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1
Diplomstudium Rechtswissenschaften
The Distinction Between Legal and Illegal Betting in the Context of
the Convention on the Manipulation of Sports Competitions with
Reference to The Netherlands, Finland, Switzerland and Austria
Diplomarbeit
aus Public International Law
zur Erlangung des akademischen Grades
eines Magister
der Rechtswissenschaften
an der Paris Lodron Universität Salzburg
eingereicht von
Stephan Victor Small
Matrikelnummer 00007814
Betreuer:
Ao. Univ.-Prof.Dr.Michael Geistlinger
Salzburg, September 2017
2
Table of Contents Page 1. Introduction 5 2. Terminology 7 3. Lotteries 9 3.1 Lotteries from the beginning 9 3.2 Current Status of Lotteries 11 4. Gambling in Sport 14 4.1 Ancient Rome-1960 14 4.2 1960-Present 15 5. Manipulation of Sports Competitions 17 5.1 Introduction 17 5.2 Tennis, cricket and baseball 18 5.3 Match-fixing in Football 19 5.3.1 Arrangement fixes 20 5.3.2 Gambling Fixes 20 5.4 Selected Cases of Match-Fixing in Football 22 5.5 Money Laundering in Football 24
6. International Initiatives to combat Match-Fixing and the Macolin Convention 26 6.1 Introduction 26 6.2 Match-fixing in football in Austria, Finland, The Netherlands and Switzerland 27 6.3 Compliance of Austria, Finland, The Netherlands and Switzerland to the 30 Recommendations of the Macolin Convention 7.Match-fixing in Europe 39 8. Borderline between legal and illegal betting in Austri100a, Switzerland, The Netherlands and Finland 42 8.1 Austria 42 8.2 Switzerland 43 8.3 The Netherlands 44 8.4 Finland 45 8.5 Axis of Evil: the Asian illegal betting market 45 9. Combatting Illegal Betting: National Interpretations and Compliance with the Macolin Convention 46 9.1. Control of the Betting Market 47 9.2. Sanctions and Measures and Criminal Offences 49 9.3. Money Laundering 51 10. Conclusions 52 11. Private Communications 57 12. Bibliography and documents 58
3
13. Appendices 73 Appendix I: Council of Europe Convention on the Manipulation of 73 Sports Competitions Appendix II: Explanatory Report to the Council of Europe Convention on the 91 Manipulation of Sports Competitions
4
Abbreviations
ARJEL Autorité de Régulation des Jeux En Ligne
BASPO Swiss Federal Office for Sport
BGS Swiss “Bundesgesetz über Geldspiele”
FATF Financial Action Task Force
FIFA Fédération Internationale de Football Association
FIFPro Fédération Internationale des Association de
Footballeurs Professionnels
FINCIS Finnish Center for Integrity in Sports
GLMS Global Lottery Monitoring System
GRECO Group of States Against Corruption
ICC International Criminal Court
ICSS The International Centre for Sport Security
IOC International Olympic Committee
KNVB Koninklijke Nederlandse Voetbal Bond
KSA Dutch Gambling Authority
LG Lotteriegesetz
LV Lotterieverordnung
MLB Major League Baseball
OECD Organisation for Economic Co-operation and
Development
ÖFB Österreichischer Fußballbund
SAFP Swiss Association of Football Players
SFL Swiss Football League
SFV Swiss Football Federation
SLP Finnish Football Association
SOGA Soccer Gambling
TIU Tennis Integrity Unit
UEFA Union of European Football Associations
UNODC United Nations Office on Drugs and Crime
UWG Gesetz gegen den unlauteren Wettbewerb
VETO Europol Operation Codename
WLA World Lottery Association
5
1. Introduction
Sport is a democratizing human activity; it crosses social and national barriers and opens up
opportunities to anyone with athletic talent. This is very much the case in football, which
features players from diverse economic and social backgrounds. Moreover, sport ties together
all members of the human race and as such contributes to the maintenance of peace. It is for
this reason that so much attention has focused on preserving the integrity of sport worldwide.
Sport integrity faces a major threat from the link of sport and especially football with the
betting industry. While gambling on the outcome of sporting events has been a popular
pastime for at least two millennia, the rapid growth and globalization of the sport gambling
market over the last few decades has fostered the parallel increase in cheating and corruption.
Criminals exploit football in two ways: to launder money, via the acquisition of weak clubs and
by “arranging” the outcome of matches, by so called “match-fixing” for gambling purposes.1
The potential profits for match-fixing are high: according to recent estimates the annual
turnover of the Asian sports gambling market (mainly illegal) which represents 60% of the
global market amounted to $450 billion, compared to $100 billion for the Asian
pharmaceutical industry.2 Because of the internationality of sport, the close collaboration
between national agencies and international non-governmental organizations is essential to
preserve the integrity of sport, to promote fair play and, in particular, to fight corruption.
This is underlined in a statement from the UNODC report from 2016:
“For the majority of people, sport forms an integral part of daily life, whether as active
participants or passive spectators, providing many positive impacts on society as a whole.
Corrupting sport through match-fixing seeks to destroy this positive influence on society and is
one of the key costs of corruption.” 3
The phenomenon of match-fixing has been justly identified as a universal evil threatening the
integrity of sport by many prominent international organizations: The United Nations
1 Hill D, The Insider’s Guide to Match-Fixing in Football, Toronto 2013, 46. 2 Hill D, The Revolution. Asser International Sports Law Series, Sports Betting: Law and Policy, The Hague 2012, 11. 3 UNODC, Resource Guide on Good Practices in the Investigation of Match-Fixing, 15 <unodc.org/documents/corruption/Publications/2016/V1602591-
RESOURCE_GUIDE_ON_GOOD_PRACTICES_IN_THE_INVESTIGATION_OF_MATCH-FIXING.pdf>
(30.07.2017)
6
(UNODC); Interpol; Europol; Transparency International; Financial Action Task Force (FATF);
Group of States Against Corruption (GRECO); International Center for Sport Security (ICSS). All
of these organizations have made detailed recommendations about combatting match fixing,
following the general principles of the Council of Europe Convention on the Manipulation of
Sports Competitions, otherwise known as the “Macolin Convention” from 2014.4
The Macolin Convention and the international organizations provide useful guidelines and
training schemes, but none of them has the judicial authority for making arrests and imposing
punishment. As the Executive Secretary of FATF stated in a speech in 2016:
“You can’t effectively combat corruption without laws and regulations …… you also can’t
combat corruption unless you enforce these laws and regulations effectively and
proportionately”.5
In short, each country needs to establish effective procedures itself to fight criminality in sport.
Only through a tight collaboration between national sport bodies, betting agencies, the police
and the judiciary can match–fixing be eliminated. The present thesis reviews the current
policies adopted by four European countries, Austria, Finland, The Netherlands and
Switzerland, to tackle match fixing in football and illegal gambling in sport.
Chapters 3 and 4 provide background reviews of the history of gambling, in lotteries and in
sport. Chapter 5 outlines the means by which different types of sport competitions have been
manipulated, with a focus on arrangement and gambling fixes in football. Chapter 6 reviews
the measures taken by the four selected countries to adopt the recommendations of the
Macolin Convention and Chapter 7 compares the situation with other countries in Europe.
The borderline between legal and illegal betting is discussed in Chapter 8 and national
measures to address illicit gambling and corruption in Chapter 9. Finally, an appraisal of the
current situation and future challenges are presented in the conclusions, Chapter 10.
4 Council of Europe Convention on the Manipulation of Sports Competitions, Macolin 2014
<http://www.coe.int/en/web/conventions/full-list/-/conventions/rms/09000016801cdd7e> (14.08.2017) 5 FATF, Ending Impunity: Creating a level playing field by enforcing the conventions we have < http://www.fatf-gafi.org/publications/fatfgeneral/documents/tackling-corruption-together.html> (30.07.2017)
7
2. Terminology
Many of the terms used in the present work have been defined in the “Explanatory Report to
the Council of Europe Convention on the Manipulation of Sports Competitions”. The
definitions below in italics have been taken directly from or in an abbreviated form from that
report. 6
Match- fixing: “covers any intentional and improper alteration of the course or result of a
sports competition in order to remove all or some of the uncertainty associated with this
competition, with a view to obtaining an undue advantage for oneself or for others.” 7
Integrity of sport: “is understood as an ethical fundamental value in the sport movement
characterized by credibility, transparency and fairness as well as by the unpredictability of
sports competitions results.” 8
Fairness: “refers to practising a sport while faithfully respecting the rules of competition, and
to providing everyone with an equal chance of taking part in sport.” 9
Sports betting: “refers to the predictions made by wagering a stake on an event occurring
during a sports competition in order to obtain winnings.”10
Sports betting operators: “covers all kinds of operators providing sports betting services,
landbased or remote, publicly or privately owned, specialised in sports betting or not
(bookmakers, specialised sports betting operators, gambling operators and lotteries offering
sports betting services).”11
Illegal sports betting: “refers to any sports betting whose type or operator is not allowed
(such as by exclusive rights, a licence or automatic recognition of licences granted by certain
third countries) by virtue of applicable law in the jurisdiction of the Party where the gambler is
located.”12
Regulatory authority: “refers to a public authority or authorities tasked
6 Explanatory Report to the Council of Europe Convention on the Manipulation of Sports Competitions <https://rm.coe.int/16800ccde6> (30.07.2017) 7 Explenatory Report (fn 6),1. 8 Explanatory Report (fn 6), 5. 9 Explanatory Report (fn 6), 5. 10 Explanatory Report (fn 6), 10. 11 Explanatory Report (fn 6), 10. 12Explanatory Report (fn 6), 10.
8
by law with contributing to the provision of a service and to the proper functioning of a market
involving in general multiple suppliers for the benefit of consumers.”13
Bookmaker: a person who accepts and pays out amounts of money risked on a particular
result.14
Lottery: a system of selling numbered tickets and giving prizes to those people whose
numbers are chosen by chance.15
Totalizator (mainly in horseracing): the betters do not play against the bookmaker but against
each other and the winner gains the pool. If there are more winners they share the pool.16
Live betting: in live betting as well as spot betting bets can be placed on specific events like
the number of red or yellow cards, penalties or corners at any moment during a game.17
Proposition betting: bets placed on an outcome of a match that is not related to the final
score, for example number of goals scored by a star player.18
Betting odds: the ratio of the final payout on a winning bet compared to the stake.19
Money laundering: laundering allows criminals to transform illegally obtained money into
seemingly legitimate funds.20
Whistleblower: “a person who reports suspicious activities to the competent bodies of the
sports organization, or to the authorities”.21
13Explanatory Report (fn 6), 15. 14 Cambridge Dictionary, bookmaker <http://dictionary.cambridge.org/de/worterbuch/englisch/bookmaker> (16.09.2017) 15 Cambridge Dictionary, Lottery < http://dictionary.cambridge.org/de/worterbuch/englisch/lottery> (16.09.2017) 16 The New Shorter Oxford English Dictionary, Totalizator, 3347. 17 ODDSHARK, HOW LIVE BETTING Works <http://www.oddsshark.com/sports-betting/how-live-betting-works> (16.09.2017) 18 ODDSHARK, PROP BETTING < http://www.oddsshark.com/sports-betting/prop-betting> (16.09.2017) 19 mybettingsites, Betting Odds Explained – A Beginner’s Guide to Gambling <http://mybettingsites.co.uk/betting-odds-explained/> (16.09.2017) 20 INTERNATIONAL COMPLIANCE ASSOCIATION, What is Money Laundering? < https://www.int-comp.org/careers/a-career-in-aml/what-is-money-laundering/> (16.09.2017) 21 Explanatory Report (fn 6), 13.
9
3. Lotteries
3. 1. Lotteries from the beginning
Lotteries have a long history; “lots” are well documented in the Old Testament and the Roman
Emperors used lotteries for entertainment as well as for the repair of Rome.22 Augustus (31BC-
AD14) believed strongly in lots and used them to distribute prizes at dinner parties; later, Nero
included slaves in the prize list.23 Lotteries reappeared in Europe in the 15th century, mainly as
a means to raise revenue for the state.24 The famous Venetian lotteries were founded in 1522
and the “Lotto di Genua” in 1643.25 King Francis I of France discovered the lotteries during his
campaigns in Italy and decided to organize lotteries of his own to improve state finances.26 In
France the first lottery took place in 1660 and despite opposition to forbid them the first
„Lottery Royale“ was launched in 1700. Since then the lottery in France thrived and influenced
other European countries.27 Maria Theresia was likewise impressed by the “Lotto di Genua”
and introduced a lottery in Austria in 1752. There was a parallel appearance of lotteries in
Germany and Switzerland, of so-called „Glückshafen“ or „Glückstöpfe“.28 Lotteries were
forbidden by Pope Benedict 13th but were reinitiated in Rome, followed by Venice in 1734 and
Genoa in 1735. Lotteries appeared later in Scandinavia, in Sweden in 189629 and in Denmark in
1887, the prizes in the latter case being restricted to groceries!30
In the English-speaking world the use of lotteries to raise money as an alternative to taxation
was initiated by Queen Elisabeth I, in 1566.31 The funds raised were to be used for the repair
of harbors and for other “publique good workes”.32 The proceeds of lotteries were also used to
pay ransom to release British sailors captured and kept in slavery by the Turks in 1674. 33
22 History Buff, The History of the Lottery in the United States <http://historybuff.com/history-lottery-united-states-0mpyq0pwq2gr> (30.07.2017) 23 Hicks G., Fate’s Bookie: How the Lottery Shaped the World 2009, Stroud, Gloucestershire, 24. 24 History Buff (fn 22). 25 Dem Glück auf der Spur,250 Jahre Österreichisches Zahlenlotto, 2002, Wien,63. 26 Lottery Power Picks.com, John Lottery’s History oft he Lottery <http://www.lotterypowerpicks.com/lottery_history.htm> (14.08.2017) 27 Dem Glück auf der Spur (fn 25), 62. 28 Dem Glück auf der Spur (fn 25), 61. 29 Lotto.com, Sweden Lotto History <http://x-lotto.com/sweden-lotto-history/> (31.07.2017) 30 ACLU, Charity lotteries in the EU, Denmark <http://www.acleu.eu/charity-lotteries/Denmark> (31.07.2017) 31 Ashton J., 1839- A History of English Lotteries, London, 1893, 5. 32 Lotterie Power Picks.com (fn 26). 33 Hicks (fn 23), 59.
10
While there were many honorable motives behind creating lotteries for good purposes, the
lack of control lead to abuse, the “lusting after profits” 34 and fraud35. As a result, lotteries
were prohibited by an Act of parliament in 1699, which referred to “evil disposed persons”
who set up “mischievous and unlawful games called lotteries”.36 This prohibition was short-
lived, however, and lotteries reappeared in 1710. A “State Lottery” held in 1739 was created
to raise money for building the first bridge over the river Thames and an Act of Parliament was
passed in 1753 for purchasing a library collection for the British Museum.37 Debts accrued
through the seven year war with France (1756-63) were also partly offset through lotteries.38
Indeed, lotteries were good business for the Government and in a typical case in 1789 the
ticket sales amounted to 771,000 pounds, of which 513,000 was given in prizes, leaving a net
profit of 258,000 pounds.39 State lotteries were especially popular during the reigns of George
III and George IV (1769-1826), during which 126 were held.40 Lotteries were also arranged to
settle personal debts. For example, the heirs of a Lord Pigot “arranged” an Act of parliament
(39 and 40 Geo. III. c. 102) allowing them to dispose of a large diamond by means of a lottery
in 1801.41 Despite the obvious advantages of lotteries as cash cows, public opinion about the
evil and corruptive effects they caused lead to their abolishment in England in 1826.42 It was
not until 1934 that a Betting and Lotteries Act legalized again the operation of lotteries in the
UK.43
In colonial America lotteries were used extensively to raise money for the building of roads,
bridges, schools, churches and so on.44 The first authorized lottery took place in Boston in
1745, with the purpose of settling the debt incurred by the cost of military activity to protect
the state coasts as well as the royal province of Nova Scotia.45 On January 9, 1745 the General
34 Ashton (fn 31), 42. 35 Ashton (fn 31), 79. 36 Ashton (fn 31), 50. 37 Ashton (fn 31), 76. 38 Kruckeberg R.D., The Wheel of Fortune in Eighteenth-Century France: The Lottery, Consumption, And Politics <https://deepblue.lib.umich.edu/bitstream/handle/2027.42/63676/rkruckeb_1.pdf?sequence=1,%20page%206> (31.07.2017) 39 Ashton (fn 31), 112. 40 Austenonly, Pride and Prejudice: Lydia’s Lottery Tickets and Gaming Fish <https://austenonly.com/2010/01/06/pride-and-prejudice-lydias-lottery-tickets-and-gaming-fish/> (31.07.2017) 41 Ashton (fn 31), 128. 42 Ashton (fn 31), 285. 43 Britannia, History of the Lottery in the UK <http://www.britannia.com/history/history-UK-lottery.html> (31.07.2017) 44 Willmann G. ,1999- The History of Lotteries, Stanford University, 1 <http://willmann.com/~gerald/history.pdf> (31.07.2017) 45 Massachusetts Lottery, A Description of the First Colonial Government Lottery <http://www.coins.nd.edu/ColCurrency/CurrencyText/MA-44descrip.html> (31.07.2017)
11
Court passed an act that provided for the payment of the debt, "in a manner the least
burdensome to the inhabitants," that is, by a lottery.46 There was opposition to lotteries,
especially in Pennsylvania. The Quakers, who dominated the Pennsylvania legislature passed
anti–lottery legislation in 1682, 1693, 1700, and 1705 which was each time nullified by the
English Crown.47 Altogether, 164 colonial lotteries were authorized between 1745 and the
outbreak of the war of independence.48 During the revolutionary war of independence (1775-
1783) Benjamin Franklin sponsored his own lottery to buy cannons to fight the British.49 After
the American Civil War (1861-1865), the southern states used lotteries for rebuilding projects.
