Editor’s Note: Oytun
Azkanar holds an LLB degree from Anadolu University in Turkey and an LLM degree
from the University of Melbourne. He is currently
studying Sports Management at the Anadolu University.
Introduction
On 19
October 2017, the Turkish Professional Football Disciplinary Committee (Disciplinary
Committee) rendered an extraordinary decision regarding the fixing of the
game between Manisaspor and Şanlıurfaspor played on 14 May 2017. The case
concerned an alleged match-fixing agreement between Elyasa Süme (former
Gaziantepspor player), İsmail Haktan Odabaşı and Gökhan Sazdağı (Manisaspor
players). The Disciplinary Committee
acknowledged that the evidence
relevant for proving the match-fixing allegations was obtained illegally and therefore
inadmissible, and the remaining evidence was not sufficient to establish that the game
was fixed. Before discussing the allegations, it is important to note that the
decision is not only significant for Turkish football but is also crucial to the
distinction between disciplinary and criminal proceedings in sports.
Background of the Case
During
the last weeks of the 2016/2017 season in Turkish 2nd Division
League, three teams, namely Manisaspor, Şanlıurfaspor and Gazişehir Gaziantep,
were competing to avoid relegation. At the penultimate week, Manisaspor played
against Şanlıurfaspor and won the game. Gazişehir Gaziantep also won its match.
As a consequence of these results, Şanlıurfaspor was relegated to a lower
division. At the end of the season, on 5 July 2017, Şanlıurfaspor claimed that
the club Gazişehir Gaziantep had attempted to influence the outcomes of the
games and Şanlıurfaspor appealed to the Turkish Football Federation (TFF).
Şanlıurfaspor’s
claims
mainly focused on the recording of the talk between Nizamettin Keremoğlu (Vice-President
of Gazişehir), Elyasa Süme (a former Gaziantepspor player), Gökhan Sazdağı
(Gazişehir player who was on loan at Manisaspor at the time) and İsmail Haktan
Odabaşı (Manisaspor player). The recording was leaked and uploaded on Youtube. The content of
the recording clearly demonstrates that incentives were provided to Manisaspor
players by Gazişehir in order to encourage them to win against Şanlıurfaspor.
Furthermore, Gökhan Sazdağı confessed in the recording that he had been involved
in match-fixing before and that this would not be his first time. In addition, Gaziantepspor claimed that
Elyasa Süme was involved in match-fixing. On 20 July 2017, based on these
serious allegations and the incriminating evidence
publically released, the TFF referred Şanlıurfaspor’s
application to the Turkish Football Federation Ethics Committee (Ethics Committee). Following the Ethics
Committee’s report, the TFF subsequently referred the case to the Disciplinary
Committee for determining the possible sanctions to be imposed on Gazişehir
Gaziantep, Nizmettin Keremoğlu, Elyasa Süme, Gökhan Sazdağı and İsmail Haktan
Odabaşı. Finally, on 19 October 2017, the Disciplinary Committee decided that
the evidence relevant for proving match-fixing
was illegally obtained and the remaining evidence was
not enough to establish an instance of match-fixing.
Separating Disciplinary and Criminal Proceedings
It is
generally accepted that in sports law disciplinary proceedings are to be
treated differently than criminal investigations.[1] In countries
like Turkey, match-fixing and/or match-fixing attempts also constitute a crime.
Article 11(1) of the Act on the Prevention of Violence and Disorder in Sports stipulates
that a person providing advantages or benefits in order to influence the final
result of a game shall be punished with imprisonment from five to twelve years.
Article 11(5) of the same regulation also states that in case of commission of
the offense by offering or promising incentive pay with the intention of
enabling one team to win a match, only half of the punishment is to be imposed.
On the
other hand, match-fixing and incentives also appear in Article 58 of the
Turkish Football Disciplinary Instruction. The said provision makes clear that
it is forbidden to influence the outcome of the games illegally or unethically.
Incentives fall also within the scope of this provision. In case of a breach,
individuals will face a life-long ban. In case of an attempt at match-fixing or
of the provision of unlawful incentives, clubs will be sanctioned by at least a
12 points deduction.
It is
important to note that Turkish prosecutors have not yet opened a criminal investigation
for the allegations related to the provision of incentives, even if the
allegations and evidence are serious.
