The court of arbitration for sport jurisprudence on match-fixing: a legal update

Abstract

The Court of Arbitration for Sport (CAS) jurisprudence on manipulation of sports competitions has vastly evolved from its initial award in RSC Anderlecht in 1998, to now Labuts in August 2020. Alongside, international and national regulations, as well as sporting regulations, including, most recently, the Council of Europe’s Macolin Convention on the Manipulation of Sports Competitions, have sought to effectively tackle the omnipresent, ever-growing phenomenon of competition manipulation. Against this backdrop, this article briefly outlines the existing legal landscape on manipulation, followed by a chronological detailing of each CAS issued award. The key aspects of defining such sanctionable behaviour, select issues of standard of proof and types of evidence which are admissible and relied on, as well as the manner and quantum of sanction are then analysed. Ultimately, noting empirical trends across these awards, questions on ne bis in idem, proportionality of sanctions and legal certainty across CAS jurisprudence are raised.

1 Introduction

The manipulation of sports competitions¹ is certainly not a new phenomenon; on the contrary, it has been reported for centuries. For example, in August 1774, a London newspaper, The Morning Chronicle, described the alleged fixing of several cricket matches on the Artillery Ground in northern London and deplored the fact that the “game of cricket has too long been perverted […] to excessive gaming and public dissipation”.²

Today, in part due to globalization, match-fixing has become a huge cross-border phenomenon. It is currently estimated that billions of dollars are circulated every year through crime syndicates, with more than 80 countries reporting match-fixing offences to the INTERPOL during the last few years. In a recent operation called “Veto” conducted by Europol,³ a total of 425 officials, players and criminals, from more than 15 countries, were suspected of being involved in the manipulation of more than 380 professional football matches in Europe, Africa, Asia, and South and Central America.⁴ More importantly, these activities were part of a sophisticated organized crime network, which generated over €8 million in betting profits and involved over €2 million in corrupt payments to those involved in the matches.⁵

The INTERPOL also reported that its operation, SOGA (“SOccer-GAmbling”), against illegal betting carried out between 2007 and 2014 resulted in more than 8400 arrests, the seizure of almost USD 40 million in cash and the closure of around 3400 illegal gambling dens which handled bets worth almost USD 5.7 billion. The operations have successfully removed a major source of proceeds for organized crime syndicates.⁶

Match-fixing occurs in many sports, with regular recurrence reported in sports such as football, cricket, tennis, boxing, basketball, badminton, ice hockey, handball, volleyball but also in bridge, darts or eSports.⁷

This global nature and tremendous growth of match-fixing recently gave birth to a specific international convention—with a worldwide reach—adopted by the Council of Europe in 2014. Known as the Convention on the Manipulation of Sports Competitions (CETS No. 215, hereafter, the “Macolin Convention”), it entered into force on September 1st, 2019. In parallel to this international effort, the Court of Arbitration for Sport (“CAS”) cases dealing with manipulation of competitions have become increasingly abundant and have set important milestones in the fight against this phenomenon.

In this complex context, this article strives to capture, describe and analyse the relatively rich CAS jurisprudence related to match-fixing, while also focusing on several key issues such as the definition of competition manipulation, selected evidentiary issues and sanctions.

2 Terminology

Several terms, such as “match-fixing”, “competition fixing”, “manipulation of competitions” and so forth are used at academic⁸ and legislative⁹ levels to describe the fraudulent alteration of a sports competition or event. Terminology used in national regulations is more diverse and includes concepts such as “sporting fraud” (e.g. India), “corruption of players” (e.g. Malta), “bribery in sporting contests” (e.g. USA) or “corrupt activities relating to sporting events” (e.g. South Africa).¹⁰ The Macolin Convention—which is the most prominent international legal instrument combating this phenomenon—uses the terms “manipulation of sports competitions”.

In this paper, the terms “manipulation of sports competitions” and “match-fixing” are used interchangeably, except when otherwise indicated.

3 Duality of sanctions for match-fixing: a brief reminder

The manipulation of sports competitions is sanctionable at different levels.

The first level consists of disciplinary (sporting) sanctions, applied by the relevant sports bodies according to their internal punitive system (known as “sport justice”).

At the second level are state sanctions, applied by public authorities (“state justice”). Depending on the applicable national law, the latter may be of a civil, administrative, disciplinary or criminal nature. For instance, the fixing of a football match within the Swiss championship may be sanctioned both by the Swiss national football federation¹¹ and by civil¹² and criminal law.¹³

The CAS has made it clear that “disciplinary sanctions imposed by associations are subject to civil law and must clearly be distinguished from criminal penalties”.¹⁴ Obviously, in the CAS’s view, sporting and criminal sanctions may be complementary.¹⁵ The legal nature of “sport sanctions”—which may include, inter alia, warnings, bans, relegations, fines and other penalties,¹⁶ has been clarified by the Swiss Federal Tribunal (“SFT”) in the Gundel case,¹⁷ as statutory, which is a form of contractual sanction.¹⁸

This article focuses on the procedure and sanctions for tackling match-fixing cases, initiated and applied by sport bodies and reviewed by the CAS on appeal.

4 Legal basis for the fight against match-fixing

The manipulation of sports competitions being a global phenomenon, the fight against it is regulated at different levels.

4.1 International level

At an international level, three international conventions tackle match-fixing, either through general instruments aimed at fighting against corruption and transnational organized crime [United Nations Convention Against Corruption¹⁹ (“UNCAC”) and United Nations Convention Against Transnational Organized Crime²⁰ (“UNTOC”)], or through a specific instrument dedicated to the manipulation of sports competitions (the Macolin Convention). These international instruments are needed notably in order to enhance cooperation between different countries, promote good governance and set international standards.

In the UNCAC framework, “match-fixing” can appear in a form of six corruption criminal offences: active and passive bribery in the public sector (Art. 15–16 of the UNCAC); active and passive trading in influence (Art. 18 of the UNCAC); and active and passive bribery in the private sector (Art. 21 of the UNCAC).

The UNTOC is the main international instrument in the fight against transnational organized crime, which has, as its purpose, to “promote cooperation to prevent and combat transnational organized crime more effectively”. Based on the idea that if crime can cross borders, so too must law enforcement, it can be applied to match-fixing if transnational elements and organized criminal groups are involved.

However, “countries seem [...] not to be able to fully utilize the potential and the added value of the UNTOC and the UNCAC to effectively combat match-fixing. The absence of several important elements of match-fixing from the scope of application of these Conventions might leave different offences unaddressed”.²¹

The most promising international instruments thus seem to be the Macolin Convention, which came into force on 1 September 2019. To date (October 2020), the Macolin Convention has been signed by 38 States (including by one non-European State, i.e. Australia) and ratified by seven of them.²²

As its Explanatory Report clearly mentions, this convention completes the framework of the UNCAC and the UNTOC, as it specifically deals with cases involving the 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.²³

It is important to mention that the Macolin Convention involves all relevant stakeholders, namely public authorities, sports organizations and sports betting operators. It establishes important mechanisms of information exchange through national platforms (Art. 13 of the Macolin Convention) and cooperation regarding law enforcement.

