Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

International and European Sports Law – Monthly Report – January 2018 - By Tomáš Grell

Editor's note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked. 


The Headlines 

Anti-doping whereabouts requirements declared compatible with the athletes' right to privacy and family life

On 18 January 2018, the European Court of Human Rights rendered a judgment with important consequences for the world of sport in general and the anti-doping regime in particular. The Strasbourg-based court was called upon to decide whether the anti-doping whereabouts system – which requires that a limited number of top elite athletes provide their National Anti-Doping Organisation or International Federation with regular information about their location, including identifying for each day one specific 60-minute time slot where the athlete will be available for testing at a pre-determined location – is compatible with the athletes' right to private and family life under Article 8 of the European Convention on Human Rights and their freedom of movement pursuant to Article 2 Protocol No. 4 of the Convention. The case was brought by the French cyclist Jeannie Longo and five French athlete unions that had filed their application on behalf of 99 professional handball, football, rugby, and basketball players.

While acknowledging that the whereabouts requirements clash with the athletes' right to private and family life, the judges took the view that such a restriction is necessary in order to protect the health of athletes and ensure a level playing field in sports competitions. They held that ''the reduction or removal of the relevant obligations would lead to an increase in the dangers of doping for the health of sports professionals and of all those who practise sports, and would be at odds with the European and international consensus on the need for unannounced testing as part of doping control''. Accordingly, the judges found no violation of Article 8 of the Convention and, in a similar vein, ruled that Article 2 Protocol No. 4 of the Convention was not applicable to the case.

 

Football stakeholders preparing to crack down on agents' excessive fees

It has been a record-breaking January transfer window with Premier League clubs having spent an eye-watering £430 million on signing new acquisitions. These spiralling transfer fees enable football agents, nowadays also called intermediaries, to charge impressive sums for their services. However, this might soon no longer be the case as the main stakeholders in European football are preparing to take action. UEFA, FIFPro, the European Club Association and the European Professional Football Leagues acknowledge in their joint resolution that the 2015 FIFA Regulations on Working with Intermediaries failed to address serious concerns in relation to the activities of intermediaries/agents. They recognise in broad terms that a more effective regulatory framework is needed and call among other things for a reasonable and proportionate cap on fees for intermediaries/agents, enhanced transparency and accountability, or stronger provisions to protect minors.

 

The CAS award in Joseph Odartei Lamptey v. FIFA 

On 15 January 2018, FIFA published on its website an arbitral award delivered on 4 August 2017 by the Court of Arbitration for Sport (CAS) in the dispute between the Ghanian football referee Joseph Odartei Lamptey and FIFA. The CAS sided with FIFA and dismissed the appeal filed by Mr Lamptey against an earlier decision of the FIFA Appeal Committee which (i) found him to have violated Article 69(1) of the FIFA Disciplinary Code as he unlawfully influenced the 2018 World Cup qualifying match between South Africa and Senegal that took place on 12 November 2016; (ii) as a consequence, banned him for life from taking part in any football-related activity; and (iii) ordered the match in question to be replayed. In reaching its conclusion, the CAS relied heavily on multiple reports of irregular betting activities that significantly deviated from usual market developments.  More...


Towards a Suitable Policy Framework for Cricket Betting in India - By Deeksha Malik

Editor's note: Deeksha Malik is a final-year student at National Law Institute University, India. Her main interest areas are corporate law, arbitration, and sports law. She can be reached at dkshmalik726@gmail.com.


In 2015, while interrogating cricketer Sreesanth and others accused in the IPL match-fixing case, Justice Neena Bansal, sitting as Additional Sessions Judge, made the following observations as regards betting on cricket matches.

“Cricket as a game of skill requires hand-eye-coordination for throwing, catching and hitting. It requires microscopic levels of precision and mental alertness for batsmen to find gaps or for bowlers to produce variety of styles of deliveries’ (medium pace, fast, inswing, outswing, offspin, legspin, googly). The sport requires strategic masterminds that can select the most efficient fielding positions for piling pressure on the batsmen. Based on above description, cricket cannot be described anything, but as a game of skill.”

The debate on the issue of betting in sports has since resurfaced and gained the attention of sportspersons, media, sports bodies, policymakers, and the general public. In April 2017, the Supreme Court bench comprising of Justices Dipak Misra and AM Khanwilkar agreed to hear a public interest litigation (PIL) seeking an order directing the government to come up with an appropriate framework for regulating betting in sports. The arguments put forth in the PIL present various dimensions. One of these pertains to economic considerations, a submission that regulated betting would be able to generate annual revenue of Rs. 12,000 crores by bringing the earnings therefrom within the tax net. As for policy considerations, it was submitted that a proper regulation in this area would enable the government to distinguish harmless betting from activities that impair the integrity of the game such as match-fixing. Further, betting on cricket matches largely depends on the skill of the concerned players, thereby distinguishing it from pure chance-based activities.