The Position of FIFA, UEFA,
and CAS with respect to Match-Fixing Allegations and Binding Rules for Turkish
Authorities
FIFA
as the world's governing body of football has put in place significant
provisions regarding match-fixing and corruption in football. Article 69 FIFA Disciplinary Code stipulates
that anyone who unlawfully influences the outcomes of football games can be banned
from taking part in any football-related activity for life. Furthermore, Article
3.10 FIFA Code of Conduct also highlights
the importance of zero tolerance for bribery and corruption.
UEFA
president Michael Platini announced in
2011 that a zero tolerance policy was adopted by UEFA regarding match-fixing, and
that all match-fixing allegations would be seriously investigated. Moreover, as
evidenced in Sport Lisboa e Benfica Futebol SAD,
Vitoria Sport Clube de Guimaraes v. UEFA
and FC Porto Futebol SAD, UEFA is not bound by national associations’ decisions
in this regard.
A zero-tolerance
policy requires that match-fixing attempts be punished heavily. This does not
mean, however, that there is no standard of proof for match-fixing allegations.
According to the CAS, match-fixing allegations must be proved to its comfortable
satisfaction. [2]
Comfortable satisfaction is defined by the
CAS as a standard that is higher than the civil standard of “balance of
probability” but lower than the criminal standard of “proof beyond a reasonable
doubt”.[3] In my
view, considering the evidence in the
case of Şanlıurfaspor, in particular the recordings and the statements of the clubs, it should be accepted
that the standard of proof for match-fixing
allegations was met.
What
is crucial in our case is that UEFA and the CAS cannot intervene in the Turkish
match-fixing proceedings due to Article 64(1) of the Statutes of the Turkish
Football Federation stating that “CAS shall not, however, hear appeals on
violation of the laws of the game, suspensions according to relevant provisions
of the FIFA and UEFA Statutes, or decisions passed by the independent and duly
constituted Arbitration Committee of the TFF”. Moreover, Article 59(3) of the Turkish Constitution provides
that “the decisions of sports federations
relating to administration and discipline of sporting activities may be
challenged only through compulsory arbitration. The decisions of the
Arbitration Board are final and shall not be appealed to any judicial authority”.
On the other hand, in case of a breach, FIFA has the authority, relying on its
Code of Conduct and Disciplinary Code, to take important steps in order to
sanction clubs and/or individuals, even where national federations fail to do
so. Therefore, on 25 October 2017, Şanlıurfaspor declared that
if the Arbitration Board of the TFF did
not sanction clubs and individuals who were allegedly involved in match-fixing,
it would apply to FIFA to do so.
The Validity of Evidence
The main
reason why the Disciplinary Committee did not find the clubs and individuals guilty
of match-fixing was that the evidence,
which was crucial to support the
allegations, was obtained illegally. Therefore,
it is of primary importance to compare this position to the one adopted by
UEFA, CAS, and the Swiss Federal Tribunal
with respect to the validity of illegally
obtained evidence in disciplinary
proceedings involving match-fixing.
UEFA’s
position regarding the admissibility of evidence
can be derived from specific provisions in its regulations. For instance, Article
4(2) 2017/2018 UEFA Champions League
Regulations expressly states that if UEFA is comfortably satisfied
that a club was involved in any activity aimed at arranging or influencing the
outcome of a match, such club will be ineligible for the participation. While
taking its decision, UEFA can rely on the decision of a national or international
sporting body, but it is not bound by these decisions. Article 4(2) allows UEFA
to punish clubs, even if they have been exonerated by other sporting bodies.
Therefore, it can be concluded that if UEFA is comfortably satisfied, the
validity of evidence will not be questioned. The article says nothing about the
validity of evidence. In addition, even if national sports governing bodies do
not punish clubs and/or individuals, UEFA is not bound by national decisions
even if the evidence was illegally obtained. [4]
The CAS
also supports the approach of UEFA with regard to the admissibility of evidence
in match-fixing cases. According to the CAS jurisprudence,
“even if evidence might not be admissible in a civil or criminal court in
Switzerland, this does not automatically prevent a sports federation or an arbitration tribunal from taking such
evidence into account in its deliberations”.[5] This statement
clearly shows that the CAS distinguishes criminal or civil court proceedings
from disciplinary proceedings. As a matter of fact, it can be argued that the CAS
allows national sports governing bodies to evaluate the admissibility of
match-fixing evidence less strictly than in
criminal proceedings.
