosecuting offences, the convention does not prejudice instruments which already exist in the field of mutual assistance in criminal matters and extradition and which can facilitate
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Explanatory Report – CETS 215 – Manipulation of Sports Competitions investigations and prosecutions, such as the European Convention on Extradition (1957, ETS No. 24, hereafter “Convention 24”), the European Convention on Mutual Assistance in Criminal Matters (1959, ETS No. 30, hereafter “Convention 30”) and its Additional Protocol (1978, ETS No. 99). The Parties’ task to encourage the principle of mutual recognition of disciplinary sanctions adopted by national sports organisations is also envisaged, in order to avoid an athlete sanctioned by a national organisation managing to evade punishment by participating in other competitions or the risk of disciplinary sanctions being imposed twice for the same offence.
22. The setting-up of a convention follow-up committee to monitor implementation of the convention has the merit of providing an institutional base and ensuring sustainability. This type of monitoring is similar to that used by the European Convention on Spectator Violence and Misbehaviour at Sports Events and in particular at Football Matches (1985, ETS No. 120, hereafter “Convention 120”) and by Convention 135.
Preamble
23. The Preamble reaffirms the commitment of the signatories to the convention to tackling the problem of manipulation of sports competitions. In order to pave the way for possible ratification by the European Union, the term “Parties” was deemed preferable to “State Party” throughout the convention. The convention seeks to contribute to greater national and international co-operation, which is instrumental in fighting this worldwide scourge, and more specifically co-operation between the main stakeholders who are: public authorities, the sports movement and sports betting operators.
24. The reference to “notions of pluralist democracy, rule of law, human rights and sports ethics” is derived from Recommendation CM/Rec(2011)10 on “Promotion of the integrity of sport against manipulation of results”, adopted by the Committee of Ministers of the Council of Europe on 28 September 2011.
25. The term “sports ethics” is defined in Recommendation CM/Rec(2010)9 of the Committee of Ministers to member States on the revised Code of Sports Ethics, adopted by the Committee of Ministers of the Council of Europe on 16 June 2010. It has two underlying principles: fairness and sport as an arena for individual self-fulfilment. Fairness refers to practising a sport while faithfully respecting the rules of competition, and to providing everyone with an equal chance of taking part in sport. Sport should be practised according to fair play, be free of discrimination and be an activity for all. Moreover, sport should be an arena for self-fulfilment in which everyone is given the opportunity for self-development and self-control according to their potential and interests. In this way, sport can become an important ethical and cultural factor in society.
26. The Preamble recalls that the manipulation of sports competitions has the potential to affect all countries and all sports and that it constitutes a worldwide threat to the integrity of sport. In this respect it outlines the need for a legal instrument open to states other than members of the Council of Europe. Integrity of sport is understood as an ethical fundamental value in the sport movement characterised by credibility, transparency and fairness as well as by the unpredictability of sports competition results.
27. The Preamble states that the manipulation of sports competitions may be linked to transnational organised crime and poses a direct threat to public order and the rule of law.
28. The Preamble includes a reference to the main international instruments, whose implementation may contribute to effective action against the manipulation of competitions. These instruments are as follows:
– Convention for the Protection of Human Rights and Fundamental Freedoms (1950, ETS No. 5, hereafter “Convention 5”) and the Protocols thereto;
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– European Convention on Spectator Violence and Misbehaviour at Sports Events and in particular at football matches (1985, ETS No. 120);
– Anti-Doping Convention (1989, ETS No. 135);
– Criminal Law Convention on Corruption (2002, ETS No. 173);
– Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism (2008, CETS No. 198);
– United Nations Convention against Transnational Organized Crime (2000) and the Protocols thereto;
– United Nations Convention against Corruption (2003).
29. The Preamble emphasises the importance for the Parties to effectively, and without undue delay, investigate offences within their jurisdiction. Given the importance of this phenomenon, each Party should recognise the need to lead such investigations and to mobilise resources with this in mind, in accordance with their legislation. According to the seriousness of the acts committed, the competent authorities may consider that effective investigation may involve monitoring communications, seizing material, covert surveillance, monitoring bank accounts and other financial investigations. According to the seriousness of the conduct, they may involve co-operation between different public authorities, and those responsible for investigations or criminal prosecutions: this co-operation may include an exchange of information between relevant authorities, on their own initiative or upon request. In some countries, these competent authorities are prosecutorial authorities which operate under the responsibility of autonomous magistrates.
30. Referring to the key role of Interpol, the Preamble emphasises that the intention of the convention is not to introduce a framework that would act as a substitute for the work done by other organisations such as Interpol, but rather to enhance the role that these organisations play, by complementing it.
31. While noting the principle of autonomy of sport and that the sports organisations are responsible for sport – and therefore for the fight against manipulation of sports competitions, the Preamble states that public authorities may have a responsibility to protect the integrity of sport and support the sports movement in the fight against the manipulation of competitions.
32. The principle of autonomy of sport referred to in the Preamble has the same meaning as in Recommendation CM/Rec(2011)3 of the Committee of Ministers to member States on the principle of the autonomy of sport in Europe. This recommendation specifies the main features of the autonomy of sport, namely the possibility for non-governmental sports organisations to establish, amend and interpret the “rules of the game” appropriate to their sport freely, without undue political or economic influence; to choose their leaders democratically, without interference by States or third parties; to obtain adequate funds from public or other sources, without disproportionate obligations; to use these funds to achieve objectives and carry out activities chosen without severe external constraints. It should be underlined that the principle of autonomy as mentioned here does not intend to exclude the sports movement from compliance with the rule of law and the applicable law in each jurisdiction.
33. Recognising that the development of sports betting activities (and in particular illegal betting) increases the risk of the manipulation of sports competitions, and emphasising the transnational nature of the risks of manipulation, as well as the potential involvement of organised crime, the Preamble sees this development of the sports betting activities as a potential threat to the integrity of sport, something which the convention seeks to address in a practical manner.
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34. It should be noted here that the Parties have a wide margin of discretion when making policies regarding sports betting, in accordance with applicable law. One consequence of this approach is that the convention aims to be compatible with all types of sports betting market organisation (prohibition, monopoly, market open to licensed operators or free market). The reference to compliance with the “applicable law” draws attention to the fact that states must nevertheless abide by the rules in force and in particular the relevant applicable international and European Union law.
35. The Preamble makes it clear that this convention covers cases of national or transnational manipulation of sports competitions, whether or not they are linked with sports betting or involve a criminal offence. It thus recognises that the manipulation of sports competitions is not necessarily linked to sports betting or criminal offences.
36. Lastly, the Preamble refers to all the initiatives taken by the Council of Europe to promote the integrity of sport, in particular Resolution No. 1 adopted at the 18th Council of Europe Informal Conference of Ministers responsible for Sport in Baku on 22 September 2010, which invited the Enlarged Partial Agreement on Sport (EPAS) to carry out a feasibility study concerning the possibility of adopting an international convention. This same study, which found that an international convention was the most logical option, was conducted on the basis of Recommendation CM/Rec(2011)10 against manipulation of sports results. Resolution No. 1 on international co-operation on promotion of the integrity of sport against the manipulation of results (match-fixing), adopted at the 12th Council of Europe Conference of European Ministers responsible for Sport, later paved the way for the negotiation of an international convention on this subject, a culmination of the work done by the Drafting Group responsible for drafting an international convention to combat the manipulation of sports competitions.
CHAPTER I – PURPOSE, GUIDING PRINCIPLES, DEFINITIONS
Article 1 – Purpose and main objectives
37. Article 1 concerns the purpose of the convention, namely to combat manipulation of sports competitions. By including a reference to sports ethics and the integrity of sport, this article emphasises that all forms of manipulation pose a threat to the values of sport. In stating that the main purpose of the convention relates to sport. This reference to the autonomy of sport needs to be understood in the sense of Recommendation CM/Rec(2011)3 of the Committee of Ministers to member States on the principle of autonomy in sport in Europe (see the Preamble above) which, like Recommendation Rec(92)13rev of the Committee of Ministers to member States on the revised European Sports Charter, specifies that sports organisations are to set up autonomous decision-making mechanisms within the limits laid down by the law of the State within whose territory they have their seat.
38. The second paragraph of Article 1 specifies that in order to achieve its purpose, the convention aims to prevent, detect and sanction manipulation of competitions and to promote national and international co-operation between those concerned, principally public authorities, sports organisations and sports betting operators.
39. The term “public authorities” as used here encompasses, inter alia, the legislature, the judiciary, the police, the authorities responsible for regulating sports betting, the governmental authorities in charge of sport, the authorities responsible for personal data protection and local authorities. This broad definition does not imply that each public authority concerned in one way or another by a provision of this convention is systematically covered by all the references to public authorities. The definition of relevant or competent public authorities, referred to in subsequent articles, should be applied with regard to the specific nature of the task and the statutory mandate of the authorities. “Organisations involved in sport” refers primarily to sports organisations and competition organisers, but can also cover supporters’ clubs and players’ organisations, organisations which seek to promote sports ethics or good governance in sport and their fraud detection systems. The term “organisations involved in sports betting” refers to any operator, publicly or privately owned, authorised to provide
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Explanatory Report – CETS 215 – Manipulation of Sports Competitions betting services but may also cover umbrella organisations of operators (for example of the lotteries or commercial gambling operators) and their fraud detection systems.
Article 2 – Guiding principles
40. Article 2 provides a list of guiding principles which those involved in combating the manipulation of sports competitions must observe, both in their activities and in their respective relations. These principles are as follows:
– human rights; – legality; – proportionality; – protection of private life and personal data.
The principles of respect for human rights, legality and proportionality must apply both to state authorities and to private stakeholders in the fight against manipulation of sports competitions. Human rights must indeed be respected inasmuch as they are rules dictated by public policy which are essentially enshrined in international law instruments such as Convention 5; the same applies to the principles of legality and proportionality inasmuch as they constitute general principles of law.
41. The term “personal data”, as used in the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (1981, ETS No. 108, hereafter “Convention 108”), means “any information relating to an identified or identifiable individual ("data subject")”. The protection of private life and personal data is part of human rights; however, it was decided to mention it to stress that the implementation of this convention must abide with the relevant standards on protection of private life and personal data.
Article 3 – Definitions
42. Article 3 contains several definitions that apply throughout the convention. i. Definition of “sports competition”
43. This definition is based on three criteria:
– a real sports event;
– organised in accordance with the rules of an organisation mentioned in the list drawn up by the Convention Follow-up Committee in accordance with Article 31.2, as well as its continental and national affiliated organisations, if necessary;
– recognised by a competent sports organisation.
