Abstract
The purpose of the analysis of this recent CAS award is to show that sports institutions, such as the Lithuanian Football Federation (“LFF”) in this case, may exercise originality in the drafting of rules providing for “light” means of evidence. While practitioners in the sports law environment are rather used to coping with the burden of directly or circumstantially proving (or rebutting) the violations of rules giving rise to sanctions, the LFF Disciplinary Code sets forth the possibility of demonstrating that a match has been fixed on the mere basis of statistical data collected by the betting operators (the “data-based presumption”). The CAS has accepted and endorsed this rule as well as another disciplinary rule of the LFF, according to which, even if cannot be proven that players or clubs have been involved in match manipulation, the players’ suspicious behaviour during a given match, observed by experts or by the CAS Panel itself, results in a presumption of the players’ involvement in the match-fixing and, if such presumption is not rebutted, in their punishment (the “suspicion-based presumption”).
Jorge Ibarrola, LL.M. McGill, is a Swiss registered Attorney-at-Law, practicing as partner with the law firm Libra Law based in Lausanne, Switzerland.
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Notes
- 1.
The author was the counsel for the LFF in the appeals proceedings before the Court of Arbitration for Sport.
- 2.
The BFDS highlights irregular betting movements both pre-match and in-game (live) in all the core betting markets (Asian handicap, Totals and 1X2) from all major European and Asian bookmakers. This anti-fraud system collects information, with the assistance of Sportradar, an organisation that investigates suspicious matches and prepares potential disciplinary cases with a view to preventing and combating sports fraud. Reports are supplied to UEFA’s national integrity officers who start investigations into these matters and may also cooperate with their partners in the national law enforcement authorities. For a more detailed description of the activities of BFDS and Sportradar, in particular in cooperation with UEFA, see Emilio García UEFA’s betting fraud detection system: How does the CAS regard this monitoring tool? 25 January 2017 http://www.asser.nl/SportsLaw/Blog/post/uefa-s-betting-fraud-detection-system-how-does-the-cas-regard-this-monitoring-tool-by-emilio-garcia. Accessed 9 March 2017.
- 3.
CAS 2015/A/4351, Vsl Pakruojo FK et al . v. Lithuanian Football Federation, Award of 13 July 2016, para 52(ii.).
- 4.
Ibid., para 52(v.).
- 5.
Ibid., paras 53–57.
- 6.
Ibid., para 55.
- 7.
CAS 2009/A/1920, FK Pobeda Aleksandar Zabrcanec, Nikolce Zdraveski v. UEFA, Award of 15 April 2010.
- 8.
CAS 2015/A/4351, Vsl Pakruojo FK et al . v. Lithuanian Football Federation, Award of 13 July 2016, paras 54–56.
- 9.
Ibid., para 57.
- 10.
Ibid., para 75 (quoting from Article 66 of the New Disciplinary Code).
- 11.
Ibid., para 80.
- 12.
Ibid., para 81.
- 13.
Ibid., para 84.
- 14.
Ibid., para 85.
- 15.
Ibid., para 88.
- 16.
Ibid., para 89.
- 17.
Ibid., para 92.
- 18.
Ibid., para 95.
- 19.
Ibid., para 99 and the cited jurisprudence CAS 2009/A/1870, World Anti-Doping Agency (WADA) v. Jessica Hardy & United States Anti-Doping Agency (USADA), Award of 21 May 2010.
- 20.
CAS 2015/A/4351, Vsl Pakruojo FK et al . v. Lithuanian Football Federation, Award of 13 July 2016, para 99.
- 21.
CAS 2009/A/1920, FK Pobeda, Aleksandar Zabrcanec, Nikolce Zdraveski v. UEFA, Award of 15 April 2010; CAS 2010/A/2267, 2278, 2279, 2280, 2281, Football Club “Metalist” et al . v. FFU, Award of 2 August 2013.
- 22.