In
general, the CAS is bound by Swiss law because it is domiciled in Switzerland.
Therefore, the Swiss Federal Tribunal may annul the CAS awards if they are
contrary to Swiss public policy. One could argue that a decision based on
illegally obtained evidence violates
Swiss public policy. Thus, the approach of the Swiss Federal Tribunal also
needs to be taken into account. The Swiss Federal Tribunal discussed the
admissibility of evidence in A. v The Football Federation of Ukraine. In
this case, the appellant claimed that using illegally obtained evidence, violated Swiss public policy. As a
response to this claim, the respondent (CAS) argued that there was an
overriding public interest in preserving football’s integrity. Therefore, the evidence should have been admissible according
to the CAS. The Swiss Federal Tribunal held that pursuant to Article 152(2) Swiss
Private International Law Act (PILA),
“illegally obtained evidence shall be considered only if there is an overriding
interest in finding the truth”. In that particular case, the Swiss Federal
Tribunal upheld the decision of the CAS and stated that if necessary to prove
an instance of match-fixing, illegally obtained evidence
was not inadmissible.
The Approach of Turkish Law against Match-Fixing
As explained
above, the Act on the Prevention of Violence and Disorder in Sports and the Turkish
Football Disciplinary Instruction contain significant provisions aimed at
combating match-fixing. However, these rules say nothing about the
admissibility of evidence. Pursuant to Article 38(6) Turkish Constitution,
“findings obtained through illegal methods shall not be considered evidence”.
Contrary to the PILA, the Turkish Constitution does not provide for exemptions.
Additionally, Article 206(2) and 217(2) Turkish Criminal Procedure Code
provide that illegally obtained evidence cannot be accepted by criminal courts in
Turkey. Nevertheless, there is no definitive verdict about the admissibility of
evidence in sporting disciplinary
proceedings in Turkey. Furthermore, Turkish sports regulations do not contain
specific rules for assessing the evidence
in match-fixing allegations. Therefore, it can be argued that in Turkey, there
is a loophole in disciplinary proceedings as to whether illegally obtained evidence is
admissible or not.
Conclusion
The fight against match-fixing is vital for sports governing bodies. This
article has demonstrated that UEFA, CAS, and the Swiss Federal Tribunal share
the same view that illegally obtained evidence is not always inadmissible when
used to evidence an instance of match-fixing. In my view, the Disciplinary
Committee disregarded the approach of
UEFA, CAS, and the Swiss Federal Tribunal,
and instead followed the practice of the Turkish Criminal Court. Because
match-fixing is also a breach of the Turkish Act on the Prevention of Violence
and Disorder in Sports, it is the duty of criminal courts in Turkey to assess whether
the evidence was obtained legally or not. However, as a disciplinary body, the
Disciplinary Committee was not forced to deny the admissibility of illegally
obtained evidence. I believe it should have followed the established practices
of UEFA, FIFA, and the CAS, and assess the available evidence to determine whether
it met the comfortable satisfaction standard of proof. Hence, based on the
confession recorded in the YouTube video, the Disciplinary Committee should
have decided that the individuals concerned, at a minimum, attempted to fix the
match and it should have imposed the corresponding sanctions.
___________________________
[1] Adam Lewis and Jonathan Taylor, Sport: Law and
Practice (Bloomsbury, 3rd ed, 2014) 249.
[2] Michael J
Beloff et al, Sports Law (Hart Publishing, Second edition, 2012) 188.
[3] Beşiktaş Jimnastik Kulübü v UEFA [2013]
CAS 2013/A/3258 [119].
[4] Public Joint-Stock Company “Football Club
Metalist” v. Union des Associations Européennes de Football (UEFA) & PAOK
FC [2013] CAS 2013/A/3297 [8.8].
[5] Public Joint-Stock Company “Football Club
Metalist” v. Union des Associations Européennes de Football (UEFA) & PAOK
FC [2013] CAS 2013/A/3297 [2].