44. The term “competition” covers each event, i.e. each race and match, but should not necessarily be interpreted as covering either the whole tournament (for example a championship where the winner is determined following a series of competitions) or all of the competitions taking place within the framework of an event involving several competitions or tournaments (for example the Olympic Games). Since processes such as the draw of the opponents or the designation of the referee matter to the competition, it should be considered as part of the competition.
45. The term “real sports event” does not include virtual sports events such as those simulated by certain fixed-odds betting terminals. Other events organised by sports organisations, for example assemblies or conferences, should not be considered as sports events.
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46. The term “competent sports organisation” refers to a sport organisation, as defined in Article 3, paragraph 2, which has the right to include in its fixture list a competition involving competitors from a given geographical area. ii. Definition of “sports organisations”
47. This term refers to any organisation which governs sport, namely those mentioned in the list drawn up by the Convention Follow-up Committee in accordance with Article 31.2, as well as any continental or national organisations affiliated thereto.
48. According to this definition, continental organisations are deemed to be “international”, while local organisations are deemed to be “national”. National organisations also include national umbrella organisations (for example “national confederations of sport”) which bring together the national sport federations. iii. Definition of “competition organisers”
49. “Competition organiser” means any sports organisation or any other person, irrespective of their legal form, which organises sports competitions. This definition therefore covers both natural persons and legal persons. In most cases, competition organisers are sports organisers, but sometimes sports organisations recognise competitions organised by other entities (e.g. organisation in charge of a multi-sport event or private company). iv. Definition of “manipulation of sports competitions”
50. This is a general definition which describes the different types of manipulation that the convention intends to cover. This definition is an integral part of “criminal offences relating to the manipulation of sports competitions”, defined in Article 15, but this definition alone does not intend to define the scope of criminal offences.
51. The words “aimed at” indicate that the definition includes not only arrangements, acts or omissions which improperly alter the result or course of a competition, but also the acts committed with the intention of improperly altering the result or course of a competition, even if the arrangement, act or omission is unsuccessful (e.g. if a player on whom pressure has been brought to bear is not actually selected for the competition).
52. The term “in order to” indicates an intention to obtain an undue advantage for oneself or others, even if this intentional arrangement, act or omission, aiming at improperly modifying the results or course of a sports competition, fails to obtain the advantage sought (e.g. if the competition in question is the subject of an alert issued by the regulator and the sports betting operators refuse to take bets on the competition, thereby preventing the undue advantage from being obtained).
53. The term “improper” refers to an arrangement, act or omission which infringes the existing legislation or the regulations of the sports competition or organisation concerned. It may be aimed at alterations of the course or result of a competition that would be sanctioned by sports regulations only.
54. The term “intentional” means that the arrangement, act or omission is deliberately aimed at improperly influencing the natural and fair course (notably through a foul, penalty or action on the field altering the intermediate result or phase of the game) or the result of a sports competition (through the score, marks, time or ranking, for example).
55. The objective of such an arrangement, act or omission is to obtain an undue advantage (undue because it arises from an improper arrangement, act or omission) for oneself or for another person: this advantage may take the form of financial gain (for example, a bonus paid to the winner by the competition organiser, a bonus paid to a competitor by their employer, a bribe accepted by a competition stakeholder, winnings from a sports bet placed on the
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Explanatory Report – CETS 215 – Manipulation of Sports Competitions relevant competition or a capital gain realised by the owner of a qualified club who sells their shares), or some other tangible or intangible advantage, such as advancing to a higher level in the competition, or simply the “glory” of winning. The term “undue advantage” therefore does not imply that every manipulation is related to criminal offences such as fraud or corruption. v. Definition of “sports betting”
56. The definition of “sports betting” refers to the predictions made by wagering a stake on an event occurring during a sports competition in order to obtain winnings. Some specific forms of betting are given as examples: fixed and running odds, spread betting, betting exchanges, pools/totalisors and live betting. The expression “sports betting operators” used in the convention therefore covers all kinds of operators providing sports betting services, land- based or remote, publicly or privately owned, specialised in sports betting or not (bookmakers, specialised sports betting operators, gambling operators and lotteries offering sports betting services) and regardless of the type of sports bet provided.
57. The term “sports” used in this definition refers to sports competitions, as defined in the convention, on which bets are placed. The expression “stake of monetary value” means risking an economic loss.
58. Three different types of betting activities relevant for the convention are described: illegal sports betting, irregular sports betting and suspicious sports betting. The identification of these different types of bets may trigger specific sets of measures by the stakeholders.
59. “Illegal sports betting” refers to any sports betting whose type or operator is not allowed (such as by exclusive rights, a licence or automatic recognition of licences granted by certain third countries) by virtue of applicable law in the jurisdiction of the Party where the gambler is located. The term “applicable law” includes national law, EU law and the law of federated entities. The use of "in the jurisdiction where the consumer is located” may provide a conflict of law rule whereby the applicable law can be identified in order to determine the legality or illegality of a sports bet, when it comes to implementing the prevention measures in the fight against illegal sports betting and the co-operation measures foreseen in this convention (Articles 9, 11, and 12). In order to clarify that the principle of territoriality applies and to prevent conflict of jurisdiction, the choice of using the term “jurisdiction where the consumer is located” rather than “jurisdiction of the consumer” refers to the territory where the consumer is located at the time of placing the bet.
60. “Irregular sports betting” means sports betting activity inconsistent with usual or anticipated patterns of the market in question or which concerns a sports competition whose course has unusual features. Identifying irregular sports betting therefore depends not only on the betting market, but also on the sports competition in question. Unusual features of a competition may be detected by organisations or authorities involved in betting market surveillance, by sports betting operators who follow the competitions on which bets are placed, but also by the sports organisations. An irregular sports bet is liable to be the subject of exchanges of information or an alert issued by the betting monitoring systems, regulatory authorities, sports betting operators, sports organisations or by the national platform foreseen in Article 13. Such an alert may encourage other stakeholders to take precautionary measures and to examine the case in greater depth, if necessary. The criteria (indicators) used to identify irregular sports betting will be developed if necessary by the Convention Follow-up Committee, but the convention does not intend to harmonise at international level the way these criteria are combined or the precise thresholds beyond which betting should be considered “irregular” as such factors depend notably on the characteristics of every national betting market and the sports competition in question.
61. “Suspicious sports betting” means any sports betting activity which, according to well- founded and consistent evidence, appears to be linked to a manipulation of the sports competition to which it relates. Suspicious sports betting will form the subject of exchanges of information and measures on the part of national platforms, public authorities, and where
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appropriate, sport betting operators and sports organisations. The criteria for determining suspicious sports betting will, where necessary, be set by the Convention Follow-up Committee. However, the convention does not intend to harmonise at international level the way these criteria are combined or the precise thresholds beyond which betting should be considered “suspicious” as such factors depend notably on the characteristics of every national betting market and the sports competition in question.
vi. Definition of “competition stakeholders”
62. This definition lists all those involved, directly or indirectly, in the organisation and/or running of sports competitions. It covers three types of persons:
– “athletes”: active participants in sports events (sportsmen, sportswomen). “Group of persons” refers to teams in the case of team sports;
– their “support personnel”: trainers, medical personnel, agents, officials of clubs or other entities taking part in the competition, as well as persons acting in this capacity and any other persons working with the athletes, including players’ unions, and
– “officials”, meaning the owners, executives and staff members of the entities which organise and promote sports competitions, as well as any other accredited persons, irrespective of their role, including sponsors or journalists, taking part in the activities of sports organisations. Referees, official judges and stewards are considered to be officials. The term also refers to executives and staff members of sports organisations which recognise the competition.
63. The definitions of “athlete” and “support personnel” are derived from the UNESCO International Convention against Doping in Sport (2005).
vii. Definition of “inside information”
64. The term “inside information” refers to information acquired or possessed by persons who were able to obtain it only because of their position vis-à-vis a particular athlete, sport or competition, which may be used especially for the purpose of manipulating a sports competition or to bet on the competition with an advantage. Examples include information regarding competitors, the conditions and tactical considerations, unless this information has already been made public in accordance with the law or according to the rules and regulations of the competition in question.
CHAPTER II – PREVENTION, CO-OPERATION AND OTHER MEASURES
Article 4 – Domestic co-ordination
65. Under the terms of Article 4, paragraph 1, the Parties to the convention undertake to co- ordinate, in a comprehensive manner, the policies and action undertaken by the public authorities in the fight against the manipulation of sports competitions. This article is not concerned with specific co-operation activities with other stakeholders, such as sports betting operators and sports organisations, like exchanges of information or issuing alerts, which are dealt with elsewhere in the convention.
66. The second paragraph calls on the Parties to encourage sports organisations, competition organisers and sports betting operators to co-operate in the fight against the manipulation of sports competitions and to implement the relevant provisions of the convention. The term “encourage” leaves Parties some flexibility as to the means to be employed, which differ widely according to how the sports movement and betting market are organised at national level.
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Article 5 – Risk assessment and management
67. Article 5, paragraph 1, invites the Parties to put in place, if necessary in co-operation with sports betting operators, sports organisations, competition organisers and other relevant organisations the measures required to identify, analyse and evaluate the risks associated with the manipulation of sports competitions.
68. In all circumstances, this risk assessment includes a long-term analysis and development of the capacity to respond to specific risks.
69. Under Article 5, paragraph 2, each Party is to encourage sports organisations, sports betting operators, competition organisers and any other relevant organisation to establish procedures and rules in order to combat manipulation of sports competitions. Each Party adopts, where appropriate, legislative or other measures necessary for this purpose. The reference to “any other relevant organisation” may cover other organisations related to sport (e.g. players’ unions, supporters’ or referees’ organisations.), as well as anti-corruption organisations.
70. Details of the measures expected from sports organisations and operators are given in Articles 7 and 10.
Article 6 – Education and awareness-raising
71. According to Article 6, Parties are to encourage awareness-raising, education, training and research in order to strengthen the fight against the manipulation of sports competitions.
72. This provision covers sports organisations and sports betting operators, although more specific provisions relating to awareness-raising or training within them are foreseen in Articles 7 and 10 of this convention. This provision also covers training of groups such as young athletes, civil servants, judges or awareness-raising of the general public. It may be implemented through means such as an Anti-Manipulation-Code, Internet platforms, E- learning tools, etc.