4.2 National level

Second, at a national level, around thirty countries have adopted or are currently in the process of enacting specific legislation criminalizing the manipulation of sport events,²⁴ many of which are inspired by the Macolin Convention.

While these national regulations differ from each other in terms of definition and scope of the match-fixing offence, as well as in terms of applicable sanctions, they all share a common perspective on the seriousness of this offence and on the need to effectively tackle it in practice.²⁵

4.3 Sport organizations

Thirdly and importantly, the fight against match-fixing is also regulated at the level of (international) sport organizations.

According to our ongoing research on this topic, 34 of the 35 International Federations (IFs, or bodies governing sporting disciplines included in the summer and winter Olympics) have adopted specific provisions or the International Olympic Committee’s (“IOC”) Olympic Movement on the Prevention of the Manipulation of Competitions of 2016, addressing match-fixing, notably under the angle of prevention, education, reporting, investigating and sanctioning.

These specific provisions have been scrutinized by the CAS in its increasingly abundant jurisprudence, which we address hereunder.

5 A brief inventory of the CAS jurisprudence on match-fixing

The section below summarizes each CAS award presented in chronological order based on the date of each award, with key facts and findings of each Panel.

5.1 RSC Anderlecht, TAS 98/185²⁶

UEFA’s Executive Committee refused admission of RSC Anderlecht to UEFA’s club competitions for one season for attempted bribery of a referee in two 1983–4 UEFA Cup matches.²⁷ The Panel observed that sanctions such as suspension were disciplinary, and thus within purview of UEFA’s judicial (and not its legislative or executive) bodies. Any corruption was a violation of the “loyalty, integrity and fairplay” components (and related procedure) of UEFA’s “disciplinary” laws.²⁸ Thus, according to the Panel, the Executive Committee did not have jurisdiction to issue such sanction directly resulting in compromise of guaranteed procedural rights through denial of one appeal and set limitation periods.²⁹ Regulations needed to be applied uniformly and not derogated from based on facts simply to serve the objective of tackling corruption.³⁰

5.2 Benfica and Guimarães, CAS 2008/A/1583³¹

In this case, the Portuguese Football Federation (PFF) had found Porto and its Chairman to be involved in activities aimed at arranging or influencing the outcome of a match. PFF sanctioned Porto with ineligibility for the 2008–2009 Champions League season, which decision UEFA’s Appeals Body reversed. Benfica and Guimarães, impacted by the latter decision, appealed it to the CAS.³² Evaluating facts as an individual case, without automatic application of criminal law principles,³³ the Panel was not satisfied that either the Chairman or Porto had undertaken illicit activity, upholding the appealed decision. The PFF’s finding of guilt and consequent acceptance of penalty by Porto were found not persuasive. Such findings of fact by judicial organs of national federations were held not binding on UEFA or CAS.³⁴

5.3 Pobeda, CAS 2009/A/1920³⁵

UEFA’s Appeals Body confirmed suspension of Pobeda based on actions (of its President, Mr. Zabrcanec, and a player, Mr. Zdraveski) corresponding to unusually high sums bet on two matches in the Champions League.³⁶ The CAS Panel found that while silent on “match-fixing”, such acts could be considered cheating, and a breach of “loyalty, integrity and sportsmanship” requirements of applicable regulations.³⁷ The Panel was comfortably satisfied that UEFA had proved, with expert witness testimony (explaining betting patterns) and other testimonies (attesting to behaviour), that Mr. Zabrcanec was personally involved in fixing.³⁸ This finding was considered adequate to sanction the club also.³⁹ They imposed a life-ban on Mr. Zabrcanec based on seriousness of his actions and consequences on football,⁴⁰ and an eight-year ban on Pobeda, citing need for deterrence, internal vigilance/reporting and club-wide consequences.⁴¹ The Panel acquitted Mr. Zdraveski, not satisfied of his involvement based on merely a single witness’s (retracted) hearsay testimony and his limited time on pitch.⁴²

5.4 O, CAS 2010/A/2172⁴³

O, a referee, had been sanctioned with a life-time ban by the UEFA Appeals Body, as confirmed world-wide by the FIFA Disciplinary Committee, for an admitted failure to report being contacted to fix a Europa League Group Stage match he refereed, won 3:1 by FC Basel against PFC CSKA Sofia, FC Basel’s second goal coming by penalty and parallel criminal proceedings indicating he received EUR 50,000 to 60,000 for this.⁴⁴ The Panel upheld a violation of regulations by O’s deliberate failure to report,⁴⁵ based on (1) his own admission, (2) transcripts of intercepted calls, (3) parallel interrogations in German criminal proceedings and (4) witness statements; with no finding of “actual” manipulation/money received being required⁴⁶. The Panel, considered O’s lack of prior wrongdoing, his refereeing skill and non-instigation of the fixing himself as mitigating factors, but on the other hand noted O’s seniority, level of competition, financial interests at stake, growth and impact of fixing (on UEFA, football and its perception), emphasizing the need to not tamper with legal and proportionate UEFA sanctions.⁴⁷ Notably, the Panel cited Pobeda (above) to concur that doping jurisprudence should inform fixing cases on evidentiary and other processes.⁴⁸

5.5 N and V, CAS 2010/A/2266⁴⁹

UEFA issued suspensions and fines (confirmed as applicable world-wide by FIFA’s Disciplinary Committee) to a player (N) and a goalkeeper (V)⁵⁰ of Debreceni VSC for not reporting being approached and acting in a way likely to manipulate a match.⁵¹ The Panel was comfortably satisfied by adduced phone conversation and text message transcripts of subjects unaware of the tapping (confirmed in depositions in parallel criminal proceedings, particularly when not collected by wrongdoing)⁵² that V was contacted and failed to report,⁵³ but not N,⁵⁴ with no establishment of actual manipulation having taken place.⁵⁵ V’s sanctions were thus found proportionate, but N’s appeal upheld, the Panel noting again that federation sanctions were to be reviewed only when evidently and grossly disproportionate.⁵⁶

5.6 Köllerer, CAS 2011/A/2490⁵⁷

The Appellant, a professional tennis player, had, on the basis of testimonies, been sanctioned with permanent ineligibility and fined USD 100,000 by the Anti-Corruption Hearing Officer (“ACHO”), for three counts of attempted match-fixing, inviting other players to deliberately lose matches and offering them USD 10,000 each time.⁵⁸ The Panel was satisfied that it was more likely than not that the Appellant had indeed attempted to fix several matches, even if unsuccessful.⁵⁹ (1) Oral testimonies of fellow players and the Appellant’s own manager (not the Appellant’s own inconsistent one),⁶⁰ (2) voice recognition and (3) the lack of incentive to frame him were relied on (given his contention of impersonation).⁶¹ The Panel upheld the life-ban citing tennis’ susceptibility to fixing (fewer athletes needing to be corrupted) and the deterrent effect of exemplary punishment,⁶² but considered any additional financial penalties disproportionate, his difficult financial situation already having been affected.⁶³

