Introduction

Context and relevance of study

Manipulation of competitions has long plagued the sport industry, affecting almost every sport over time,Footnote 1 propelled in particular by certain factors such as volume of bets and quantum of money involved, inconspicuous nature of certain leagues or matches, advent of the internet, ineffective state and other legislation and, most recently, spurred on by pandemic-related economic effects.Footnote 2

For manipulation offences in sport, primary action, whether or not in parallel with state authorities, is ordinarily initiated by the respective governing body in the sport (“sport justice”) against an actor engaging in such an offence.Footnote 3 Initially, manipulation was an offence grouped with general corruption within codes of conduct or ethics, if at all—no consistent approach across federations was present. With the increase in prevalence and of its profile as a threat to integrity, as well as endeavours such as the IOC’s issued studies,Footnote 4 and 2015 Olympic Movement Code on Prevention of the Manipulation of Competitions (“IOC 2016 Code”) serving as a model set of regulations compliant with leading international standards codified within the Council of Europe’s Macolin Convention,Footnote 5 a number of international federations (“IF”s), adopted dedicated provisions or the IOC 2016 Code itself as a whole, such provisions continuing to apply to date.

Studying these IF’s regulations and trends across them thus assumes immense importance, in no small part as their frequent application in the first instance often results in severe consequences in long-term ineligibility for athletes, often final or not appealed from, as seen below. The specificity of drafting within provisions has important implications, including for certainty of defining an offence and its elements (for instance, including reporting obligations or negligent behaviour); types and consistency in awarding sanctions across sports and within a sport/discipline for the same offence; as well as for more nuanced items within procedure such as evidence, notoriously problematic due to the clandestine nature of acts and limited investigative ability of sporting bodies compared to state bodies. This in turn is regularly seen to have implications within adjudication on elements such as standard of proof applicable, also increasingly codified, and when the burden of proof might shift from one party to another.

Scope

This study is limited to a review of IF regulations, and specifically the definition of manipulation therein, of all IFs with disciplines currently within the Olympic or Paralympic Games (a sub-set of all the federations recognized by the International Olympic Committee (“IOC”)) as well as, for completeness and based on prevalence of relevant offences, a few additional bodies’ regulations, international and regional.Footnote 6 Definitions of ancillary, but connected offences usually found defined together with the “core” offence of manipulation in applicable regulations, including (illegal) betting, (dealing in) insider information, (engaging in) corrupt conduct, failing to report and cooperate are briefly looked at, without particulars of specific regulations applicable and regulating betting or reporting regulations, where present, for example.

Cumulatively, 43 IFs (Olympic/Paralympic and Non-Olympic),Footnote 7 1 regional governing body’s regulations (Union of European Football Associations, “UEFA”) and certain other miscellaneous regulations such as the IOC 2016 Code and Tokyo 2020 Regulations are studied. All graphs include these 43 IFs studied. The study takes into account specific decisions issued by IF internal adjudicatory processes where relevant.

Each sport, IF, abbreviation for each IF, respective relevant applicable regulation (and provision therein, if needed), and its source are systematically listed in the Annex to this article. The study below looks at IF regulations as effective in December 2020.Footnote 8

Analysis method

Each IF’s regulations (both specific to manipulation but also provisions from general procedure as would be applicable to manipulation offences) were assimilated and then comparatively analysed for elements within the definition (Part II below), parallel offences (Part III), sanctions (Part IV) and particulars of the specifically applicable dispute resolution processes (Part V). Statistical trends through noting common factors across these elements are represented as graphs to assess common features in how governing IFs regulations treat the same offences.

Definition of competition manipulation by International Sports Federations

Existence of specific regulations for the offence of manipulation

The vast majority of IFs studied have specific regulations on the manipulation of sports competitions even if, for some of them, these specific rules are limited to a few behaviours and provide that, for the rest, the IOC’s 2016 Code applies (Fig. 1). Federations that do not have specific dedicated regulations of their own generally refer to the IOC’s 2016 Code, by incorporation or through adoption of its provisions verbatim either in entirety or in part (ICF,Footnote 9 FIG,Footnote 10 IHF,Footnote 11 ISSF,Footnote 12 WCF,Footnote 13 WBSCFootnote 14 and WSFootnote 15).