Article 7 – Sports organisations and competition organisers
73. Article 7 concerns measures to be taken by sports organisations and competition organisers in the fight against the manipulation of sports competitions. It supplements Article 5, going into greater detail. In order to reflect the variety of ways in which the sports movement is organised at national level and to accommodate the principle of the autonomy of sport, this provision calls on the Parties to encourage sports organisations, without specifying how this is to be done.
74. Paragraph 1 contains provisions that are to be implemented within the framework of regulations adopted by sports organisations. These rules and principles are general in scope. Failure to observe such rules may give rise to disciplinary procedures and sanctions.
75. When interpreting the notion of “principles of good governance” mentioned in paragraph 1, reference may be made to Recommendation Rec(2005)8 of the Committee of Ministers to member States on the principles of good governance in sport. For the purposes of this convention, these principles include, inter alia, ensuring transparent proceedings in financial and administrative issues and democratic structures.
76. Paragraph 1.a calls for the prevention of conflicts of interest among competition stakeholders by proposing that they be prohibited from betting on sports competitions in which they themselves are taking part, and that the misuse or dissemination of inside information be forbidden. The encouraged ban on betting on one’s own competitions relates to competitions in which the stakeholders are directly involved and represents the minimal scope of application of such a ban. Sports organisations and the Parties may extend this
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Explanatory Report – CETS 215 – Manipulation of Sports Competitions prohibition to include all competitions in the tournament (for example, the championship) or event (for example, the Olympic Games) in which competition stakeholders are taking part. The prohibition on betting on one’s own competition is already part of the disciplinary regulations of several national and international sports federations.
77. Article 7.1.b provides that sports organisations should consider adopting rules to ensure that they honour their contractual, statutory and other obligations. This is the case, for instance, in countries that have a licensing system which requires clubs to fulfil certain criteria in order to participate in competitions. Such a system may be used to compel clubs to meet their obligations, among others towards athletes. Other mechanisms may be considered to ensure compliance with contractual, statutory and other obligations. The aim is to provide sports organisations and professional athletes with proper conditions in which to pursue their activities.
78. Paragraph 1.c specifies that in the event of any approach or incentive to behave in a certain way, competition stakeholders should be required to report the full details immediately. This requirement covers “any approach or incentive which could be considered an infringement of the rules against the manipulation of sports competitions”. The rules to which it refers may be statutory provisions, but also regulations adopted by sports organisations or competition organisers. This provision defines an internal rule of the sports movement which covers a wide range of offences, mainly disciplinary. It is for the sports organisations concerned to decide what the procedure should be and which body or person should be responsible for gathering information and taking further action (e.g. disciplinary inquiry, disciplinary procedure, referral to the courts and referral to the national platform.). Many national and international sports organisations have already integrated this rule in their disciplinary regulations.
79. Paragraph 2 of Article 7 contains measures which sports organisations are encouraged to adopt and which may be implemented through procedures, policies, practices or even regulations.
80. Paragraph 2.a calls for the introduction of tight and efficient controls of sports competitions exposed to risks of manipulation. Such supervisory procedures include provisions for acquiring the necessary expertise to assess and follow up warnings issued by betting monitoring systems, but also supervision of sporting events with sport experts (e.g. representatives, stewards or referee inspectors). This practical follow-up does not in itself imply any public disclosure.
81. Paragraph 2.b specifies that where suspicious activities linked to the manipulation of sports competitions come to the attention of sports organisations (notably as a result of reports received under paragraph 1.c, or internal disciplinary inquiries), they must inform the relevant public authorities and/or national platforms. In this context, the expression “linked to the manipulation of sports competitions” should include at the very least activities which could constitute criminal offences. They may also include, however, other suspicious activities or information about conduct which, although not a criminal offence, could form the subject of exchanges of information (via the national platform) with other authorities or organisations, within the country or abroad.
82. Paragraph 2.c mentions effective mechanisms to enable competition stakeholders to provide information. These mechanisms are in addition to the reporting requirement set out in paragraph 1.c. In order to be effective, they must enable competition stakeholders to report activities in confidence. The recipient of the information must be of the utmost reliability and integrity. In particular, they must not themselves be involved in the competition (e.g. club managers). Such mechanisms may include, for example, a telephone helpline, a mobile application, an independent place, an independent and trustful ombudsperson with the obligation of secrecy or the possibility of remaining anonymous when reporting an activity or during proceedings. They will also include measures which are the responsibility of sports organisations and which are designed to protect whistle-blowers who report suspicious activities to the competent bodies of the sports organisation, or to the authorities (e.g. anonymity, protection against wrongful dismissal or assistance in their subsequent career). 13
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83. Competition stakeholders including young athletes should be made sufficiently aware of the issue of manipulation of sports competitions (paragraph 2.d). This can be done through education and training provided by sports organisations or players’ unions, for example.
84. It is noted that supporters, although not “competition stakeholders” in the strict sense, should nevertheless be informed and involved in the fight against the manipulation of sports competitions.
85. Under paragraph 2.e, sports organisations should also be asked to delay appointing officials until the latest possible stage before the competition. This can help to protect the integrity of referees, for example.
86. The adoption and implementation of disciplinary sanctions applied by sports organisations, such as suspension from other sports activities, must be done in accordance with the national law. This includes, in particular, respecting human rights and the principle of proportionality, as mentioned earlier in the convention.
87. These disciplinary procedures must respect the general principles of law recognised at international level and guarantee the fundamental rights of the suspected athletes. According to these principles, which are reiterated in Convention 135, the investigating body must be separate from the disciplinary body, those suspected have the right to a fair trial and the right to be assisted or represented, and there must be clear and enforceable provisions allowing for a right of appeal, which implies that disciplinary sanctions imposed by sports organisations must be subject to an appeal before a court or an arbitration body.
88. Any disciplinary sanctions imposed by sports organisations should form the subject of mutual recognition procedures by foreign sports federations and by international federations. Such mutual recognition is dependent on the rules of international sports organisations on implementation of disciplinary sanctions and measures. This provision was inspired by the standards applied in the fight against doping.
89. Paragraph 7.4 stipulates that disciplinary liability shall in no way exclude any criminal, civil or administrative liability within the framework of state court sanctions. The sports disciplinary sanctions are within a different jurisdiction of criminal law and are driven into separate standards applied according to the procedures and other types of evidence. Also, disciplinary sanctions should not be classified as criminal sanctions. Therefore, the "non bis in idem" principle does not exclude that an act is punishable in both disciplinary and criminal courts. The same act may be punished by disciplinary procedure without coming under criminal law, or criminally without incurring disciplinary sanctions.
Article 8 – Measures regarding the financing of sports organisations
90. Article 8 concerns measures to ensure the financial transparency of sports organisations, and Parties’ financial support for these organisations in the fight against the manipulation of sports competitions. The article also provides for the possibility of withdrawing financial (or other) support from sports organisations which do not respect the regulations regarding the fight against the manipulation of sports competitions, or from competition stakeholders sanctioned for the manipulation of sports competitions.
91. Paragraph 1 calls for appropriate transparency regarding the funding of sports organisations when they are financially supported by a Party. This provision is concerned not with the use of public funds but rather with the kind of transparency that is expected in terms of governance and funding (maintenance of proper accounts, for example, by identifying funding sources). The obligation by Parties to ensure appropriate transparency of those organisations “financially supported by the Party” is a minimum standard set out by the convention. The Parties whose national legal systems allow or require comparable transparency with regard to a broader group of organisations, may apply it. Nonetheless, certain Parties may not be able to achieve wider transparency due to the limitations imposed by their legal system. 14
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92. Bearing in mind that non-governmental sports organisations play a key role in the fight against the manipulation of sports competitions, paragraph 2 asks governments to consider the possibility of supporting sports organisations, where appropriate, for example by funding suitable mechanisms for combating the manipulation of sports competitions. The form of any support is left to the discretion of the Parties. It might be an example that the support is through direct subsidies or grants, or by taking into account the cost of any such mechanisms and efforts deployed by sports organisations when determining the overall subsidies or grants to be awarded to these organisations.
93. Under paragraph 3, each Party is requested, where necessary, to consider withholding financial support or inviting sports organisations to withhold financial support from competition stakeholders sanctioned for manipulating sports competitions, for the duration of the sanction. This paragraph echoes a similar provision in Convention 135 (Article 4.3.b). Parties should have a framework authorising its possible implementation. This provision shall be implemented in accordance with the principles of legality and proportionality.
94. Lastly, paragraph 4 invites Parties, where appropriate, to withhold some or all of their support from any sports organisation that fails to effectively apply regulations for combating the manipulation of sports competitions. It is emphasised that this provision should be implemented in accordance with the principles of legality and proportionality.
Article 9 – Measures regarding the betting regulatory authority or the other responsible authority or authorities
95. Alongside sports organisations, the betting regulatory authorities (or other responsible authorities) have a key role to play in ensuring exchanges of information between sports organisations and sports betting operators, and in co-ordinating the rules governing sports betting operators as well as a duty to supervise compliance with these rules. The exercise of certain functions need to be fulfilled by public authorities: the coordinated enforcement of some preventative measures by all the sports betting operators should be ensured by a public authority. Similarly, the co-ordination of some exchange of information, in compliance with the relevant national and international personal data protection laws and standards, as set out in Article 14 of the convention and in preserving the legitimate interest of both the sports betting operators and sports organisations, should be fulfilled by a neutral person or institution. Article 9.1 obliges each Party’s competent authorities which are responsible for implementing sports betting regulations, to fight against the manipulation of sports competitions in relation to sports betting, through measures including where appropriate those referred to in letters a to f.
96. In general, the term “regulatory authority” refers to a public authority or authorities tasked by law with contributing to the provision of a service and to the proper functioning of a market involving in general multiple suppliers for the benefit of consumers. Within the framework of this convention “Regulatory authority” is used as a generic term to mean the authority responsible for the sports betting market. This indirect reference to a market model involving several suppliers should not be misleading, as the present convention is meant to apply whatever the organisational structure of the market, and does not purport to express an opinion for or against opening up the betting market to competition. The authority in question could equally well be the supervisory authority for a state lottery operating in a monopoly market, or the authority responsible for monitoring activities in cases where a ban is in place. These authorities do not define the policy of sports betting market regulations, e.g. opening up the market, but are responsible for co-ordinating its implementation. It should be for each state to decide how supervisory duties of the manipulation of the sport competitions are carried out. Moreover, several authorities may co-exist within the same Party in cases where the sports betting market is organised at the level of federated entities of a federal state or if responsibilities are divided between several authorities.