5.7 Savic, CAS 2011/A/2621⁶⁴

The Appellant, a professional tennis player, was sanctioned with permanent ineligibility and fined USD 100,000 by the ACHO⁶⁵ for offering a fellow competitor USD 30,000 to lose the first set against himself, on which he could win the remaining two⁶⁶. The Panel relied on (1) witness testimony of the player approached, consistent before different fora, (2) corroborated by phone/computer records and identification of voice and (3) lack of incentive/evidence to support for contended impersonation to infer the Appellant’s liability.⁶⁷ The life-ban was upheld noting that, though not bound by precedent for sanctioning (and discretion being with the ACHO), a referral to relevant awards⁶⁸ and prior SFT decisions (which had noted that federation objectives to protect integrity would justify privacy infringement by harming athlete development) was desirable.⁶⁹ Yet, given the player’s affected livelihood, additional financial penalties were considered disproportionate.⁷⁰

5.8 Asif, CAS 2011/A/2362⁷¹

ICC’s Tribunal sanctioned the Appellant, a professional cricketer, to seven years ineligibility, with two suspended, conditional on no further breach of ICC’s Code of Conduct, (for bowling deliberate “no balls” pursuant to an undercover reporter offering GBP 140,000 to their agent for inside information for betting⁷²) with parallel conviction by English criminal courts⁷³. Based on (1) on-field acts seen with the reporter’s taped recordings, (2) videos of the Appellant’s bowling form/execution, (3) statistical data on bowling patterns, (4) lack of alternative explanation for correspondence at critical times with the agent and (5) financial benefit not needing to be shown, the Appellant’s contentions were held contrary to evidence.⁷⁴ The Panel refused mitigation of sanctions issued argued for due to financial hardship and existing prison sentences, to avoid granting benefit of such lenience twice,⁷⁵ considering also that life-time bans had previously been given out by ICC and CAS for similar offences.⁷⁶

5.9 Butt, CAS 2011/A/2364⁷⁷

In the same context as Asif (above) the Appellant, captain of the Pakistani cricket team, was sanctioned for not reporting (but not for actual fixing) with 10 years of ineligibility (five suspended, conditional on no further breach, as above),⁷⁸ with parallel conviction by English criminal courts.⁷⁹ (1) Accuracy of the information given to the reporter and its recording, (2) timing of contact between the Appellant and agent, and (3) critical contribution to executing the fix, among other facts, were relied on by ICC’s Tribunal. The Panel upheld the sanction (established liability not having been contested),⁸⁰ reiterating deference to sports bodies’ expertise (with only rare deviation on fact⁸¹) to gauge both disproportionality (here, held proportionate, given (1) captaincy, (2) prior bans, (3) unchallenged establishment as “ring-master”, (4) leniency in parallel criminal proceedings, (5) no apology issued, (6) establishment of financial benefit being unrequired, and thus irrelevant to sanction);⁸² and irrationality (“obviously or self-evidently unreasonable or perverse”, a high threshold, not met here given ICC’s rationale for length of sanction being relative to other code provisions, impact on the game and prioritization of offences⁸³).⁸⁴

5.10 Olympiakos Volou, TAS 2011/A/2528⁸⁵

Based on allegations of fixing and illegal betting by the President of Olympiakos Volou in one match in the Greek Super League, UEFA’s Appeals Body sanctioned the club with ineligibility to participate in the 2011–2 Europa League. The Hellenic Football Federation (HFF) had found only the President, but not players, involved in manipulation.⁸⁶ The Panel considered HFF’s decision, the President’s preventive detention and reports on betting,⁸⁷ to conclude that UEFA had proven the club’s involvement to justify ineligibility,⁸⁸ even if players were not involved.⁸⁹ They confirmed UEFA’s ability to rely on national federation findings, and held that pending procedure before other fora was not grounds to suspend UEFA/CAS decisions.⁹⁰

5.11 Metalist, CAS 2013/A/3297⁹¹

Having been found guilty of fixing prior,⁹² the club Metalist was confirmed disqualified from the 2013–4 Champions League by UEFA’s Appeals Body based on proved fixing by its official (with strict liability for the club).⁹³ The Panel held that the Appeals Body was not bound by, or need not enforce prior stayed proceedings irrespective of likely outcome, if otherwise comfortably satisfied in its own determination.⁹⁴ Evidence not otherwise admissible could be admissible here given limited resources, even if secured inappropriately (as long as within public policy limitations) to curb fixing.⁹⁵ The Panel upheld sanctions⁹⁶ as (1) proportionate (“reasonably required in search of a justifiable aim” given the importance of fighting fixing, preserving confidence and integrity, and deterrence)⁹⁷ burden to show disproportionality being on the club;⁹⁸; and (2) not discriminatory (equal treatment of same facts).⁹⁹

5.12 Besiktas, CAS 2013/A/3258¹⁰⁰

The CAS appeal arose from a UEFA Appeals Body decision holding Besiktas ineligible for the 2013-4 Europa League based on its officials’ involvement in fixing the 2011 Turkish Super Lig final.¹⁰¹ The Panel noted UEFA’s ability to use other decisions to corroborate, supplement and confirm, without being bound, when applied on a case by case basis.¹⁰² The (1) club’s sporting and financial interest in winning,¹⁰³ (2) recorded conversations with tendency to avoid using direct language/reference to fixing, (3) private meetings held,¹⁰⁴ (4) oral and written testimonies of those familiar with events and the accused,¹⁰⁵ (5) incentives to frame/lie and (6) plausibility of alternative explanation, inter alia,¹⁰⁶ were relied on to find the officials, and thus Besiktas, directly/indirectly involved in fixing, the Panel upholding the issued sanctions.¹⁰⁷ Lack of clarity on direct/indirect involvement was held to not be fatal as an eligibility determination was not sanctionary in nature.¹⁰⁸

5.13 Fenerbahçe, CAS 2013/A/3256¹⁰⁹

This CAS appeal arose from a 2013 UEFA Appeals Body decision sanctioning Fenerbahçe with exclusion from two UEFA club competitions for which they qualified¹¹⁰ (reduced from three, by the CDB¹¹¹) due to proven instances of bribes awarded to lose games in five matches, based on parallel criminal action initiated by Turkish authorities.¹¹² Finding that clubs could be sanctioned even if evidence adduced was insufficient to sanction specific individuals (before or concurrently),¹¹³ the Panel found, inter alia, that (1) wire-taps (each assessed for credibility, and of “crucial importance”), as adequate to draw inference from, and corroborative to facts otherwise asserted;¹¹⁴ (2) lack of suspicious on-field behaviour and silent match-reports, or lack of financial records showing money transferred were not proof of fixing;¹¹⁵ (3) there was no evidence that the match was actually influenced¹¹⁶ and or of effective change in the outcome was needed;¹¹⁷ and (4) convictions in Turkish criminal courts had corroborative value, i.e. CAS could convict even if acquitted there, given lower standard of proof, making a contrary finding unlikely.¹¹⁸ The Panel held that UEFA had not violated principles of equal treatment¹¹⁹ or requirement to take into account mitigating circumstances (such as period of ineligibility already served),¹²⁰ in sanctioning. Despite finding liability for fewer matches than UEFA’s disciplinary bodies¹²¹ and none for incorrect details filled in admission to UEFA leagues,¹²² two year ineligibility was held warranted,¹²³ given (1) no guidance in applicable regulations for sanctioning; (2) having made independent conclusions on procedure and merits with different results;¹²⁴ and (3) using the CAS’s range of sanctions (akin to doping being between one and eight years),¹²⁵ as guidance.¹²⁶