The issue of sports betting witnesses a divided opinion till this day. This is understandable, for both sides to the issue have equally pressing arguments. Aside from its regulation being a daunting task for authorities, sports betting is susceptible to corruption and other unscrupulous activities. At the same time, it is argued that it would be better for both the game and the economy if the same is legalised. More...


International and European Sports Law – Monthly Report – December 2017. By Tomáš Grell

Editor's note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked.

 

The Headlines 

The International Skating Union's eligibility rules declared incompatible with EU competition law

On 8 December 2017, the European Commission announced that it had rendered a decision in the case against the International Skating Union (ISU). The Commission upheld the complaint lodged in October 2015 by two Dutch professional speed skaters Mark Tuitert and Niels Kerstholt, represented in this case by Ben Van Rompuy and Antoine Duval (you can read their joint statement here), and ruled that the ISU's eligibility rules preventing athletes from participating in speed skating competitions not approved by the ISU under the threat of severe penalties are in violation of EU competition law. In particular, the Commission held that these rules restrict the commercial freedom of (i) athletes who may be deprived of additional source of income as they are not allowed to participate in speed skating competitions other than those authorised by the ISU; and (ii) independent organisers who are unable to attract top athletes. And while the Commission recognised that sporting rules with restrictive effects might be compatible with EU law if they pursue a legitimate objective such as the protection of athletes' health and safety or the protection of the integrity and proper conduct of sport, it found that the ISU's eligibility rules pursue only its own commercial interests to the detriment of athletes and independent organisers of speed skating competitions. The ISU eventually escaped financial sanctions, but it must modify or abolish its eligibility rules within 90 days; otherwise it would be liable for non-compliance payments of up to 5% of its average daily turnover. For more information on this topic, we invite you to read our recent blog written by Professor Stefano Bastianon.

 

The International Olympic Committee bans Russia from the upcoming Winter Olympic Games

The world has been waiting impatiently for the International Olympic Committee's (IOC) decision on the participation of Russian athletes in the upcoming 2018 Winter Olympic Games in Pyeongchang. This was finally communicated on 5 December 2017. Having deliberated on the findings of the Schmid Commission, the IOC Executive Board decided to suspend the Russian Olympic Committee with immediate effect, meaning that only those Russian athletes who demonstrate that they had not benefited from the state-sponsored doping programme will be able to participate in the Games. Such clean athletes will be allowed to compete under the Olympic Flag, bearing the name 'Olympic Athlete from Russia (OAR)' on their uniforms. Further to this, the IOC Executive Board sanctioned several officials implicated in the manipulation of the anti-doping system in Russia, including Mr Vitaly Mutko, currently the Deputy Prime Minister of Russia and formerly the Minister of Sport. Mounting public pressure subsequently forced Mr Mutko to step down as head of the Local Organising Committee for the 2018 FIFA World Cup.

Meanwhile, 21 individual Russian athletes were sanctioned (see here, here, here, and here) in December (in addition to 22 athletes in November) by the IOC Oswald Commission that is tasked with investigating the alleged doping violations by Russian athletes at the 2014 Winter Olympic Games in Sochi. The Oswald Commission also published two full decisions in the cases against Evgeny Belov and Aleksandr Tretiakov who were both banned from all future editions of the Games. It is now clear that the Court of Arbitration for Sport will have quite some work in the coming weeks as the banned athletes are turning to this Swiss-based arbitral tribunal to have their sanctions reviewed (see here and here).

 

Universal Declaration of Player Rights

14 December 2017 was a great day for athletes all over the globe. On this day, representatives of the world's leading player associations met in Washington D.C. to unveil the Universal Declaration of Player Rights, a landmark document developed under the aegis of the World Players Association that strives to protect athletes from ongoing and systemic human rights violations in global sport. The World Players Association's Executive Director Brendan Schwab emphasised that the current system of sports governance ''lacks legitimacy and fails to protect the very people who sit at the heart of sport'' and stated that ''athlete rights can no longer be ignored''. Among other rights, the Declaration recognises the right of athletes to equality of opportunity, fair and just working conditions, privacy and the protection of personal data, due process, or effective remedy.

 

Chris Froome failed a doping test during the last year's Vuelta a España

The world of cycling suffered yet another blow when it transpired that one of its superstars Chris Froome had failed a doping test during the last year's Vuelta a España, a race he had eventually emerged victorious from for the first time in his career. His urine sample collected on 7 September 2017 contained twice the amount of salbutamol, a medication used to treat asthma, than permissible under the World Anti-Doping Agency's 2017 Prohibited List. Kenyan-born Froome has now hired a team of medical and legal experts to put forward a convincing explanation for the abnormal levels of salbutamol in his urine and thus to avoid sanctions being imposed on him. More...