Fig. 1
figure 1

IFs with/without specific rules against manipulation of competitions

Only four federations do not provide for any specific rules in terms of the manipulation of sports competitions (IBSF, FIL, WDSF and IFSC) – which does not mean they do not punish match fixing categorically. Of these, one (FILFootnote 16) nevertheless incorporates the IOC 2016 Code for limited purposes, another (IFSCFootnote 17) makes a reference to the IOC 2016 Code on its website as part of consent terms for athlete participation, and a third one includes certain provisions in its code of ethics (WDSFFootnote 18).

Most IF regulations defer to applicable rules at a “major event” (as defined),Footnote 19 such as any edition of the Olympic or Paralympic Games or a specific sport’s world cup, for governance of offences occurring at that sport. For example, at the Tokyo 2020 summer Olympic and Paralympic Games of June 2021, the issued set of “ethics” incorporated in their entirety the IOC 2016 Code,Footnote 20 this code having been first applied at the games in Rio de Janeiro in 2016.Footnote 21 Thus, a manipulation offence would be treated under definitions provided by the code, as well as procedure specified therein.

Sanctionable behaviour: the “manipulation”

At the outset, it is important to note that terms such as “manipulation”, “match fixing” and “competition fixing” are often used interchangeably at the international level both in legislation and academically,Footnote 22 and this further differs at the national level.Footnote 23

Generally, it has been noted by several authors,Footnote 24 but also in jurisprudence at the federation level as well as the CAS level that many different behaviours might be brought under the term “manipulation”, both ratione materiae and personae,Footnote 25 including conduct which might not otherwise be illegal,Footnote 26 or simply raise presumption of commission of an offence.Footnote 27 Across IFs studied, the term “manipulation” is widely used alongside other offences, with two basic types of definitions of structures for the specific offence, whether or not termed “manipulation” can be observed, while some, and notably prominent, federations, maintain unique definitions.

The first broad type reflects wording in the IOC 2016 CodeFootnote 28 and the Macolin Convention,Footnote 29 making an offence any act or omission involving (as well as complicity—aiding, abetting, encouraging, conspiring or attempting an act which could “culminate” in an offence) the alteration of the course or result of a sporting competition or a part thereof, to remove whole or part of its unpredictable nature, whether or not for or any benefit (as defined) to the actor, or to a third party, and whether or not done intentionally, negligently or fraudulently.Footnote 30 Factors not relevant to this determination are usually listed including participation/attendance in the same event, outcome of event, nature of such outcome, receipt of consideration, effect on an actor’s performance and violation of any technical rules.Footnote 31

The second type of definition which many federations have typically exist within older policies encompassing all types of conduct or ethics within which manipulation can be brought, even if framed after 2016.Footnote 32 Finally, there exist miscellaneous definitions, which are important to mention as they are notably present among IFs which see a large number of cases, such as FIFAFootnote 33 and ITF,Footnote 34 certain others which have high profile,Footnote 35 and new federations such as WDSF.Footnote 36 In case of the ITF’s Tennis Anti-Corruption Program, 2020 (“TACP, 2020”), the manipulation offences are laid down as instances of common occurrences within the sport of tennis based on how matches are often manipulated.Footnote 37

Active/passive

Regulations studied contain both active as well as passive manipulation of sports competitions. Moreover, 39 of the 43 federations include omission within punishable behaviour.Footnote 38 The IOC 2016 Code also has language that includes this which has then been adopted by IFs who have incorporated the code or adopted similar language.Footnote 39

In certain instances, common language is used across disciplinary offences or other violations to include within all of them the omission or passive contributions, bringing within its ambit aiding, abetting, other complicit, encouraging, inciting, inducing, assisting or concealing behaviour.Footnote 40

Intention/negligence

An intentional act is behaviour committed with conscience and will; conversely, negligent behaviour is committed without conscience and/or without will, while nevertheless remaining at fault through culpable improvidence that can be blamed on the perpetrator.Footnote 41

If intention is provided for by all the IFs that have regulated the manipulation of competitions (the only unclear situation being the IFSCFootnote 42), only some of them also incriminate negligent behaviours, either explicitly or through other texts (such as a code of ethics, for example) extending the scope of application to negligence (Fig. 2).Footnote 43 Among the IFs that do not expressly provide for negligence, some nevertheless provide for the punishability of negligence when certain conditions are met, such as a serious damage to the reputation of the sport or the concerned federation (IBSFFootnote 44), or by stating, for instance, that “ignorance” or “having made a mistake” are not a defence.Footnote 45