5.14 Sammut, CAS 2013/A/3062¹²⁷

The CAS appeal arose from a UEFA Appeals Body decision sanctioning the Appellant, a professional Maltese footballer, to a life-ban (increased from CDB’s given 10 years),¹²⁸ for fixing a European Football Championship match lost 4:0 to Norway (three goals scored in the final 17 minutes) where Maltese players received a pay-out of betting gains.¹²⁹ The Panel concluded that (1) the match was fixed (based on an anonymous letter and statement confirming the fixing,¹³⁰ suspicious betting patterns,¹³¹ and witness testimony from those with no incentive to fabricate the allegations);¹³² and (2) the Appellant was responsible for the fix (noting that (a) a witness’s criminal past did not impact credibility, but motivation to make false statements—which the players possessed—did,¹³³ (b) the footballer’s specific identification thrice before UEFA and German authorities;¹³⁴ and (c) his key on-field errors which led to the first goal).¹³⁵ On sanctions the Panel noted that both life-time and shorter bans had been awarded by federations for this offence, though CAS had consistently upheld life bans awarded by federations.¹³⁶ Yet, the ban was mitigated back to 10 years ineligibility, as the Panel found no proof of individual involvement in “actual implementation” which was more relevant to sanctioning (a mere error not proving intent to allow a goal).¹³⁷

5.15 Eskişehirspor, CAS 2014/A/3628¹³⁸

The CAS appeal arose from a UEFA Appeals Body decision sanctioning Eskişehirspor with ineligibility for the 2014–5 Europa League based on findings of fixing against club officials/players in the Turkish Super Lig (Fenerbahçe’s case above).¹³⁹ The Panel, held, inter alia, that the law could not predict all acts,¹⁴⁰ i.e. actions, otherwise legal, could influence match outcome. In this case, bonuses from third parties to play well had influenced competition, skewed player motivation, and thus could imply undue advantage, infringing fair play.¹⁴¹ Relying on (1) wiretaps (presumed to be coded deliberately), (2) secret meetings (drawing inference from their nature), (3) timing and nature of connected acts, (4) corroborating parallel judgements (irrespective of whether final as evidence was considered anew) and (5) noting that evidence not otherwise admissible could be used given the objective of fighting fixing offences, the Panel found matches fixed and the club liable through acts of its official, irrespective of culpability.¹⁴² Sanctions were upheld as justified, proportionate, connected to objectives and not contrary to principles of law,¹⁴³ with factors such as lack of negligence/fault considered irrelevant for mitigation given the period of mandatory ineligibility (one year) and non-disciplinary nature of sanctions.¹⁴⁴

5.16 de la Rica, CAS 2014/A/3467¹⁴⁵

The Appellant, a professional tennis player, was sanctioned with ineligibility for any ATP event for 5 years, and a fine of USD 25,000.¹⁴⁶ Relying on Skype messages (admissible based on chain of custody of the phone/computer, account verification and accuracy of content) and transcripts having probative value with corroborating witness statements, the Panel found the Appellant could not contend lack of knowledge (given ATP’s education and signed player agreements/rulebook) for violating reporting and corruption provisions. Actual match loss (evidence of deliberate poor effort) was unrequired for corruption though established here (through witness statements, evidence of agreement to receive EUR 15,000 and discussion on how to lose).¹⁴⁷ The Panel refused to mitigate sanctions, finding that the match was lost deliberately and not due to threats, with no desire to report.¹⁴⁸ Sanctions were appropriate to the level of guilt and gravity of infringement, which undermined fairness and was knowingly undertaken.¹⁴⁹

5.17 Sivasspor, CAS 2014/A/3625¹⁵⁰

UEFA’s Appeals Body sanctioned Sivasspor with ineligibility for the 2014–5 Europa League in addition to the CDB’s fine of EUR 300,000 based on findings of fixing involving the club’s officials/players.¹⁵¹ Echoing the findings in Eskişehirspor (above) on most matters involving similar facts and parties,¹⁵² the Panel held that even if fixing was unproven in the match against Fenerbahçe prior, CAS was not bound by that decision, or barred by res judicata.¹⁵³ They confirmed ineligibility on similar lines as Eskişehirspor as well, with Sivasspor liable through acts of its President, board member and players,¹⁵⁴ irrespective of culpability or any economic and sporting benefit.¹⁵⁵

5.18 Vanakorn, CAS 2014/A/3832 and 3833¹⁵⁶

Here, the CAS appeal arose from FIS’s Hearing Panel’s¹⁵⁷ suspension of the Appellant, a British-Thai professional skier, for 4 years from its events world-wide for manipulation of results of four 2014 giant slalom Olympic qualifying events she was involved in organizing,¹⁵⁸ based on factors including the events’ dates’ proximity to qualification deadlines, number of competitors, among others (for example, “Thai National Junior Championships” having the Appellant as a sole competitor, aged 35).¹⁵⁹ The FIS Council cancelled results of these events, noting that the Appellant should not have qualified, asking the IOC to take further action as seen fit.¹⁶⁰ The Panel overturned the decision, finding actions such as (1) irregular starts (due to inconsistent testimony and absent witnesses), (2) asking others to ski slowly (proven but not proved connected to manipulation), (3) result manipulation (errors noted, but unattributable to the Appellant), among others¹⁶¹ contrary to spirit of sport, but not “deliberate circumvention of the law and illegal acts”, besides being done with FIS knowledge/technical help, and for normal sums of money paid for such work.¹⁶²

5.19 Panathiakos, CAS 2015/A/4151¹⁶³

Runners up Panathiakos challenged top finishing Olympiakos’s provisional admission to the 2015–6 Champions League¹⁶⁴ on suspension of proceedings against Olympiakos by UEFA’s Appeals Body pending proceedings on their shareholder’s involvement in fixing allegations in Greece (ultimately finally found to be unsubstantiated),¹⁶⁵ the playoffs having already commenced and Panathiakos having been eliminated by then.¹⁶⁶ The Panel considered the limited question of whether, if the Appeals Body was wrong in declaring Olympiakos eligible, Panathiakos had been able to demonstrate it was “directly”/“legally” affected (and would replace them) and thus had standing to sue. They found match-fixing related ineligibility (akin to licensing and fair-play related eligibility) to be a separate admissions phase determination process before competition started (whereon, the replacement rule is no more applicable).¹⁶⁷ Panathiakos was thus held to lack standing¹⁶⁸ and certainty of selection as a replacement.¹⁶⁹

5.20 Pakruojo, CAS 2015/A/4351¹⁷⁰

In this case, based on (1) BFDS and other reports of betting variations in two matches lost to FK Siauliai,¹⁷¹ (2) the club’s form, league positions and turnover rate, (3) player behaviour on and off-field and (4) other factors (loss despite return of a top-scoring player, concession of a penalty, leading bookmakers’ removing this match from the market) the LFF’s Disciplinary and Appeals Committees sanctioned players with match disqualifications between 8 and 12 months and the club with a fine (strict responsibility).¹⁷² The Panel relied on the (1) BFDS reports (with its expert explanation and demonstrated betting abnormalities) and (2) expert analysis of on-field behaviour (circumstantial to statistics) with no plausible alternative explanation, to conclude “presumed” fixing (needing evidence of fixing and connected player behaviour).¹⁷³ Noting that a “well-reasoned sanction” was to be upheld unless “grossly disproportionate”,¹⁷⁴ the EUR 4500 fine for Pakruojo’s strict liability per match¹⁷⁵ was confirmed.