The ISU Commission's Decision and the Slippery Side of Eligibility Rules - By Stefano Bastianon (University of Bergamo)

Editor’s note: Stefano Bastianon is Associate Professor in European Law at the University of Bergamo and lawyer admitted to the Busto Arsizio bar. He is also member of the IVth Division of the High Court of Sport Justice (Collegio di Garanzia dello sport) at the National Olympic Committee.

1. From the very beginning, the outcome of the ISU case was highly predictable, at least for those who are familiar with the basics of antitrust law. Nevertheless, more than twenty years after the Bosman judgment, the sports sector has shown the same shortsightedness and inability to see the forest for the trees. Even this attitude was highly predictable, at least for those who know the basics of sports governance. The final result is a clear-cut decision capable of influencing the entire sports movement. More...



Human Rights as Selection Criteria in Bidding Regulations for Mega-Sporting Events – Part II: FIFA and Comparative Overview – By Tomáš Grell

The first part of this two-part blog examined the new bidding regulations adopted by the IOC and UEFA, and concluded that it is the latter who gives more weight to human rights in its host selection process. This second part completes the picture by looking at FIFA's bidding regulations for the 2026 World Cup. It goes on to discuss whether human rights now constitute a material factor in evaluating bids to host the mega-sporting events organised by these three sports governing bodies. More...

Human Rights as Selection Criteria in Bidding Regulations for Mega-Sporting Events – Part I: IOC and UEFA – By Tomáš Grell

Editor’s note: Tomáš Grell holds an LL.M. in Public International Law from Leiden University. He contributes to the work of the ASSER International Sports Law Centre as a research intern.


It has been more than seven years since the FIFA Executive Committee awarded the 2022 World Cup to Qatar. And yet only in November 2017 did the Qatari government finally agree to dismantle the controversial kafala system, described by many as modern-day slavery. Meanwhile, hundreds of World Cup-related migrant workers have reportedly been exposed to a wide range of abusive practices such as false promises about the pay, passport confiscation, or appalling working and living conditions.[1] On top of that, some workers have paid the highest price – their life. To a certain extent, all this could have been avoided if human rights had been taken into account when evaluating the Qatari bid to host the tournament. In such a case, Qatar would not have won the bidding contest without providing a convincing explanation of how it intends to ensure that the country's poor human rights record will not affect individuals, including migrant workers, contributing to the delivery of the World Cup. An explicit commitment to abolish the kafala system could have formed an integral part of the bid.

Urged by Professor John Ruggie and his authoritative recommendations,[2] in October 2017 FIFA decided to include human rights within the criteria for evaluating bids to host the 2026 World Cup, following similar steps taken earlier this year by the International Olympic Committee (IOC) and UEFA in the context of the Olympic Winter Games 2026 and the Euro 2024 respectively. This two-part blog critically examines the role human rights play in the new bidding regulations adopted by the IOC, UEFA, and FIFA. The first part sheds light on the IOC and UEFA. The second part then takes a closer look at FIFA and aims to use a comparative analysis to determine whether the new bidding regulations are robust enough to ensure that selected candidates abide by international human rights standards.More...


International and European Sports Law – Monthly Report – November 2017. By Tomáš Grell

Editor's note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked.

 

The Headlines

FIFA and FIFPro sign landmark agreement

A six-year cooperation agreement concluded between FIFA and FIFPro on 6 November 2017 puts an end to protracted negotiations which began after the latter had filed in September 2015 a complaint with the European Commission, challenging the validity of the FIFA transfer system under EU competition law. This agreement, together with an accord reached between FIFA, FIFPro, the European Club Association, and the World Leagues Forum under the umbrella of the FIFA Football Stakeholders Committee, should help streamline dispute resolution between players and clubs, avoid abusive practices in the world of football, or contribute to the growth of professional women's football. In addition, the FIFA Football Stakeholders Committee is now expected to establish a task force to study and conduct a broader review of the transfer system. As part of the deal, FIFPro agreed to withdraw its EU competition law complaint.

FIFA strengthens its human rights commitment amid reports of journalists getting arrested in Russia

It is fair to say that human rights have been at the forefront of FIFA's agenda in 2017. Following the establishment of the Human Rights Advisory Board in March and the adoption of the Human Rights Policy in June this year, in November FIFA published the bidding regulations for the 2026 World Cup. Under these new regulations, member associations bidding to host the final tournament shall, inter alia, commit themselves to respecting all internationally recognised human rights in line with the United Nations Guiding Principles on Business and Human Rights or present a human rights strategy on how they intend to honour this commitment. Importantly, the human rights strategy must include a comprehensive report that is to be complemented and informed by a study elaborated by an independent expert organisation. Moreover, on 9 November 2017, the Human Rights Advisory Board published its first report in which it outlined several recommendations for FIFA on how to further strengthen its efforts to ensure respect for human rights.