In contrast, the northern states had by this time abolished them.50 Already in the 1830s
religious groups had petitioned against lotteries on moral grounds. Their case was
strengthened by the discovery (among others) that brokers and managers of the Union Canal
Lottery had kept 70% of the lottery proceeds for themselves.51 In 1878 the Supreme Court
held lotteries to have a “demoralizing influence on the people”52 and in 1890 President
Benjamin Harrison condemned lotteries as “swindling and demoralizing agencies”.
Accordingly, lotteries were in the same year forbidden in every state except Delaware and
Louisiana.53
3.2. Current status of Lotteries
As cash cows for themselves, charity and other projects, lottery organizations bloomed during
the 20th century. Aside from National Associations there is now a World Lottery Association
(WLA)54 and a European Lotteries Association (ARJEL).55 These organizations collaborate with
the Global Lottery Monitoring System (GLMS) in a fight against the manipulation of sports
competitions.56 According to the Austrian federal law on Games of Chance (§ 14/6
Glucksspielgesetz) 57a single license is granted to a lottery operator up to a maximum of 15
46 Massachusetts Lottery (fn 45). 47 Yale Law School, Public Finance And The Fortunes Of The Early American Lottery <http://digitalcommons.law.yale.edu/student_papers/9/> (31.07.2017) 48 Tax Foundation, State-Run Lotteries as a Form of Taxation <https://taxfoundation.org/state-run-lotteries-form-taxation/> (03.08.2017) 49 History Buff (fn 22). 50 History Buff (fn 22). 51 Britannia (fn 43). 52 Encyclopedia Britannica, Lottery <https://www.britannica.com/topic/lottery> (31.07.2017) 53 Encyclopedia Britannica (fn 52). 54 World Lottery Association <https://www.world-lotteries.org/> (31.07.2017) 55 The European Lotteries, Sports Integrity Action Plan <https://www.european-lotteries.org/sports-integrity-action-plan> (31.07.2017) 56 The European Lotteries (fn 55). 57 Bundesgesetz vom 28.November 1989 zur Regelung des Glücksspielwesens (Glücksspielgesetz – GSpG), BGBl. Nr. 620/1989
12
years (§ 14/4 Zi. 1 GSpG. 58); currently the Austrian Lotteries (Oesterreichische Lotterien
Gesellschaft) holds the license until 2027.59
In Switzerland lotteries are supervised and licensed by the Inter-Cantonal Lottery and Betting
Board (Comlot) established by the cantons in 2006.60 The supervision, approval and the use of
proceeds of Inter-Cantonal and national lotteries and gambling are regulated according to Art.
14 (Inter – Cantonal Agreement)61 and Art. 10 LG (national lottery law)62 both from 2005.
According to Dutch law (Articles 8 and 9, BGA) the national lottery is subject to an exclusive
license according to which 60% of the stakes are returned to players as prizes and the
revenues generated used for state benefit63 and other purposes. Proceeds from the
Netherland State Lottery were recently used to fund the rescue of ancient manuscripts from
Timbuktu, threatened with destruction by Al Qaida rebels. In Finland, betting in lotteries and
sport is regulated by the Lotteries Act (1047/2001) amended in 2010 and 2012 and operated
by state owned monopolies.64 In the UK, lotteries were legalized by “The Betting and Lotteries
Act” of 1934, now replaced by the “Gambling Act” of 2005.65
The National Lottery, established in 1994 is run by a private company (Camelot) but is
regulated by the National Lottery Commission. A major part (95%) of the revenue raised in the
National Lottery is channeled into health, education, sport, arts and environment projects as
well as into charities.66 Despite the control mechanisms set in place, Camelot was, in 2016,
58 BGBl. Nr. 620/1989 (fn 57). 59 Bundesministerium für Finanzen, Konzessionäre und Ausspielbewilligte in Österreich für Lotterien, Online-Glücksspiel, Spielbanken und Landesausspielungen mit Glückspielautomaten <https://www.bmf.gv.at/steuern/gluecksspiel-spielerschutz/in-oesterreich/gspg-konzessionaere.html> (14.08.2017) 60 Comlot <https://www.comlot.ch/en/the-comlot/mandate> (31.07.2017) 61 Interkantonale Vereinbarung über die Aufsicht sowie die Bewilligung und Ertragsverwendung von interkantonal oder gesamtschweizerisch durchgeführten Lotterien und Wetten <https://bgs.zg.ch/frontend/versions/564/download_pdf> (14.08.2017) 62 Bundesgesetz betreffend die Lotterien und die gewerbsmässigen Wetten <https://www.admin.ch/opc/de/classified-compilation/19230017/index.html> (14.08.2017) 63 Gambling Act, The Netherlands < http://wetten.overheid.nl/BWBR0002469/2016-04-01#TiteldeelII> (16.08.2017) 64 Ministry of the Interior, Finland, Lotteries Act <http://www.finlex.fi/fi/laki/kaannokset/2001/en20011047.pdf> (15.08.2017) 65 Gambling Act, UK, 2005 < http://www.legislation.gov.uk/ukpga/2005/19/pdfs/ukpga_20050019_en.pdf> (15.08.2017) 66 The National Lottery, Life Changing <https://www.national-lottery.co.uk/life-changing/where-the-money-goes> (31.07.2017)
13
fined 3M pounds by the Gambling Commission67 for payment in 2009 to the holder of a
damaged ticket, a petty criminal with connections to a Camelot IT specialist who committed
suicide in 2015.68
Lotteries in the USA saw a dramatic revival following the creation of the New Hampshire
lottery in 1964.69 The growth of state lotteries was much stimulated by public opposition to
increases in taxes and they now provide an important source of revenue, especially for
infrastructure projects and education. Up until 1987 there was no national lottery so that each
state has jurisdiction over its own lottery.70 The California State Lottery Act (1984) states
(Article 1, §8880.1): “Revenues of the state lottery shall be allocated so as to maximize the
amount of funding allocated to public education…”.71 In 2016, lottery sales were close to $6.3
billion, of which $1.5 billion was earmarked for California’s public schools.72 Unfortunately,
money corrupts and the national lottery “Lotto America” created in 1987 and covering 51
states is now at the center of a major scandal. The former “security director” of the Multi State
Lottery Association currently faces a 10year sentence for manipulating numbers via rogue
software that he secretly installed in the random number generator system.73
The recent lottery scandals point to corruption possibilities within the lottery provider
organizations, rather than from external operators. Fraudulent claims from bogus charities for
lottery proceeds also feature as a modern development.74
67 Camelot breach notice <http://www.gamblingcommission.gov.uk/PDF/NL-licences/Camelot-breach-notice-December-2016.pdf> (31.07.2017) 68 Mirror, Camelot worker killed himself amid allegations of 2.5million Lotto fraud plot – now family beg forpolice probe <http://www.mirror.co.uk/news/uk-news/tragic-camelot-mans-family-demand-9477098> (31.07.2017) 69 NHLottery, History <https://www.nhlottery.com/About-Us/History.aspx> (31.07.2017) 70 National Gambling Impact Study, Lotteries <https://govinfo.library.unt.edu/ngisc/research/lotteries.html> (31.07.2017) 71 CALIFORNIA GOVERNMENT CODE, Title 2,Government of the State of California Division, 1. General
Chapter 12.5., California State Lottery Act
<https://static.www.calottery.com/~/media/Publications/Lottery_Act/lottery-act-update-july-2012.pdf>
(15.08.2017) 72 California Lottery Report To The Public <http://static.www.calottery.com/~/media/Publications/Reports_to_the_Public/LotteryAR2016English.pdf> (31.07.2017) 73 Bleeping Computer, Man Pleads Guilty to Manipulating Lottery Winning Tickets via Hacked Computer <https://www.bleepingcomputer.com/news/legal/man-pleads-guilty-to-manipulating-lottery-winning-tickets-via-hacked-computer/> (31.07.2017) 74 Hicks (fn 23),174.
14
4. Gambling in Sport
4.1. Ancient Rome -1960
According to archaeological evidence, gambling can be traced back to ancient times, in China
and the Middle East.75 The earliest reports of gambling in sport, at least in Europe, date back
to chariot races in ancient Rome.76 In Europe most gambling in the Middle Ages was limited to
such activities as wrestling, dice and card games, pigeon races, cock fighting and checkers.77
The Roman emphasis on leisure was, however, replaced by a Christian emphasis on work.78
Towards the end of the Middle Ages card playing had gained in popularity and lotteries had
become accepted as a good source of income (see previous section). But religious fanaticism
during the period from the 16-18th century lead to a general opposition to gambling; in
Geneva, for example, the Calvinists forbid everything involving gaiety, especially, gambling,
feasting, card playing and dancing.79 In England in the 1600s, James I disagreed with the
prohibition of harmless amusements and stressed the military value of sport.80 The bishops
and clergymen of England obviously agreed with the king, since they were also fond of
dicing!81 Puritans who left Europe to settle in the New World (New England) detested idleness
and especially gambling.82 Restrictions were however relaxed by the mid 1700s when
amusements were looked down upon, but tolerated.83 An interesting exception to all these
restrictions was horse racing. As a pastime of royalty, horse racing was largely exempt from
the restrictions imposed on other sports, throughout history. The earliest recorded races in
England occurred around 200AD, but horse racing was firmly established following the
discovery by James I of the small village of Newmarket in 1604. Apart from a decade ban
enforced by Oliver Cromwell in 1654, horse racing has flourished there ever since.84 In Austria,
the first horse racing track was opened in Freudenau in183985 following one in Heiligendamm
75 Hicks (fn 23), 9. 76 Encyclopedia Britannica, Gambling <https://www.britannica.com/topic/gambling> (31.07.2017) 77 The Finer Times, Activities in the Middle Ages <http://www.thefinertimes.com/Middle-Ages/activities-in-the-middle-ages.html> (31.07.2017) 78 McLean, Chapter 3, Early History of Recreation and Leisure, 57 <http://www.jblearning.com/samples/0763749591/49591_ch03_mclean.pdf> (31.07.2017) 79 The Finer Times (fn 77). 80 McLean (fn 78), 60. 81 The Finer Times (fn 77). 82 McLean (fn 78), 63. 83 McLean (fn 78), 65. 84 History of Great British Racing <http://www.greatbritishracing.com/about-great-british-racing/the-history-of-great-british-racing/> (31.07.2017) 85 Österreichische Nationalbibliothek, ANNO, Historische österreichische Zeitungen und Zeitschriften <http://anno.onb.ac.at/cgi-content/anno?apm=0&aid=hum&datum=18390506&seite=03> (31.07.2017)
15
in Germany in 1822.86 Horse racing bets in Austria were placed according to the Parimutuel
(totalisator) system developed in France.87 The prize for the winner of the first horse race in
Ireland in 1752 was, according to legend, a hogshead of wine.88 Gambling in other sports
experienced a checkered history in the 19th and 20th centuries, much influenced by reactions
against corruptive influences and opposition on religious grounds, especially in the USA.89
Gambling in football was relatively modest up to the1950s. For example, in the UK in 1954
football gambling revenues were comparable to those for greyhound racing and several times
smaller than those for horse racing.90 Although football originated in England, The Fédération
Internationale de Football Association (FIFA) was founded in 1904 by a consortium of seven
other European countries: France, Belgium, Denmark, The Netherlands, Spain, Sweden and
Switzerland, joined later in 1904 by Austria and Germany. The UK joined the following year,
but did not take part in the World Cup until 1950.91 Betting in football (Toto) was introduced
first in England in 1921. In Germany and Austria betting in sport was legalized after the
Second World War to compensate for the lack of money for sporting activities. In Austria, the
Sport-Toto law was passed in 1948, in the same year as the founding of the "Staatliche
bayrische Fußballtoto".92
4.2. 1960-Present
After the passing of the Betting and Gaming Act in the UK in 1960 and the legalisation of
betting shops in 1961 up to 10,000 shops (now termed “Bookmakers”) opened in the first 6
months.93 Following subsequent merging in the industry there were around 9,000 registered
bookmakers in the UK in 2013.94 The legality of bookmakers varies from country to country.95
After facing resistance in Germany in 1983, the German run bookmaker Intertops moved to
86 Pferderennen-Wetten.net, Die Geschichte der Pferderennen im Überblick <http://www.pferderennen-wetten.net/pferderennen-geschichte.htm> (31.07.2017) 87 Encyclopedia Britannica, Pari-mutuel <https://www.britannica.com/topic/pari-mutuel> (31.07.2017) 88 New World Encyclopedia, Horse Racing <http://www.newworldencyclopedia.org/entry/Horse_Racing> (31.07.2017) 89 McLean (fn 78), 67. 90 Chambers Encyclopedia, 1959- Vol. 6, UK, 159. 91 Fooball history <http://www.footballhistory.org/> (31.07.2017) 92 Bundesgesetz betreffend die Einführung des Sporttotos, (Sporttoto-Gesetz) <https://www.parlament.gv.at/PAKT/VHG/V/I/I_00779/imfname_338932.pdf> (15.08.2017) 93 Independent, Our national love affair: a history of the betting shop <http://www.independent.co.uk/sport/racing/our-national-love-affair-a-history-of-the-betting-shop-804966.html> (31.07.2017) 94 Gambling Commission, Industry statistics <http://www.gamblingcommission.gov.uk/PDF/survey-data/Gambling-industry-statistics.pdf> (31.07.2017) 95 Gambling Commission (fn 94).
16
England to obtain a betting licence and now operates an on-line operation from Salzburg! The
umbrella organisation of bookmakers in Austria “Der Oesterreichische Buchmacher Verband
(OBMV)” was established in 1994 96 and the members, including Intertops, fall under Austrian
betting law.97 Betting in Switzerland is regulated by the Intercantonal Lottery and Betting
Board (Comlot). According to Art 106 of the Federal Constitution of the Swiss Confederation:
“the cantons shall ensure that the net revenues from gambling in accordance with paragraph 3
letters a and b are used in their entirety for charitable purposes, in particular in the fields of
culture, social projects and sport “.98 In Finland, both lotteries and sports betting (aside from
horse racing) are organized and administered by a state owned monopoly “Veikkaus” whereas
horse racing is operated by a parallel body, “Fintoto”.99 In the Netherlands sport betting falls,
like lotteries, under the Betting and Gaming Act of 1964, Articles 15-22 BGA, with separate
articles (23-27 BGA) for horse racing.100
Owing to its international popularity football rapidly developed into big business for sport
gambling with a yearly turnover estimated in 2013 at around 125 billion pounds (140 billion
Euro) Worldwide.101 In Germany in 2010, betting in football accounted for 54.5% of the total
sport gambling market, far ahead of tennis in second place, with 17%.102 While much attention
has been given to the regulation of the gambling market, by the creation of National Agencies
and the revision of betting laws, the criminal manipulation of the results of sport competitions
to capitalize on gambling stakes currently threatens the integrity of sport itself.103 In the
following section I will review the current status of gambling with respect to corruption in
sport and especially in football, which is the focus of the present study.
96 Österreichischer Buchmacherverband< http://www.obmv.at/> (31.07.2017) 97 Landesrecht konsolidiert Vorarlberg: Gesamte Rechtsvorschrift für Wettengesetz, LGBl. Nr. 46/2017 <https://www.ris.bka.gv.at/GeltendeFassung.wxe?Abfrage=LrVbg&Gesetzesnummer=20000260> (31.07.2017) 98 Federal Constitution of the Swiss Confederation <https://www.admin.ch/opc/en/classified-compilation/19995395/index.html> (30.07.2017) 99 ACLU, Charity lotteries in the EU, Finland <http://www.acleu.eu/index.php/charity-lotteries/finland> (31.07.2017) 100 Gambling Act, The Netherlands (fn 63). 101 Hill (fn 1), 3. 102 ResearchGate, Wirtschaftsfaktor Sportwetten – Sportfaktor Lotterien,6 <http://www.bisp.de/SharedDocs/Downloads/Publikationen/sonstige_Publikationen_Ratgeber/Wirtschaftsfaktor%20Sportwetten.pdf?__blob=publicationFile&v=1 > (31.07.2017) 103 Hill (fn 1),2.
17
5. Manipulation of Sports Competitions
5.1. Introduction
Corruption in sport is nothing new; in the earliest Olympics, Nero had no inhibitions about
cheating with chariot racing to claim victory and in other Olympic events judges accepted
bribes from participants.104 In the present day, the stakes are much higher than those of
Ancient Rome. As pointed out by Transparency International any sport is potentially
vulnerable to manipulation by organised crime or for sporting reasons, such as promotion or
relegation.105 In the current era, the incidence of manipulation in sport is noticeably
dependent on the discipline (Table I).
Group 1 High Risk
Group2 Low Risk
Group 3 Very Low Risk
Baseball Basketball Cricket Football Rugby Tennis
Aquatics Archery Bobsleigh, Tobogganing Cycling Darts Floorball Gymnastics Hockey Muaythal Netball
Airsports Chess Draughts Fistball Polo Racketball Sleddog Sports Sport Climbing
Table I: Sports grouped according to the estimated risk of match fixing.106
Those sports where large amounts of money or prestige are involved feature as high risk on
the corruption scale. Accordingly, match–fixing in sport has been compared with insider
trading on the stock market.107 In the following sections, prominent cases of sport
manipulation in tennis, cricket and baseball will first be highlighted, before turning to the main
topic, football and the related problem of money laundering in the football sector.