See for doping cases: CAS 2015/A/4059, WADA v. Bellchambers et al ., Australian Football League, ASADA, Award of 11 January 2016; CAS 2010/A/2083, UCI v. Ullrich & Swiss Olympic, Award of 9 February 2012; CAS 2004/O/645, USADA v. M & IAAF, Award of 13 December 2005. The same applies in match-fixing cases, see e.g. CAS 2013/A/3256, Fenerbahçe v. UEFA, Award of 11 April 2014.
- 23.
See WADA, Athlete Biological Passport Operating Guidelines, Version 6.0, at pp. 53–57. Available at https://www.wada-ama.org/sites/default/files/resources/files/guidelines_abp_v6_2017_jan_en.pdf. Accessed 27 March 2017.
- 24.
Viret 2016, p. 729.
- 25.
CAS 2016/A/4650, Klubi Sportiv Skenderbeu v. UEFA, Award of 21 November 2016; see also the comment on such award by Emilio García UEFA’s betting fraud detection system: How does the CAS regard this monitoring tool? 25 January 2017 http://www.asser.nl/SportsLaw/Blog/post/uefa-s-betting-fraud-detection-system-how-does-the-cas-regard-this-monitoring-tool-by-emilio-garcia. Accessed 9 March 2017.
- 26.
CAS 2016/A/4650, Klubi Sportiv Skenderbeu v. UEFA, Award of 21 November 2016, para 82.
- 27.
Ibid., paras 85–86.
- 28.
Ibid., para 87, emphasis added.
- 29.
In fact, in CAS 2011/A/2566, Veerpalu v. FIS, Award of 25 March 2013, the CAS considered that the statistical data on which the disciplinary body bases its findings are not sufficiently elaborated and reliable. Marjolaine Viret comments as follows on such precedent (see Viret 2016, p. 254): “In the matter Veerpalu v. FIS, the main issue at stake was the reliability of the decision limits used for determining the presence of rhGH, a synthetic form of exogenous human Growth Hormone. The CAS panel relied on the equivalent Article 5.4.4.2.2 of the ISL for validation of quantitative methods, but considered that the reliability of the decision limit is a matter that pertains to the validation of the method, and thus to its scientific validity, which is for the prosecuting ADO to establish. The CAS panel found that it was not satisfied to its comfortable satisfaction of the validity of the decision limits determined by WADA, especially since WADA had produced inconsistent explanations and insufficient documentation regarding the distribution models used in the validation studies”.
- 30.
CAS 2016/A/4650, Klubi Sportiv Skenderbeu v. UEFA, Award of 21 November 2016, para 96.
- 31.
Ibid., paras 92–93. The relevant paragraphs read as follows: “92. Accordingly, the Panel finds that this corroborates the conclusion that, if a specific match has triggered a yellow or red flag in the BFDS, this is by no means evidence that the match was indeed fixed. Such conclusion would only be warranted after a thorough analysis in the subsequent stage of the BFDS. The Panel therefore finds that the quantitative information derived from the BFDS is not definitive in the assessment of whether a specific match has been fixed, although noting Mr. Mase’s statement that the analytical data in respect of the four matches of the Club in UEFA’s European competitions discussed above are extreme in comparison with other matches flagged for abnormal betting odds. 93. The qualitative assessment of the analysts involved in the BFDS is therefore also needed”.
Reference
Viret M (2016) Evidence in Anti-Doping at the Intersection of Science and Law. TMC Asser Press, The Hague
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Ibarrola, J. (2017). CAS 2015/A/4351, Vsl Pakruojo FK, Darius Jankauskas, Armas Mikaitis, Sigitas Olberkis, Valdas Pocevicius, Alfredas Skroblas, Donatas Strockis, Diogo Gouveia Miranda, C.H. Alexandru, Taras Michailiuk v. Lithuanian Football Federation, Award of 13 July 2016. In: Duval, A., Rigozzi, A. (eds) Yearbook of International Sports Arbitration 2016. Yearbook of International Sports Arbitration. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/15757_2017_5
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