While all these attempts to enhance human rights protection are no doubt praiseworthy, they have not yet produced the desired effect as reports of gross human rights abuses linked to FIFA's activities continue to emerge. Most recently, Human Rights Watch documented how Russian police arrested a newspaper editor and a human rights defender whose work focused on exposing World Cup-related corruption and exploitation of migrant construction workers. On a more positive note, a bit of hope comes with the announcement by a diverse coalition, including FIFA, UEFA, and the International Olympic Committee, of its intention to launch a new independent Centre for Sport and Human Rights in 2018.

More than 20 Russian athletes sanctioned by the Oswald Commission for anti-doping rule violations at the Sochi Games   

November has been a busy month for the International Olympic Committee, especially for its Oswald Commission. Established in July 2016 after the first part of the McLaren Independent Investigation Report had been published, the Oswald Commission is tasked with investigating the alleged doping violations by Russian athletes at the 2014 Winter Olympic Games in Sochi. Its first sanctions were handed down last month. As of 30 November 2017, the Commission chaired by the IOC Member Denis Oswald sanctioned 22 athletes (see here, here, here, here, here, and here) who competed at the Sochi Olympics in the following sports: biathlon, bobsleigh, cross country skiing, skeleton, and speed skating. The Commission published its first full decision on 27 November 2017 in the case against the cross country skier Alexander Legkov, a gold and silver medallist from the Sochi Olympics, who was ultimately banned for life from attending another Olympics.More...

Statement on the European Commission's ISU Decision by Ben Van Rompuy and Antoine Duval

Editor's note: We (Ben Van Rompuy and Antoine Duval) are at the origin of today's decision by the European Commission finding that the International Skating Union's eligibility rules are contrary to EU competition law. In 2014, we were both struck by the news that ISU threatened lifetime ban against speed skaters wishing to participate in the then projected Icederby competitions and convinced that it was running against the most fundamental principles of EU competition law. We got in touch with Mark and Niels and lodged on their behalf a complaint with the European Commission. Three years after we are pleased to see that the European Commission, and Commissioner Vestager in particular, fully embraced our arguments and we believe this decision will shift the tectonic structure of sports governance in favour of athletes for years to come.


Here is our official statement:

Today is a great day for Mark Tuitert and Niels Kerstholt, but more importantly for all European athletes. The European Commission did not only consider the International Skating Union's eligibility rules contrary to European law, it sent out a strong message to all international sports federations that the interests of those who are at the centre of sports, the athletes, should not be disregarded. This case was always about giving those that dedicate their lives to excelling in a sport a chance to compete and to earn a decent living. The majority of athletes are no superstars and struggle to make ends meet and it is for them that this decision can be a game-changer.

However, we want to stress that this case was never about threatening the International Skating Union’s role in regulating its sport. And we very much welcome the exceptional decision taken by the European Commission to refrain from imposing a fine which could have threatened the financial stability of the International Skating Union. The International Skating Union, and other sports federations, are reminded however that they cannot abuse their legitimate regulatory power to protect their economic interests to the detriment of the athletes.

We urge the International Skating Union to enter into negotiations with representatives of the skaters to devise eligibility rules which are respectful of the interests of both the athletes and their sport.

Since the summer of 2014, it has been our honour to stand alongside Mark and Niels in a 'David versus Goliath' like challenge to what we always perceived as an extreme injustice. In this fight, we were also decisively supported by the team of EU Athletes and its Chance to Compete campaign.

Finally, we wish to extend a special thank you to Commissioner Vestager. This case is a small one for the European Commission, but Commissioner Vestager understood from the beginning that small cases do matter to European citizens and that European competition law is there to provide a level playing for all, and we are extremely grateful for her vision.


Dr. Ben Van Rompuy (Leiden University) and Dr. Antoine Duval (T.M.C. Asser Instituut)

A Good Governance Approach to Stadium Subsidies in North America - By Ryan Gauthier

Editor's Note: Ryan Gauthier is Assistant Professor at Thompson Rivers University in Canada. Ryan’s research addresses the governance of sports organisations, with a particular focus on international sports organisations. His PhD research examined the accountability of the International Olympic Committee for human rights violations caused by the organisation of the Olympic Games.