104 History Stories, Five Myths About the Ancient Olympics <history.com/news/-myths-about-the-ancient-olympics> (15.06.2017) 105 Transparency International, 11 <transparency.org/files/content/feature/ExecutiveSummary_Sweeney_GCRSport.pdf> (14.06.2017) 106 ICSS, Protecting the Integrity of Sport Competition, The Last Bet for Modern Sport, Université Paris, 76
<theicss.org/wp-content/themes/icss-corp/pdf/SIF14/Sorbonne-ICSS%20Report%20Executive%20Summary_WEB.pdf?lbisphpreq=1> (10.06.2017) 107 Asser Institute, Center for International and European Law, Study on risk assessment and management and prevention of conflicts of interest in the prevention and fight against betting-related match fixing in the EU 28, July 2014 , Executive Summery, 4 <ec.europa.eu/assets/eac/sport/news/2014/docs/asser-excecutive-summary_en.pdf>(12.06.2017)
18
5.2. Tennis, cricket and baseball
Several instances of match fixing in tennis have been uncovered over the last 10 years and
only a few will be mentioned here. The Austrian former tennis professional Daniel Köllerer was
found guilty by the Tennis Integrity Unit (TIU) of bribing other players (in 2009 and 2010) to
play below their best, to his advantage.108 According to his own account, Köllerer had been
bribed himself to lose tennis matches in both Paris and Moscow, indicating the extent of the
problem. Köllerer was banned from professional tennis for life and fined $100,000, the fine
being later withdrawn after appeal.109 David Savic was likewise banned for life in 2011 for
several attempts to fix matches and received the same life ban and a $100,000 fine. In 2016
the TIU charged the Swedish born, Australian tennis player Nick Lindahl and the Polish player
Piotr Gadomski with match fixing offences and imposed bans of seven years each.110 More
recently, in May 2017, Konstantinos Mikos was banned for life for tennis corruption offences,
including illegal gambling and match fixing.111 It is noteworthy that in all these cases a non-
governmental organization, the TIU effectively served to penalise corruption in professional
tennis.
Professional cricket is littered with match-fixing scandals. Indian and Pakistani players have
been particularly susceptible to corruption, but players from the UK, South Africa and Australia
have also not been immune to match-fixing.112 Hansie Cronje of South Africa was charged with
accepting money from a bookmaker to arrange for members of his team to underperform in a
match against India in 2000 and was banned for life by the South African Cricket Board. In the
same year, Mohammad Azharuddin of India was likewise charged with collusion with a
bookmaker to fix matches and received a lifetime ban. In response to these scandals, the
Imperial Cricket Conference (ICC), the governing body of world cricket published a “Code of
Conduct” for players and officials in 2016 and established an Anti- Corruption Unit (ACU) to
maintain the integrity of cricket.113
108 TIU, Daniel Koellerer Anti-Corruption Disciplinary Hearing <tennisintegrityunit.com/storage/app/media/Media%20Releases/20110531155213-tiu-statement-re-daniel-koellerer-31-may-2011.pdf >(20.06.2017) 109 British Broadcasting Corporation, Transcript OF “FILE ON 4” – “Tennis: Game, SET AND FIX?” <news.bbc.co.uk/2/shared/bsp/hi/pdfs/19_01_16_fo4_tennis.pdf> (18.06.2017) 110 TIU, Match Alert Data-January to March 2016 <tennisintegrityunit.com/media-releases/tennis-integrity-unit-briefing-note-april-2016> (15.06.2017) 111 TIU, Konstantinos Mikos banned for life for tennis corruption offences <tennisintegrityunit.com/storage/app/media/Media%20Releases/TIU%20statement%20Mikos%204%20May%202017.pdf> (16.06.2017) 112 The Guardian, Cronje banned for life from all cricket <theguardian.com/sport/2000/oct/12/cricket> (15.06.2017) 113 ICC, Code of Conduct, Rules and Regulations
19
American baseball has a sordid history of match fixing that dates back to the 19th century. In
1876 George Bechtel conspired with his teammates to lose a game for a reward of $500.114 In
the famous “Black Sox Scandal” in 1919 eight members of the Chicago White Sox were
charged with receiving money from gamblers for intentionally losing the 1919 World Series.
More recently (1989) Pete Rose, manager of the Cincinatti Reds was accused of having links
with gamblers and illegal bookmakers, charges he denied until finally confessing in 2004.115 To
combat illegal gambling in baseball Major League Baseball (MLB) has hired Genius Sports
(London) to monitor gambling activity using computer algorithms to spot unusual betting
patterns.116
5.3. Match –Fixing in Football
The number of countries-209-represented in FIFA, the international football association is
more than those represented in the United Nations. According to present estimates, the cost
of the 2022 World Cup in Qatar will top US$200 billion.117 In short, football is big business and
has a strong attraction for the criminal mind. According to the fixed match database of 2013,
there were a recorded number of 301 fixed matches in 60 countries.118 Match fixing comes in
two varieties:
1. Arrangement match-fixing; when corruptors manipulate a football match to ensure that one
team wins or draws the match.
2. Gambling match-fixing; when corruptors manipulate a football match to profit maximise on
the gambling market.
In the first case the team can benefit in the short term, whereas in the second case the team
can sabotage itself in seeking personal profit.119
<icc-cricket.com/about/cricket/rules-and-regulations/code-of-conduct> (17.06.2017) 114 Ginsburg,D.E., The Fix Is in: A History of Baseball Gambling and Game Fixing Scandals, 2004, Richmond, USA, 42. 115 The New York Times<nytimes.com/2004/01/02/opinion/the-confessions-of-pete-rose.html> (20.06.2017) 116 The Washington Post, MLB is keeping a close eye on gambling to protect the Sport’s integrity <washingtonpost.com/sports/nationals/mlb-is-keeping-a-very-close-eye-on-gambling-to-protect-the-sports-integrity/2016/05/30/0581b24a-1ed5-11e6-b6e0-c53b7ef63b45_story.html?utm_term=.6670e0164c97> (18.06.2017) 117 TI, Global Corruption Report: Sport, 31 <transparencia.org.es/wp-content/uploads/2016/02/igc_2015_ingles.pdf> (15.06.2017) 118 Hill (fn 1), 25. 119 Hill (fn 1), 32.
20
Examples of the two types of “fixes” will be discussed in the following sections, taking as the
main reference the pioneering work of Declan Hill.
5.3.1 Arrangement Fixes
In arrangement fixes the team administrators and players are the primary corruptors. The aim
of an arrangement fix is to gain an advantage in a league or a tournament. The idea is not new.
As early as 1909, in the Scottish Cup final between Rangers and Celtic the fix was so obvious
that 6000 fans raided the pitch, causing intervention of the fire brigade as well as the police.120
A famous, more recent case is that of the “arrangement” made between the Austrian and
West German teams in the opening rounds of the 1982 World Cup. To ensure that both teams
moved to the next round they arranged to play for a draw, to the disadvantage of the team
from Algeria.121 The fix was so obvious from the relaxed play after scoring that a German fan
burned his flag in disgust.122
5.3.2. Gambling Fixes
A simplified scheme indicating the steps and agents involved in a gambling fix is indicated in
Fig. 1.123 Here the team players and the referees are the primary targets of the corruptors, the
criminal elements behind the fraud.
120 The Guardian, Firm enemies – Rangers and Celtic, 1909-2009 <theguardian.com/football/2009/may/18/seven-deadly-sins-rangers-celtic-wrath> (17.06.2017) 121 Hill (fn 1), 33,17. 122 The Guardian, What's the dodgiest game in football history? <theguardian.com/football/2004/aug/11/theknowledge.sport> (18.06.2017) 123 Hill (fn 1), 122.
21
Fig. 1
As outlined by Hill a gambling fix is organized according to a five-step process: Access, Set-up,
Calling the Fix, Performance, Payment.124 Access to the players can be achieved by a corruptor
posing, for example as a journalist, who books into the same hotel as the team players,
preferably into a room on the same floor. Otherwise, an intermediary or “runner” is employed.
Bars or clubs frequented by team players are ideal venues for making contact and establishing
the susceptibility of players and referees to bribery. Set-Up refers to success in gaining the
cooperation of players/referees in agreeing to a fix. The acceptance of a bribe at this stage by
a player signals the point of no return. Or in the words of a convicted corruptor “if they take
the money once, it is over. They can never turn back because the gamblers will say; if you don’t
do it we will let the people know that you took the money”. 125
124 Hill (fn 1), 91. 125 Hill (fn 1), 113.
22
“Calling the Fix” refers to spreading the bets on the gambling market. At this stage the
corruptors have to avoid detection by the early warning systems of the bookmakers. This can
be achieved by spreading the bets and using third parties to place the bets, referred to as
mules, runners or beards. The term “beards” was used in the 19th century for agents who
disguised themselves using false beards to avoid identification by the bookmakers. To
maximise profit and to avoid suspicion, the corruptor can arrange for a last minute signal to
the team to go ahead, or not with the fix. This can be done, for example, by using a “runner”
who goes onto the pitch with a T-shirt of a particular colour. To avoid the possibility of the
runner giving the wrong signal and making a side bet on the fix, only the corruptor and the
team know the meaning of the colour signal.126 Performance refers to the tactics of the players
or referee to achieve the fix. A referee can give extra penalties or remove a player from the
team to make losing more probable. Players need to adopt subtle changes in their tactics, for
example by taking the wrong position on the field or keeping the ball too long, so that the
other team takes possession. A notable feature of fixed games is that there are no surprise
goals in the last few minutes and the number of penalties given by the referee is almost twice
that given in honest games.127 Payment for fixing is of course unregulated and the figures not
well publicised. In one report on English football referees may be corrupted for 20,000 pounds
and players for 70,000 pounds. A map from 2013 documents the number of arrests for match
fixing made in 11 countries: Australia, 10; Brazil, 3; China, >50; Finland, 10; Germany, 15;
Hungary, >50; Italy>40; Singapore, 14; Turkey, 30; UK, 6; Zimbabwe, 1.128
5.4. Selected Cases of Match-Fixing in Football
In the following some selected cases of match-fixing (see Table II) will be discussed to
illustrate the general tactics of the corruptors involved.
126 Hill (fn 1), 151. 127 Hill (fn 1), 215. 128 The Telegraph, Football match-fixing: countries where recent scandals have been
uncovered<telegraph.co.uk/sport/football/international/10482213/Football-match-fixing-countries-where-recent-scandals-have-been-uncovered.html> (17.06.2017)
23
Table II: Selected cases of match-fixing in football
Incidents Country Year Fix Sanction Illegal Earnings/ Betting
Fine
Crime/ Disciplinary body
Jimmy Gauld
UK
1960’s
GF
4 Years jail
3275
£5000
Conspiracy to defraud
Ante Sapina
Europe
Canada
2005 GF 2 years and 11 months
unknown €1.8
Mill
Corporate Fraud
Europe
Asia
2009 GF 5 years €2.3 Mill
Unknown Corporate Fraud
Juventus
“Calciopoli”
scandal
Italy 2006 AF Relegation and stripped of 2 series A titles
unknown 50.000
Euro
League -Ranking Fix/
CDN/FIGC
Cremonese
Goalie/team
“Scommessopo
li” scandal
Italy 2011 GF 5 year ban Marco Paoloni Club: Season point deduction
unknown Club
30.000
Euro
Illegal Betting/
CDN/FIGC
Wilson
Raj Perumal,
Fixer
Singapore
/Hungary
2007-
2011
GF 6 years imprisonment:
Singapore
Finland/Hungary
unknown unknown International Match Fixing (FA Cup; FIFA
World Cup)
Abbreviations: GF, Gambling Fix; AF, Arrangement Fix; CDN, National Discipline Commission;
FIGC, Italian Football Federation. See text for further details.
An early case of match-fixing involved the former football player Jimmy Gauld in the 1960s.
After a broken leg had brought to an end his unremarkable football career he corrupted a
network of football players to engage in a series of match fixes for gambling purposes.129 At
the Nottingham Assizes Judge Lawton sentenced Gauld to four years in prison and made the
following statement: “It is my duty to make it clear to all evil-minded people in all branches of
sport that this is a serious crime. You are responsible for the ruin of players of distinction”.130
Ironically Gauld sold his story to a newspaper and received a 7000 pounds fee.131 The most
prominent recent case of match-fixing is that of Ante Sapina, a drop out student of economics
129 The Football Pink, The Men Who Sold The Dream <footballpink.net/2013/12/19/the->(12.06.2017) 130 The Scotsman, The Scots who paid a high price for match-fixing <scotsman.com/sport/football/teams/st-mirren/the-scots-who-paid-a-high-price-for-match-fixing-1-3234413> (13.06.2017) 131 The Football Pink (fn 129).
24
who turned his attention to betting on sports with a subsequent focus on football132. Sapina
along with his brother arranged the fixing of football matches in nine different countries. This
was achieved by the bribing of players, referees and functionaries.133 After his release from a
first prison term in 2007 Sapina continued his activities with a focus on betting over London in
Asia, which lead to a second five-year prison term for corporate fraud. Calciopoli refers to the
scandal involving the Italian teams Juventus, Milan, Fiorentina, Lazio and Reggina. Through
collusion between managers and referee organisations the teams were accused of rigging
games in the interest of league positions, corresponding to arrangement fixing.134 In the Italian
football scandal of 2011 known as operation “ Scommessopoli (Bet City)” many prominent
football related figures were arrested for match-fixing and illegal betting. A main figure was
the goalkeeper Marco Paoloni who actively fixed games using techniques including doping of
his Cremonese teammates. All participants in the scandal were charged by the Italian Football
Federation and received bans from one to five years; in addition fines and point deductions
were imposed on the clubs involved.135 Wilson Raj Perumal bribed match officials through his
company called Football4U. One of these, a referee named Ibrahim Chaibou together with
other corrupt officials was paid 60.000-75.000$ to fix a game.136
5.5. Money Laundering in Football
Football offers two channels to launder the proceeds of criminal activities: through gambling,
including match fixing and through the acquisition of a football club. The Financial Action Task
Force report from 2009137 describes how criminals exploit weak football clubs to launder their
money and gain legitimate social status. Clubs in financial difficulties pay less attention to the
credibility of a potential sponsor. But respectable clubs can also fall victim to criminals’ as was
the case of Birmingham City Football Club in the UK. An apparently respectable tycoon from
Hong Kong who purchased a stake in the club in 2007 was committed in 2014 to six years in jail
132 Welt, Ante Sapina muss 1.8 Millionen Euro zahlen <welt.de/sport/article770111/Ante-Sapina-muss-1-8-Millionen-Euro-zahlen.html> (15.06.2017) 133 Spiegel Online, Prozess gegen Wettpaten Sapina wird neu verhandelt <spiegel.de/sport/fussball/fussball-manipulationsskandal-prozess-gegen-sapina-wird-neu-verhandelt-a-874047.html> (14.06.2017) 134 The Guardian, Italian clubs punished for match-fixing <theguardian.com/football/2006/jul/14/europeanfootball.juventus2> (22.06.2017) 135 The Guardian, Latest Italian match-fixing scandal met with both fury and weary resignation <theguardian.com/football/2012/may/28/italian-match-fixing-fury-resignation> (18.06.2017) 136 UNODC (fn 3) ,7. 137 FATF, Money Laundering through the Football Sector, 15 <www.fatf-gafi.org/media/fatf/documents/reports/ML%20through%20the%20Football%20Sector.pdf> (18.06.2017)
25
in Hong Kong for laundering £2.8m though the club.138 This is just one case in many139 of how
money may be laundered through the football sector.
According to the Financial Action Task Force (FATF) report in 2009 on money laundering
through the football sector:
“As the biggest, truly global, high value sport, football seems to be confronted with various
forms of crime and corruption - including money laundering---- The influx of big money, in
combination with some specific factors has made football one of the many sectors that can be
attractive for criminals to launder proceeds of crime.”140
In general modern football is susceptible to money laundering activities by criminal organisations
or groups. These organisations benefit from the vulnerabilities of the football sector. One can
distinguish between the vulnerabilities related to the sector’s structure, the vulnerabilities related
to the sector’s finance and the vulnerabilities related to the sector’s culture.141
In relation to the structure the market is easy to penetrate and the stakeholders involved form a
complicated network, which makes it easier to conduct fraudulent actions. In connection with the
sectors’ finance considerable sums are involved, making weaker clubs with unpredictable futures
particularly attractive targets for money laundering. Some players are especially vulnerable, in
particular younger players. Further, the societal role of football makes players, referees or other
stakeholders reluctant to report fraud in their community. Money laundering is also an issue in
connection with betting activities especially with match-fixing.142 In the operations SOGA I and II of
Interpol, more than 1000 persons were arrested for money laundering activities, underlining the
international dimension of illegal gambling in soccer.143 Bookmakers in Asia are in principle
“professional and well organised companies” that can be exploited by criminals located
elsewhere. Criminals situated in Europe, as illustrated in the Sapina case can manipulate matches
by luring players or referees and place their bets on the Asian betting market. Stakes from €
100.000 to 2 million per match are possible.144
138 The Conversation, Off the pitch and off the books: professional Football’s money laundering problem <http://theconversation.com/off-the-pitch-and-off-the-books-professional-footballs-money-laundering-problem-39222> (03.08.2017) 139 FATF (fn 137), 17. 140 FATF (fn 137), 36. 141 FATF (fn 137), 36. 142 FATF (fn 137), 34. 143 FATF (fn 137), 25. 144 FATF (fn 137), 25.
