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).
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
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
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
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
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).
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
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