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Sports manipulation, particularly match-fixing, has become a major threat to sports integrity. Match-fixing can be related to both direct or indirect economic benefits and betting or non-betting cases. Matters relating to sports and athletes are subject to the jurisdiction of disciplinary and arbitral tribunals and thus immune from state control. This principle is known as lex sportive (global sports law) stemming from the doctrine of the autonomy of sports. Under this doctrine, the SGBs are a private regulatory body outside the ambit of state regulation. Thus, SGBs produce a distinct and separate body of law.
This is evidenced through the first case in the Court of Arbitration for Sport (CAS), FK Pobeda et Al. V. UEFA, where match-fixing was sanctioned because the tribunal allowed the burden of proof only to the extent of comfortable satisfaction as opposed to proof beyond a reasonable doubt. Subsequent to this case, the SGBs have made it a condition for athletes to submit to a code of conduct prior to entering this field. The proceedings under Kaneria v The England and Wales Cricket Board Ltd are just another example where the principle of autonomy of sport was upheld. However, such transnational law has been subjected to criticism as being opposed to rule of law and thus lacking any coherence due to absence of any state interference.
In this background, a handful of Parliamentarians have shown a concern to curb the principle of sports autonomy by allowing state intervention and creation of an independent sporting body other than the SGBs. It has been argued that the problems presented by modern sporting professionalism cannot be addressed by the simple application of the principle of autonomy by SGBs and needs political and state interference. The rise of on-field corruption needs a collaborative force of both states and the SGBs.
Illegitimate financial gain through match-fixing often at times involves a criminal element under the ambit of criminal laws of a particular country. For instance, corruption has been defined under the Transparency International as gaining a preferential treatment in exchange for a bribe. The offence of corruption is being applied in match-fixing cases in many countries such as Belgium, the Czech Republic, Finland and France. In addition to corruption, offences such as money laundering, financial fraud, organized crime and extortion are also being dealt with. Considering the increase of criminal elements in match-fixing, bills have been passed in various countries to combat criminal offences in sports match-fixing. Moreover, under section 7 and 8 of the Finish Criminal Code, private corruption is held equivalent to bribery in business which is punishable with fine or imprisonment. The French Criminal Code defines active corruption as an act of offering or exchanging any gift to any sporting activities, thus amounting to sports gambling. These laws indicate that states have begun to recognize the criminal intent of perpetrators involved in sports manipulating generally and match-fixing in particular. Since match-fixing involves economic or non-economic benefit or betting or non-betting cases, it mostly revolves around gaining an unfair monetary advantage in some way or the other. It will always include elements of corruption, fraud, cheating, money laundering etc., Thus, in recent years because of sports becoming globalized and highly institutionalized, the involvement of criminal intent has also gained pace. Therefore, as suggested by Shilbury and Ferkins, the law enforcement agencies will be best suited to carry out the criminal investigation in collaboration with the SGBs against the criminal or any conspirator. Many states have also made new laws criminalizing match-fixing. One such example where both the state and SGBs share a common jurisdiction is an international treaty on the Council of Europe Convention on Manipulation of Sports Competitions, under which states and SGBs will corroborate to counter global match-fixing. It has been recommended that both the SGBs and the Member States should form joint investigation teams to secure the integrity of sports. Many policy recommendations have been laid out such as that the Member States should adopt a definition of manipulation of sports to combat issues of match-fixing, the active involvement of EU in legal administration of SGBs, and closer collaboration of SGBs with law enforcement agencies. The investigation carried solely by law enforcement agencies is also not enough because they will lack the requisite knowledge of the sporting event under consideration. Such was the case in a fixing trial in a horseracing match in which the prosecution lost the case by keeping the sporting body at an arm’s length. The review of the investigation, in this case, indicated that the opinion of a sporting expert or any person from SBG would have made the prosecution’s case strong.
In conclusion, though the SGBs are highly effective in their functioning to regulate the conduct of athletes, the traditional notion of the autonomy of sporting bodies can longer apply unrestrictedly. The criminal rise of offences in sporting events has made it incumbent for law enforcement agencies to step forward and work in collaboration with SGBs to carry out criminal investigations. On all other matters, the SGBs should uphold their principle of autonomy and the law enforcement agencies should refrain from interfering.
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