26
Another reason why money laundering by match-fixing is a common phenomenon is its “non-
transparent and heterogeneous market”, as there are no coherent rules. Likewise, it is nearly
impossible to pose legal sanctions on providers who act online or abroad.145 A further possibility
to launder money is to bribe players with casino chips acquired with money that stems from
criminal activities, as happened in Belgium.146
6. International Initiatives to combat Match-Fixing and the Macolin Convention
6.1. Introduction
The severity of the match-fixing problem is emphasised by the number of international
organizations concerned with stamping out this unilateral threat to sport. In June 2016, the
International Olympic Committee (IOC, Lausanne), in collaboration with the United Nations
Office on Drugs and Crime (UNODC) issued a document on the “Criminal Law Provisions for the
Prosecution of Competition Manipulation”147. This was followed, in August 2016 by the
“Resource Guide on Good Practices in the Investigation of Match Fixing” issued by the United
Nations Office on Drugs and Crime (UNODC- Vienna) in collaboration with the International
Center for Sport Security (ICSS)148. In the same year Transparency International issued their
“Global Corruption Report: Sport”.149
All these documents refer to and commend the initiative in September 2014 of the Council of
Europe at a meeting in Macolin, in initiating a “Convention on the Manipulation of Sports
Competitions”, otherwise known as the “Macolin Convention”.150 In the following I will
highlight incidences of match fixing in four chosen European countries and thereafter compare
the efforts of each country to adopt the requirements of the Macolin Convention (Appendix
1).151
145 FATF (fn 137), 25. 146 FATF (fn 137), 25. 147 UNODC IOC Booklet For Legislators, Model Criminal Law Provisions From The Prosecution Of Competition Manipulation <https://www.unodc.org/documents/corruption/Publications/UNODC-IOC_Model_Criminal_Law_Provisions_for_the_Prosecution_of_Competition_Manipulation_Booklet.pdf> (15.08.2017) 148 UNODC (fn 3). 149 Transparency International, Global Corruption Report: Sport <https://www.transparency.org/whatwedo/publication/global_corruption_report_sport> (15.08.2017) 150Macolin Convention (fn 4). 151 Macolin Convention (fn 4).
27
6.2. Match-fixing in football in Austria, Finland, The Netherlands and Switzerland
In Austria, the most serious case of gambling match-fixing was that involving footballers Sanel
Kuljic and Dominiue Taboga, both convicted by a court in Graz in 2014 under § 146 StGB
(fraud)152 and sentenced respectively to five years and three years in jail. After team members
had been bribed to arrange a fix, bets were placed on Asian on–line bookmakers by
conspirators from Austria, Albania, Serbia and Chechnya.153 The players received from 7000-
25000 euros to carry out the fix. The manipulations covered a period of nine years and only
came to light when Taboga charged Kuljic with blackmail.
Rather than introduce specific, new laws against match-fixing Austria has chosen to establish a
“Play Fair Code” involving collaboration between sports and betting organizations. The mission
of this consortium encompasses prevention, awareness-raising, risk assessment and
stakeholder coordination.154 The Austrian Football Association (ÖFB) has clauses in its
regulations that include sanctions against members involved in illegal betting or match
fixing.155 A law company has also been named as an ”Ombudsman” to provide help or
consultation.
Although Finland ranks among countries with a low index of corruption, it has not been
immune to match fixing. The major incident of Wilson Raj Perumal, already mentioned above
was preceded by three other match fixing cases: Pesapallo (2001); Nissinen (2008); and
Mitschuk (2009), each ending with imprisonment.156 Although charges were made, Finnish law
does not have specific legislation dealing with match fixing and the sentences given in the
preceding cases were passed according to the existing bribery laws (Finland criminal code:
Chapter 30(769/1990)-Business offences).157 To address this problem and in line with the
152 Der Standard, Aufrüsten im Kampf gegen den Wettbetrug <http://derstandard.at/2000006277006/Aufruesten-im-Kampf-gegen-den-Wettbetrug> (31.07.2017) 153 Mail Online, Former Austria international Sanel Kuljic given five years in prison for match-fixing and physical harassment offences <http://www.dailymail.co.uk/sport/football/article-2779762/Former-Austria-international-Sanel-Kuljic-given-five-years-prison-match-fixing-physical-harassment-offences.html> (03.08.2017) 154 Play Fair Code, Spielmanipulation < http://www.playfaircode.at/spielmanipulation/> (31.07.2017) 155 Play Fair Code (fn 154). 156 Match fixing and fraud in sport: putting pieces together, Annex 2 <http://www.europarl.europa.eu/document/activities/cont/201209/20120925ATT52303/20120925ATT52303EN.pdf> (17.08.2017) 157 The Criminal Code of Finland <http://www.finlex.fi/en/laki/kaannokset/1889/en18890039.pdf> (01.08.2017)
28
requirements of the Macolin Convention, the national gambling and police authorities of
Scandinavia published a joint report on “Match-Fixing in the Nordic countries” in 2013.158 In
the case of Finland, this report highlights the vulnerability of financially weak football clubs
during summer, when other European clubs take a break. A primary conclusion of this working
group, in concert with the Macolin requirements was that a single authority is incapable of
fighting match-fixing. The multiple factors requiring consideration in combatting match-fixing
are listed in the tables A-C of the Nordic report. The action plan for Finland is outlined in the
same report. Before discussing the latter plan in the context of the Macolin convention, the
initiative of the Finnish Football Association (SPL), as detailed in the Asser Institute document
of 2014,159 must also be mentioned. The SPL has established “Rules of Competition” which
specify situations in which sanctions can be imposed on persons involved in any way with
unsportsmanlike or illegal activities. For example, Article 2h states: persons facing a potential
sanction by SPL are:
“h) a person who attempts to play, plays, or suggests playing in a manner that aims at fixed
results or otherwise attempts to manipulate or manipulates happenings at a match or neglects
to inform the association or the club upon such activities.”
Any links of a club with gambling activities is likewise forbidden and infringements result in the
immediate termination of employment contracts [paragraphs 8 and17].160
The Netherlands, like Finland was a victim of the criminal activities of the match-fixer Wilson
Raj Perumal. In cooperation with Perumal a player at WillemII Tilburg, Ibraham Kargbo,
promised the team captain and another player 25,000 Euro each to throw a match against
Utrecht in 2009.161 Unfortunately, The Netherlands has not introduced any specific criminal
provisions to combat match fixing.162 The Royal Netherlands Football Association (KNVB),
which regrets the absence of laws covering match-fixing, has an integrity unit that collaborates
closely with UEFA and FIFA. Through UEFA, KNVB takes advantage of the Betting Fraud
158 Match-Fixing in the Nordic Countries <https://www.lotteriinspektionen.se/globalassets/dokument/informationsdokument/rapport-matchfixing-in-the-nordic-countries-2013.pdf> (31.07.2017) 159 Asser Institute, Study on risk assessment and management and prevention of conflicts of interest in the prevention and fight against betting-related match fixing in the EU 28, Final Report, 67 <http://www.eu-ssa.org/wp-content/uploads/risk.pdf> (01.08.2017) 160 Asser Institute, Final Report (fn 159), 69. 161 The Guardian, Dutch Football alleges first case of attempted match-fixing <https://www.theguardian.com/football/2016/feb/15/dutch-football-investigation-alleged-match-fixing> (01.08.2017) 162 KNVB, Match-Fixing <http://www.knvb.com/themes/match-fixing> (01.08.2017)
29
Detection System (BFDS).163 Thanks to the Global Lottery Monitoring System (GLMS) the KNVB
was warned about unusual betting patterns in friendly matches between Dutch clubs and an
Albanian club in January 2015.164 The Netherlands has chosen to tackle the match-fixing
problem by employing anti-corruption laws (M. Olfers, private communication)165, together
with a modernization of the gambling policy, through the establishment of the Gaming
Authority (KSA) in 2012.166 The Gaming Authority provided assistance in the illegal betting
scandal in 2015, mentioned above.167 The publicly owned state lottery (Nedelandes Loterij)
established in 2016 provides facilities for sports betting.168 Fraud committed by private
persons is covered by section 326.1 of the Dutch criminal code 169 and money laundering by
the “Money Laundering and Financing of Terrorism Prevention Act”.170
Swiss football has fallen victim to several cases of manipulation in association with illegal
betting activities. In 2009 convictions for manipulation were imposed in connection with
eleven games of the second division involving six teams: FC Thun, FC Gossau, FC Wil 1900, FC
St. Gallen, FC Biel, FC Fribourg.171 In the case of two teams the German Croat and committed
criminal Ante Sapina was the ringleader.
Under Article 146 of the Swiss criminal code, five players were charged with corruption and
attempted commercial gain.172 Subsequently, the charges were revoked on the grounds that
Article 146 only refers to fraud when a human being and not an electronic system is misled. As
a result the accused players were discharged.
163 KNVB (fn 162). 164 The European Lotteries, Dutch Football Association Expresses Thanks To GLMS For Its Support In Dealing With Match-Fixing Suspicions < https://www.european-lotteries.org/announcement/dutch-football-association-expresses-thanks-glms-its-support-dealing-match-fixing-sus-0> (16.08.2017) 165 Prof. MR.M. (Marjan) Olfers <https://www.narcis.nl/person/RecordID/PRS1326785/Language/en> (16.08.2017) 166 Government of the Netherlands, Gambling Policy <https://www.government.nl/latest/news/2014/07/21/government-to-modernise-gambling-policy> (01.08.2017) 167 Gaming Authority, Annual Report 2015 <annual_report_gaming_authority_2015.pdf> (01.08.2017) 168 Practical Law, Gaming in the Netherlands: overview <https://uk.practicallaw.thomsonreuters.com/6-636-7443?__lrTS=20170406002458695&transitionType=Default&contextData=(sc.Default)&firstPage=true&bhcp=1> (01.08.2017) 169 Criminal Code, Netherlands
<http://www.ejtn.eu/PageFiles/6533/2014%20seminars/Omsenie/WetboekvanStrafrecht_ENG_PV.pdf> (01.08.2017) 170 Financial Intelligence Unit – The Netherlands, General Legislation <https://www.fiu-nederland.nl/en/legislation/general-legislation> (16.08.2017) 171 Fight Against Corruption and Manipulation of Sports Competitions, Report from 28th June 2011, 53 <http://www.news.admin.ch/NSBSubscriber/message/attachments/28529.pdf> (01.08.2017) 172 Swiss Criminal Code,53 <https://www.admin.ch/opc/en/classified-compilation/19370083/201707110000/311.0.pdf> (16.08.2017)
30
Within current Swiss legislation match-fixing could fall under Article 2 of the unfair
competition law (UWG).173 However, the report on corruption and match-fixing in sport came
to the conclusion that174:
“Game- and betting manipulation, when associated with economic– and competition related
behaviour can fall under Article 2UWG. According to this clause, however, the imposition of
sanctions is not legally possible”.
In response to this unsatisfactory situation a new document concerning match fixing in sport
was presented in Bern in September 2016.175 This document covers in a comprehensive way all
the clauses of the Macolin Convention from 2014, as indicated in the analysis below. A more
detailed survey of the responses to the clauses dealing with illegal betting is presented in
Chapter 8.
6.3. Compliance of Austria, Finland, The Netherlands and Switzerland to the Requirements
of the Macolin Convention
The response of each country to selected paragraphs of the Macolin Convention 176(see also
Appendix 1) is presented below. For convenience, the text of the selected paragraphs of the
Macolin Convention is reproduced in an abbreviated form where considered appropriate.
II/4 2. Domestic Coordination: “Each Party, within its jurisdiction, shall encourage sports
organisations, competition organisers and sports betting operators to co-operate in the fight
against the manipulation of sports competitions and, where appropriate, entrust them to
implement the relevant provisions of this Convention.“
Austria: According to the initiative of the Austrian minister of sports and the Austrian football
associations a Play Fair Code has been established with the triple mission of prevention,
information and awareness raising as regards corruption in sport.177
173 Bundesgesetz gegen den unlauteren Wettbewerb <https://www.admin.ch/opc/de/classified-compilation/19860391/> (16.08.2017) 174 Fight Against Corruption (fn 171), 63. 175 Übereinkommen gegen die Manipulation von Sportwettbewerben: Bundesrat eröffnet Vernehmlassung <https://www.admin.ch/gov/de/start/dokumentation/medienmitteilungen.msg-id-63792.html> (01.08.2017) 176 Macolin Convention (fn 4). 177 Play Fair Code, Verein <http://www.playfaircode.at/verein/ueber-uns/> (01.08.2017)
31
Finland: In 2013 the Nordic countries established a working group to combat match-fixing.
This group is composed of representatives from gaming and gambling authorities of Norway,
Denmark and Sweden as well as from the National Police Board and the Gambling
Administration of Finland.178
The Netherlands: The KNVB is the only body directly concerned with match-fixing.179
Switzerland: The betting regulatory authority Comlot and the ministry of sports BASPO
perform risk assessment and management. According to Article 42 E-BGS betting operators
are obliged to develop a security concept. Sports organisations promoted under the Sport
promotion law (Sportförderungsgesetz)180 are required to contribute to the assessment of
manipulation risks.
II/6 Education and awareness raising: “Each Party shall encourage awareness raising, education, training and research to strengthen the fight against manipulation of sports competitions.”
Austria: Within the mission of the Play Fair Code information and teaching programs are
organised.181
Finland: The Finish betting agency Veikkaus Oy, the Ministry of Education and Culture, the
Finnish Sports Federation FSF, and Transparency Finland arranged a Finnish Sport Integrity Day
seminar in October 2012.182 The Finnish Center for Integrity in Sports (FINCIS) established in
2011 organizes “high-quality education for stakeholders in sports”.183
The Netherlands: The Football Association KNVB provides information to referees, players and
clubs about match-fixing.184
Switzerland: Education and awareness raising is the obligation of the sport organisations and
the promoters of sports competitions.185
II/7 Whistleblower :” Each party shall introduce effective mechanisms to facilitate the
disclosure of any information concerning potential or actual cases of manipulation of sports
competitions, including adequate protection for whistle blowers”.
178 Match Fixing in the Nordic Countries (fn 158), 17. 179KNVB (fn 162). 180 Sport promotion law, 4903 <https://www.admin.ch/opc/de/federal-gazette/2011/4893.pdf> (16.08.2017) 181 Play Fair Code, AKTUELLES < http://www.playfaircode.at/aktuelles/> (17.08.2017) 182 Match Fixing in the Nordic Countries (fn 158), 16. 183 FINCIS, Activities <http://www.suek.fi/web/en/activities> (31.07.2017) 184 KNVB (fn 162). 185 Erläuternder Bericht zur Genehmigung des Übereinkommens des Europarats gegen die Manipulation von Sportwettbewerben, 8 <https://www.admin.ch/ch/d/gg/pc/documents/2798/Magglinger-Konvention_Erl.-Bericht_de.pdf> (04.08.2017)
32
Austria: An “Ombudsstelle” has been established to give advice and allow anonymous
reporting of suspected infringement of fair play.186
Finland: In the OECD anti-bribery convention phase 4 report on Finland in 2017187 it was noted
that Finland has not yet implemented laws to protect whistle blowers. However, the Finnish
professional football players’ association (JPY) produced a “Players Red Button” app in 2013
that allows players to make anonymous reports on rumours of match fixing.188
The Netherlands: KNVB have provided a hotline, anonymous if desired.189
Switzerland: The Swiss Football Federation(SFV) and the Swiss Football League(SFL) together
with the Swiss Association of Football Players(SAFP) introduced a smartphone app [see
Finland] called “Red Button” for anonymous reporting.190
2e- appointment at the latest possible stage: “Each party shall employ procedures to appoint
referees and judges as late as possible before a sporting event to minimize the possibility of
intervention of corruptors”.
Austria: There are no procedures in place for the late appointment of referees.
Finland: As with Austria no arrangements have yet been made for the late appointment of
referees.
The Netherlands: Likewise, the Dutch Football Association makes no provisions for the later
appointment of referees.
Switzerland: Sport organizations should be encouraged to adopt this practice.191
3 - proportionate and dissuasive disciplinary sanctions and measures to infringement of their
internal rules: “Each party shall encourage national and international sports organizations to
introduce effective and dissuasive internal sanctions and regulations to combat manipulation
of sports competions.”
186 Play Fair Code, Ombudsstelle <http://www.playfaircode.at/aufgaben/ombudsstelle/> (01.08.2017) 187 OECD, Implementing The OECD Antibribery Convention, Phase 4 Report: Finland <http://www.oecd.org/corruption/anti-bribery/Finland-Phase-4-Report-ENG.pdf> (01.08.2017) 188 TI, Global Corruption Report: Sport (fn 117), 262. 189 KNVB (fn 162). 190 SAFP, Red Button – Meldesystem für Spielmanipulationen <http://safp.ch/news/red-button-meldesystem-fuer-spielmanipulationen> (01.08.2017) 191 Erläuternder Bericht( fn 185), 8.
33
Austria: According to the Austrian Football Association regulations both illegal betting and
omission of reporting irregularities are penalised (§114 and 115a) ÖFB -
Rechtspflegeordnung.192
Finland: The SPL has established rules of sanction in cases of suspected manipulation.
The Netherlands: The KNVB applies zero tolerance policy to match-fixing and has established
an Integrity Unit which has prosecuting powers.193
Switzerland: Sport organizations are obliged to comply by the requirements of BASPO to
adopt an ethic charter and behaviour code and to promote awareness and integrity.194
II/8 /2 Measures to help sport organizations to combat match fixing: “Each Party shall
consider the possibility of helping sports organisations to combat the manipulation of sports
competitions, including by funding appropriate mechanisms.”