Fig. 2
figure 2

Subjective conditions in IF regulations

Result of competition/other parts of the event/course of the competition

Save for one IF (IFSC) where the applicable provisions are general ones not defining manipulation,Footnote 46 all applicable federation regulations contain language which covers offences related to manipulation which affect not only the final result of the event, competition or other activity participated in or bet on, but also the course or a component of such result of events, components of events or competitions, whether affected or not.Footnote 47

Financial/non-financial purpose and definition of “benefit”

The question arising here is whether the regulations aim to punish only those acts of manipulation that produce financial results or whether the punishability is extended to acts without immediate financial consequences. These include, for example, acts committed with the sole aim of obtaining a qualification or setting a record.Footnote 48Certain instruments, such as the Macolin Convention bring intangible benefits such as advancing in competition within “manipulation”.Footnote 49 Yet, there remains is varying opinion on criminalization of acts such as tactical losses.Footnote 50

The study of IF regulations shows that both financial and non-financial objectives are in IF regulations’ sights (usually present in the definition of “benefit”; Fig. 3). This aspect is usually a component of the definition of “benefit”. Many IFs, particularly those having incorporated the IOC 2016 Code,Footnote 51 have definitions including the elements of (i) the direct or indirect (ii) receipt or provision of (iii) money or the equivalent.Footnote 52 Even those IFs which do not adopt the IOC 2016 Code definition strictly might still use this same definition of benefit.Footnote 53

Fig. 3
figure 3

Purpose of manipulation—financial and non-financial

IFs which structure their regulations more uniquely, including those whose regulations are prominently applied, may (or may not) have alternative ways to define and apply the term “benefit”. FIFA, for instance, does not include the element of “benefit” within its definition of manipulation at all,Footnote 54 while the ITF’s TACP, 2020 defines the more limited term “Consideration”,Footnote 55 and ICC uses “Reward”.Footnote 56

Participants, connected persons and beneficiaries (for own/for others)

Across the IFs, either the term “Participants”,Footnote 57 “Connected Persons”Footnote 58 or alternative termsFootnote 59 might be used for the purposes of limiting which persons (and sometimes bodies) might be brought under the scope of the respective regulation, or could commit an offence thereunder. Some use a combination thereof, where the definition of a “Participant” will include that of a “Connected Person”, but be a sub-set of “Persons” as defined, which in turn might be a sub-set then of a wider term encompassing additional persons who could commit manipulation (or other integrity offences).Footnote 60

The actors which might be brought under manipulation regulations or definitions vary across IFs; whether or not an exhaustive list of entities to who the regulations are applicable, and might extend from parties ranging from continental and member federations to individual athletes, judges/referees right up to anyone authorized to “co-operate, collaborate or participate” in a sport’s activities.Footnote 61 Parties that aid, abet, encourage conspiring or contribute by their behaviour are also usually included within the scope of application.Footnote 62 Finally, certain IFs have extended possibility to bring additional persons within the ambit of their provisions, such as the ICC’s Excluded Persons Policy, 2021.Footnote 63

Finally, ratione personae, through adjudicated IF decisions and on appeal, have been seen to include a range of actors as noted by authors before.Footnote 64 This could include both natural and legal persons, with clubs, often held strictly liable for acts of their personnel or representatives, as seen most recently in the case of Kenyan club Zoo FCFootnote 65 and confirmed in other cases by CAS awards on appeal.Footnote 66 This distinction/categorization is also used in certain regulations to vary which sanctions are awarded for the same offence.Footnote 67

These actors, i.e. those to be proceeded against committing prohibited acts, might, or might not be “beneficiaries” of such conduct. Thus, as regards the beneficiaries of the manipulation, the question arises as to whether the act is punishable only if it brings a benefit to the perpetrator (as defined) or if it is also punishable when it is committed for the benefit of a third party. Such distinction is either found in the within the definition of the term “manipulation” itself,Footnote 68 or through the language of the provision implicitly.Footnote 69

Here again, the intention of most IFs is clearly to target both situations in their regulations (Fig. 4).