Publicly Financing a Stadium – Back in the Saddle(dome)

Calgary, Canada, held their municipal elections on October 16, 2017, re-electing Naheed Nenshi for a third term as mayor. What makes this local election an interesting issue for sports, and sports law, is the domination of the early days of the campaign by one issue – public funding for a new arena for the Calgary Flames. The Flames are Calgary’s National Hockey League (NHL) team, and they play in the Scotiabank Saddledome. More...




Illegally obtained evidence in match-fixing cases: The Turkish perspective - By Oytun Azkanar

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. More...

Asser International Sports Law Blog | UEFA’s betting fraud detection system: How does the CAS regard this monitoring tool? By Emilio García.

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

UEFA’s betting fraud detection system: How does the CAS regard this monitoring tool? By Emilio García.

Editor’s note: Emilio García (emilio.garcia@uefa.ch)  is a doctor in law and head of disciplinary and integrity at UEFA. Before joining UEFA, he was the Spanish Football Federation’s legal director (2004–12) and an arbitrator at the CAS (2012–13).In this blog, Emilio García provides a brief review of a recent case before the Court of Arbitration for Sport (CAS): Klubi Sportiv Skënderbeu v UEFA (CAS 2016/A/4650)[1], in which he acted as main counsel for UEFA. 


Sport and match-fixing – A quick overview

Match-fixing is now legally defined as “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”.[2] It has been said that there has always been match-fixing in sport.[3] From the ancient Olympic Games to the most important global sports competitions of today, manipulation of results has always been an all-too-frequent occurrence.

We have seen a number of very prominent instances of this kind of issue over the years. One of the most remarkable examples, which was even the subject of a film,[4] was the match-fixing episode during the 1919 World Series, where several players from the Chicago White Sox were found guilty of accepting bribes and deliberately losing matches against the Cincinnati Reds.[5]

The situation has changed considerably since then. In particular, the globalisation of the sports betting industry has had a massive impact, with recent studies estimating that between €200bn and €500bn is betted on sport every year.[6] Match-fixing does not just affect football either;[7] it is also affecting other sports, most notably tennis.[8] 

In addition to these impressive figures, it is well recognised that match-fixing has become a global issue because it allows organised criminal gangs to expand their illegal and violent activities – which include murder, extortion and assault – worldwide. It also results in the loss of billions of dollars of tax revenue and public income every year. Indeed, match-fixing is now one of the most profitable forms of money laundering.[9]

In light of the growth of this phenomenon, both international sports federations and public authorities are now engaged in a continuous battle against this scourge. More and more sports federations are establishing specific programmes in this area, which is having a major impact at national level.[10] And as regards public authorities, various resolutions have been adopted by the European Union, several initiatives have been launched by INTERPOL and EUROPOL, and, in particular, excellent work has been done by the Council of Europe, which adopted the first ever international treaty aimed at combating the manipulation of sports competitions. These are all good examples of cooperation between public authorities and the world of sport, but we are still a long way from winning this particular battle.


UEFA’s rules and integrity-related cases

AC Milan: UEFA’s first modern-day integrity case

In May 2006, a match-fixing scandal – christened the ‘Calciopoli’ – was unearthed in Italian football. Investigations led by the Italian police revealed that a network of club managers, officials responsible for referees and other individuals had sought to influence the outcome of various matches in the Serie A. Several clubs were punished by the Italian Football Federation (FIGC). One of those clubs was AC Milan, which was given a 30-point penalty. However, despite the deduction of those points, AC Milan still managed to qualify for the 2006/07 UEFA Champions League.

Thus, the admissions process for the 2006/07 UEFA Champions League presented UEFA with a real legal conundrum: could UEFA allow a club that had been punished for its involvement in the Calciopoli to take part in a European competition? On 2 August 2006, the UEFA Emergency Panel decided to allow AC Milan to participate in UEFA’s flagship competition on the basis of the following considerations:

“The UEFA Emergency Panel, being competent to decide on the matter, came to the conclusion that it had no choice but to admit AC Milan for the UEFA club competitions 2006-07 for formal reasons because of an insufficient legal basis in the regulations which would allow not admitting AC Milan under specific circumstances.”[11]

This situation was highly frustrating for UEFA, which felt that it was unable to prevent AC Milan from participating in its competition, despite the club’s involvement in match-fixing. It should also be noted that AC Milan went on to win that competition, beating English side Liverpool FC in the final on 23 May 2007.


Evolution of the legal framework

UEFA’s response to the AC Milan case was a swift one. At the very next UEFA Congress, which took place in Dusseldorf on 25 and 26 January 2007, representatives of the various member associations approved a new paragraph 3 for Article 50 of the UEFA Statutes.[12]

That amendment, which remains in force today, established a two-stage process aimed at guaranteeing the integrity of UEFA’s competitions. The first stage involves an administrative measure, whereby the offending club is excluded from European competitions for one season. The second stage involves disciplinary measures, which may be imposed subsequent to the administrative measure and do not have a maximum duration.[13]

Article 50(3) of the UEFA Statutes reads as follows:

“The admission to a UEFA competition of a Member Association or club directly or indirectly involved in any activity aimed at arranging or influencing the outcome of a match at national or international level can be refused with immediate effect, without prejudice to any possible disciplinary measures.”