Austria: The Play Fair Code provides a forum for sport organisations to seek legal advice and
assistance in cases of suspected fraud.195
Finland: FINCIS, the Finnish Center for Integrity in Sports assists sports organizations to detect
and prevent manipulation in sport by serving as a national information center.196
The Netherlands: No state assistance is provided to KNVB but a close collaboration with UEFA
and FIFA includes access to the Betting Fraud Detection System (BFDS).197
Switzerland: According to “Artikel 11 (Subventionsgesetz 1990)” the public authorities can
demand transparency from organisations that receive federal support. According to “Artikel 32
Absatz 1 d SpoFög” BASPO can withhold subsidies from sports organisations if they fail to fulfil
their obligations in connection with a fair and secure sport.
II/9 Measures regarding the betting regulatory authority or other responsible authority or
authorities: “Each party shall identify an authority responsible for the regulation of sports
betting and for combatting the manipulation of sports competitions. To include: advanced
information exchange about suspicious sports betting; exclusion of sports betting on
inadequately organized events or those involving participants under 18 years of age; 192 Play Fair Code (fn 154). 193 KNVB (fn 162). 194 BASPO, The nine principles of the Charter of Ethics <http://www.baspo.admin.ch/de/sportfoerderung/fairness---ethik-und-sicherheit/ethik-charta.html> (18.08.2017) 195 Play Fair Code, Nationale Plattform <http://www.playfaircode.at/nationale-plattform/> (01.08.2017) 196 FINCIS (fn 183). 197KNVB (fn 162).
34
identification of financial flows above a given threshold, together with the names of the parties
involved; mechanisms to prevent betting on competitions by stakeholders in a sporting event.”
Austria: The judicial authorities are committed to collaborate with the Play Fair Code
association.198
Finland: The national gambling company in Finland (Veikkaus) is tightly regulated and is
included in the Nordic initiative to combat match-fixing.199
The Netherlands: The national Gaming Authority has been given the task of addressing the
problems of illegality and criminality in the gaming industry.200
Switzerland: Comlot is authorised to oversee and control sport betting according to Articles
under the E-BGS.201
II/10- 11 Sports betting operators: misuse of inside information; conflict of interest: the fight
against illegal sports betting: ”Each party shall adopt measures to combat illegal operators of
sports betting by actions such as: closure or restriction of access of operator; blockage of
financial flows between consumers and such operators; prohibition of advertising by illegal
operators; raising of consumer awareness of the risks associated with illegal sports betting.”
Austria: The Play Fair Code includes a commitment of national betting organisations as
stakeholders (Austrian Lottery, Tipp 3, Admiral, Cashpoint, tipico)202 to fight illegal betting.
Finland: The report of the Nordic countries describes the measures implemented
(Monitoring/alerting) to report and take action on illegal betting activities. Veikkaus, the
Finnish Betting Agency and SPL have introduced procedures to communicate on suspicious
betting activities and SPL additionally receives information of suspicious matches from UEFA
and FIFA.203
The Netherlands: The Dutch Gambling Authority KSA takes action against illegal betting
operators and imposes fines on external non-registered betting providers. ( see also section
8.3)204
198 Play Fair Code (fn 195). 199 Match Fixing in the Nordic Countries (fn 158),16. 200 The Netherlands Gaming Authority, Strategic Summary<http://www.kansspelautoriteit.nl/algemene-
onderdelen/uitgebreid-zoeken/?zoeken_term=strategy+summmery> (17.09.2017) 201 Erläuternder Bericht (fn 185),13. 202 Play Fair Code (fn 154). 203 Asser Institute, Final Report (fn 159),69. 204 Sportsbetting, Betting Online in The Netherlands <https://www.sbo.net/country/betting-online-netherlands/> (16.08.2017)
35
Switzerland: As sponsors or club owners, betting operators are forbidden to influence the
competition or to offer bets on a sport organization in which they are involved.
The reporting of irregular or suspicious betting is required under Art. 63/1 E-BGS of the new
gambling law205 which also forbids advertisement of illegal betting products (Art. 72 Abs. 3 E-
BGS) and has been extended to include unregistered on-line betting (Art 84-90 E-BGS).
III/13 National platform :” Each party shall identify a national platform addressing
manipulation of sports competitions that, according to domestic law: coordinates and
disseminates information relevant to the fight against match-fixing; issues alerts, where
appropriate, on suspicious betting activities; provides information of possible law infringement
to public authorities as well as to sport organizations and betting operators; communicates its
name to Secretary General of the Council f Europe.”
Austria: The Play Fair Code serves as the national platform in Austria to coordinate the fight
against manipulation of sports competitions.206
Finland: FINCIS serves as the national platform in Finland.207
The Netherlands: KNVB is the national platform concerned with match-fixing in football and
obtains assistance from UEFA and FIFA in the identification of suspicious betting activities.208
Switzerland: The inter-cantonal authorities are obliged to communicate illegal activities to the
prosecuting authorities and to collaborate with other authorities involved, according to Art
108 E-BGS.209
IV/15- criminal offences relating to the manipulation of sports competitions: “Each Party
shall ensure that its domestic laws enable to criminally sanction manipulation of sports
competitions when it involves either coercive, corrupt or fraudulent practices, as defined by its
domestic law”.
Austria: Fraud is punishable under § 146 and §147 of the Austrian criminal code210 and has
been used in the case of match-fixing.211
205 Draft, Federal Law on Gambling <https://www.bj.admin.ch/dam/data/bj/wirtschaft/gesetzgebung/geldspielinitiative/entw-d.pdf> (16.08.2017) 206 Play Fair Code (fn 195). 207 FINCIS (fn 183). 208 KNVB (fn 162). 209 Draft, Federal Law on Gambling (fn 205). 210 Austrian Criminal Code, BGB. I Nr. 117/2017
36
Finland: Only one clause in the existing Finnish Criminal Code has been applicable to sport
corruption offences: Chapter 36 - Fraud and other dishonesty Section 1 - Fraud (Amendment
769/1990):
“(1) A person who, in order to obtain unlawful financial benefit for himself or herself or another
or in order to harm another, deceives another or takes advantage of an error of another so as
to have this person do something or refrain from doing something and in this way causes
economic loss to the deceived person or to the person over whose benefits this person is able to
dispose, shall be sentenced for fraud to a fine or to imprisonment for at most two years.”212
The Netherlands: Fraud by private persons is covered under the Dutch criminal code Part XXV.
Deception, Section 326 -1: “Any person who, with the intention of benefitting himself or
another person unlawfully, either by assuming a false name or a false capacity, or by cunning
manouvers, or by a tissue of lies, induces a person to hand over any property, to render a
service, to make available data, to incur a debt or relinquish a claim, shall be guilty of fraud
and shall be liable to a term of imprisonment not exceeding four years or a fine of the fifth
category.”213
Switzerland: The previous loophole is now covered, first by a new Art.25a Sport Promotion
Law (E-SpoFöG)214 and second, by the revised Articles 322 octies and novies (StGB)215 that have been
in force since July 2016.
IV/16- Laundering of the proceeds of criminal offences relating to the manipulation of sports
competitions: “Each party shall adopt legislative and other measures to establish money
laundering as a criminal offence under its domestic law. Sports betting operators should be
required to keep records and report any activities potentially linked to money laundering”.
Austria: The Austrian Financial Investigation Unit (A-FIU) is responsible for combating money
laundering and collaborates with the Financial Action Task Force (FATF).216
<https://www.ris.bka.gv.at/GeltendeFassung.wxe?Abfrage=Bundesnormen&Gesetzesnummer=10002296> (16.08.2017) 211 Der Standard, Aufrüsten im Kampf gegen den Wettbetrug (fn 152). 212 KEA, European Affairs, Match Fixing in Sport, A Mapping of criminal law provisions in EU 27, March 2012 <http://www.keanet.eu/docs/study-sports-fraud-final-version_en.pdf> (01.08.2017) 213 Criminal Code, Netherlands (fn 169). 214 Sport Promotion Law, Pending, 195 <https://www.bj.admin.ch/dam/data/bj/wirtschaft/gesetzgebung/geldspielinitiative/entw-d.pdf> (17.08.2017) 215 Swiss Criminal Code (fn 172). 216 Anti-Money Laundering Forum, Austria <https://www.anti-moneylaundering.org/europe/Austria.aspx> (01.08.2017)
37
Finland: SportRadar is in operation in Finland to monitor the betting market and detect
suspicious activities; The Finnish betting agency Viekkaus has the right to refuse bets for risk -
management reasons. 217 Money laundering is punishable according to Chapter 32 (961/2003)
of the Finnish Criminal Code.218
The Netherlands: There is no specific law dealing with match fixing. Netherlands is a signatory
to the Financial Action Task Force (FATF) and the Dutch Gaming Authority can intervene in
cases of suspected laundering.219
Switzerland: According to Swiss law money laundering in connection with a major offence can
lead to prison sentences of more than three years. Offenders can be prosecuted for corruption
(Art. 146 StGB), blackmail (Art.156 StGB) and bribery of government officials (Art. 322 StGB).220
The new law includes provisions for manipulation of sports competitions (Art 25a E-
SpoFöG).221 Art. 42 E-BGS requires transparency with regard to money transactions.222
V/21-Protection measures (witnesses): “Each party shall consider adoption of legal measures
to protect persons (and family members) who provide information or give testimony on
suspected cases of match-fixing”.
Austria: No provisions so far, but whistleblowers are protected by anonymity through the
Ombudsman’s office of The Play Fair Code.223
Finland: Specific measures to protect witnesses have not yet been introduced.
The Netherlands: A Whistle Blower Act224 came into force in 2016 which includes legal
protection measures, but is applicable only to civil servants and company employees
Switzerland: According to Art. 149-151 StPO of the state law from 2011, witnesses under
threat can be questioned and heard outside court.225
217 Match Fixing in the Nordic Countries (fn 158), 16. 218 The Criminal Code of Finland (fn 146). 219 ICLG, Netherlands, Gambling 2017 <https://iclg.com/practice-areas/gambling/gambling-2017/netherlands> (18.08.2017) 220 Swiss Criminal Code (fn 172). 221 Sport Promotion Law, Pending (fn 214), 195. 222 Draft, Federal Law on Gambling (fn 205). 223 Play Fair Code (fn 186). 224 Dutch House For Whistleblowers Act <https://www.cliffordchance.com/briefings/2016/06/dutch_house_for_whistleblowersact.html> (16.08.2017) 225 Swiss Criminal Procedure Code < https://www.admin.ch/opc/en/classified-compilation/20052319/index.html> (18.08.2017)
38
VI/22-Criminal sanctions: “Each party shall adopt legislative or other measures against natural
persons involved in match-fixing, including dissuasive sanctions, disqualification or fines as well
as extradition or imprisonment, according to domestic law”.
Of the four countries discussed here only Switzerland has introduced new laws covering the
manipulation of sport competitions as well as those concerning money laundering, under
ArtVI/16 of this convention above. Offenders face fines and imprisonment of at least one year,
as well as extradition.
VII-International cooperation in judicial and other matters
“All parties shall cooperate in the application of international and regional legal instruments
for the purpose of investigation and judicial procedures leading to prosecution and other
effective measures including seizure, confiscation and extradition.”
For all the countries concerned INTERPOL assists national police forces in matters of
identification, arrest and extradition of persons involved in crime.226
Austria: Austria collaborates with FATF in the area of money laundering227 and ÖFB is a
member of FIFA.
Finland: The Finnish Football association (SPL) receives information relating to suspicious
matches from both UEFA and FIFA.228 The Finnish Center for Integrity in Sports (FINCIS) is
responsible for cooperation with international organizations.229
The Netherlands: In 2009, The Netherlands co-headed a team on a project organized through
FATF dealing with “Money Laundering through the Football Sector”230. The KNVB collaborates
with UEFA in the analysis of potential match fixing incidents using the Betting Fraud Detection
System(BFDS)231. The Dutch National Police have provided funds to INTERPOL to support their
fight against match fixing.232
Switzerland: The headquarters of UEFA is situated in Switzerland facilitating close
collaboration and information exchange in the area of sport integrity.
226 INTERPOL, notices < https://www.interpol.int/INTERPOL-expertise/Notices> (17.08.2017) 227 FATF (fn 137), 12. 228 Asser Institute, Final Report (fn 159), 69. 229 FINCIS (fn 183). 230 FATF (fn 137), 5. 231 KNVB (fn 162). 232 INTERPOL, Integrity in sport <https://www.interpol.int/Crime-areas/Crimes-in-sport/Integrity-in-sport> (17.08.2017)
39
7. Match-fixing in Europe
Of the four countries reviewed here only Switzerland has introduced laws specifically tailored
to match fixing. Austria and Finland have opted for codes of conduct and collaboration
between football associations, betting providers and the police. The Netherlands has opted for
“self-regulation” of the betting providers and football associations and on existing laws against
corruption. In all cases, the football associations have been given a major responsibility to take
action against match fixing and the gambling institutions are gladly cooperating, as primary
victims of this type of fraud.
The different response of the four countries above to match-fixing compares with the likewise
varied actions of other EU member states, with differences in emphasis on the criminalization
of sport and gambling.233 Italy introduced new laws in 2014 to combat hooliganism and match
fixing with prison sentences of up to 6 years and fines of up to 100,000 Euro.234 France has
banned online betting through Betfair235 and Germany has introduced a specific law to address
match fixing.236 Likewise, The Swedish Gambling Authority, the Swedish Sports Confederation,
the police and Svenska Spel initiated a joint effort to protect sport from match fixing in
2016.237
After a brief period of internal corruption UEFA appears to have restored its own integrity and
is now pursuing a no tolerance program on match-fixing, including consultation with Europol,
the Council of Europe, law enforcement and gambling authorities throughout Europe.238 In
partnership with Sportradar, UEFA has introduced a “betting fraud detection system” that
monitors both pre-match and in-game betting activities of major bookmakers in both Europe
233 KEA, European Affairs, Verdict: guilty. Criminal law applies for match-fixing <http://www.keanet.eu/verdict-guilty-criminal-law-applies-to-match-fixing/> (03.08.2017) 234 Football Italia, New laws for hooligans and match-fixing <http://www.football-italia.net/53670/new-laws-hooligans-and-match-fixing> (03.08.2017) 235 The Guardian, French governments new gambling law bans Betfair and all exchanges <https://www.theguardian.com/sport/2009/oct/08/betfair-banned-france-gambling-law>(04.08.2017) 236 DW, Made for minds, German parliament passes law against match-fixing <http://www.dw.com/en/german-parliament-passes-law-against-match-fixing/a-37881179> (03.08.2017) 237 Lottery Inspektionen, The Swedish Gambling Authority 2016 <https://www.lotteriinspektionen.se/globalassets/dokument/informationsdokument/tryckta-publikationer/lotteriinspektionen-2016-en.pdf> (03.08.2017) 238 UEFA, Zero tolerance for match-fixing <http://www.uefa.com/insideuefa/protecting-the-game/integrity/news/newsid=2445511.html> (03.08.2017)
40
and Asia.239Europol provides important support to national agencies in the investigation of
fraud in sport, as evidenced by “Operation VETO” which uncovered an extensive criminal
network involved in match fixing.240 To assist countries to implement the recommendations of
the Macolin Convention to combat match fixing, the Council of Europe and the European
Union initiated a joint project “Keep Crime Out of Sport – KCOOS” in 2016.241 Collaborators in
this project include INTERPOL, Sports Betting Integrity (ESSA), The European Lotteries, The UK
Gambling Commission, The French Online Gambling and Regulatory Authority (ARJEL), The
Norwegian Ministry of Culture, The International and Finnish Olympic Committee, The
Norwegian Ministry of Culture and Oxford Research. All the above measures confirm a
concerted collaborative effort by European countries to fight corruption.
The current analysis applies to four wealthy European countries, with healthy economies.
Owing to the global economic crisis many football clubs were in debt and the players were not
paid on time, creating a breeding ground for match-fixing.
This situation was emphasised by the FIFPro survey of 2016, which found242:
“players in lower income brackets were twice or three times more likely to be approached by
match fixers”.
In countries with weak economies, for example Cyprus, Portugal, Greece and Ukraine, the
problem of match fixing is especially acute and not readily solved by regulations.243 Match-
fixing suspicions in 2017 accompanied games in Ukraine in May244 and in Portugal in
February.245 The case in Ukraine follows the passing of an anti-corruption law against match-
239 UEFA, Betting Fraud Detection System <http://www.uefa.com/insideuefa/protecting-the-game/integrity/betting-fraud-detection-system/index.html?redirectFromOrg=true> (03.08.2017) 240 European Commission, Migration and Home Affairs, Operation VETO – the largest match-fixing investigation in Europe <https://ec.europa.eu/home-affairs/what-is-new/news/news/2013/20130206_01_en> (03.08.2017) 241 Gambling Commission, Keep crime out of sport <http://www.gamblingcommission.gov.uk/news-action-and-statistics/Match-fixing-and-sports-integrity/Keep-crime-out-of-sport.aspx> (03.08.2017) 242 FIFPro, Top Findings, 29 <https://fifpro.org/attachments/article/6706/2016%20FIFPro%20Global%20Survey%20-%20TopFindings_1128.pdf> (03.08.2017) 243 Federbet ANNUAL FIXED MATCHES REPORT 2015, 2 <http://federbet.com/wp-content/uploads/2015/06/Federbetinforme_v12.pdf> (17.09.2017) 244 The Sun, What Was He Doing? <https://www.thesun.co.uk/sport/football/3489069/bizarre-own-goal-in-ukrainian-second-division-clash-between-obolon-brovar-and-bukovyna-so-bad-it-has-prompted-fears-of-match-fixing/> 245 Capital FM Sports, Portugal suspends bets over match-fixing fears <http://www.capitalfm.co.ke/sports/2017/02/07/portugal-suspends-bets-match-fixing-fears/> (03.08.2017)
41
fixing in 2015246 whose effect remains to be tested. For Cyprus match fixing is nothing new and
was considered part of the game in arrangement deals in the local league. The step into
gambling fixes appears to have been a matter of course and will not be reversed by prohibitive
fines.247 The family of a Cypriot referee was threatened after he exposed match fixing by
members of the Cyprus Football Association. In May 2017 Cyprus signed the Macolin
Convention and this was followed by the visit of a mission of experts to Cyprus to draft
legislation criminalizing match-fixing.248 This is undoubtedly a positive initiative but does not
address the underlying dilemma of club finances.