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97. Paragraph 1.a refers to the exchange of information, in a timely manner, with and between other competent authorities or the national platform about illegal, irregular or suspicious sports betting and other infringements of the regulations established in accordance with the present convention. While this provision establishes the principle of the introduction of exchanges of information, the regulatory authority or the other responsible authority or authorities are competent to determine, on a case by case basis, whether such exchanges are appropriate and the type of information to be provided.
98. Paragraph 1.b refers to the limitation, where appropriate, of the supply of sports betting, as a relevant measure to combat the manipulation of sports competitions in relation to sports betting. This limitation is expected to take effect following consultation with the national sports organisations and sports betting operators. This provision states that, in particular, sports competitions which are designed for those under the age of 18 and where the organisational conditions and/or stakes in sporting terms are inadequate should not be subject to sports betting. Thus, during the drafting process it was underlined that offering bets on competitions in which mostly under 18s participate, exposes them to the risks of being approached for manipulation. The expression “where the organisational conditions and/or stakes in sporting terms are inadequate” is likely to encompass non-official competitions such as friendly matches with no impact on rankings, or of little interest in sporting terms, therefore nothing at stake, making these competitions easy to manipulate. The Convention Follow-up Committee may specify criteria for this limitation in a recommendation to the Parties of this convention.
99. Paragraph 1.c states that competition organisers should be provided in advance with information about the types and the objects of sports betting products. Such information includes in principle the operator, as well as the type and object of the bets. It does not include information about the amounts, the transactions, the total value of the bets or the identity of the consumers. The way in which information is to be provided to competition organisers may be decided by the regulatory authority or the other responsible authority or authorities. The purpose of such information is to support the efforts of competition organisers to identify and manage the risks of manipulation of sports competitions they organise, in particular when these risks are identified within the risk assessment referred to in Article 5, paragraph 1. It allows, for example, competition organisers or sports organisations to put in place effective arrangements for supervising the course of the competition and, where appropriate, to establish a connection between unusual behaviour during a game and any bets that might have been offered on the competition in question.
100. Paragraph 1.d refers to measures that should be taken to ensure the systematic use of traceable means of payment for financial flows above a certain threshold, to be set by each Party. This traceability, allowing the identification of the senders, recipients and the amounts of these flows, can be important in cases where there is an investigation, whether in combating the manipulation of sports competitions or with regard to the fight against money laundering or other fraudulent activity.
101. Under paragraph 1.e, the responsible authority or authorities should also provide for appropriate mechanisms, in co-operation with sports organisations, and, where appropriate, between sports organisations and sports betting operators, to prevent competition stakeholders from betting on competitions in which they themselves are taking part. The rule prohibiting competition stakeholders from betting on their own competitions should be enshrined at disciplinary level, by sports organisations (cf. Article 7.1.a). Ensuring compliance with this rule, however, is not a task for sports organisations alone. Each Party has a certain amount of freedom to make their own arrangements.
102. Paragraph 1.f states that betting, in respect of which an appropriate alert has been issued, may be suspended, that is to say, no further bets may be accepted on the object in question. The competent authority may delegate the management of alerts to a specialised unit. The article does not specify whether bets placed earlier on the same object should be able to be declared void or should stand. It is for each Party to determine what the procedure should be in such cases, depending on the applicable law. The reference to an “appropriate” alert means that each type of alert does not necessarily lead to the automatic suspension of betting. It is up to the Parties to define which alerts may trigger this mechanism. 16
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103. Paragraph 2 requires the Parties to communicate to the Secretary General the names and addresses of the betting regulatory authority or the other responsible authority or authorities. According to the practice on such notifications, Parties are expected to notify this information, by means of a declaration addressed to the Secretary General of the Council of Europe, at the time of signature or when depositing its instrument of ratification, acceptance or approval. They subsequently may, at any time and in the same manner, change the terms of their declaration.
Article 10 – Sports betting operators
104. The requirements laid down for sports betting operators in this provision are similar to those used for the sports movement. It deals first and foremost (paragraph 1) with the prevention of conflicts of interest and misuse of inside information by any natural or legal persons involved in providing betting products. In particular, it calls on the Parties to place restrictions on:
– persons involved in providing sports betting products betting on their own products (paragraph 1.a);
– abuse of a position as sponsor or part-owner of a sports organisation to facilitate the manipulation of a sports competition or to misuse inside information (paragraph 1.b);
– a competition stakeholder being involved in compiling betting odds for the competition they are involved in (paragraph 1.c);
– the offering of bets on a competition in which the sports betting operator controls the competition organiser or one of the competition stakeholders or is itself controlled by a competition organiser or a competition stakeholder (paragraph 1.d).
105. It should be noted that paragraph 1.b does not introduce a ban on sports sponsorship by sports betting operators. This provision does, however, highlight a risk of conflict of interest which needs to be recognised by the competent authorities and punished in cases where an abuse has occurred. These risks of abuse include using their privileged position as sponsors giving them an advantage over their customers or in looking to influence the course of competitions.
106. According to the generally accepted definition, a conflict of interest arises from a situation in which a person has a private interest which is such as to influence, or appear to influence, the impartial and objective performance of his or her official duties. A person’s private interest includes any advantage to himself or herself, to his or her family, close relatives, friends and persons or organisations with whom he or she has or had business or political relations. It includes also any liability, whether financial or civil, relating thereto.
107. This definition, which can serve as a reference when interpreting the concept of conflict of interest, is notably applied to public officials in Recommendation No. R (2000) 10 of the Committee of Ministers to member States on codes of conduct for public officials.
108. Paragraph 2 requires the Parties to encourage the introduction by sports betting operators, and through them international organisations of sports betting operators, of programmes to raise awareness among owners and employees of the consequences of and the fight against manipulation of sports competitions, through education, training and the dissemination of information.
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109. Lastly, paragraph 3 requires the Parties to adopt such measures as may be necessary to oblige sports betting operators to report irregular or suspicious sports betting to the betting regulatory authority or the other responsible authority or authorities and/or the national platform. Moreover, the convention cannot commit national public authorities to cooperate (e.g. exchange information) with organisations which are considered as illegal.
Article 11 – The fight against illegal sports betting
110. Illegal sports betting operators represent a threat in the area of manipulation of sports competitions, because they may operate without any control and may not co-operate with the sports movement. In addition, sports betting operators whose activities are illegal under the applicable law of the jurisdiction where their customers are located may be unwilling to share information highlighting the illegal nature of their activity. These two situations complicate the task of the competent authorities and sports organisations which, as a result, have great difficulty in identifying all the sports competitions which might be endangered through match- fixing and do not have full access to information about this illegal segment of the market.
111. Article 11 requires the Parties to consider adopting the most suitable means, in accordance with the applicable law, to combat illegal sports betting. In doing so, the Parties are free to explore various direct and indirect ways of restricting access to physical and online operators (paragraph a): e.g. closing down operators, forcing them to operate lawfully or blocking access to their websites. Article 11 also provides that consideration be given to blocking financial flows between illegal sports betting operators and consumers (paragraph b), to prohibiting advertising for these same operators (paragraph c) and to introducing measures to raise consumers’ awareness of the risks associated with illegal sports betting (paragraph d). The exact scope to such measures shall be defined, where appropriate, by each Party, in accordance with the applicable law.
CHAPTER III – EXCHANGE OF INFORMATION
Article 12 – Exchange of information between competent public authorities, sports organisations and sports betting operators
112. The fight against the manipulation of sports competitions requires substantial exchanges of information on various issues between the relevant public authorities, including law enforcement and judicial authorities, sports organisations, competition organisers, sports betting operators and national platforms. Under Article 12, the Parties undertake to facilitate such exchanges of information and overall co-operation between the stakeholders involved, in compliance with the domestic legislation. The latter naturally includes domestic law resulting from the implementation of international legal instruments and, where appropriate, the directly applicable provisions of international treaties. In particular, the standards relating to the protection of personal data and the confidentiality of investigations must be taken into account. This provision requires Parties, in compliance with the law, to offer the maximum assistance to the other Parties and the organisations concerned, by allowing the spontaneous exchange of information where there are reasonable grounds to believe that offences or infringements of the laws referred to in this convention have been committed, and providing, upon request, all necessary information to the national, foreign or international authority requesting it. The wording of this article grants the Parties a margin of discretion. This provision does not involve a strict requirement to communicate specific types of information, but provides a guide to the purpose of these exchanges.
113. The facilitation of these exchanges of information requires the setting up of mechanisms for communicating the relevant information gathered to each type of stakeholder, where such information may assist in the undertaking of risk assessment referred to in Article 5 and namely the advanced provision of information about the types and object of the betting products to the competition organisers, and in initiating or carrying out investigations or proceedings concerning the manipulation of sports competitions (paragraph 1). “Relevant information” could mean any information gathered by a stakeholder which may be of interest to another stakeholder in the context of its involvement in the fight against the manipulation of
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Explanatory Report – CETS 215 – Manipulation of Sports Competitions sports competitions. Such information may, for instance, be the volume of bets registered for a particular competition, an unusual change in odds or the geographical location of persons placing irregular bets. It may also include rumours about manipulation received from a competition. The stakeholders may give consideration to jointly defining the type of such relevant information.
114. Upon request, the authority or organisation which receives such information must inform the organisation which shared the information of the follow-up to the communication (paragraph 2). Domestic legislation may, however, impose restrictions. For instance, a prosecutor investigating a criminal case on the basis of information communicated by private organisations would not be able to pass on certain information about the case to these organisations, due to the investigation or prosecution confidentiality.
115. With regard to the fight against illegal betting, each Party must explore possible ways of developing or enhancing co-operation and exchange of information, as set out in Article 12 of the convention (paragraph 3). For instance, any Party which identified a sports betting operator offering services contravening the legislation in force in the jurisdiction where the gambler was located could notify any other Parties likely to be concerned.
116. The reference to Article 14 of this convention recalls that exchanges of information may relate to personal data and that the relevant protection laws and standards must be respected.
Article 13 – National platform
117. Article 13 provides for the identification of a national platform responsible for the fight against the manipulation of sports competitions by each Party.
118. The identification of the body fulfilling the function of national platform will be made in accordance with national law, and at the Parties’ discretion, taking into account existing structures and the distribution of national administrative functions. A public authority would provide a neutral framework for co-operation between private stakeholders from different sectors and a suitable framework for the exchange of information. Therefore, national platforms are also implicitly covered by the generic references made to “competent public authorities”. However, this feature is not explicitly specified in the provisions of the convention, so as to give the Parties a margin of discretion in identifying their platform.