That provision has also been incorporated in the regulations governing the UEFA Champions League and the UEFA Europa League, which currently feature the following wording:

“If, on the basis of all the factual circumstances and information available to UEFA, UEFA concludes to its comfortable satisfaction that a club has been directly and/or indirectly involved, since the entry into force of Article 50(3) of the UEFA Statutes, i.e. 27 April 2007, in any activity aimed at arranging or influencing the outcome of a match at national or international level, UEFA will declare such club ineligible to participate in the competition. Such ineligibility is effective only for one football season. When taking its decision, UEFA can rely on, but is not bound by, a decision of a national or international sporting body, arbitral tribunal or state court.”[14]


Key CAS rulings (2008-15)

UEFA has been very active in applying this two-stage process to its European club competitions – particularly as regards the first stage. Since the introduction of this peculiar but successful process, more than ten clubs from all over Europe have been declared ineligible to participate in UEFA competitions. In some cases, those one-season bans have been accompanied by disciplinary measures.

Inevitably, many of those cases have resulted in proceedings before the CAS in Lausanne.[15] The CAS case law derived from those key cases can be summarised as follows:

  • It is firmly in the interest of UEFA, as the organiser of sports competitions, for the integrity of its competitions to be ensured and perceived to be so by the public. It is undeniably in UEFA’s interest to show the public that it takes all necessary steps to safeguard the integrity of its competitions.[16]
  • UEFA does not need to wait for a final decision at domestic level, particularly when it comes to criminal proceedings, since neither UEFA nor the CAS can be forced to defer their decisions when an effective fight to ensure the integrity of sport depends on prompt action. UEFA and the CAS are not subject to the same rules as the ordinary courts in terms of procedure, proof (types of evidence and standard of proof) and substance.[17]
  • The essential aim of the administrative measure is not to punish the club, but to protect the values and objectives of UEFA’s competition, its reputation and its integrity. It seeks not only to prevent a club which has violated such values from taking part in UEFA’s competition (i.e. to protect the integrity of that competition), but also to dispel any doubts in the public domain regarding the integrity, values and fairness of its competition (i.e. to protect the reputation of that competition).[18]
  • The administrative measure is not of a disciplinary nature. Consequently, the fundamental legal principles that could potentially be applicable to disciplinary matters are not relevant.[19]
  • The question of whether the club has any degree of culpability as regards the prohibited activities is entirely irrelevant. The principle of nulla poena sine culpa does not apply to administrative measures adopted by sports associations.[20]
  • The range of conduct resulting in the application of an administrative measure is broader and more generic than that resulting in a disciplinary measure, which is, in principle, more restrictive and specific.[21]
  • The administrative measure is only applicable to a club, whereas disciplinary measures can be imposed on all persons bound by UEFA’s rules and regulations (i.e. member associations and their officials, clubs and their officials, match officials, players, etc.).[22]


The CAS ruling on KS Skënderbeu: Is betting analysis sufficient to declare a club in breach of UEFA’s integrity rules?

UEFA’s betting fraud detection system

UEFA’s betting fraud detection system (BFDS) was established in 2009 in response to the growing threat of match manipulation in both UEFA and domestic competitions.

The BFDS highlights irregular betting patterns, both before and during matches, in the core betting markets, monitoring all major European and Asian bookmakers. The core betting markets are: the Asian handicap market; the totals market (number of goals in a match); and the 1X2 market (home win, draw or away win). The BFDS covers all UEFA competition matches (approximately 2,000 per season) and all matches in member associations’ top two divisions and cup competitions (approximately 30,000 matches per season).

The BFDS uses sophisticated algorithms and mathematical models to compare calculated odds with actual bookmakers’ odds, in order to determine whether the odds at a specific point in time or over a specific period are irregular.[23]

If a match displays irregular betting patterns, the matter is escalated and a report is generated. These reports include detailed information on the betting operators being monitored, together with match-specific data – e.g. regarding the current form of the teams involved, on-field action, players, match officials and motivational factors (such as the potential for promotion, relegation or qualification for a UEFA competition). Reports contain textual analysis and expert assessments, as well as graphical representations of movements in the relevant betting market.[24]

UEFA’s primary BFDS partner and information provider is Swiss-based company Sportradar. Founded in 2001, this company employs a team of highly trained sports betting analysts dealing exclusively with European football.