A primary conclusion from the present and other analyses is that education programs alone
are not going to eradicate corruption in football. Football clubs themselves must be required
to manage and maintain a healthy business model, in collaboration with transparent sponsors.
As outlined in the 2016 Deloitte “Annual Review of Football Finance” the revenue of football
clubs varies considerably, with even premier league clubs in the UK facing debts ranging up to
1M Euro.249 All clubs are dependent on broadcasting and advertising rights that are subject to
large fluctuations, according to the success of the club. Tax relief for a sponsor with a
profitable business who takes over the debts of a club or who pays for advertising rights, are
two ways of attracting investors to keep clubs solvent.250 In the UK financial support in the
form of “parachute payments” have been introduced to provide financial cushions to clubs
that drop from the Premier League to the Football League Championship.251 More initiatives in
this direction are needed to protect clubs from accepting support from dubious and likely
criminal sources.
A major challenge in the battle against match-fixing continues to be corruption facilitated by
the globalization of the sport betting industry252 as we have already seen in the Sapina case.
246 Futbolgrad, Ukraine Passes Anti-Corruption Law to Fight Match Fixing <http://futbolgrad.com/ukraine-passes-anti-corruption-law-to-fight-match-fixing/> (03.08.2017) 247 Cypress Mail Online, New laws unlikely to eliminate match-fixing <http://cyprus-mail.com/2017/05/13/new-
laws-unlikely-eliminate-match-fixing/> (03.08.2017) 248 Council of Europe, European Union, Newsroom, Expert mission to Cyprus <http://pjp-
eu.coe.int/en/web/crime-out-sport/-/expert-mission-to-cyprus> (03.08.2017) 249 Deloitte, Reboot, Annual Review of Football Finance 2016, 21 <https://www2.deloitte.com/content/dam/Deloitte/uk/Documents/sports-business-group/deloitte-uk-annual-review-of-football-finance-2016.pdf> (03.08.2017) 250 BBC, Sport, Football League: Why would you buy a lower-league club? <http://www.bbc.com/sport/football/36266364> (03.08.2017) 251 DanielGeey, Premiere League Parachute Payments Explained <http://www.danielgeey.com/premier-league-parachute-payments-explained/> (03.08.2017) 252 Forrest David, Betting and the Integrity of Sport. Asser International Sports Law Series, Sports Betting: Law and Policy, The Hague 2012, 110.
42
The major betting operators in Asia dwarf those in Europe and accept wagers from smaller
agencies, making it easy for criminals to place multiple bets and remain anonymous. Asian
operators have taken measures to refuse bets on Russian matches where fixing is endemic253,
but the low incidence of fixing in Europe make the market very attractive. As long as there is
no effective control of betting on European games via Asia, match-fixing cannot be effectively
eliminated.
8. Borderline between legal and illegal betting in Austria, Switzerland, The
Netherlands and Finland
Whether or not a sport bet is legal or illegal depends on the law prevailing in the country
where it is placed. A brief overview of the legal situation in the four countries covered by the
present analyses is presented below. Thereafter follows a critique of these national measures
in the context of the recommendations outlined in the Explanatory Report of the Macolin
Convention.
8.1 Austria
In Austria, betting in sport is not considered as a game of chance but as a game of skill.254 As
such sport betting falls under the laws regulating totalizers and bookmakers, whereby
differences exist according to the county of jurisdiction. For the present analysis a comparison
of the regulations will be restricted to sport betting and money laundering.
Bookmakers must be registered according to county regulations. Depending on the county the
maximum stake for an unregistered person is limited ranging from 70 to 2.500€ with for
example 500 € in Salzburg.255 Higher stakes must be accompanied by customer identification,
including a photograph. Live betting on a football match is generally forbidden in all counties,
with the exception of bets on the scores at half time and full time.256 Bookmakers must
document any suspicious money transfers and in particular (§ 16 SWuG Salzburg) when the
winnings exceed 2000 euros. Moreover, any suspicion that the bookmaker may have of money
laundering by a client must be reported immediately to the authorities (§4/2 Bundeskriminal-
253 Forrest David, The Threat of Football from Betting-Related Corruption, International Journal of Sport Finance 2012,7, 99-116, West Virginia University, 110. 254 Spieler-info.at, Sportwetten <http://www.spieler-info.at/sportwetten> (01.08.2017) 255 Salzburger Wettunternehmergesetz, LGBl Nr 32/2017, 9 <https://www.ris.bka.gv.at/Dokumente/LgblAuth/LGBLA_SA_20170519_32/LGBLA_SA_20170519_32.pdfsig> (01.08.2017) 256 Salzburger Wettunternehmergesetz (fn 255), 9.
43
Gesetz). Non-compliance with the betting laws can lead to a fine of up to 25,000E.257 In
Salzburg, betting is forbidden on any games below the third national league and games
involving amateurs and youths (under 18).258 The official betting operators in Austria are
committed partners of the “Play Fair Code”, the national body coordinating the fight against
match-fixing.259
8.2 Switzerland
According to Art.106 paragraph 3 lit.b of the Swiss Constitution the Cantons are responsible
for overseeing and issuing permits for sports betting. Article 106, paragraph 6 BV
(Bundesverfassung) requires the Cantons to ensure that the net profit from betting activities is
used for the public good, for culture, social activities and sport. The commercial operation of
lotteries and betting agencies is generally forbidden. However, after article 34 LG
(Lotteriegesetz), Cantons have the right to allow betting with totalizers on specific sports,
including horse racing, boat racing and football. Totalizers are allowed on the basis that
players compete against each other for a common pot. In contrast, betting shops, namely
bookmakers are forbidden (article 33LG). Any agent that offers bets or negotiates bets for
another agency can face criminal proceedings, resulting in imprisonment of up to 3 months or
a fine of 10.000Francs (articles 33 and 42LG).
Article 43 Zi. 2 of the lottery act (LV) defines which types of lotteries fall under the law (LG).
According to the formal restrictions for commercial sport betting with odds, like Sporttip is
forbidden (Art. 33 LG). If offered by the inter-cantonal betting authorities, Swisslos and Lottery
Romande whereby the proceeds contribute to charity Sporttip can, however be classified and
approved as similar to a lottery.260 The Lottery and Betting Commission (COMLOT) is unable to
prevent the infiltration of foreign betting organizations in the Swiss market. However, it can
intervene when such organizations advertise their activities in Switzerland as happened at the
beginning of the European Football Championships.261 Private betting by individuals over
betting websites is, however tolerated262 but a new gambling law due to come into force in
257 Salzburger Wettunternehmergesetz (fn 255), 20. 258 Salzburger Wettunternehmergesetz (fn 255), 9. 259 Play Fair Code (fn 154). 260 Scherrer Urs, Remus Muresan, 2014- Handbuch zum schweizerischen Lotterie- und Wettrecht, Zürich/St.Gallen, 147. 261 SRF, Das illegale Geschäft mit den Sport-Wetten <https://www.srf.ch/sendungen/kassensturz-espresso/themen/multimedia/das-illegale-geschaeft-mit-den-sport-wetten> (03.08.2017) 262 SRF (fn 261).
44
2019 foresees measures to block illegal betting websites to limit access to them by Swiss
consumers.263
8.3. The Netherlands
According to the Dutch Act on Games of Chance (Article 16/1) only a single license can be
allocated for sports betting games, namely to the National Sports Totalizator Foundation (de
Lotto). After distribution of prizes (at least 47,5 % of the proceeds) the net profit must be
allocated to sport, culture, social welfare and public health. Youths under the age of 18 are
forbidden to take part in sports betting.264 Horse racing comes under the jurisdiction of a
different provider, Scientific Games, which is obliged to contribute 50% of the proceeds of the
totalizator to non-profit organizations linked to equestrian sports and other charities.265
De Lotto offers four sports betting options, namely the weekly lotto, the Euro Lottery, the daily
lotto and the instant lottery as well as TOTO, which focuses on football.266 In The Netherlands
the placing of bets on online websites is officially forbidden but evidently tolerated.267
Providers including Ladbrokes and Betfair have challenged the Dutch Laws compliance with
the EC-Treaty Article 49 on the freedom to provide services. Their case has however been
rejected in court,268 according to the Dutch requirement to protect consumers against fraud,
illegal gambling and gambling addiction.269 The Dutch gaming regulator Kansspelautoriteit also
imposed fines on other betting operators including ONISAC Ltd and Mansion Online Casino
Ltd. who both offered Dutch language websites and payment options through the Dutch e-
commercial system iDeal.270 Recent legislation expected in 2017 will allow online betting in
The Netherlands according to strict requirements including specific taxes on the providers.271
263 Botschaft zum Geldspielgesetz <https://www.bj.admin.ch/dam/data/bj/wirtschaft/gesetzgebung/geldspielinitiative/bot-d.pdf> (03.08.2017) 264 Swiss Institute of Comparative Law, The Netherlands, 34 <http://www.fay.ch/Games-Service_I/International/Europ__Union_/18_LegalStudy_Netherlands.pdf> (03.08.2017) 265 Swiss Institute of Comparative Law (fn 264), 34. 266 Segaar Dolf, Sports Betting in the Netherlands: A Legal Framework Study. Asser International Sports Law Series, Sports Betting: Law and Policy, The Hague 2012, 185. 267 Swiss Institute of Comparative Law (fn 264), 34. 268 Kaburakis Anastasios, European Union Law, Gambling, and Sport Betting. European Court of Justice Jurisprudence, Member States Case Law, and Policy. Asser International Sports Law Series, Sports Betting: Law and Policy, The Hague 2012, 60. 269 Swiss Institute of Comparative Law (fn 264), 35. 270 Sportsbetting, the Netherlands (fn 204). 271 Blenheim Advocaten, Blogs from Lawyers in Amsterdam <https://www.blenheim.nl/blogs/1385/Dutch-Gambling-Legislation> (03.08.2017)
45
8.4. Finland
Finland has a National Gambling Authority, Veikkaus Oy, which offers a range of lotteries as
well as Toto, the latter only for horse racing however.272 Despite the co-sponsorship of Finland
in the report “Match-Fixing in the Nordic Countries”273 Veikkaus Oy does not offer facilities for
gambling on football and thus avoids the financial risks of match fixing. Instead, Finland
tolerates the trading of foreign gambling operators274, which offer odds on football games of
the Vikkausliga. This leaves football open to infiltration by criminals operating over external
betting sites and in particular those in Asia where controls are lax. In the match-fixing case in
Finland involving Wilson Raj Perumal, already mentioned, bets were placed on the Asian
market.
8.5 Axis of evil: the Asian illegal betting market
Both Hill275 and Forrest276 have emphasized the ideal opportunities offered to criminals by the
illegal betting markets in Asia for organizing football gambling fixes in Europe. The Asian-
European recipe, pioneered by Sapina and others continues to be employed in the absence of
any laws suitable to control illegal betting.277
The unregulated Asian betting market has flourished since the bookmakers charge lower fees
than their European counterparts and offer bets on minor league matches as well as betting
options mainly forbidden in Europe.278 Bets may be made on more than 30 features of a
match, including the number of red or yellow cards, number of corners, the identity of the first
scorer and so on.279 Live bets placed during a game are also popular and represent a significant
proportion of the stakes. The offering of live bets adds to the problem of detecting
manipulation of the game, since the corrupt players may not necessarily need to make their
team lose by their action. As pointed out by Forrest advanced knowledge of the outcome of a
match can be compared with insider trading on the stock market, leading to considerable
profit. The size of stakes that can be placed on the Asian betting market are also essentially
unlimited and can accumulate by being passed up the Asian betting pyramid from the small
272 Pentaho, Case Study, Veikkaus Raises Its Game Using Pentaho Data Integration <https://www.pentaho.com/sites/default/files/uploads/resources/016-063v3_cs_veikkaus_1.pdf> (03.08.2017) 273 Match Fixing in the Nordic Countries (fn 158), 16. 274 Gambling Sites, Gambling Law in Finland <https://www.gamblingsites.org/laws/finland/> (03.08.2017) 275 Hill Declan, The Revolution (fn 2), 9. 276 Forrest David (fn 252), 14. 277 Shixi Huang, Sport Betting and its Regulation in China. Asser International Sports Law Series, Sports Betting: Law and Policy, The Hague 2012, 325. 278 Forrest D. (fn 252), 14. 279 Forrest David (fn 253), 109.
46
agents to one of the major Asian operators, each far larger than any of betting agencies in
Europe.280 According to one estimate the turnover of the Asian betting market in 2015 was
around 80 billion dollars.281 Only recently, in 2017, has China taken steps to combat its’ own
match-fixing problem through a collaboration initiated between Sportradar and a Chinese
sports data provider Baitai.282
In the absence of effective international measures the threat of match–fixing in European
football through illegal gambling channels remains unabated. The Federbet report from 2015
lists over 60 matches in Europe that were classified as being fixed!283 In May 2017 yet another
match fixing incident was exposed, this time in Ireland in a game of the First Division. Irregular
betting patterns on Asian markets involving large wagers above 400.000Euro prompted a
criminal investigation involving UEFA, the Football Association of Ireland and the Irish Garda
Economic Crime Bureau.284 Unregulated betting in Asia is evidently the evil that will continue
to haunt European Football until measures are taken in Asia to legalize their own market.
9. Combatting Illegal Betting: National Interpretations and Compliance with the
Macolin Convention
Over the last 50 years football has grown into a major international entertainment industry.
With their international exposure and appeal football clubs serve as desired status symbols
and useful launch pads for cultivating business and political connections. Premiere football
clubs are now owned by Arab, Russian, Chinese and other multi-millionaires with businesses
mostly registered in offshore locations.285 The tax advantages offered by offshore locations
have likewise been exploited by betting providers. The legality of all these arrangements is an
issue of constant concern, especially since they offer opportunities for corruption. A main part
of the Macolin document is concerned with the control of the betting market, especially in
relation to match fixing and money laundering. In this last chapter, the responses of the four
countries will be discussed in more detail and appropriate conclusion drawn. A summary of
280 Forrest D. (fn 253), 110. 281 BBC, Sport, Football betting - the global gambling industry worth billions <http://www.bbc.com/sport/football/24354124> (03.08.2017) 282 Sportradar, Beital and Sportradar Partnership Revolutionises Sports Data Offering in China< https://www.sportradar.com/news-archive/beitai-and-sportradar-partnership-revolutionises-sports-data-offering-in-china/> (03.08.2017) 283 Federbet (fn 243). 284 Goal, Irish Club Faces €400 Asian Match – Fixing Fraud Investigation <http://www.goal.com/en-us/news/irish-club-faces-400k-asian-match-fixing-fraud-investigation/1vlqjotnzh1sz1gn8w2aux0oos> (03.08.2017) 285 The Guardian, Football, Premier League finances: the full club-by-club breakdown and verdict <https://www.theguardian.com/football/2017/jun/01/premier-league-finances-club-by-club> (15.09.2017)
47
the appropriate paragraphs in the Explanatory Report of the convention under discussion is
given in italics.
9.1. Control of the Betting Market (58-61 and 110-111):
“The Report defines three types of betting activities: illegal, irregular and suspicious. Whether
or not a given type of sports betting is illegal or legal will depend on the national jurisdiction
where the consumer is located when placing the bet. An irregular bet is one that is inconsistent
with the usual betting patterns in the market and should be detected by information exchange
between any organization or authority involved in surveillance of the betting market or
through an alert of the betting monitoring system. A suspicious bet is one that appears unusual
in the framework of the national betting market and the sport in question. In paragraphs 110-
111 the Report lists procedures that could be adopted to restrict illegal operators, including the
blocking of money transfers and access to websites as well as prohibition of advertising.”
Surveillance of the betting market is appropriately highlighted as an important factor in
identifying illegal and suspicious betting activities. Since the credibility, growth and existence
of registered sport betting companies are dependent on the maintenance of sport integrity it
is not surprising that betting organizations themselves have taken up the initiative to fight
illegal gambling associated with match fixing. This is being achieved through several bodies
briefly mentioned in previous sections (ESSA, Federbet, Sportradar, BFDS and GLMS). In view
of the requirements of The Report it is pertinent here to emphasize the central role that each
of these non-governmental organizations is playing in the monitoring and surveillance of the
gambling market. ESSA, the “European Sports Security Association”, was created in 2005 by a
consortium of 25 betting providers to monitor betting markets, with the aim of identifying
suspicious betting and alerting sporting bodies. ESSA has information sharing agreements with
sports governing bodies, including FIFA and, as already indicated was a partner in the 2016
European Union project “Keep Crime Out of Sport”. In 2016 ESSA reported 15 cases of
suspicious betting activity in European football, based on feedback from its own members.