5.21 Skënderbeu, CAS 2016/A/4650¹⁷⁶

The UEFA Appeal’s Body decision holding Skënderbeu ineligible (based on BFDS reports of multiple fixed matches) to participate in the 2016–7 Champions League was appealed to CAS.¹⁷⁷ The Panel held that one year’s eligibility was not disproportionate, illegal or contrary to public policy, based on the value-based objective of preliminary administrative eligibility determination.¹⁷⁸ They considered quantitative data sets of BFDS reports “valuable evidence if corroborated by further evidence”¹⁷⁹ (here, by video footage of conduct¹⁸⁰ and of betting operators),¹⁸¹ not definitive to assess fixing by itself but definitive when seen with qualitative expert analysis¹⁸² (of indirect fixing through betting patterns).¹⁸³ Noting the (1) similarity to evidence gathering and proof in doping matters,¹⁸⁴ and (2) lack of parallel criminal proceedings not indicating innocence,¹⁸⁵ the Panel found “indirect fixing” proven, with no direct culpability (none being found) needed to be established as well.¹⁸⁶

5.22 Phnom Penh , CAS 2016/A/4642¹⁸⁷

Phnom Penh FC was denied admission to the 2017 AFC Cup Playoff Qualifiers, although they had won the Cambodian domestic league, based on the Football Federation of Cambodia’s findings of match-fixing (relying on taped recordings), i.e. coaches conspiring to dismiss another coach, players faking injury and playing below potential.¹⁸⁸ Not following prior awards and noting the need to differentiate on fact,¹⁸⁹ the Panel overturned the decision, holding that the coaches’ actions (warranting independent sanction¹⁹⁰) could not be attributed to Phnom Penh FC, being (1) aimed at furthering their own and not the club’s interests, (2) coaches not being the club’s agents and (3) Phnom Penh FC, in fact, being the victim of their activity.¹⁹¹

5.23 Trabzonspor, CAS 2015/A/4343¹⁹²

The TFF, after withdrawing Turkish Super League (2010–2011) winners Fenerbahçe from the Champions League, refused to declare Trabzonspor (the runners up) the winners, refused to grant them match annulment and point re-allocation. UEFA also declined intervention in Fenerbahçe’s ongoing case.¹⁹³ The Panel concluded that though ne bis in idem was not violated,¹⁹⁴ CAS’s issuing sanctions for what was “domestic” fixing would be ultra vires, as its jurisdiction was only as wide as that of the previous forum (i.e. UEFA here did not have this competence,¹⁹⁵ particularly when unrelated to its competitions),¹⁹⁶ and upheld the appealed decision.¹⁹⁷

5.24 Viorel, CAS 2017/A/4947¹⁹⁸

The RFF Discipline and Ethics Committee, and Recourse Committee (on appeal) banned the Appellant (part of coaching and management) from football-related activities for 2 years and fined him RON 200,000, based on BFDS and Sportradar’s reports of inexplicable betting patterns indicating prior knowledge of outcome and deliberate losses for significant profits, involving FC Gloria Buzau’s matches.¹⁹⁹ The Arbitrator found the Appellant in violation of applicable regulations²⁰⁰ relying on (1) the above reports, (2) RFF’s internal investigation, (3) video recordings and (4) testimonies and analysis of crimes per actor to identify attributable facts and liability.²⁰¹ The Appellant’s fundamental rights to exercise his profession freely and hold private property were held not violated by the sanctions, which were considered to be (1) issued under regulations assumed valid (until held unconstitutional by a national court),²⁰² (2) drafted by a competent authority under law,²⁰³ (3) with the objective of tackling fixing stated in RFF statutes and (4) proportionate (assessed based on it not violating international human rights standards or affecting rights drastically, with the fine being the minimum mandated under law, and given economic capacity relative to other Romanian nationals²⁰⁴).

5.25 Lamptey, CAS 2017/A/5173²⁰⁵

The Appellant, a Ghanaian referee, was sanctioned for match-fixing in connection with the 2018 FIFA World Cup Russia and handed a life-time ban at all levels, confirmed by FIFA’s Appeals Committee.²⁰⁶ This was based on reports of unusual betting patterns²⁰⁷ (indicating knowledge of at least three goals being scored corresponding with his decisions to grant of a contentious penalty in absence of a foul, and a hand-ball and foul followed by omission to stop a quick start, resulting in two goals²⁰⁸ critical to a 2018 FIFA World Cup Preliminary match’s outcome).²⁰⁹ The Panel, relying on unrebutted expert evidence, corresponding monitoring reports and video footage of actions seen with betting variations in an otherwise uneventful match,²¹⁰ ruled that the Appellant’s actions had affected match outcome²¹¹ and were deliberate acts, independent of communicating with others.²¹² The life-time ban was upheld citing seriousness, referee responsibility for match/sport credibility, need for unpredictability and fairness, and no scope for mitigation based on high degree of Panel’s satisfaction.²¹³

5.26 Fantoni and Nunes, CAS 2016/A/4783²¹⁴

The EBL’s Disciplinary Committee, in its appealed decision, had found two professional bridge players guilty of manipulation by having pre-arranged an illicit method of communication effectively used to exchange information²¹⁵ by placing the lead card “vertically” to indicate having unseen high honours (A, K, Q) in that suit and otherwise placing the cards horizontally.²¹⁶ They were (1) banned from EBL events for five years, (2) banned from playing as a team for life and (3) issued a fine of CHF 20,000 each. The Panel, (1) noting misleading inconsistencies/false positives in the code, (2) relying on expert opinion on utility thereof to win, (3) the inability to comprehend the entire code and (4) data selection and analysis flaws in assessment of the code, (5) with no proven patent advantage,²¹⁷ among other factors, reversed the decision based on inadequate evidence adduced before it, stating however, that “this did not mean the players were not guilty”²¹⁸ and imposing costs, as they considered that the player’s “unusual” behaviour had led to the proceedings.²¹⁹

5.27 Skënderbeu II, CAS 2017/A/5272²²⁰

The AFA’s Ethics Committee had found Skënderbeu matches manipulated for betting gains, despite no establishment of the required direct or indirect player involvement, resulting in removal of their 2015–2016 Kategoria Superiore title, point deduction for the next season and fine of ALL two million, based on just BFDS data on over 50 matches, including local ones, and connected player behaviour.²²¹ In this appealed decision, the Committee held that where the regulations were inadequate, in disciplinary matters, a competent authority had power to act as a legislator.²²² The Panel found the “negative” formulation of the non-requirement of player involvement to find a club liable (in absence of what was, in-fact, required for liability) problematic for the level of certainty²²³ necessary for disciplinary sanctions,²²⁴ with a lower threshold only permissible for administrative/provisional cases.²²⁵ BFDS data were considered a “valuable tool”, but its admissibility was not considered in detail given the lack of legal basis for sanctioning in the first place.²²⁶ Even if considered, the Panel found that another club, and not Skënderbeu, would be liable.²²⁷