The facts of the case

On the basis of analysis of BFDS reports, it was concluded that Albanian football club KS Skënderbeu had been involved in a very large number of matches with inexplicable betting patterns. These included matches in Albania’s domestic league, the Albanian Cup and UEFA competitions, as well as several friendlies against foreign clubs. On the basis of UEFA’s experience in the areas of betting and match-fixing, it was concluded that the activities relating to Skënderbeu were of a highly organised nature.

While the vast majority of clubs will never feature in BFDS reports, it should be noted that Skënderbeu has appeared in more than 50. If we look at all the clubs that have been the subject of BFDS reports since 2010, Skënderbeu has been flagged up far more times than any other club in Europe.


Proceedings before UEFA’s disciplinary bodies

Against this background, charges were brought against Skënderbeu before UEFA’s disciplinary bodies with a view to imposing an administrative measure preventing the club from taking part in the 2016/17 UEFA Champions League.[25] A hearing took place before the UEFA Appeals Body, which acted as the first and final instance in this case.[26] The Appeals Body upheld the charges against the club – i.e. it deemed that Skënderbeu had indeed been involved in domestic and international activities aimed at arranging or influencing the outcome of matches. Consequently, the club was declared ineligible to participate in the 2016/17 UEFA Champions League.

Skënderbeu then lodged an appeal against this decision before the CAS.


The CAS award

The dispute between UEFA and Skënderbeu before the CAS essentially revolved around the interpretation of the BFDS reports and the legal value that should be attributed to them. UEFA, for its part, relied on those betting reports in concluding that the Albanian club had been involved in activities aimed at arranging or influencing the outcome of matches at domestic and international level. Skënderbeu, on the other hand, maintained that the BFDS reports (i) were not sufficient to prove match-fixing, (ii) were not capable of attributing specific responsibility as regards involvement in match-fixing, and (iii) were simply objective alarm mechanisms, which needed to be supported by other external evidence pointing in the same direction.

The CAS limited itself to an analysis of four Skënderbeu matches in UEFA competitions (namely, the club’s matches against Crusaders FC on 21 July 2015, against GNK Dinamo Zagreb on 25 August 2015, against Sporting Clube de Portugal on 22 October 2015 and against FC Lokomotiv Moskva on 10 December 2015) and refrained from analysing domestic matches and other pieces of evidence submitted by UEFA. It did so in order to avoid prejudicing any disciplinary measures that UEFA might potentially impose on the club.[27]

The starting point for the legal analysis conducted by the CAS Panel tallied with UEFA’s approach to this case and the question of whether BFDS reports could be used as the sole piece of evidence when prosecuting cases of match-fixing. The CAS agreed with UEFA that there were potential analogies between athletes’ biological passports and BFDS reports: “The Panel notes the similarities between the procedures followed in respect of the BFDS and the athlete blood passport (the ‘ABP’) in doping matters. Both rely initially on analytical data which is subsequently interpreted by experts/analysts before conclusions are drawn as to whether a violation is presumed to be committed or not.”[28]

Using this analogy, the Panel explained how analytical information was processed within the BFDS, highlighting the fact that the BFDS – like the ABP – indicates the likelihood of a violation having occurred, rather than providing absolute proof one way or the other: “The BFDS analyses whether the analytical information regarding betting on football matches can be explained by ‘normal’ circumstances. The conclusion that the statistical information cannot be explained by ‘normal’ circumstances does not necessarily entail that it must hence be concluded that the results are to be explained by match-fixing.”[29] The Panel went on to say that “[i]n order to come to the conclusion that a match is fixed […] the analytical information needs to be supported by other, different and external elements pointing in the same direction”.[30] With this in mind, the Panel noted that “the final conclusions drawn are not only based on analytical data and the absence of any ‘normal’ explanation, but indeed take into account several external factors corroborating the theory that the abnormal betting behaviour was likely to be explained by match-fixing: suspicious actions of players that took place on the field of play, suspicions raised by an opponent after the match, the emergence of a betting pattern in respect of the Club whereby it would concede late goals when the tie was no longer competitive and the fact that the Hong Kong Jockey Club, a prominent Asian bookmaker, removed the Club from live markets before the end of a game”.[31]

The Panel also attributed considerable weight to the betting patterns surrounding the four European matches under examination: “The Panel particularly considers the emergence of a betting pattern […] to be convincing evidence that the Club is at least indirectly involved in match-fixing activities. This betting pattern consists of the fact that it was observed in four different matches of the Club in either the UEFA Champions League or the UEFA Europa League in the first half of the 2015/2016 sporting season, that the actual bookmakers’ odds started to divert considerably from the calculated odds at the end of the match when the tie was no longer competitive (i.e. when it was clear that the Club would lose the tie on the basis of the aggregate score or that it would win the tie).”[32]

All in all, the Panel concluded that the “analytical information derived from the BFDS is valuable evidence that, particularly if corroborated by further evidence, can be used in order to conclude that a club was directly or indirectly involved in match-fixing”.[33]


Conclusion

Over the last few years, I have heard many betting experts state that monitoring is not the answer to match-fixing in sport. I fully agree with all of them, particularly since they know far more about the betting market than I do. Perhaps as a consequence of my limited legal skills (since even bad lawyers are always trying to find solutions to a complex reality), I would prefer to say that monitoring is not the only answer to match-fixing.