119. The national platform serves as an information hub, collecting and disseminating information relevant to the fight against manipulation of sports competitions to the relevant organisation and authorities (paragraph 1.a).
120. In particular, the national platform is responsible for receiving, centralising and analysing information on irregular and suspicious bets placed on sports competitions taking place on the territory of the concerned Party and, where appropriate, issuing alerts (paragraph 1.c) and transmitting information to public authorities, sports organisations, and/or sports betting operators, in connection with possible breaches of legislation or sports regulations (paragraph 1.d). The information may, for instance, concern the placing of bets by a person involved in the competition or irregular or suspicious bets. However, this article does not involve a strict requirement to transmit specific types of information.
121. The national platform, the name and address of which must be communicated by each Party to the Secretary General of the Council of Europe (paragraph 2), is responsible for the co-ordination of the fight against the manipulation of sports competitions at national level (paragraph 1.b) and must co-operate with all organisations and relevant authorities at national and international level, including national platforms of other states (paragraph 1.e). This may include co-ordinating the diffusion of public information. Given the transnational nature of the risks related to the manipulation of sports competitions, it is very important for information to be exchanged quickly between the Parties.
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122. When the information exchanged constitutes personal data, it should be processed subject to the relevant national and international personal data protection laws and standards, as set out in Article 14 of the convention, in particular those defined under the Convention 108.
123. Paragraph 2 requires the Parties to communicate to the Secretary General the names and addresses of the national platform. According to the practice on such notifications, Parties are expected to notify this information, by means of a declaration addressed to the Secretary General of the Council of Europe, at the time of signature or when depositing its instrument of ratification, acceptance or approval. They subsequently may, at any time and in the same manner, change the terms of their declaration.
Article 14 – Personal data protection
124. The fight against the manipulation of sports competitions concerns many sectors of activity: administrative co-operation, consumer protection, child protection, combating fraud and money laundering, tackling identity theft and other forms of cybercrime, ensuring the security of gambling equipment, safeguarding the integrity of sport and combating match- fixing. Moreover, provision is made for exchanges of information between a wide variety of entities (public authorities, online betting operators, sports organisations in the broad sense, national, federal and international, and competition organisers). It is important therefore to ensure the protection of personal data.
125. Under Article 14, the Parties undertake to comply with relevant (national and international) personal data protection laws and standards when drawing up the measures needed to combat the manipulation of sports competitions and, in particular, when exchanging information between the public authorities and the organisations covered by the convention. At international level, the data protection standards are set out in particular in Convention 108 and the 2001 protocol thereto regarding supervisory authorities and trans- border data flows (2002, ETS No. 181). Implementation of the present convention cannot in any way prejudice the implementation of Convention 108 by the Parties who have ratified it.
126. Paragraph 2 specifies the key principles mentioned indirectly in paragraph 1. The principles of lawfulness, adequacy, relevance and accuracy regulate the collection, processing and exchange of personal data. The processing of personal data (a generic term covering the collection, recording, alteration and exchange, of the data) is actually the vital tool for the international co-operation on which the fight against the manipulation of sports competitions should be based.
127. Given that the organisation of sports competitions and the activities of sports betting operators generate a large volume of personal data, there is a risk that the data shared includes data that goes beyond the purposes pursued or of the data being kept longer than necessary. Paragraph 3 therefore provides that the Parties must pass legislation so that the stakeholders ensure that data are exchanged solely for the purposes of the convention and that the data sharing does not go beyond the strict minimum needed for the pursuit of the stated objectives of the sharing. Parties might wish to consider the setting up of consultation committees involving the various stakeholders at national level and personal data protection experts to agree to the type of data to be shared and the time they should be preserved, as one of the means of addressing these requirements for security and integrity and, more broadly, improving the effectiveness of co-operation between stakeholders and ensuring greater protection in terms of how personal data are used.
128. Lastly, under paragraph 4, the Parties must encourage the stakeholders to ensure the security of the data, the integrity and availability of computer systems and the identification of their users. The security of the systems and exchanges can also be a tricky issue because the overall mechanism is only as secure as the lowest level of security adopted by the stakeholders. Article 14, paragraph 4, therefore requires each Party to invite the various stakeholders to implement the technical means required to ensure the security of the data exchanged and to guarantee their reliability and integrity as well as the availability and
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integrity of the systems and the identification of their users. The consultation committees may be tasked with checking the security of the systems and exchanges.
CHAPTER IV – SUBSTANTIVE CRIMINAL LAW AND LAW ENFORCEMENT CO-OPERATION
Article 15 – Criminal offences relating to the manipulation of sports competitions
129. The purpose of Articles 15 to 18 is to make sure that the manipulation of sports competitions is covered by the domestic legislation of the Parties in such a way that manipulation of sports competitions may be punished in accordance with their seriousness, when they involve certain conduct.
130. Article 15 of the convention seeks to make sure that manipulation of sports competitions may be criminally sanctioned when it either involves coercion, corruption or fraud, as defined by domestic law. It does not require the establishment of a specific and uniform offence for the manipulation of sports competitions. Depending on the definition of existing offences and the related case law, the Parties may decide to rely on existing general criminal legislation (e.g. on extortion, corruption or fraud), or to establish new offences (e.g. on manipulation of sport competitions) so that the conduct concerned (alternatively of manipulations involving either coercion, corruption or fraud) is covered appropriately. This means that if the mentioned practises are criminalised by either one of the offences, it is not required to criminalise them by (one of) the others too.
131. The manipulation of sports competitions is understood here as defined in Article 3.4 of this convention. Insofar as the definition of criminal offences relating to the manipulation of sports competitions refers to the definition of manipulation of sports competitions which itself includes an element of intent, such an element is necessary to characterise these criminal offences.
132. Some acts relating to the manipulation of sports events are in principle already covered by existing criminal offences. This may apply to acts such as extortion, blackmail, poisoning or violence to which competition stakeholders, both athletes and otherwise, and those around them may be subjected. Such acts, which may be described with the generic term “coercion”, are covered by existing offences. However, this reference is a reminder that such conduct is among the methods employed in certain manipulations of sports competitions.
133. Corrupt practices are frequent when it comes to the manipulation of sports competitions. For example, offering a bribe to an amateur referee in exchange for him influencing the course of the game in favour of a competitor, or influencing a competitor to accept to lose a game in exchange for a promise to play for another team the next season, may – in coherence with domestic law – constitute such corrupt practices.
134. Irrespective of practices of coercion or corruption, the manipulation of sports competitions may take the form of agreements freely entered into. Even in such situations, they may fall under the domestic law on fraud in particular when there is fraudulent intent to secure, without right, an economic benefit for the offender or for a third party, causing a loss of property to another person. Such a benefit could take the form, for example, of a bonus paid to the winner by the competition organiser, a bonus paid to a competitor by their employer, winnings from a sports bet placed on the relevant competition, or a capital gain realised by the owner of a qualified club who sells their shares. Victims of fraudulent behavior, i.e. those who suffer a loss due to the relevant fraudulent manipulation, may be, for example, other persons having placed bets, the opposing team, or, where applicable, the national or international federation responsible for organising the competition.
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Article 16 – Laundering of the proceeds of criminal offences relating to the manipulation of sports competitions
135. Article 16, paragraph 1, requires Parties to adopt, in their domestic law, the measures necessary to establish, as criminal offences, conduct involving money laundering as defined, for example, in one of the three conventions mentioned below, when the predicate offence giving raise to profit is one of those referred to in Articles 15 and 17 of this convention, and in any event in the case of extortion, corruption and fraud.
136. In order not to establish a new definition of conduct involving money laundering, the convention refers to three customary definitions, namely those in:
– Article 9, paragraphs 1 and 2, of Convention 198;
– Article 6, paragraph 1, of the United Nations Convention against Transnational Organised Crime, and
– Article 23, paragraph 1, of the United Nations Convention against Corruption.
137. The offences of extortion, corruption and fraud are included in Appendix 2 to Convention 198, which sets out a minimum range of offences to be regarded as predicate offences of money laundering. These offences are also covered in the recommendations of the Financial Action Task Force (FATF), laying down the international standards in this area.
138. Laundering, whose objective is to disguise the illicit origin of proceeds, always requires a predicate offence from which the said proceeds originate.
139. Under this definition, in accordance with the above-mentioned conventions, the expression “predicate offence” means all offences such as defined by these conventions as a result of which proceeds were generated that may become the subject of an offence or, in other words, the offence that generated such proceeds.
140. For many years, anti-laundering efforts focused on drug proceeds, but recent international instruments, including Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (1990, ETS No. 141, hereafter “Convention 141”), Convention 198 and also the 40 Recommendations of the Financial Action Task Force (FATF), recognise that a wide range of offences (e.g. fraud, terrorism, trafficking in stolen goods and arms) can generate proceeds which may need to be laundered through subsequent recycling in legitimate businesses. Convention 141 already applies to the proceeds of any kind of criminal activity, including corruption, unless a Party has entered a reservation to Article 6, thereby restricting its scope to proceeds from particular offences or categories of offences. The authors of Convention 141 felt that, given the proven close links between corruption and money laundering, it was of primary importance that the convention also criminalised the laundering of corruption proceeds.
141. Paragraph 2 allows the Parties, when deciding on the range of offences to be covered as predicate offences under each of the categories mentioned in paragraph 1, to decide, in accordance with their domestic law, how they will define those offences and the nature of any particular elements of those offences that make them serious.
142. The purpose of paragraph 3 of Article 16 of the Convention against the Manipulation of Sports Competitions is to require Parties to consider including the manipulation of sports competitions in their money laundering prevention framework. This prevention framework, which includes requirements of due diligence with respect to consumers, keeping records and reporting, corresponds to measures such as those mentioned in Article 13 of Convention 198, in Article 7 of the UN Convention against Transnational Organized Crime or in Article 14 of the UN against Corruption. It was noted that Article 16.3 is not a provision of substantive
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Explanatory Report – CETS 215 – Manipulation of Sports Competitions criminal law and law enforcement co-operation. However, it was kept together with the other provisions on money laundering to ensure unity.
Article 17 – Aiding and abetting
143. The purpose of Article 17 is to establish, as criminal offences, aiding or abetting the commission of the offences covered by Article 15 of the convention.
144. Liability for aiding or abetting arises where the person who commits a crime referred to in this convention is aided by another person who knowingly aids and abets by facilitating the preparation or commission of the offence. Therefore, aiding or abetting must be committed intentionally.