5.28 Lao Toyota, CAS 2018/A/5500²²⁸

AFC’s Entry Control Body (“ECB”) held Lao Toyota FC, winners of the 2017 Lao Premier League, ineligible for AFC Cup playoffs due to manipulation proven before the ECB, but the AFC’s Disciplinary Committee (“DC”) had decided and dismissed the same claim before under different regulations.²²⁹ The Panel held that clubs could not be tried twice by the same federation on the same facts (in this case, the DC’s prior disciplinary process and ECB’s later administrative one).²³⁰ The ECB could not “cure” the defect in the DC decision, the second decision being both unforeseeable to the accused persons in the rules, and no reservation having been made to this effect by the DC prior.²³¹

5.29 Keramuddin, CAS 2019/A/6388²³²

This case is not causally related to match-fixing but gives some interesting insight on the Panel’s concept of a certain “hierarchy” of seriousness of offences in sport. The Panel, while sanctioning Mr. Keramuddin, the former President of the Afghan Football Federation, to a life-time ban from all national and international football activity, and fine of CHF 1,000,000²³³ for mental, physical, sexual and other rights abuse of female players,²³⁴ used prior life-time bans on FIFA officials in match-fixing awards and bans of 2–10 years for bribery as benchmarks for proportionality, noting that the gravity of such (fixing/bribery) offences was “far less severe” than those affecting human rights, dignity and integrity of young players in this case.²³⁵

5.30 Labuts, CAS 2018/A/6075²³⁶

In the latest CAS case concerning match-fixing, the Appellant, a Latvian goalkeeper playing for Athlone Town AFC in the second-tier league in Ireland, was banned for one year from any football-related activities for allegedly participating in the fix of a match lost 3:1 against Longford Town FC.²³⁷ The FAI Disciplinary Committee considered, based on suspicious betting activity in relation to several aspects of the match, that (1) the match was fixed, and (2) that the Appellant had taken part in the fix, by deliberately failing to stop two goals (at 39′48″ and 92′31″) from the opposite team.²³⁸ The player strongly denied the accusations and no evidence was provided as to any financial irregularities in the player’s situation.²³⁹ The three experts called to judge upon the goalkeeper’s defensive mistakes were not unanimous in distinguishing between a deliberate behaviour and mere manifestations of inadequacy and fatigue.²⁴⁰ It was, however, established that the Appellant made a save (at 87′) and that two central defenders of the Appellant’s team were also underperforming, which notably contributed to the second goal being scored.²⁴¹ Based on these facts and expertise, the Panel was comfortably satisfied that the match was fixed, but not that the Appellant was actually involved in the fix.²⁴²

In the light of these awards, we shall examine in the following lines the way in which the CAS has described the notion of match-fixing, the most relevant evidentiary issues extracted from these cases and the sanctions applied for the different manipulation offences.

6 The notion of competition manipulation in the CAS jurisprudence

As previously noted, CAS jurisprudence has amplified in match-fixing cases, thus giving the Panels several opportunities to carve out the definition of match-fixing at a judicial level, in parallel to the legislative efforts to define this concept (notably, by the Macolin Convention).

As a reminder, in the Macolin Convention, the manipulation of sports competitions is 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” (under Art. 3). Importantly, this definition covers not only manipulations altering the result of a match or competition, but also any manipulation which influences “the natural and fair course” thereof, notably through a foul, penalty or action on the field altering the intermediate result or phase of the game. This is also called “micro-manipulation” or “spot-fixing”. Finally, it should be noted that Art. 7 of the Convention encourages sports organizations and competition organizers to: (1) prohibit competition stakeholders from betting on sports competitions in which they are involved; (2) prohibit competition stakeholders from misusing inside information; and (3) require competition stakeholders to report any suspicious activity immediately.

CAS jurisprudence has addressed the issue of match-fixing in a similar manner, using a wide angle and a broad definition of match-fixing. In the following lines, we will mention the main elements, ratione materiae and ratione personae, extracted from this jurisprudence.

6.1 Ratione materiae

As has been pointed out by several authors,²⁴³ the material scope of the definition of match-fixing in CAS jurisprudence is quite amorphous. Notably, many types of unlawful or unfair conduct may result in match-fixing; certain conduct may be used to conclude “presumed” match-fixing²⁴⁴ and conduct otherwise lawful might be considered illegal in a manipulation context.²⁴⁵ To date, among others, the following elements are set as indicators of match-fixing in the CAS jurisprudence:

• bribing or attempting to bribe a referee (Lisboa and Guimaraes, CAS 2008/A/1583);²⁴⁶

• approaching competitors and offering them money (EUR 10,000 each time) in order to deliberately lose a tennis match (Köllerer, CAS 2011/A/2490);

• approaching a competitor and offering him money (USD 30,000) in order to deliberately lose a first set of a tennis match, while winning the second and third set, and the match (Savic, CAS 2011/A/2621);

• receiving a bribe (between EUR 50,000 and EUR 60,000) as a referee, in order to fix several football matches (O, CAS 2010/A/2172);

• receiving a bribe as a goalkeeper, in order to fix several football matches (N and V, CAS 2010/A/2266);

• intentionally losing a first football match and arranging a draw for the second, while abnormal betting patterns were detected for those matches, i.e. ten times the usual amount of money for such a match (Pobeda, CAS 2009/A/1920);

• deliberate underplay on the field by cricket players (deliberate “no ball” and playing the maiden over), exactly as agreed in a fix which had been arranged with the players’ agent, who was promised GBP 140,000 for the fix (Asif, CAS 2011/A/2362 and Butt, CAS 2011/A/2364);

• deliberate poor play and consequent loss of a tennis match on receipt of EUR 15,000 (de la Rica, CAS 2014/A/3467) and proven responsibility for a loss through actions on the field for payout from betting gains (Sammut, CAS 2013/A/3062); and

• deliberate mistakes (in casu, not proven) by a goalkeeper allowing the opposite team to score two goals in the context of highly abnormal betting patterns (Labuts, CAS 2018/A/6075).

6.2 Ratione personae

Match-fixing may be a complex operation, involving dozens or even hundreds of participants at all levels, inside and outside of sports. Thus, CAS panels have justly considered measures imposed against almost all participants in sports competitions:

• players (de la Rica, Köllerer, Savic, Asif, Butt, Fantoni and Nunes, Labuts, etc.);

• coaches and management (Viorel, Pobeda);

• other club officials, such as presidents (Pobeda, Olympiacos Volou);

• referees (O, Lamptey); and

• clubs (Besiktas, Pobeda).

It is thus apparent that the CAS panels have taken generally the same broad perspective on match-fixing as international legislators, both ratione materiae and ratione personae, in an effort to effectively tackle the multi-faceted phenomenon of competition manipulation, which may manifest itself in many different forms, ultimately aiming at ensuring a fixed result or event, and thereby eliminating the element of uncertainty which should be inherent to any sports competition.