What the CAS ruling on Skënderbeu shows is that action can be taken if you have a proper monitoring system. Again, monitoring is not the sole solution to this problem, but it represents an additional evidentiary tool and can play an important role in legal proceedings. We should remember that match-fixing is linked to corruption and that the parties involved will inevitably “seek to use evasive means to ensure that they will leave no trail of their wrongdoing”.[34] Importantly, the legal framework governing match-fixing is clearly different for ordinary courts, where “the applicable rules in terms of procedure, proof (types of evidence and standard of proof) and substance are not the same as those that apply before UEFA and the CAS”.[35] In this context, a monitoring system can play a key legal role in safeguarding the integrity of a competition.



[1] A copy of the CAS award is available at: http://www.uefa.org/disciplinary/casdecisions/index.html.

[2] Article 3(4) of the Council of Europe Convention on the Manipulation of Sports Competitions.

[3] See Hill, D. (2016). Why sport is losing the war to match-fixers. Global Corruption Report: Sport, Transparency International, p. 231.

[4] Eight Men Out, directed by John Sayles, which was released in 1988.

[5] See Carpenter, K. (2013). Global Match-Fixing and the United States’ Role in Upholding Sporting Integrity. Berkeley Journal of Entertainment and Sports Law, Vol. 2, Issue 1.

[6] See Sorbonne-ICSS (2014). Protecting the Integrity of Sport Competition: The Last Bet for Modern Sport.

[7] See FIFPro (2016). 2016 FIFPro Global Employment Report.

[8] See ESSA (2016). ESSA Q3 2016 Integrity Report.

[9] See Anderson, J. (2014). Match Fixing and Money Laundering. The International Sports Law Journal.

[10] Among others, the Tennis Integrity Unit (see http://www.tennisintegrityunit.com/) or the Cricket Anti-Corruption Unit (see http://www.icc-cricket.com/about/46/anti-corruption/overview).

[11] The full official UEFA statement is accessible at the following link: http://www.telegraph.co.uk/sport/2342180/Milan-restored-to-Champions-League.html

[12] See http://www.uefa.org/documentlibrary/aboutuefa.

[13] CAS 2013/A/3256, Fenerbahçe SK v UEFA, para. 160 et seqq.

[14] Article 4.02 of both the Regulations of the UEFA Champions League 2016/17 and the Regulations of the UEFA Europa League 2016/17 (http://www.uefa.org/documentlibrary/regulations/index.html).

[15] The CAS has reviewed a total of six cases relating to the refusal of admission on grounds of integrity. See generally Deakes, N. (2014). Match-Fixing in football: The epistemology of the Court of Arbitration for Sport Jurisprudence. Australian and New Zealand Sports Law Journal

[16] TAS 2011/A/2528, Olympiacos Volou FC v UEFA, para. 141.

[17] Ibid., para. 136.

[18] CAS 2014/A/3625, Sivasspor Kulübü v UEFA, para. 123.

[19] Ibid., para. 128.

[20] CAS 2014/A/3628, Eskişehirspor Kulübü v UEFA, para. 136.

[21] Ibid., para. 105.

[22] Ibid.

[23] Calculated odds are a mathematical representation of the true probability of an occurrence, without the external effects of money and subjective opinions. In effect, they show what should be happening to the odds, instead of what is actually happening.

[24] See Forrest, D., & McHale, I. (2015). An evaluation of Sportradar’s fraud detection system.

[25] See García, E. (2015). UEFA’s Judicial Bodies. Football Legal, Issue 4.

[26] See Article 24(4) of the UEFA Disciplinary Regulations.

[27] See Article 4.03 of the Regulations of the UEFA Champions League 2016/17.

[28] CAS 2016/A/4650 Klubi Sportiv Skënderbeu v UEFA, para. 82.

[29] Ibid., para. 85.

[30] Ibid., para. 86.

[31] Ibid., para. 87.

[32] Ibid., para. 97.

[33] Ibid., para. 79.

[34] CAS 2010/A/2172, Mr Oleg Oriekhov v UEFA, para. 54.

[35] TAS 2011/A/2528, Olympiacos Volou FC v UEFA, para. 136.

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