Fig. 4
figure 4

Beneficiaries of manipulations—self and/or others

Connected to the definition of a “Participant”, and relevant to where/the jurisdiction in which manipulation offences take place, is the definition of what type of situation such regulations come into play. Certain IFs bring all types of activities within their purview,Footnote 70 while others limit operations of manipulation specific regulations only to certain “Competitions”.Footnote 71 Finally, as also mentioned above many IFs make deference to major event rules for manipulation offences there.Footnote 72

Relationship to, and definition of “betting”

It is observed that most IFs punish manipulation-related offences in both betting and non-betting sporting contexts (Fig. 5),Footnote 73 and usually, betting-related offences are independently defined within the same set of regulations,Footnote 74 with the act of betting itself being an independent defined term, whether termed “bets”, “betting”, “sports betting” or “wager”.Footnote 75 In only few instances, betting specific regulations are present without there being a corresponding wider provision to define or sanction all other forms of manipulation.Footnote 76

Fig. 5
figure 5

Inclusion of sporting and/or betting events

Other offences related to the manipulation of a sport competition

Under the provisions of regulations applicable to manipulation offences, most federations also define connected, overlapping or other corruption-related offences or sanctionable behaviour. In some cases, it is an overarching previous provision found within applicable regulations such as a code of ethics, prior to a specific set of regulations on competition manipulation being issued. These provisions remain most relevant in situation where no independent manipulation provision is yet defined.Footnote 77 These could include behaviour under “bringing the sport into disrepute”, “serious misconduct”, and similarly worded behaviour.

Very notably, ITF, under the TACP and the ITF Constitution brings all connected conduct under a robust definition termed “Corruption Offences” which includes as well all the ancillary sanctionable conduct described below. Article D.1 of the TACP reads:

Corruption Offences: …d. No Covered Person shall, directly or indirectly, contrive the outcome, or any other aspect, of any Event. e. No Covered Person shall, directly or indirectly, facilitate any Player to not use his or her best efforts in any Event. f. No Covered Person shall, directly or indirectly, receive any money, benefit or Consideration on the basis of not giving their best efforts in any Event and/or negatively influencing another Player’s best efforts in any Event. g. No Covered Person shall, directly or indirectly, offer or provide any money, benefit or Consideration to any other Covered Person with the intention of negatively influencing a Player’s best efforts in any Event. …Footnote 78

Usually, the offences of betting on competitions defined to be of a specific interest to the subject of the regulation (see above), corruption or corrupt conduct through the acceptance of a defined set of “benefits” whether or not connected to manipulation, and (dealing in—including using, disclosing or receiving any benefit in connection with) insider information are separately defined, over and above the above described offence of competition manipulation. To note, is the distinction made between betting in general and the specification of only certain kinds of betting as prohibited.Footnote 79 Certain federations also bring under the same regulations the prohibition of receipt of gifts or benefits by officials, often above a certain value.Footnote 80 Finally, failure to report, disclose and cooperate with investigations are also independently defined as a related offence across many federation regulations.Footnote 81

In some instances, the offence might be specific to the sport—a relevant recent example is WDSF, where the margin of subjectivity in awarding scores across disciplines is policed specifically to curb the ability for manipulation to occur, through a common applicable code of ethics, with an independent provision within the code prohibiting direct or indirect influence of the course or result of a competition as well.Footnote 82 Another example of specific provisions is the prohibition from participation in events organized by betting operators by the ISU.Footnote 83

Finally, it is worth making note of the structure under UEFA’s regulations due to the sheer number of cases adjudicated under their rules as applicable to clubs.Footnote 84 Independent provisions remain present for other actors,Footnote 85 with connected liability for clubs.Footnote 86 Before 2007, manipulation was proceeded against under common disciplinary rules,Footnote 87 where a residuary provision captured all offences not specifically defined.Footnote 88 Determined to not see clubs involved in manipulation participating in the League without consequence,Footnote 89 since 2007, UEFA tied eligibility to prior involvement in fixing introducing a two-stage process: a primary administrative/eligibility measure, excluded a club for a single season of competitions;Footnote 90 and a secondary disciplinary/sanctionary measure, which has no maximum duration in sanction, the primary being awarded impact on the latter.Footnote 91

Sanctions

IOC’s sanctioning guidelines

To achieve some degree of harmonization among the very disparate IF regulations, the IOC has published in 2018 Guidelines for Sports Organizations on the Sanctioning of Competition Manipulation (the “IOC Sanctioning Guidelines”).Footnote 92 This document proposes a coordinated approach on key aspects, such as factors which influence sanctions for match fixing (aggravating and mitigating), and importantly, on the level of sanctions for four key offences: betting, manipulation of sport competitions and corrupt conduct, inside information and failure to report and/or to cooperate.