7 Selected evidentiary issues

Evidentiary issues are obviously paramount in the fight against match-fixing,²⁴⁷ given the very nature of this offence and its broad scope, both ratione materiae and ratione personae. In the following lines, we will focus on a selection of such issues, notably standard of proof and admissible means of evidence, as extracted from the CAS jurisprudence.²⁴⁸ In the jurisprudence briefly described above, the CAS panels have made it clear that nothing is worse than creating a false positive and issuing sanctions to an innocent person or club. Apart from the recurring question of the burden of the proof,²⁴⁹ the panels focus primarily on issues of the standard of proof,²⁵⁰ as well as admissibility and means of gathering evidence.

7.1 Standard of proof

As far as evidence is concerned, what is most important is not the evidence itself, but that it is capable of proving the facts sufficiently in the eyes of the panel. Indeed, in order to be convinced, the panels apply a high standard of proof. Even if a criminal standard is considered inapplicable in the context of private associations, the panels need to be comfortably satisfied that a conduct of a type which undermines the basic premise of fairness upon which all sporting contests are premised actually happened, i.e. at a level greater than a mere balance of probability, but less than proof beyond reasonable doubt.²⁵¹

Considering the different nature of criminal procedures and disciplinary ones, relative lack of investigatory powers of sports governing bodies compared to those of a criminal prosecutors, incentive to conceal such evidence²⁵² (and consequent similarity to doping²⁵³) and within the context of seriousness of allegations and importance of fighting corruption,²⁵⁴ CAS has repeatedly dismissed the application of the “beyond reasonable doubt”²⁵⁵ standard, to apply the criteria of the “comfortable satisfaction”. The latter is much more flexible than the former but still more stringent than a simple balance of probabilities. As it has been repeatedly stated, the “comfortable satisfaction” standard therefore lies somewhere in between beyond reasonable doubt and a mere balance of probability.²⁵⁶

Panels themselves have observed the standard to be inconsistent and difficult to follow.²⁵⁷ This is also because, prior to applying a comfortable satisfaction standard, a panel must first look at the concerned federation’s guidelines for an expressly chosen standard of proof (“preponderance of probability” in tennis, for example²⁵⁸). Parties (clubs or athletes) are presumed to have “consented” to such standard contractually.²⁵⁹ Factors to judge appropriateness of such standard include how close it is to comfortable satisfaction (for example, held suitably proximate in the case of tennis) or whether it contravenes public policy. CAS itself, however, lacks authority to harmonize such standard.²⁶⁰ This has now been confirmed in Labuts, noting that where the applicable rules are silent on the standard and the parties do not agree on a common standard, the CAS is to apply the standard used in prior awards.²⁶¹

The fact remains that given the seriousness of an allegation of manipulation of a sports competition, the comfortable satisfaction criteria are considered fulfilled if there is a high degree of confidence in the quality of the evidence, and if the latter has been collected legitimately.²⁶² This indicates, therefore, that the standard lies closer to the test of beyond a reasonable doubt than to that of a mere balance of probability.²⁶³

7.2 Means of evidence

As has already been written, unless the applicable sport regulations contain specific evidentiary rules, CAS panels determine evidentiary issues according to the procedural rules adopted by each panel.²⁶⁴ In making determinations on evidentiary issues, the CAS arbitrators are in no way bound to apply the procedural rules that would be applicable in a Swiss court, i.e. evidence not otherwise admissible might be considered admissible and relied on.²⁶⁵ Their freedom is only limited by the obligation to make sure that the contemplated procedural rule complies with the necessity for equal treatment of the parties and the right of both parties to be heard (under Art. 182(3) of the Swiss Private International Law Act), and is consistent with “procedural public policy”.²⁶⁶

In practice, in the match-fixing cases handled by the CAS, multiple types of evidence were used to try to reach the standard of proof described above. Across these awards, among the most frequently put forward,²⁶⁷ one finds:

• suspicious betting patterns and conducts provided by betting operators;

• written evidence (rarely present);

• witness statements and confessions;

• expert evidence analysing betting patterns and on field behaviour;

• wiretaps, intercepted and taped phone or Skype conversations (sometimes with a coded language), their frequency and the point of time they were made;

• video recordings of on-field behaviour and interactions among parties;

• evidence of unneeded, private and suspicious meetings;

• evidence from parallel criminal investigations and connected decisions;

• rumours and anonymous letters;

• parallel circumstances (notings in match reports, potential financial benefit or a club’s poor financial condition); and

• coincidence between what was agreed between fixers and what happened on the field, result of the games, on field performances.

While most of these means of proof are not very different from those used in other types of sport offences, there is one specific to the manipulation: suspicious betting patterns, often based on a Betting Fraud Detection System (“BFDS”) report.²⁶⁸

Such reports are founded on algorithms and mathematical analysis that are able to quantitatively indicate if the betting patterns of a particular sports competition present a statistically significant deviation from the expected model. Illogical betting behaviour is thus detected even before the sports competition takes place and an alert is triggered.²⁶⁹ These alerts, based on quantitative data and analysis, are then put to the test of the qualitative assessment that observers will be able to make of the course of the sporting competition. If the on-field action confirms the abnormal betting patterns and cannot be explained other than by the participants’ willingness to satisfy the bettors, it will be considered—with a high degree of certainty—that the competition has been manipulated. In order not to create false positives, an assessment of the on-field situation by three experts is generally required. On the contrary, if the quantitative analyses of abnormal betting patterns and the qualitative observations do not strongly match (or do not match at all), it will be considered that the BFDS has malfunctioned and the case will be dismissed.²⁷⁰

Such reports have been considered “valuable” evidence, particularly when specific individual responsibility can be attributed through it.²⁷¹ Yet, they are not definite by themselves, with no regulations governing them, requiring support of qualitative expert analysis²⁷² and corroborating evidence such as on-field conduct or that of betting operators.²⁷³ Importantly, this application was confirmed most recently in Labuts, where the Panel almost solely relied on these reports and expert interpretation thereof to conclude a match was manipulated,²⁷⁴ but countered this evidence with analysis of other on-field behaviour to conclude that the appellant goalkeeper was not himself primarily responsible for the fix.²⁷⁵

8 Sanctions

Here too, there are some questions of principle that the panels must resolve before deciding on the merits of a sanction.²⁷⁶ First, the principle of nullum crimen, nulla poena sine lege scripta et certa²⁷⁷ (no sanction may be imposed unless there is an express provision describing in sufficient clarity and specificity, not only the misconduct but also the applicable sanction) is considered to be fundamental; and second, the question of the ne bis in idem principle²⁷⁸ is applied with the difficulty that some decisions are disciplinary ones and other administrative or civil ones.

The CAS awards on manipulation of sports competitions mainly concern football, but also tennis, skiing, bridge and cricket. As previously mentioned, they affect various factors such as clubs, staff members, referees and so forth. The principal sanctions with which the CAS has dealt in these awards are:

• bans, ineligibility for some competitions and suspension (of a person, of a club, of a referee; for one year, for a couple of years, and even life-long);

• fines;

• disqualification of a player;

• game annulment or result cancellation; and

• point deductions and relegation.