Where appropriate, such reports are passed on to the relevant sports governing body or
regulatory authority.286 Federbet is a non-profit federation created in Belgium in 2011 to
represent the interests of consumers and operators in the gaming sector. It provides
assistance to bookmakers to identify suspicious betting activity287 and produces an annual
286 Essa, Sports Betting Integrity <http://www.eu-ssa.org/> (14.09.2017) 287 FEDERBET, Match Fixing < http://federbet.com/match-fixing/> (14.09.2017)
48
report of suspicious matches in various sports, including football.288 Sportradar is based in
Switzerland and in partnership with UEFA and FIFA provides a betting fraud detection system
(BFDS) to monitor odds for the identification of suspicious betting activities worldwide. The
Global Lottery Monitoring System [GLMS] was initiated in 2015 by the World Lottery
Association and European Lotteries and represents 27 countries with a mission to support
clean sport and combat corruption in sport internationally.289
As a matter of necessity, the betting organizations have established collaborations with
national bodies to combat fraud and match fixing in sport. In Austria, the Play Fair Code
organization has created a partnership with national betting providers and as a member of the
World Lottery Association Austria has access to GLMS, which was upgraded in 2015 through a
collaboration with SportRadar to fight match fixing more effectively.290 SportRadar likewise
monitors the betting market in Finland, together with UEFA and GLMS.291 The success of GLMS
to identify match-fixing incidents was illustrated by the case, mentioned previously, of the
game in Spain between a Dutch and an Albanian team.292 A further initiative to monitor
betting in football was marked in 2017 by an agreement between Sportradar and Genius
Sports and members of the European Professional Football Leagues, including those of Austria,
Switzerland and the Netherlands.293 Further, in Switzerland the new gambling law to combat
the manipulation of sports competitions, due to become operational in 2019/20 will be
supervised through Comlot (The Swiss Lottery and Betting Board).294
The initiatives outlined above show that a great deal has been achieved to control betting in
sport in relation to match fixing, at both national and international levels. However, the threat
presented by access to betting providers in Asia indicates that more has to be done worldwide
288 THE SPORTS INTEGRITY INITIATIVE, Analysis: Federbet report shows failure to respond to fixing attempts < http://www.sportsintegrityinitiative.com/analysis-federbet-report-shows-failure-to-respond-to-match-fixing-attempts/> (14.09.2017) 289 THE EUROPEAN LOTTERIES, THE GLOBAL LOTTERY MONITORING SYSTEM FOR SPOPRTS BETTING HOLDS ITS FIRST GENERAL ASSEMBLY < https://www.european-lotteries.org/announcement/global-lottery-monitoring-system-sports-betting-holds-its-first-general-assembly> (14.09.2017) 290 GAMING INTELLIGENCE, New global lottery monitoring system launches with Sportradar <http://www.gamingintelligence.com/lottery/32146-new-global-lottery-monitoring-system-launches-with-sportradar> (14.09.2017) 291 Match Fixing in the Nordic Countries (fn 158). 292 The European Lotteries (fn 164). 293 WORLD LOTTERY ASSOCIATION, EPFL and its member leagues lead the way witch innovative data partnerships <https://www.world-lotteries.org/media-news/member-news/2495-epfl-and-its-member-leagues-lead-the-way-with-innovative-data-partnerships> (14.09.2017) 294 Comlot, Wettkampfmanipulationen <https://www.comlot.ch/de/themen/wettkampfmanipulationen> (14.09.2017)
49
to make match fixing unprofitable. The collaboration of Sportradar with Beitai in China
represents a positive step towards surveillance of the Asian gambling market.295 The Report
recommends the adoption of procedures to block money transfers from European customers
to Asian bookmakers, which would certainly be the most effective way to combat illegal
betting. Renegade bookmakers could be readily listed in bank databases, but such steps have,
unfortunately not yet been taken. If the Chinese government can block international websites
considered undesirable, mechanisms must be available to block access to blacklisted
bookmakers!
As indicated in the EU report of the “Expert Group on Match Fixing”296 the initiatives taken by
betting organizations must be supported by the appropriate legal bodies responsible for law
enforcement and prosecution.
9.2. Sanctions and Measures (190-201) and Criminal Offences (129-134):
“Each party is required to establish effective and dissuasive sanctions and punishments under
their domestic law for crimes committed in the framework of the manipulation of sports
competitions. Sports organizations are likewise encouraged to introduce disciplinary sanctions.
Punishment should include monetary sanctions, seizure, confiscation of assets, extradition and
imprisonment according to national criminal law.”
Of the four countries reviewed here Austria, Finland and the Netherlands have chosen to
comply to the Macolin Convention through the application of existing laws to the problem of
match fixing. In Austria match fixing is punishable under the fraud paragraphs § 146 and §147
of the Austrian criminal code297 with penalties of imprisonment from six months to ten years,
in addition to fines. As in Austria, cases of match fixing in Finland are punishable under
sections of the Finnish criminal code dealing with fraud or aggravated fraud, with sentences of
up to two years or four years respectively. The convicted match fixer Wilson Raj Perumal298
was sentenced in Finland to two years imprisonment under “Chapter 36 Section 1 – Fraud” of
295 sportradar (fn 282). 296 European Commission, Expert Group on Match Fixing, EU Work Plan for Sport, 2014-2017 <http://ec.europa.eu/transparency/regexpert/index.cfm?do=groupDetail.groupDetailDoc&id=28471&no=1> (14.09.2017) 297 Austrian Criminal Code (fn 210). 298 BBC News, Fixing football from singapore: A timeline <www.bbc.com/news/world-asia-24489526> (12.09.2017)
50
the criminal code.299 In the Netherlands match fixers can be prosecuted under section 326 of
the criminal code dealing with persons who benefit themselves unlawfully by cunning
manoeuvres or lies and who face a fine or imprisonment of up to four years.300 The new Sport
Promotion Law (Art.25a) in Switzerland301 has introduced legislation that deals specifically with
match fixing. According to the new legislation manipulation of a sporting event is punishable
with a sentence of up to three years or five years in more serious cases together or with an
appropriate fine. This ruling replaces the previous legislation used in cases of fraud according
to Article 322 octies and novies of the Swiss criminal code.302
It is notable that only Switzerland has adopted a law specifically addressing match fixing. The
advantage of the new law is that it deals comprehensively and specifically with all aspects of
match fixing. As such it sends a clear message to the criminal community about the
consequences of any attempts of manipulation of sporting events for financial gain. For this
reason, other countries would be well advised to adopt the initiative taken by Switzerland on
this issue.
Regarding sanctions against persons involved in manipulation, the Macolin convention
encourages the implementation of disciplinary sanctions by the sporting bodies. The Austrian
Football Association has introduced penalties, including suspension and fines for players who
place bets on matches of their own teams or on those in the same league or who fail to report
such offences.303 The Finnish Football Association, Suomen Palloliitto (SPL) has established
regulations to combat match fixing, including the prohibition of betting by officials or team
members on competitions in the same league. In addition, the leaking to outsiders of inside
information on club-related matters is forbidden. Penalties include suspension of players,
annulment of a match and exclusion of a team from forthcoming competitions.304 In the
Netherlands The Royal Dutch Football Association (KNVB) has likewise introduced legislation
to refrain players, referees and trainers who can influence the outcome of a game from
placing bets on these competitions as well as placing bets on clubs in which the relevant
persons are members. In addition, bets on games in junior leagues are forbidden.305 According
299 KEA (fn 212), 76. 300 Criminal Code, Netherlands (fn 169). 301 Sport Promotion Law, Pending (fn 214), 195. 302 Swiss Criminal Code (fn172), 53. 303 Play Fair Code (fn 154). 304 Asser (fn 159),67. 305 Asser (fn 159), 86.
51
to “Article 13bis” of the Swiss Football Association (SFV) regulations any natural or legal
person is punishable for match fixing, for disseminating insider information or for failing to
report criminal activities.306 Clubs as well as players are liable to fines of up to 1 million and
100.000 francs respectably in addition to other penalties for players and functionaries,
including suspension and cancellation of their operating license.307
The collaboration between judicial and sporting bodies to fight match fixing in each of the
countries above represents an important development in the mission to eliminate this virus in
sport. At the same time the different approaches taken by the four countries to combat match
fixing raises the interesting question as to which of these arrangements will be most effective.
The steps taken by Switzerland are by far the most comprehensive and in time may provide
the best guarantee for the maintenance of integrity in the football sector.
9.3. Money Laundering (135-142):
“Parties are encouraged to adopt in their domestic law the same legislation as laid down in
current European and United Nations conventions against organized crime, money laundering
and corruption associated with drug trafficking, illegal arms and terrorism. The international
standards in this area have been defined and presented by the Financial Action Task Force
(FATF).”
Given the general limitation of the maximum bets taken by European bookmakers it appears
that money laundering through registered European gambling providers is not an attractive
option for organized crime. Nevertheless, in Austria, where betting on sports is regulated
differently in each county, provisions combatting money laundering are included in the
individual county legislations. In Vienna for example the bookmaker is required to inform the
A-FIU (Austrian Finance Intelligence Unit) in cases of suspicious activity.308 The new draft laws
in Switzerland concerning match fixing include a paragraph Art.9 §1d dealing with the
306 Swiss Football Association, Auszug aus der Rechtspflegeordnung des SFV <http://www.football.ch/Portaldata/27/Resources/integrity-in-football/dokumente/Auszug_RPO_D.pdf> (10.09.2017) 307 Rechtspflegeordnung des SFV (RPO), 10 <http://www.football.ch/portaldata/8/Resources/dokumente_ofv/2reglemente_sfv/allgemein/1.4_Rechtspflegeordnung.pdf> (12.09.2017) 308 Landesrecht konsolidiert Wien, LGBl. Nr. 26/2016 <https://www.ris.bka.gv.at/GeltendeFassung.wxe?Abfrage=LrW&Gesetzesnummer=20000511> (13.09.2017)
52
investigation of suspicious money transactions in relation to possible cases of money
laundering.309 In the Netherlands310 and Finland311 gambling providers are subject to the
requirements of the laws dealing with the prevention of money laundering and the financing
of terrorism. There remain concerns however about leaky channels of money laundering in
Europe, especially in Malta, where many gambling operators are based.312
As far as football is concerned the problem of money laundering is likewise relevant in
connection with transactions associated with the acquisition of football clubs and the transfer
of players. In a welcome response to this problem the Dutch National Bank issued guidelines in
2017 for monitoring the football sector, including in-depth customer surveys and the mapping
of transaction networks.313 But as long as there are football clubs struggling with debts, the
problem of money laundering through them by exiled oligarchs and criminal networks will not
go away. In 2016, the Portuguese police, with the support of Europol’s Finance Intelligence
Group uncovered an organized crime group of mainly Russian citizens who purchased a
struggling Portuguese Football club for money laundering purposes.314 The case of an
apparently respectable millionaire who acquired a stake in the Birmingham City Football Club
in the UK in 2007, mentioned in Chapter 5.5 above, is another example of the lack of proper
legislation to screen and approve potential sponsors.
10. Conclusions
As outlined in the foregoing, a variety of initiatives have been taken at national and
international levels, by governmental and non-governmental organizations to address the
problem of sports betting and corruption. The time is now ripe for coordinating efforts on all
fronts through efficient networking procedures together with the creation of a centralized
body with the authority to channel information to the appropriate national bodies for
immediate action. INTERPOL already has a “Match-fixing Unit”, but as detailed above the
warnings of match fixing incidents have come from different sources. The expertise collected
309 Erläuternder Bericht (fn 185). 310 ICLG, the Netherlands (fn 219). 311 POLIISI; General information on the supervision of gambling <http://www.poliisi.fi/services/gambling/general_information_on_the_supervision_of_gambling> (14.09.2017) 312 Preventing criminal risks linked tot he sports betting market < http://www.iris-france.org/wp-content/uploads/2017/06/PRECRIMBET_2017_FINAL.pdf> (14.09.2017) 313 DeNederlandscheBank, DNB demands more attention in the financial sector for integrity risks in the football world <https://www.dnb.nl/nieuws/nieuwsoverzicht-en-archief/nieuws-2017/dnb351512.jsp> (17.09.2017) 314 EUROPOL, POLICE DISMANTLE RUSSIAN MONEY LAUNDERING RING OPERATING IN THE FOOTBALL SECTOR < https://www.europol.europa.eu/newsroom/news/police-dismantle-russian-money-laundering-ring-operating-in-football-sector> (17.09.2017)
53
by different agencies could be usefully centralized, perhaps in INTERPOL, for maximal
efficiency. Such a centralized unit need not replace existing initiatives but should consolidate
their efforts to combat match-fixing.
The wide spectrum of wealth, from poor to rich among football clubs, both nationally and
internationally poses a serious, unresolved threat to integrity on the playing field. At one
extreme, star players and clubs attract massive sponsorship through advertising and media
contracts and there is fierce competition between clubs to reach and remain in the lucrative
premiere leagues. Even within the five, top European league clubs (England, France, Italy,
Germany and Spain) there is a three-fold difference in club revenues.315 According to the same
financial report from Deloitte, league revenues for the Netherlands are around three times
those for Austria, whereby the Netherlands ranks below the premier league with their best
team AFC Ajax in position 38 on the football “brand” scale.316 The 2015/16 annual revenue for
the Austrian league of 150mEuro compares with 480mEuro for The Netherlands and
4,900mEuro for England317. According to another report, the annual revenue of the Turkish
Cypriot Football League in 2008/2009 was 6.3mEuro.318 From this gross disparity in wealth of
football clubs it is not difficult to see where corruptors will be looking for dissatisfied players
open to earn extra money.
The Macolin convention outlines the need for awareness and education programs that have
since been adopted by football associations and national sporting bodies. But if players in a
club are paid poorly or irregularly they may eventually succumb to temptations from criminal
elements, as already discussed. Penalties for match-fixing, including fines and suspension have
been introduced, but are these alone sufficient? If a club is unable to provide financial security
to its team members then betting on its games should be forbidden. The management of
football clubs should be brought to a standard that offers confidence to potential investors
and a business oriented operation open to regular scrutiny by the appropriate authorities.
Only then should the club be registered for betting purposes.
315 Deloitte, Annual Review of Football Finance 2017 <https://www2.deloitte.com/uk/en/pages/sports-business-group/articles/annual-review-of-football-finance.html> (15.09.2017) 316 Brand Finance Football 50 2017 <http://brandfinance.com/knowledge-centre/reports/brand-finance-football-50-2017/> (15.09.2017) 317 Deloitte (fn 315). 318 International Journal of Academic Research in Economics and Management Sciences, What about the sustainability of Turkish Cypriot football? <http://hrmars.com/hrmars_papers/What_about_the_financial_sustainability_of_Turkish_Cypriot_football.pdf> (15.09.2017)
54
As emphasized in the Macolin convention the maintenance of integrity in football requires
attention at all levels of organization and especially at the grass roots level of youth promotion
and community involvement. In Switzerland the Sport-Toto Company donated 5.1M francs to
the Swiss Football League for the promotion of talented junior players, both male and female,
as well as for the advanced education of trainers and referees.319 According to the EU report
on the “Financing of Sport” from 2012, The Netherlands’ national team donates 1MEuro per
year for the financing of grassroots clubs.320 In Finland, 75% of the state funding for sport is
allocated for grass roots activities and otherwise the Finnish Sport Federation administers
funds for special purposes321. The Finnish Football Foundation also provides small grants to
promote the development of football.322 In Austria the government has donated 80MEuro
since 2010 for the promotion of sport from the profits of the state lottery.323 The efforts taken
by the UK provide additional guidelines as to what can be achieved. The largest sports charity,
the “Football Foundation” is jointly funded by the Premier League, the Football Association
and the Government and has a comprehensive program aimed at supporting and promoting
all aspects of football, including assistance to clubs in the efficient utilization of their assets.324
All the above efforts represent important national initiatives for promoting and preserving
integrity in the football sector.
The development of data analysis protocols to identify whether or not a match is being fixed is
a particularly important area already being explored and tested through the efforts of private
companies. Sportradar has taken the initiative to analyze the change of betting patterns during
the course of a game and has identified features specific for suspicious betting. Their efforts to
translate these results into action are however being hampered by the non-transparency of
the Asian Betting market.325 Another data analysis approach relies on methods to computerize
319 Sport-Toto-Gesellschaft, Die Partnerschaft mit der Sport-Toto-Gesellschaft <http://www.sfl.ch/sfl/nachwuchsfoerderung/sport-toto-gesellschaft/> (16.09.2017) 320 Expert Group on Sustainable Financing of Sport, Strengthening financial solidarity mechanisms within sport <http://ec.europa.eu/assets/eac/sport/library/documents/xg-fin-201211-deliverable.pdf> (16.09.2017) 321 Expert Group (fn 320). 322 The Football Association, Contributions <https://www.palloliitto.fi/palloliitto/jalkapallo-saatio/avustukset>
(16.09.2017) 323 SpEA, Wirtschaftsfaktor Fußball in Österreich, 8 <http://www.oefb.at/_uploads/_elements/24150_OeFB%20Wirtschaftsfaktor%20Fussball%20-%20Folder.pdf> (16.09.2017) 324 Football Foundation, Funding partners <http://www.footballfoundation.org.uk/about-us/funding-partners/> (16.09.2017) 325 Sportradar, FRAUD DETECTION SYSTEM, Monitoring and Detection < https://integrity.sportradar.com/fraud-detection-system/> (15.09.2017)
55
and analyze video recordings of football games.326,327 Data scientists in a new company
(SciSports) in the Netherlands, in cooperation with the University of Twente, recently brought
these ideas to reality. SciSports have developed a system, termed “BallJames”, to track various
events in a football game on-line.328 The system has the capacity to replay the tracking data at
any time and is tailored to identify, among many other features, activities typical of match
fixing. This system has already been tested on clubs in Greece and in the UK. The introduction
of this surveillance methodology will no doubt serve to complement the efforts of Sportradar
in identifying match fixing incidents rapidly enough to inform the appropriate authorities to
cancel suspect matches and compromise criminal activities.