145. This provision reflects the one in Article 5.1.b of the United Nations Convention against Transnational Organised Crime, which extends the convention offences to any person who aids and abets by facilitating and counselling the commission of the offences.
146. The manipulation of sports competitions is often carried out by organised crime networks comprising numerous individuals, each of whom contribute in their own way, either directly or indirectly, to the commission of the illegal activities. That was why it was important to include in the convention’s offences, all acts that intentionally contribute to the offences.
Article 18 – Corporate liability
147. Like the Article 16 concerning the laundering of the proceeds of criminal offences relating to manipulation of sports competitions, Article 18 seeks to include the usual references to corporate liability and link them to the main provisions applicable to the manipulation of sports competitions.
148. The term “legal person” within the meaning of Convention 173 refers to any entity having such status under the applicable national law. For the purpose of active corruption offences, however, the definition should exclude the state or other public bodies exercising state authority, such as ministries or local government bodies, as well as public international organisations such as the Council of Europe. The exception applies to the different levels of government: State, regional or local entities exercising public powers. The reason is that the responsibilities of public entities are subject to specific regulations usually embodied in administrative law or, in the case of public international organisations, in agreements or treaties. It is not, however, aimed at excluding the responsibility of public enterprises.
149. Under Article 18, paragraph 1, legal persons shall be held liable if the following conditions are met. Firstly, the offence is one of those referred to in Articles 15 to 17 of the convention. The second condition is that the offence must have been committed for the benefit of, or on behalf of, the legal person by any natural person, acting either individually or as a member of an organ of the legal person, who has a leading position within the legal person. The leading position assumed to exist in the three situations described (a power of representation or authority to take decisions or to exercise control) demonstrates that such a natural person is legally or in practice able to engage the liability of the legal person.
150. Paragraph 2 states that according to the Parties’ domestic law, the liability of a legal person may be criminal, civil or administrative.
151. Paragraph 3 expressly mentions Parties’ obligation to extend corporate liability to cases where the lack of supervision within the legal person makes it possible to commit the offences referred to in Articles 15 to 17. It seeks to hold legal persons liable for the omission by persons in a leading position to exercise supervision over the acts committed by subordinates acting on behalf of the legal person. A similar provision also exists in the Second Protocol to the European Union Convention on the Protection of the Financial Interests of the European
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Communities. Like paragraph 1, the nature of the liability is to be decided by the Contracting Party itself.
152. Paragraph 4 provides that the liability of legal persons is without prejudice to the criminal proceedings against natural persons who are perpetrators of, or accessories to, the criminal offences referred to in paragraph 1.
CHAPTER V – JURISDICTION, CRIMINAL PROCEDURE AND ENFORCEMENT MEASURES
Article 19 – Jurisdiction
153. This article lays down various requirements whereby Parties must establish jurisdiction over the offences with which the convention is concerned.
154. Paragraph 1.a is based upon the principle of territoriality. Each Party is required to establish jurisdiction for the offences referred to in the convention that are committed in its territory.
155. Paragraphs 1.b and 1.c are based on the principle of personal jurisdiction of the state, which is well established in international law. It allows each Party to assert its jurisdiction over offences committed on board ships flying its flag or aircraft registered in that Party. This basis of jurisdiction is primarily intended to apply when the ship or aircraft is located in a maritime area or airspace that is not within the jurisdiction of any State (on the High Seas for example). If, however, an offence is committed on board a ship flying the flag of one State but within the territorial waters of another State, the latter may exercise its territorial jurisdiction.
156. The first part of paragraph 1.d is based on the nationality principle. The nationality theory is most frequently applied by countries with a civil-law tradition. Under it, nationals of a country are obliged to comply with its law even when they are outside its territory. Under this provision, if one of its nationals commits an offence abroad, a Party is obliged to be able to prosecute him/her. The second part of paragraph 1.d applies to persons having their habitual residence in the territory of the Party. It provides that Parties shall establish jurisdiction to investigate acts committed abroad by persons having their habitual residence in their territory. It therefore applies to the case of foreign athletes having their habitual residence in one country who commit criminal acts during competitions taking place in other countries.
157. Paragraph 2 refers to the possibility for Parties to make reservations on rules on jurisdiction laid down in paragraph 1.d.
158. Paragraph 3 concerns the principle of “aut dedere aut judicare” (extradite or prosecute). Jurisdiction established on the basis of this paragraph is necessary to ensure that Parties which refuse to extradite a national have the legal ability to undertake investigations and proceedings domestically instead, if asked to do so by the Party which requested extradition under the terms of the relevant international instruments.
159. Given the increasingly international nature of the manipulation of sports results, it will sometimes happen that more than one Party has jurisdiction over some or all of the participants in an offence established under the convention. In order to avoid duplication of procedures and otherwise facilitate the efficiency or fairness of proceedings, the Parties involved are required under paragraph 4 to consult in order to determine the most appropriate jurisdiction for the purposes of prosecution. In some cases, it will be most effective for them to choose a single jurisdiction for prosecution; in others, it may be best for one country to prosecute some alleged perpetrators, while one or more other countries prosecute others. Either method is permitted under this paragraph. Finally, the obligation to consult is not absolute; consultation is to take place “where appropriate”. Thus, for example, if one of the Parties knows that consultation is not necessary (e.g. it has received confirmation that the other Party is not planning to take action), or if a Party is of the view that consultation may impair its investigation or proceedings, it may delay or decline consultation.
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160. Paragraph 5 of this article enables Parties to establish other types of criminal, civil and administrative jurisdiction according to their domestic law. Thus, some states adopt a broad reading of their territorial and personal jurisdiction. The principle of effectiveness, for example, allows a State to be competent in respect of an offence committed abroad by a foreigner but only when the offence has effects/consequences in the State’s territory.
Article 20 – Measures to secure electronic evidence
161. Offences relating to the manipulation of sports competitions may involve the use of information and communication technologies, as well as the commission of acts considered, according to applicable law, as violations of existing standards in the fight against cybercrime. It may include, for example, illegal interception of data for the purposes of blackmail, computer-related forgery aimed at altering the publication of information on sports competitions or related betting, illegal system interference aimed at cancelling a betting transaction in the case of an unsuccessful manipulation.
162. Furthermore, information and communication technologies can be used to commit an offence, for example passing on instructions to an accomplice to intimidate a competition stakeholder or to place a bet.
163. Lastly, these computer systems, even if not directly used to commit an offence, can record information which can be relevant for establishing facts: an unexplained variation of odds, unusual transactions by customers located in the same region, or the records of incorrect transmission of results of certain sports competitions, can provide useful clues in the course of investigations into manipulation of sports competitions.
164. Article 20 aims to give the competent national authorities the possibility, in the course of criminal investigations into offences referred to in Articles 15 to 17, inter alia, to order or similarly obtain the expeditious preservation of stored computer data, the expedited preservation and disclosure of traffic data, production orders, search and seizure of stored computer data, the real-time collection of traffic data and interception of content data. Such measures shall be in compliance with the relevant national and international personal data protection laws and standards, as set out in Article 14 of the convention.
165. Expedited preservation of stored computer data and expedited preservation and partial disclosure of ”traffic data” refers only to data preservation, and not data retention. It does not mandate the collection and retention of all, or even some, data collected by a service provider or other entity in the course of its activities. The preservation measures apply to computer data that "has been stored by means of a computer system", which presupposes that the data already exists, has already been collected and is stored. They do not apply to the real-time collection and retention of future traffic data or to real-time access to the content of communications. Article 20 does not imply an obligation to ensure that real-time collection of traffic data or interception of content data are applicable measures according to domestic law, when investigating offences referred to in Articles 15 to 17 of the convention.
166. The following definitions, derived from Articles 16, 17, 19, 20, and 21 of the Convention on Cybercrime (2001, ETS 185, hereafter “Convention 185”) may provide guidance for interpreting the following concepts. However, these specific investigation measures are given here as examples and Article 20 does not impose an obligation to implement all of them.
167. Expedited preservation of stored computer data can be understood as the set of measures enabling the competent authorities to order or similarly obtain the expeditious preservation of specified computer data, including traffic data, that has been stored by means of a computer system, in particular where there are grounds to believe that the computer data is particularly vulnerable to loss or modification. Where a Party addresses for this purpose an order to a person to preserve specified stored computer data in the person’s possession or control, the Party shall adopt such legislative and other measures as may be necessary to oblige that person to preserve and maintain the integrity of that computer data for a period of time as long as necessary, which, according to Convention 185, cannot exceed ninety days,
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168. Expedited preservation and partial disclosure of traffic data can be understood as all measures adopted to ensure that expeditious preservation of traffic data is available regardless of whether one or more service providers were involved in the transmission of that communication, as well as measures to ensure the expeditious disclosure to the Party’s competent authority, or a person designated by that authority, of a sufficient amount of traffic data to enable the Party to identify the service providers and the path through which the communication was transmitted.
169. Production order can be understood as all measures permitting competent authorities to order a person in its territory to submit specified computer data in that person’s possession or control, which is stored in a computer system or a computer-data storage medium, as well as to order a service provider offering its services in the territory of the Party to submit subscriber information relating to such services in that service provider’s possession or control.
170. Search and seizure of stored computer data can be understood as all measures permitting competent authorities to search or similarly access a computer system or part of it and computer data stored therein, as well as a computer-data storage medium in which computer data may be stored in its territory.
171. This term may also include measures guaranteeing that where the authorities search or similarly access a specific computer system or part of it, and have grounds to believe that the data sought is stored in another computer system or part of it in its territory, and such data is lawfully accessible from or available to the initial system, the authorities will be able to expeditiously extend the search or similar access to the other system.
172. Moreover, this term may involve all measures adopted to empower the competent authorities to seize or similarly secure computer data (accessed along with measures described above), and including the power to:
a. seize or similarly secure a computer system or part of it or a computer-data storage medium;
b. make and retain a copy of those computer data;
c. maintain the integrity of the relevant stored compuer data;
d. render inaccessible or remove those computer data in the accessed computer system.
173. Lastly, the term may also encompass all measures necessary to empower the competent authorities to order any person who has knowledge about the functioning of the computer system or measures applied to protect the computer data therein to provide, as is reasonable, the necessary information to enable the undertaking of the measures referred to above.