For example, for the “core” offence of manipulation of sport competitions and corrupt conduct,Footnote 93 the IOC Sanctioning Guidelines recommend a sanction of “approx. 4 years ban and fine” for the betting-related offence, and “approx. 2 years ban and fine” for the non-betting-related offence. Also, under the IOC Sanctioning Guidelines, recommended aggravating/ mitigating factors globally to consider are: (1) whether the Participant is betting on a competition she/he is participating in; (2) the number and size of the bets; and (3) addiction to betting or other specific personal circumstances.Footnote 94

Another offence considered in the IOC Sanctioning Guidelines is the failure to cooperate, which has two faces: (1) failure to report, meaning that the participant has failed to report, at the first available opportunity, full details of any approaches or invitations received by himself or by another participant to engage in conduct or incidents that could amount to match fixing (Article 2.5 of the IOC 2016 Code), and (2) failure to cooperate with authorities during the investigation, including obstructing such investigation (Article 2.6 of the IOC 2016 Code). For failure to report or to cooperate, the IOC generally recommends a sanction of “0–2 years ban and a fine”; however, for obstructing the investigation (including concealing, tampering with, or destroying any relevant documentation or other information), the recommended sanction is slightly more severe, i.e. “1-2 years ban and a fine”. Naturally, mitigating/aggravating factors may apply.

These recommendations have had an important impact on the sanctioning regime applied by Olympic and non-Olympic IFs, many of which have chosen to incorporate them in their own regulations on match fixing. This is explained in details hereinafter.

Types of sanctions in IF regulations

General sanctions

The sanctions provided for by the various regulations of the international federations are of several kinds. They range from warning (with or without a period of probation) to exclusion for life, including reprimand, disqualification, return of award, fine, suspension,Footnote 95 among others (Fig. 6). Most include provisional suspension pending investigation.Footnote 96 Sanctions could also be categorized or listed differently for when applied to a natural person or to a legal persons/entity.Footnote 97

Fig 6
figure 6

Types of sanctions and measures

Fines are foreseen in almost all the IFs’ regulations to sanction competition manipulation. Sometimes its amount is fixed according to the advantage received by the offender,Footnote 98 sometimes it is limited by a maximum amount (which can vary according to whether it is imposed on a natural person or a legal entityFootnote 99 and/or according to the seriousness of the act committedFootnote 100) and sometimes it is unlimited/unspecified in amount.Footnote 101 Furthermore, some regulations provide that it may be combined with other sanctions,Footnote 102 or factors like financial hardships should be factored into the amount.Footnote 103

Under the terms ban, suspension or ineligibility, one means a ban on participating in the future sporting events or administrative functions, a future that may be very limited in time but also very distant, if not unlimited.Footnote 104 All the IFs know such suspensions that can range from temporary to perpetual, including suspensions whose duration is fixed or proportionate to the fault committed, sometimes limited in terms of both their minimum and maximum.Footnote 105 These suspensions can also be total (in the sense that they apply to any activity related to the sport supervised by the federation)Footnote 106 or partial (i.e. limited to certain activities supervised by the federation).Footnote 107

Annulment of the result, deductions of points, return of awards and/or expulsion from the current competition, bans from venues or removal from held positions/membership from a body are also widely known sanctions in the regulations of the federations.Footnote 108

In addition to this, some federations now award restitution, education and rehabilitation programmes, social work, reprimands (sometimes public ones), payment of procedural costs, compensation to victims, an administrative fine (independent of the fine imposed as a penalty), etc. The most “positive” measures envisaged (in the sense that they encourage the promotion of human beings rather than their stigmatization, elimination and punishment), i.e. rehabilitation programmes, education and social work, are provided for by the FINA,Footnote 109 FIFA,Footnote 110 IBU,Footnote 111 WKFFootnote 112 and UEFA.Footnote 113

It is important to note that the type of sanction present in regulations of IFs assumes significance as it is, in most cases, deemed final even if appealed from (usually to the CAS).Footnote 114 It is not interfered with based on the rationale of IF having expertise in the field unless found to be grossly and evidently disproportionate or irrational,Footnote 115 the CAS having upheld a majority of decisions appealed to it from the IF dispute resolution mechanisms, including life bans.Footnote 116