Some cases also involved criminal sanctions imposed by the concerned State (prison and/or fine), but the CAS has nothing to do with them. We briefly note here, in passing, that such sanctions are provided in national regulations and are extremely disparate. To give just a few examples, fixing the result of a match may be sanctioned, in Australia, Greece or Poland, by imprisonment up to 10 years, whereas in Denmark the maximum sanction is of 1 year.²⁷⁹

In each case, and contingent on express specific of a criterion for sanctioning, if any, under the applicable regulations,²⁸⁰ the CAS panels have to determine if the sanction imposed by the respective governing body is adequate, not illegal, not contrary to public policy, appropriate to the level of guilt and the gravity of the violation,²⁸¹ and proportionate—which means that it has to be reasonably required in search of a justifiable aim.²⁸² In addition, it has to be non-discriminatory in the sense that an equal treatment has to be given to similar situations.²⁸³ A panel ordinarily defers to the sanction imposed by a federation given their expertise in governing their sport and objectives unless the sanction is found, based on the above criteria, “evidently and grossly disproportionate”.²⁸⁴

Thus, where the sanction is a life-time ban, the CAS generally considers that the fact of adding a fine to it makes the whole sanction disproportionate because the ban already has a financial effect by affecting the future earnings of the condemned, while also considering that where integrity was sought to be protected, harming individual privacy and a sports person’s development was justified.²⁸⁵ Life-time bans were also mitigated in absence of evidence of extent of actual involvement in the fix.²⁸⁶ Exemplary life-time bans were also considered suitable given a sport’s peculiar susceptibility to fixing.²⁸⁷

Still, as regards proportionality, an alleviation of the sports sanction cannot be obtained by alleging that a prison sentence has been pronounced in the same case, whereas that criminal sentence has been mitigated because a sports sanction would also be pronounced. This would be tantamount to benefiting twice from the same mitigating circumstance.²⁸⁸ Finally, doping’s scale of sanctions has also been used as guidance again.²⁸⁹

Moreover, CAS awards steer clear of making a link between the standard of proof and the sanction. It is not the case, therefore, that a lower sanction would directly be warranted because a higher degree of evidence was not available.²⁹⁰ The standard of evidence is always applicable the same way, being the need to prove guilt which leads to a sanction that flows from the degree of guilt (and not from the strength of the evidence). Yet, where evidence was inadequate for CAS’s satisfaction, despite reversal of lower fora conviction, costs were imposed, as it was the suspicious behaviour which led to the proceedings in the first place and the Panel could not rule out wrongdoing.²⁹¹

All in all, in the field of manipulation of sports competitions, CAS awards confirm, to a very large extent, the sanctions imposed by the lower sporting bodies.

9 Conclusion

The review of these thirty CAS awards allows us to draw several conclusions and to identify a few open questions.

First, from a quantitative perspective, we found that while there was a peak of CAS cases in the years 2011–2014, there was a decline since 2015. Seeing the entry into force of the Macolin Convention in 2019, might trigger the conclusion that this instrument comes too late, since the phenomenon has been decreasing for several years now. Obviously, such a view would be tantamount to forgetting that the CAS awards only represent the tip of the iceberg. For its part, the Macolin Convention goes much further than the questions dealt with in the CAS awards, notably because it tends to combat the phenomenon on the wide scale of all sports at all levels, and not only top-level sport (Fig. 1).

Fig. 1.

Represents the number of cases of manipulation of sports competitions brought to the CAS annually

Second, we observe that there is a very strong overrepresentation of cases related to football, with a smaller number of cases involving tennis and cricket. Nevertheless, the existence of match fixing cases in other sports, such as skiing and bridge, shows that the phenomenon is clearly not restricted to a particular sport or category of sports (teams or individuals, for example) (Fig. 2).

Fig. 2

represents the number of cases of manipulation of sports competitions brought to the CAS per sport concerned.

Third, the ne bis in idem principle (double jeopardy) as applied by the CAS panels requires, in our opinion, a more in-depth consideration in future awards. Indeed, the panels are regularly confronted with cases in which administrative, disciplinary, penal and/or civil sanctions have been pronounced for the same case of manipulation of sports competition²⁹² and at different levels (national and international, courts and sports bodies, administrative or disciplinary).²⁹³

Recurrently, the CAS panels conclude that there is no violation of the principle of ne bis in idem by considering that the various sanctions are not of the same nature and are therefore not likely to constitute double jeopardy, Lao Toyota being a notable exception.²⁹⁴ Nevertheless, it remains worrisome to note that the same person may be subject to several sanctions for the same act on the sole basis of the difference in the legal nature of each of them. The result of such an interpretation of the ne bis in idem principle is all the more questionable when it leads to several sanctions that not only bear the same name (for example, “fine”), but that are exactly the same from the individual’s perspective (since they all affect his/her patrimony, in the example here above), even if their legal nature is indeed different.

Sometimes—nevertheless only if the legal nature of both sanctions is the same—the CAS corrects this problem by considering that the double penalty becomes disproportionate. While considered necessary for setting an example, particularly in susceptible sports on the one hand, on the other, for example, a financial penalty in addition to a life-time ban, is considered excessive as the latter would, in any case, have an additional financial effect on a player by affecting his/her future earnings²⁹⁵.

The issue of life bans (isolated from any other sanctions) may be delicate in the high-performance sporting context, where an athlete’s career only lasts for a few years; therefore, it can be argued that a ban for eight years (similar to the maximum ban applicable in doping offences) is efficient and deterrent enough.²⁹⁶ Life-time bans have also been considered disproportionate based on the existence of mitigating factors, such as no proof of actual involvement in the fix and the effect on an athlete’s career.²⁹⁷

Fourth, the principle of legal certainty as apparent from the CAS jurisprudence is worth a more in-depth consideration. Generally, most CAS awards refer to prior awards on various aspects, including in awards related to match-fixing, and panels are unlikely to depart significantly from this practice.²⁹⁸ Though not obligated to follow precedent, they tend to do so in the interest of legal certainty.²⁹⁹ It has been concluded that this is closer to the civil law practice of “jurisprudence constante” (or non-deviation except when clear error or injustice shall result) than common law’s stare decisis.³⁰⁰ Across the studied match-fixing awards, starting with Benfica and Guimarães, CAS panels have referenced prior awards noting the importance of certainty, but chosen whether to deviate or not from them, per case.

This notably triggers a potential problem regarding the consistent interpretation of the same provisions (as seen in the awards involving UEFA regulations, notably in Fenerbahçe and Skënderbeu), standard of proof, and quantum of sanction (in cases arising having the same facts such as those of Asif and Butt, or within the same sport, such as for life-bans in tennis as in Savic, or for the same objective of deterrence given the value of preserving integrity). Also, panels have regularly borrowed from doping jurisprudence, to lend further consistency across CAS disciplinary sanctions; yet, at the same time, they note categorically that the strict degree of certainty as in criminal procedure is unrequired given the hybrid nature of proceedings as seen in Skënderbeu II. In Phnom Penh, for instance, the panel categorically noted prior awards on attribution of officials’ acts to a club but chose to deviate from them.

Given the recurrence of match-fixing cases, the particular nature of this threat and the current absence of a harmonized approach at the level of the international sport regulators, it is thus probable that CAS jurisprudence will continue to develop in the coming years, thus setting new milestones for the contouring of the rather “amorphous” current framework.