174. Real-time collection of traffic data may be understood as all measures authorising the competent authorities to:
a. collect or record through the application of technical means on the territory of that Party, and
b. compel a service provider, within its existing technical capability:
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i. to collect or record through the application of technical means on the territory of that Party; or
ii. to co-operate and assist the competent authorities in the collection or recording of traffic data, in real-time, associated with specified communications in its territory transmitted by means of a computer system.
175. This term may also involve, where a Party, due to the established principles of its domestic legal system, cannot adopt the measures referred to above in a), measures adopted to ensure the real-time collection or recording of traffic data associated with specified communications transmitted in its territory, through the application of technical means on that territory.
176. It may also include measures permitting to oblige a service provider to keep confidential the fact of the execution of any power provided for in this article and any information relating to it.
177. Interception of content data may be understood as all measures empowering the competent authorities, in relation to a range of serious offences to be determined by domestic law, to:
a. collect or record through the application of technical means on the territory of that Party, and
b. compel a service provider, within its existing technical capability:
i. to collect or record through the application of technical means on the territory of that Party, or
ii. to co-operate and assist the competent authorities in the collection or recording of content data, in real-time, of specified communications in its territory transmitted by means of a computer system.
178. In addition, this term may include, where a Party, due to the established principles of its domestic legal system, cannot adopt the measures referred to above in a), measures adopted to ensure the real-time collection or recording of content data on specified communications in its territory through the application of technical means on that territory.
179. Finally, this term may also involve measures permitting a Party to oblige a service provider to keep confidential the fact of the execution of any power provided for in this article and any information relating to it.
Article 21 – Protection measures
180. This Article proposes that Parties ensure, in the course of proceedings, the protection of persons holding information regarding possible offences referred to in this convention as well as witnesses. These general measures of protection apply at all stages of the proceedings, both during the investigation phase (whether they are carried out by a police service or a judicial authority) and during the court proceedings.
181. These protective measures are necessary, especially when it comes to protecting persons approached by or being under pressure from criminal organisations. Indeed, many cases of manipulation can involve threats, coercion or blackmail towards competition stakeholders or their support personnel.
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182. Different categories of persons may be witnesses or sources of information in the fight against manipulation of sports competitions. However, their depositions, testimonies or exchange of information present real risks and therefore their safety may be at stake. Providing them with effective protection also aims at increasing their willingness to testify.
183. The question of protection for witnesses and persons collaborating with the judicial authorities was comprehensively dealt with by the Council of Europe in Recommendation No. R (97) 13 of the Committee of Ministers to member States concerning intimidation of witnesses and the rights of the defence, adopted on 10 September 1997. The recommendation establishes a set of principles as guidance for national law on witness intimidation, whether the code of criminal procedure or out-of-court protection measures. The recommendation offers member States a list of measures which could help protect the interests both of witnesses and of the criminal justice system effectively, while guaranteeing the defence appropriate opportunities to exercise its rights in criminal proceedings.
184. During the drafting process, and in light of, in particular, Recommendation No. R(97)13, it was considered that the phrase “persons who provide, in good faith and on reasonable grounds, information concerning offences referred to in Articles 15 to 17 of this convention or otherwise co-operate with the investigating or prosecuting authorities” refers to any person who faced criminal charges or had been convicted of offences referred to in Articles 15 to 17 of this convention and who agreed to co-operate with criminal justice authorities, in particular by giving information about offences in which they had taken part so that the offences could be investigated and prosecutions brought.
185. The word “witness” refers to any person who possesses information relevant to criminal proceedings concerning offences referred to in Articles 15 to 17 of the convention and it includes whistle blowers and informers.
186. Intimidation of witnesses, whether direct or indirect, may take different forms, but its purpose is nearly always to destroy and discredit evidence against defendants so that they have to be acquitted.
187. The beneficiaries of protection measures referred to in Article 21 are illustrative. However, the expression “effective protection”, used in this article refers to the need to adapt the level of protection to the threats to collaborators with the judicial authorities, witnesses, informers and, when necessary, family members of such persons. The measures required have to be identified depending on the assessment of the risk such persons may run. In some cases, it will be sufficient to install preventive technical equipment, establish an alert procedure, record incoming and outgoing telephone calls or provide a confidential telephone number, a protected car registration number or a mobile phone for emergency calls. In other cases, the person under protection may need bodyguards or, in extreme circumstances, further-reaching witness-protection measures such as a change of identity, employment and place of residence may be necessary.
188. If protection measures are to be effective, action should be taken to prevent offenders being aware of them. Parties therefore have to make sure that any information about the protection measures is safe from unauthorised access.
189. Protection measures should be granted only with the consent of the persons concerned.
CHAPTER VI – SANCTIONS AND MEASURES
190. Combating the phenomenon of manipulation of sports competitions requires not only the development of preventive measures, but also the setting-up of an efficient system of sanctions.
191. Based on legal principles and the domestic law of the Parties, the liability for manipulation of sports competitions can be criminal, civil or administrative. Such a liability also includes disciplinary sanctions imposed by sports organisations. 28
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Article 22 – Criminal sanctions against natural persons
192. According to Article 22, the Parties undertake to establish necessary measures to ensure that the sanctions for offences referred to in Articles 15 to 17, in particular monetary sanctions, are effective, proportionate and dissuasive. As far as offences committed by natural persons are concerned, penalties involving deprivation of liberty may give rise to extradition, in accordance with each Party’s domestic law.
193. The reference to sanctions involving deprivation of liberty which can give rise to extradition indicates that, in some cases, the manipulation of sports competitions can constitute a serious offence, subject to national criminal law.
Article 23 – Sanctions against legal persons
194. Legal persons should also be subject to effective, proportionate and dissuasive sanctions, which include monetary sanctions, as well as, where appropriate, other measures such as temporary or permanent disqualification from exercising commercial activity, placement under judicial supervision or a judicial winding-up order.
195. This article offers some flexibility as to the nature of the sanctions applied to legal persons, in order to take into account the diversity of sanctions available under domestic law. In particular, it does not entail any obligation to apply sanctions of a criminal nature.
Article 24 – Administrative sanctions
196. According to their domestic legislation, Parties shall adopt necessary measures, where appropriate, to punish infringements referred to in the convention by effective, proportionate and dissuasive sanctions following proceedings brought by the administrative authorities, where the decision may give rise to proceedings before a competent court. According to paragraph 2, the application of administrative measures may be entrusted to the regulatory authority or other responsible authority or authorities, in accordance with its domestic law. Such measures may include licence withdrawal for a sanctioned operator or website access being blocked.
Article 25 – Seizure and confiscation
197. Seizure and confiscation of assets derived from criminal activity or used by criminal organisations is an efficient means to fight against organised crime. Article 25 requires Parties to allow goods, documents and materials that are used to commit offences referred to in Articles 15 to 17 of this convention, to be seized and confiscated, as well as the proceeds of such offences.
198. The term "seizure" (or " freezing"), as defined in the UN Convention against Transnational Organized Crime , means temporarily prohibiting the transfer, conversion, disposition or movement of property or temporarily assuming custody or control of property on the basis of an order issued by a court or other competent authority.
199. As regards the definition of "confiscation", it includes, where applicable and within the meaning of the UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988), the “forfeiture” and means the permanent deprivation of property by order of a court or other competent authority.
200. The term “proceeds” is used within the meaning of the Council of Europe Convention 141, which follows the wording of the UN Convention against Transnational Organized Crime. Consequently, the definition of "proceeds" should be as broad as possible and may include, where appropriate, objects of offences. The wording of the definition does not rule out the inclusion of property and assets that may have been transferred to third
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parties and includes any economic advantage derived from or obtained, directly or indirectly, from criminal offences.
201. It is noted that the implementation of the provision relating to confiscation may include specific protective measures in respect of persons who are not offenders of, or accessories to, the offence and whose assets were used to commit the offence without their knowledge.
CHAPTER VII – INTERNATIONAL CO-OPERATION IN JUDICIAL AND OTHER MATTERS
Article 26 – Measures with a view to international co-operation in criminal matters
202. As regards judicial co-operation in criminal matters, the Council of Europe already has an important normative framework. Thus, Convention 24, Convention 30, their Additional Protocols (1975, ETS No. 86; 1978, ETS No. 98; 1978, ETS No. 99; 2001, ETS No. 182, 2010, CETS No. 209) and Convention 141, which are cross-cutting instruments applicable to a large number of offences, can also be implemented to grant judicial co-operation in criminal matters in the course of proceedings in respect of offences referred to in Articles 15 to 17 of the convention.
203. For this reason, during the drafting process it was decided not to reproduce provisions similar to those found in cross-cutting instruments such as those mentioned above in the convention. Therefore, they did not want to create a separate mutual assistance regime which would replace other applicable instruments or agreements, considering that it would be more efficient to rely generally on regimes established by the existing treaties on mutual assistance and extradition. Consequently, only provisions with added value compared to existing conventions have been included in this chapter.
204. In addition, the Parties may provide for co-operation on the basis of existing international instruments, in particular the aforementioned conventions of the Council of Europe, and – for EU member States – the instruments adopted within the framework of the European Union, particularly the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between member States. The Parties can also provide for co- operation under arrangements agreed on the basis of uniform or reciprocal legislation.
205. Investigations and prosecutions in cases of manipulation of sports competitions may require the co-operation of several states. The transnational character of these manipulations is reflected in the cross-border nature of criminal networks, in registering suspicious bets with sports betting operators established in different jurisdictions, and in manipulation of international sports competitions or national competitions in several countries at the same time.
206. Article 26 therefore calls for co-operation between the Parties, in accordance with international law, for the purposes of investigation, prosecution and judicial proceedings regarding the offences referred to in Articles 15 to 17 of this convention, including the seizure and confiscation (paragraph 1). This co-operation also applies to extradition and mutual legal assistance (paragraph 2).
207. Article 26 further stipulates that as regards international co-operation, where dual criminality is considered to be a requirement, it shall be presumed, even if the laws of the Party requested place the offence within a different category or use different terminology to the offence than the requesting Party, provided that the conduct at the origin of the offence in respect of which a request for mutual assistance or extradition was made, constitutes an offence under the laws of both Parties (paragraph 3).
208. Similarly, if a Party that makes extradition or mutual assistance in criminal matters conditional on the existence of a treaty, receives such a request from another Party with which it has not concluded such a treaty, it may, acting in full compliance with its obligations under international law and subject to the conditions provided for by its own domestic law,
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consider this convention to be the legal basis for extradition or mutual legal assistance in criminal matters in respect of the offences referred to in Articles 15 to 17 of this convention.