Specific sanction of life bans

The question of life bans assumes importance given this finality in awarding such bans. Recent (2021) manipulation-related decisions at the IF level have mostly seen life bans or very long, career ending bans—this is at least the case across the most prominent sports/IF from a match-fixing perspective being FIFA,Footnote 117 ITF (5 life bans in 2021)Footnote 118 and the ICC.Footnote 119 BWF, for example, has also awarded life bans (to a sponsor/brand representative and three athletes for coordinating and organizing the fixing) and lengthy bans (six to 12 years with fines to other involved athletes),Footnote 120 which are most certainly also career ending for an elite athlete, though similar bans for retired athletes, but who are likely to be involved in the sport as coaches, administrators in the future, could be argued to be insufficient as a deterrent. The most severe sanctions outside of sport (life terms, for example) are often awarded based on the gravity of a crime and only in the rarest of rare circumstances (or equivalent jurisdictional test)—thus the regularity of these in sport, if equivalent, may be debated, and has been applied with more nuance or limited to a range for other disciplinary offences, such as for doping, for example.Footnote 121

Further, it is noted that, from a comparative perspective, life bans are similar to certain criminal or administrative sanctions, such as the interdiction to practice one’s profession or, to some extent, to lifetime detention. A lifetime ban in this context hence equals a type of “sporting death” of the respective person. However, unlike in most similar cases in criminal/administrative law, in sport there are no possibilities to periodically review the sentence with a view to reducing it and to reinserting the banned persons into their sport, nor is there a possibility to obtain grace, in exceptional circumstances. Mutatis mutandis, one may recall that, according to the jurisprudence of the European Court on Human Rights Article 3 (interdiction of torture and of inhuman or degrading treatment or punishment) of the European Convention of Human Rights must be interpreted as requiring reducibility of the sentence, in the sense of a review which allows domestic authorities to “consider whether any changes in the life prisoner are so significant, and such progress towards rehabilitation has been made in the course of the sentence, as to mean that continued detention can no longer be justified on legitimate penological grounds”.Footnote 122 While potentially a stretch, this is relevant as further rights considerations are sought to be brought into IF regulations.Footnote 123 It is thus arguable that awarding a life ban (especially as a first punishment, in the absence of a gradual scale of sanction) without any concrete possibility to reduce it in the future, raises serious issues as to its proportionality and its compatibility with fundamental principles of law.

Additionally, the issuance of life bans with this regularity requires consideration at the purpose of sanction in these contexts—whether retributive, deterrence or rehabilitation. Having noted the option of rehabilitative sanctions such as social work and education as well that a choice is made to issue life bans indicates a retributive and deterrent approach, which might serve the purpose of keeping such elements out of sport for such time to make sport clean (for the society), but not for assisting the individual. In such cases, the purpose of disciplinary sanctions in sport, could be seen to be different from that in the context of criminal law in society, otherwise.

The question of purpose however, remains independent of the consideration of proportionality, also significant as federation decisions are often final (as noted above). This made determination of the quantum an important exercise. To this end, IF bodies may consider aggravating and mitigating factors, or other guidelines, as discussed below, if so codified. Such factors may also sometimes result in the CAS concluding differently.Footnote 124

Aggravating and mitigating factors

Aggravating and mitigating factors are usually listed in connection with sanctions, independent of factors listed as relevant (or “not relevant”) to establishing manipulation. Usually, these include age/youth/experience/inexperience, disciplinary record/prior violations, number of breaches, significance of benefit, potential to affect course/result, whether breach was part of a broader scheme, admission of violation/cooperation/assistance/remorseFootnote 125 (Fig. 7), and could also include, the nature of the breach(es), the degree of fault, the harm that the breach(es) has/have done to the sport, the need to deter future breaches, and other specific factors.Footnote 126 Certain guidelines on sanctioning require, for example, considerations of “level of responsibility orequity”.Footnote 127 Certain federations provide for a strict tabulated range per sanctions based on how a specific manipulation offence is committed.Footnote 128

Fig. 7
figure 7

Aggravating and mitigating factors in sanctioning

Such factors may be seen in the regulations themselves,Footnote 129 or even specifically applied in adjudication based on fact—the ICC’s ACU has taken into account cooperation, admission of breach, remorse, good prior record, lack of substantial damage to commercial value or public interest or matches and interestingly, the lack of effect on the outcome of the match concerned, in mitigating sentences.Footnote 130 Similarly, the CAS takes into account such factors should an IF decision be overturned.Footnote 131

It is interesting to note that certain federations make a distinction in their applicable codes between sanctions awarded for the same offences depending on factors involved (independent of the definition of the crime) such as—“fraud” (intentional breach), “fault” (whether or not intentional), “involvement” (indirect) and “attempting” (result agnostic) in their sections addressing sanctions.Footnote 132 Similar structure can also be observed in certain IF’s sentencing guidelines applicable to all disciplinary offences specific to certain forms of cheating found in a sport such as bridge.Footnote 133

It might be contested that the myriad factors that are present for consideration across federation guidelines result in a large amount of discretion with only vague guidance on how it is to be exercised. Comparing awards within, across sports and with other processes under law providing varied outcomes, compounds this further.Footnote 134 Finally, it may also be observed that factors specified are often repetitive, with certain factors (non-cooperation, for instance) being offences unto themselves.

Disciplinary procedure, dispute resolution rules and procedural issues

Existence of separate dispute resolution procedure

Another question is whether there are procedures specific to an IF and, more particularly, whether there is a procedure designed to deal with cases of sports competition manipulation separately. While federation-specific procedure exists in all IFs, only some of them have an independent procedure for match-fixing cases (Fig. 8). This even if some of them know certain specific details while mainly applying a common procedure to all sports offences.

Fig. 8
figure 8

General federation disciplinary procedure and specific procedure where applied

Internal and external levels of regulation

Sanctions for competition manipulation may intervene at different levels. First, as noted above, disciplinary sanctions are applied by sports bodies, according to their internal (private) sanctions system (“sport justice”, the sanctions being based in contractFootnote 135). Second, sanctions, including criminal, may be applied by public authorities (“state justice”). Depending on the applicable national law, the latter may be of a civil, administrative/disciplinary or criminal nature.Footnote 136 These are considered complementary.Footnote 137 Because they are different in their nature, these sanctions may be applied simultaneously without violating the ne bis in idem principle.Footnote 138

Disciplinary sanctions issued in initial proceedings by federations internally (the process looked at later in this section) may be challenged in front of the sports bodies’ internal jurisdictional bodies and in arbitration proceedings. The jurisdictional bodies created by sport associations around the world pursue the same goal: to settle disputes, to mediate and to guarantee the correct interpretation of sporting rules and regulations.Footnote 139

At the international level, IF bodies that have issued numerous decisions on manipulation offences include FIFA’s Disciplinary Body and Appeals Body.Footnote 140 Similarly, UEFA’s Control, Ethics and Disciplinary Body, and Appeals Body have issued numerous decisions.Footnote 141 Both of these sports bodies together contribute to more than 20 of around 30 to 40 cases on manipulation before the CAS (as had arisen as of the date of this study), with awards on UEFA club eligibility forming a further majority among those.Footnote 142

Outside of these, notable federations which regularly issue internal decisions include the ITF through the International Tennis Integrity Agency (“ITIA”) which administers the TACP, 2020. At the time of study,  the ITIA lists 23 instances of persons serving sanctions not amounting to life bans and 26 instances of persons serving life bans (one such decisions being for life bans for three persons).Footnote 143 Tennis governing bodiesFootnote 144 overall had also had three cases appealed to the CAS where two life bans and one 5-year ineligibility awarded by tennis governing bodies were upheld.Footnote 145

Finally, but not in the least, the ICC has pronounced four decisions through its internal disputes mechanism already on corruption and fixing offences in 2021.Footnote 146 More recently, 2 cases have involved awarding 8 years of ineligibility each for conduct violating many provisions of the ICC Anti-Corruption Code, including dealing in insider information.Footnote 147 Certain ICC awards are also examples of awards that have been appealed to the CAS and issued alongside ongoing state proceedings, with parallel state proceedings, each factoring in the other.Footnote 148

Among the international arbitration tribunals, the CAS was the most solicited insofar as disciplinary match-fixing proceedings are concerned, being the forum to which most federations provide for appeals from their internal disciplinary proceedings.Footnote 149 As of the time of study, the cases dealt with by the CAS concerned five different sports.Footnote 150 The CAS awards may be ultimately challenged in front of the Swiss Federal Tribunal (“SFT”), on the limited grounds enumerated the applicable provisions of the Swiss Federal Statute of Private International Law.Footnote 151 As of the time of study, the SFT had not adjudicated any case related to competition manipulation in appeal from a CAS award.

Applicable procedure within a federation

At the federation level, each international federation contains a distinct dispute resolution mechanism through which disciplinary matters are processed—i.e. a manipulation offence sought to be proceeded against by any of these federations in any discipline of any Olympic sport, has a defined channel under through which it can and will be addressed. Among these, some federations have procedures unique to manipulation offences,Footnote 152 some have a combination of specific regulations and certain provisions applicable from common procedures or sanctions, or make specific exemptions. The rest have common processes for all disciplinary and/or other disputes within the federationFootnote 153. Across federations, these procedures are found in dedicated regulations addressing manipulation offences, where, for instance their [above described] definitions are located. If not, the other sources of applicable provisions are spread across (and more commonly prior to the IOC’s 2016 Code) the federation’s common code of ethics, or overarching statutes/constitution.