Article 27 – Other measures with a view to international co-operation in respect of prevention
209. The Parties should endeavour to integrate, where appropriate, the prevention of and the fight against manipulation of sports competitions in development of assistance programmes for the benefit of third States.
Article 28 – International co-operation with international sports organisations
210. Under Article 28, the Parties shall develop co-operation with international sports organisations in the fight against the manipulation of sports competitions, in accordance with their domestic law.
211. This co-operation may concern the different aspects of the convention: prevention, awareness-raising of stakeholders, detection or exchange of information
CHAPTER VIII – FOLLOW UP
212. Chapter VIII of the convention contains provisions aiming to ensure the effective implementation of the convention by the Parties. During the drafting process, the existence of a credible and legitimate monitoring mechanism was considered to be essential. This monitoring is based primarily on the Convention Follow-up Committee, a body composed of representatives of the Parties to the convention, and responsible for follow-up duties relating to the convention.
Article 29 - Provision of information
213. The purpose of this article is not primarily to check the effectiveness of the convention but, through the offices of the Secretary General, to exchange information and experiences between Parties and observers. The Convention Follow-up Committee may specify the type of information, frequency and methods of gathering information.
Article 30 – Convention Follow-up Committee
214. Under Article 30, each Party shall appoint a representative or representatives to the Committee, and will be free to appoint representatives of public authorities responsible for the sport, betting regulation and/or law enforcement (police, justice). Each Party shall have one vote.
215. Like other monitoring mechanisms (e.g. the Committee of the Parties responsible for the implementation of the Convention of the Council of Europe on the Counterfeiting of Medical Products and Similar Crimes involving Threats to Public Health (2011, CETS No. 211), Article 30, paragraph 3 provides that the Convention Follow-up Committee may invite, by unanimous decision, any State which is not a Party to the convention, any international organisation or body to be represented at its meetings as an observer. This is an important feature of the Committee. It may thus benefit, where appropriate, from additional expertise and experience of organisations already involved in the fight against manipulation of sports competitions or other relevant activities. Accordingly, the Convention Follow-up Committee may consider the involvement of bodies such as GRECO or the European Committee on Crime Problems (CDPC), which could bring positive support to the monitoring of this convention.
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216. The Convention Follow-up Committee will hold its first meeting at the request of the Secretary General of the Council of Europe, within one year from the entry into force of the convention. Subsequently, it will meet at the request of at least one third of the Parties or the Secretary General.
217. The Committee will draw up and adopt its own Rules of Procedure (by consensus). It will be assisted by the Secretariat of the Council of Europe in carrying out its functions.
Article 31 – Functions of the Convention Follow-up Committee
218. In the context of the convention’s monitoring framework, the Convention Follow-up Committee is responsible for the follow-up of its implementation and thus carries out several functions, specified in Article 31.
219. The Convention Follow-up Committee shall adopt and amend the list of sports organisations referred to in Article 3.2, while ensuring that it is published in an appropriate manner. The definitions of sports competitions (Article 3.1) and sports organisations (Article 3.2) refer to this list, whose adoption and publication are essential for the implementation of the convention. The list of sports organisations will mainly be published on the EPAS website.
220. The Committee may also address recommendations to the Parties, in particular with respect to international co-operation. Where appropriate, these recommendations will be prepared in co-ordination with other relevant bodies of the Council of Europe which prepare recommendations on these issues (e.g. GRECO).
221. Following prior consultations with representatives of sports organisations and sports betting operators, the Convention Follow-up Committee may, where appropriate, make recommendations to the Parties on the conditions to be met by sports organisations and sports betting operators to benefit from the exchange of information referred to in Article 12.1 of the convention, as well as on other ways aimed at enhancing the operational co-operation between the relevant public authorities, sports organisations and betting operators, as mentioned in this convention. These may include for instance, criteria relating to the restriction of the supply of sports betting mentioned in Article 9.1.b of the convention, the definition of irregular sports betting (for example, inconsistent with usual or anticipated patterns of the specific market) or the definition of suspicious sports betting (for example, reliable and consistent evidence).
222. The Committee may also keep relevant international organisations and the public informed about the activities undertaken within the framework of this convention and it will prepare opinions to the Committee of Ministers on applications from non-member States of the Council of Europe asking to be invited by the Committee of Ministers to sign the convention.
223. The Committee may hold meetings of experts in order to carry out its functions. The Convention Follow-up Committee shall arrange visits to the Parties, subject to the prior approval of the Parties concerned.
224. It is intended here to use the "peer review" mechanism, which is an examination by other States of one State’s performance or practices in a particular area, for instance through visits or hearings. The point of the exercise is to help the State under review improve its policymaking, adopt best practices and comply with established standards and principles (OECD definition).
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CHAPTER IX – FINAL PROVISIONS
225. With some exceptions, Articles 32 to 41 are essentially based on the Model Final Clauses for Conventions and Agreements concluded within the Council of Europe, which the Committee of Ministers approved at the Deputies' 315th meeting, in February 1980.
Article 32 – Signature and entry into force
226. The convention is open for signature by Council of Europe member States, other States Party to the European Cultural Convention, the European Union, and states not members of the Council of Europe which took part in drawing it up (1) or enjoying observer status with the Council of Europe.
227. Given the truly transnational character of the risk of manipulation of sports competitions and the necessity of combating this threat beyond European borders, this provision allows the convention to be applied on a wider scale.
228. The convention will enter into force on the first day of the month following the expiration of a period of three months after the date on which five Signatories, including at least three member States of the Council of Europe, have expressed their consent to be bound by the convention. The number of ratifications, acceptances or approvals required for the entry into force of the convention is not very high in order not to delay unnecessarily the entry into force of the convention, but reflects nevertheless the belief that a minimum number of Parties is needed to successfully set about addressing the major challenge of combating manipulation of sports competitions.
229. The article permits any other non-member State of the Council of Europe, which has not participated in the elaboration of the convention, to sign it. The decision to invite such a non- member State to sign the convention is taken by the Committee of Ministers by the majority provided for in Article 20.d of the Statute of the Council of Europe, and by unanimous vote of the representatives of the Contracting States entitled to sit on the Committee of Ministers, after consulting the Convention Follow-up Committee, once established.
Article 33 – Effects of the convention and relationship with other international instruments
230. In accordance with the 1969 Vienna Convention on the Law of Treaties, Article 33 seeks to ensure that the convention harmoniously coexists with other treaties dealing with matters covered also by this convention. In particular, the convention supplements the provisions of Convention 24, Convention 30, Convention 141 and Convention 198.
231. The Parties may conclude other bilateral or multilateral agreements in order to supplement or strengthen the application of this convention. When Parties establish such other instruments, they will do so in a manner that is not inconsistent with the convention’s objectives and principles.
232. In particular, this convention does not alter their rights and obligations arising from other agreements previously concluded on the fight against doping and consistent with the subject and purpose of this convention.
(1) Australia, Belarus, Canada, Israel, Japan, Morocco, New Zealand.
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Article 34 – Conditions and safeguards
233. Article 34 ensures, in particular, that the measures taken within the framework of this convention will be subject to the conditions and safeguards provided for under domestic law and international law, in particular Convention 5 and the United Nations’ International Covenant on Civil and Political Rights (1966), and other applicable international human rights instruments, and whereby these conditions and safeguards shall incorporate the principle of proportionality.
234. Such conditions and safeguards shall, as appropriate in view of the nature of the procedure or power concerned, inter alia include judicial or other independent supervision, grounds justifying application, and limitation of the scope and the duration of such power or procedure.
Article 35 – Territorial application
235. Article 35 is dedicated to the territorial application of this convention. Any contracting State or the European Union may specify the territory or territories to which this convention shall apply. It can also choose to extend the application of this convention to any other territory specified in a declaration addressed to the Secretary General of the Council of Europe, and for whose international relations it is responsible or on whose behalf it is authorised to give undertakings.
236. It is well understood, however, that it would be contrary to the object and purpose of this convention for any contracting Party to exclude parts of its main territory from the convention’s scope and that it was unnecessary to make this point explicit in the convention. This provision is only concerned with territories having a special status, such as overseas territories.
Article 36 – Federal clause
237 The convention contains a federal clause, whereby a federal State may reserve the right to apply the provisions of Chapters II, IV, V and VI consistent with its fundamental principles governing the relationship between its central government and constituent States or other similar territorial entities provided that it is still able to assume its obligations to co-operate under Chapters III and VII. This provision shall not undermine the effective application of the present convention. In addition, it is the responsibility of Parties to inform its constituent States of these provisions and to encourage them to take appropriate action to give them effect.
Article 37 – Reservations
238. Article 37 specifies that the Parties may make use of the reservations provided for in Article 19, paragraph 2 and in Article 36, paragraph 2, only when they give their assent to the convention. They then may withdraw such reservations as soon as possible, and they can receive requests from the Secretary General of the Council of Europe about the prospects of withdrawal of such reservation(s).
Article 38 – Amendments
239. According to Article 38, amendments to articles of this convention may be proposed by the Parties, the Convention Follow-up Committee or the Committee of Ministers of the Council of Europe. These amendments shall then be communicated to all member States of the Council of Europe, signatories, Parties, non-member States having participated in the elaboration of this convention, or enjoying observer status with the Council of Europe, the European Union, as well as any State having been invited to sign this convention. The Convention Follow-up Committee shall submit to the Committee of Ministers its opinion on the proposed amendment.
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Explanatory Report – CETS 215 – Manipulation of Sports Competitions
240. The Committee of Ministers shall consider the proposed amendment and any opinion submitted by the Convention Follow-up Committee, and may possibly adopt the amendment by the majority provided for in Article 20.d of the Statute of the Council of Europe.
Article 39 – Settlement of disputes
241. Article 39 provides that in the event of a dispute between Parties as to the application of this convention, they shall seek a settlement through peaceful means, and that the Committee of Ministers of the Council of Europe may establish settlement procedures, the application thereof being subject to the consent of the Parties to the dispute.
242. Article 39 also requires that the Convention Follow-up Committee, as well as the other relevant bodies of the Council of Europe shall be informed of any difficulties regarding the interpretation and application of this convention.
Article 40 – Denunciation
243. In accordance with the Vienna Convention on the Law of Treaties (1969), Article 40 provides for the possibility for any Party to denounce the convention.
Article 41 – Notification
244. Article 41 lists the notifications that, as the depositary of the convention, the Secretary General of the Council of Europe is required to make, and designates the recipients of these notifications (States and the European Union).
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