Certain bodies have more specific reporting, investigation, prosecution and adjudication rules which are applicable.Footnote 154 Procedural rights are laid down across most federation regulations and include the right to be informed, right to fair timely and impartial trial, right to a written defence and the right to be accompanied and/or represented. Most federation also provide which authority is to investigate and stages of progress from investigation to adjudication, for which burden and standard of proof is then described, as well as certain specific circumstances in which burden may shift.Footnote 155

The standard of proof may range from balance of probabilities to comfortable satisfaction (sometimes specifically stated as greater than a balance of probability but less than proof beyond reasonable doubt,Footnote 156 the same as seen at the CAS) with a prevalence of the latter. Certain rules specifically address the standard of admissibility of different types of evidence, sometimes with an illustrative list, as well as whether or not ordinary judicial rules on admissibility are applicable.

Keeping in line with this, certain IFs regulations, in line with certain CAS awards,Footnote 157 state categorically that applicable procedure is not intended to be subject to or limited by requirements and legal standards applicable to criminal proceedings or employment matters but was independent and autonomous.Footnote 158 Finally, limitation periods are also described ranging from as few as 3 yearsFootnote 159 to no statute of limitations on such offences,Footnote 160 with certain independent procedure for “smaller” offences.Footnote 161

Conclusions

This research has allowed us to identify the following take-home points in IF regulations as they apply to competition manipulation.

First, quantitatively, it was found that, as of the time of study, the vast majority of the 43 studied IFs have adopted regulations on the manipulation of sports competitions, either by producing their own detailed regulations or by reference to the IOC’s 2016 Code.

Second, on the regulations’ substance, it was found that applicable provisions across the offences, as at the time of being studied, remain, in their majority, robust, relevant and updated. This may also be considered an indicator of the elaborate thought given to tackling this offence relative to others—heightened attention is seen in certain sports, such as tennis or cricket, a high profile, visible sports, with many cases and high susceptibility. Even so, within regulations, the existence, or lack thereof, of a specific set of regulations, or dispute resolution mechanism assumes relevance given, as noted otherwise in awards of the CAS, or decisions of other bodies such as FIFA’s DRC that evidence within manipulation is sought to be hidden, IF investigative powers are not the same as national authorities, the offence being considered serious and the objective of preserving integrity and competition very crucial.Footnote 162

The most important variations across sports concern basic definitions of the offence, and various elements thereof, as well as the quantum of sanctions (fines and importantly ineligibility and bans), which vary vastly. In this respect, it is important to note that the prevalence of life bans is significant, particularly in the context of proportionality (certain sports having a much smaller maximum ban), impact on athlete careers and the presence of alternative sanctions rooted in rehabilitation.

Yet, on a more general level, it was found that there exists disparity in detail or attention within IF regulations, which could indicate the relative significance associated by sport administration in addressing manipulation-related offences, compared to the treatment of other integrity-related offences, and in particular doping.Footnote 163 Prior opinions have called for re-prioritization of manipulation offences, which in recent times might have slipped in public conscience in the absence of “large-scale” scandals, or increased regulation.Footnote 164

Third, it was concluded that further consistency in procedural provisions across sports is desirable, aided by having uniform procedural standards applicable within a sport for various offences and across sports, given also, that sanctioning could work at various levels. This is also relevant in the light of increasing calls for protection of rights of parties and more specifically athletes, in internal IF adversarial processes.

Last, as a look to the near future, it is noted that newer threats within sports would need more regulatory attention—digital currency being one such example.Footnote 165 Alongside this, growth in certain sports post new challenges. There has been a noted increase in ongoing investigations and sanctions issued across eSport,Footnote 166 and corresponding efforts to combat manipulation therein,Footnote 167 for example. The eSports Integrity Coalition and International Esports Federation regulations are regularly applied but have limited applicability amidst complex ownership, affiliation and governance structures across publishers, national bodies and players, as well as the different context of manipulation (such as through edoping). This makes encapsulating potential actions in a conventional definition challenging in this context.

This research has been made possible due to the support of the Swiss National Science Foundation (SNSF-100011_192497).