Since the prime reason for match fixing stems from financial gains and money laundering
through the mainly illegal gambling market it is surprising that the recommendation of the
Macolin convention to block financial flows through this market have not been heeded. Why is
gambling on European matches in Asia and offshore places like Malta and the Isle of Man
tolerated? What pressures are being put by European governments on the regulatory
authorities in these tax-free havens to close down these illegal operators? Only recently has
Switzerland accepted the obvious dangers that secret bank accounts represent to World
security, through their protection of potential criminals and terrorists hiding illegally gained
assets. The same threat is posed by offshore havens that allow rich individuals, international
agencies and betting organizations to avoid taxation. Betting organizations should only be
allowed to operate as companies registered on the mainland and that contribute through
normal taxation to national budgets. In addition, trans-European, or better global measures
should be introduced to enforce international action of the banking industry to collaborate
with legal authorities in the fight against illegal betting by adopting the Macolin
recommendation. The recent initiative of a Dutch bank to identify money laundering
associated with match fixing as a priority concern is an important step in the right direction.329
It is too early to tell which of the four countries listed here have adopted the best policy to
combat match fixing in football and the illegal betting and money laundering associated with
326 Kotzbek Gilbert, Kainz Wolfgang, FOOTBALL GAME ANALYSIS: A NEW APPLICATION AREA FOR CARTOGRAPHERS AND GI-SCIENTISTS ? <https://homepage.univie.ac.at/gilbert.kotzbek/publikationen/2014_Football_Game_Analysis_G_Kotzbek_W_Kainz.pdf> (14.09.2017) 327 KUNGL TEKNISKA HÖGSKOLAN, Computerised Video Analysis of Football – Technical and Commercial Possibilities for Football Coaching <http://cid.nada.kth.se/pdf/247.pdf> (14.09.2017) 328 Balljames <https://www.balljames.scisports.com/> (16.09.2017) 329 DeNederlandscheBank (fn 313).
56
it. Only future attempts of match fixing will provide the test of the effectiveness of these
policies! But individual countries cannot solve this problem alone. Consolidated collaboration
at the international level is the only route to “fix the fixing”.330
330 FIX THE FIXING <http://fixthefixing.eu/> (17.09.2017)
57
11. Private Communications
I thank the following persons for their willingness in providing useful comments,
documents and weblinks related to the latest national laws and regulations on gambling
and match fixing:
Dr. Antoine Duval, Asser Institute, The Netherlands VT, LL.M. Olli Rauste, Finnish Ethical Centre for Sports MLaw Thomas Haeny, Lotterie- und Wettkommission (Comlot), Bern, Switzerland
Jitse Talsma, Huis Voor Klokkenluiders (Whistle Blower Authority), The Netherlands
Antti Koivula, Tallinn Law School, Estonia
Legal Director Petteri Lindblom, SUEK, FINCIS, Helsinki, Finland
Dr. Marjan Olfers, Amsterdam Univesity, The Netherlands.
58
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11. Appendices
Appendix I
Council of Europe Treaty Series - No. 215
Council of Europe Convention on the Manipulation of Sports Competitions
Magglingen/Macolin, 18.IX.2014
Preamble
The member States of the Council of Europe and the other signatories to this Convention,
Considering that the aim of the Council of Europe is to achieve a greater unity between its
members;
Considering the Action Plan of the Third Summit of Heads of State and Government of the Council of Europe (Warsaw, 16-17 May 2005), which recommends the continuation of Council of Europe activities which serve as references in the field of sport;
Considering that it is necessary to further develop a common European and global framework for the development of sport, based on the notions of pluralist democracy, rule of law, human
rights and sports ethics;
Aware that every country and every type of sport in the world may potentially be affected by the manipulation of sports competitions and emphasising that this phenomenon, as a global threat to the integrity of sport, needs a global response which must also be supported by States which are not members of the Council of Europe;
Expressing concern about the involvement of criminal activities, and in particular organised
crime in the manipulation of sports competitions and about its transnational nature;
Recalling the Convention for the Protection of Human Rights and Fundamental Freedoms (1950, ETS No. 5) and its protocols, the European Convention on Spectator Violence and Misbehaviour at Sports Events and in particular at Football Matches (1985, ETS No. 120), the Anti-Doping Convention (1989, ETS No. 135), the Criminal Law Convention on Corruption (1999, ETS No. 173) and the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism (2005, CETS No. 198);
Recalling the United Nations Convention against Transnational Organized Crime (2000) and
the protocols thereto;
Also recalling the United Nations Convention against Corruption (2003);
Recalling the importance of effectively investigating without undue delay the offences within
their jurisdiction;
Recalling the key role that the International Criminal Police Organization (Interpol) plays in
facilitating effective co-operation between the law-enforcement authorities in addition to judicial co-operation;
CETS 215 – Manipulation of Sports Competition, 18.IX.2014
2
Emphasising that sports organisations bear the responsibility to detect and sanction the manipulation of
sports competitions committed by persons under their authority;
Acknowledging the results already achieved in the fight against the manipulation of sports competitions;
Convinced that an effective fight against the manipulation of sports competitions requires
increased, rapid, sustainable and properly functioning national and international co-operation;
Having regard to Committee of Ministers Recommendations to member States No. R(92)13 rev. on the revised European Sports Charter; CM/Rec(2010)9 on the revised Code of Sports
Ethics; Rec(2005)8 on the principles of good governance in sport and CM/Rec(2011)10 on promotion of the integrity of sport to fight the manipulation of results, notably match-fixing;
In the light of the work and conclusions of the following conferences:
– the 11th Council of Europe Conference of Ministers responsible for Sport, held in Athens on
11 and 12 December 2008;
– the 18th Council of Europe Informal Conference of Ministers responsible for Sport (Baku,
22 September 2010) on promotion of the integrity of sport against the manipulation of results
(match-fixing);
– the 12th Council of Europe Conference of Ministers responsible for Sport (Belgrade, 15 March
2012) particularly in respect of the drafting of a new international legal instrument against the
manipulation of sports results;
– the UNESCO 5th International Conference of Ministers and Senior Officials Responsible for
Physical Education and Sport (MINEPS V).
Convinced that dialogue and co-operation among public authorities, sports organisations, competition organisers and sports betting operators at national and international levels on the basis of mutual respect and trust are essential in the search for effective common responses to the challenges posed by the problem of the manipulation of sports competitions;
Recognising that sport, based on fair and equal competition, is unpredictable in nature and
requires unethical practices and behaviour in sport to be forcefully and effectively countered;
Emphasising their belief that consistent application of the principles of good governance and ethics in sport is a significant factor in helping to eradicate corruption, the manipulation of sports competitions and other kinds of malpractice in sport;
Acknowledging that, in accordance with the principle of the autonomy of sport, sports organisations are responsible for sport and have self-regulatory and disciplinary responsibilities in the fight against manipulation of sports competitions, but that public authorities, protect the integrity of sport, where appropriate;
Acknowledging that the development of sports betting activities, particularly of illegal sports
betting, increases the risks of such manipulation;
Considering that the manipulation of sports competitions may be related or unrelated to sports
betting, and related or unrelated to criminal offences, and that it should be dealt with in all cases;
Taking note of the margin of discretion which States enjoy, within the framework of applicable law, in deciding on sports betting policies,
CETS 215 – Manipulation of Sports Competition, 18.IX.2014
3
Have agreed as follows:
Chapter I – Purpose, guiding principles, definitions
Article 1 – Purpose and main objectives
1 The purpose of this Convention is to combat the manipulation of sports competitions in order
to protect the integrity of sport and sports ethics in accordance with the principle of the autonomy of sport.
2 For this purpose, the main objectives of this Convention are:
a to prevent, detect and sanction national or transnational manipulation of national and
international sports competitions;
b to promote national and international co-operation against manipulation of sports
competitions between the public authorities concerned, as well as with organisations involved in sports and in sports betting.
Article 2 – Guiding principles
1 The fight against the manipulation of sports competitions shall ensure respect, inter alia, for
the following principles:
a human rights; b legality; c proportionality; d protection of private life and personal data.
Article 3 – Definitions
For the purposes of this Convention:
1 “Sports competition” means any sport event organised in accordance with the rules set by a
sports organisation listed by the Convention Follow-up Committee in accordance with Article 31.2, and recognised by an international sports organisation, or, where appropriate, another competent sports organisation.
2 “Sports organisation” means any organisation which governs sport or one particular sport, and
which appears on the list adopted by the Convention Follow-up Committee in accordance with Article 31.2, as well as its continental and national affiliated organisations, if necessary.
3 “Competitions organiser” means any sports organisation or any other person, irrespective of
their legal form, which organises sports competitions.
4 “Manipulation of sports competitions” means 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.
5 “Sports betting” means any wagering of a stake of monetary value in the expectation of a
prize of monetary value, subject to a future and uncertain occurrence related to a sports
competition. In particular:
CETS 215 – Manipulation of Sports Competition, 18.IX.2014
4
a “illegal sports betting” means any sports betting activity whose type or operator is not
allowed under the applicable law of the jurisdiction where the consumer is located;
b “irregular sports betting” shall mean any sports betting activity inconsistent with usual or
anticipated patterns of the market in question or related to betting on a sports competition whose course has unusual characteristics;
c “suspicious sports betting” shall mean any sports betting activity which, according to
reliable and consistent evidence, appears to be linked to a manipulation of the sports competition on which it is offered.
6 “Competition stakeholder” means any natural or legal person belonging to one of the following
categories:
a “athlete” means any person or group of persons, participating in sports competitions;
b “athlete support personnel” means any coach, trainer, manager, agent, team staff, team
official, medical or paramedical personnel working with or treating athletes participating in or preparing for sports competitions, and all other persons working with the athletes;
c “official” means any person who is the owner of, a shareholder in, an executive or a staff
member of the entities which organise and promote sports competitions, as well as referees, jury members and any other accredited persons. The term also covers the executives and staff of the international sports organisation, or where appropriate, other competent sports organisation which recognises the competition.
7 “Inside information” means information relating to any competition that a person possesses by
virtue of his or her position in relation to a sport or competition, excluding any information already published or common knowledge, easily accessible to interested members of the
public or disclosed in accordance with the rules and regulations governing the relevant competition.
Chapter II – Prevention, co-operation and other measures
Article 4 – Domestic co-ordination
1 Each Party shall co-ordinate the policies and action of all the public authorities concerned with
the fight against the manipulation of sports competitions.
2 Each Party, within its jurisdiction, shall encourage sports organisations, competition
organisers and sports betting operators to co-operate in the fight against the manipulation of sports competitions and, where appropriate, entrust them to implement the relevant provisions of this Convention.
Article 5 – Risk assessment and management
1 Each Party shall – where appropriate in co-operation with sports organisations, sports betting
operators, competition organisers and other relevant organisations – identify, analyse and
evaluate the risks associated with the manipulation of sports competitions.
2 Each Party shall encourage sports organisations, sports betting operators, competition
organisers and any other relevant organisation to establish procedures and rules in order to combat manipulation of sports competitions and shall adopt, where appropriate, legislative or other measures necessary for this purpose.
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Article 6 – Education and awareness raising
1 Each Party shall encourage awareness raising, education, training and research to strengthen
the fight against manipulation of sports competitions.
Article 7 – Sports organisations and competition organisers
1 Each Party shall encourage sports organisations and competition organisers to adopt and
implement rules to combat the manipulation of sports competitions as well as principles of good governance, related, inter alia to:
a prevention of conflicts of interest, including:
– prohibiting competition stakeholders from betting on sports competitions in which
they are involved;
– prohibiting the misuse or dissemination of inside information;
b compliance by sports organisations and their affiliated members with all their contractual
or other obligations;
c the requirement for competition stakeholders to report immediately any suspicious
activity, incident, incentive or approach which could be considered an infringement of the rules against the manipulation of sports competitions.
2 Each Party shall encourage sports organisations to adopt and implement the appropriate
measures in order to ensure:
a enhanced and effective monitoring of the course of sports competitions exposed to the
risks of manipulation;
b arrangements to report without delay instances of suspicious activity linked to the
manipulation of sports competitions to the relevant public authorities or national platform;
c effective mechanisms to facilitate the disclosure of any information concerning potential
or actual cases of manipulation of sports competitions, including adequate protection for
whistle blowers;
d awareness among competition stakeholders including young athletes of the risk of
manipulation of sports competitions and the efforts to combat it, through education, training and the dissemination of information;
e the appointment of relevant officials for a sports competition, in particular judges and
referees, at the latest possible stage.
3 Each Party shall encourage its sports organisations, and through them the international sports
organisations to apply specific, effective, proportionate and dissuasive disciplinary sanctions and measures to infringements of their internal rules against the manipulation of sports competitions, in particular those referred to in paragraph 1 of this article, as well as to ensure mutual recognition and enforcement of sanctions imposed by other sports organisations, notably in other countries.
4 Disciplinary liability established by sports organisations shall not exclude any criminal, civil or
administrative liability.
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Article 8 – Measures regarding the financing of sports organisations
1 Each Party shall adopt such legislative or other measures as may be necessary to ensure
appropriate transparency regarding the funding of sports organisations that are financially supported by the Party.
2 Each Party shall consider the possibility of helping sports organisations to combat the
manipulation of sports competitions, including by funding appropriate mechanisms.
3 Each Party shall where necessary consider withholding financial support or inviting sports
organisations to withhold financial support from competition stakeholders sanctioned for
manipulating sports competitions, for the duration of the sanction.
4 Where appropriate, each Party shall take steps to withhold some or all financial or other sport-
related support from any sports organisations that do not effectively apply regulations for combating manipulation of sports competitions.
Article 9 – Measures regarding the betting regulatory authority or other responsible
authority or authorities
1 Each Party shall identify one or more responsible authorities, which in the Party’s legal order
are entrusted with the implementation of sports betting regulation and with the application of relevant measures to combat the manipulation of sports competitions in relation to sports
betting, including, where appropriate:
a the exchange of information, in a timely manner, with other relevant authorities or a
national platform for illegal, irregular or suspicious sports betting as well as infringements of the regulations referred to or established in accordance with this Convention;
b the limitation of the supply of sports betting, following consultation with the national
sports organisations and sports betting operators, particularly excluding sports
competitions:
– which are designed for those under the age of 18; or – where the organisational conditions and/or stakes in sporting terms are inadequate;
c the advance provision of information about the types and the objects of sports betting
products to competition organisers in support to their efforts to identify and manage risks of sports manipulation within their competition;
d the systematic use in sports betting of means of payment allowing financial flows above
a certain threshold, defined by each Party, to be traced, particularly the senders, the
recipients and the amounts;
e mechanisms, in co-operation with and between sports organisations and, where
appropriate, sports betting operators, to prevent competition stakeholders from betting on sports competitions that are in breach of relevant sports rules or applicable law;
f the suspension of betting, according to domestic law, on competitions for which an
appropriate alert has been issued.
2 Each Party shall communicate to the Secretary General of the Council of Europe the name
and addresses of the authority or authorities identified in pursuance of paragraph 1 of this article.
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Article 10 – Sports betting operators
1 Each Party shall adopt such legislative or other measures as may be necessary to prevent
conflicts of interest and misuse of inside information by natural or legal persons involved in providing sports betting products, in particular through restrictions on:
a natural or legal persons involved in providing sports betting products betting on their own
products;
b the abuse of a position as sponsor or part-owner of a sports organisation to facilitate the
manipulation of a sports competition or to misuse inside information;
c competition stakeholders being involved in compiling betting odds for the competition in
which they are involved;
d any sports betting operator who controls a competition organiser or stakeholder, as well
as any sports betting operator who is controlled by such a competition organiser or stakeholder, offering bets on the competition in which this competition organiser or
stakeholder is involved.
2 Each Party shall encourage its sports betting operators, and through them, the international
organisations of sports betting operators, to raise awareness among their owners and employees of the consequences of and the fight against manipulation of sports competitions,
through education, training and the dissemination of information.
3 Each Party shall adopt such legislative or other measures as may be necessary to oblige
sports betting operators to report irregular or suspicious betting without delay to the betting regulatory authority, the other responsible authority or authorities, or the national platform.
Article 11 – The fight against illegal sports betting
1 With a view to combating the manipulation of sports competitions, each Party shall explore
the most appropriate means to fight operators of illegal sports betting and shall consider adopting measures, in accordance with the applicable law of the relevant jurisdiction, such as:
a closure or direct and indirect restriction of access to illegal remote sports betting
operators, and closure of illegal land-based sports betting operators in the Party’s
jurisdiction;
b blocking of financial flows between illegal sports betting operators and consumers;
c prohibition of advertising for illegal sports betting operators;
d raising of consumers’ awareness of the risks associated with illegal sports betting.
Chapter III – Exchange of information
Article 12 – Exchange of information between competent public authorities, sports
organisations and sports betting operators
1 Without prejudice to Article 14, each Party shall facilitate, at national and international levels
and in accordance with its domestic law, exchanges of information between the relevant public authorities, sports organisations, competition organisers, sports betting operators and national platforms. In particular, each Party shall undertake to set up mechanisms for sharing relevant information when such information might assist in the carrying out of the risk assessment referred to in Article 5 and namely the advanced provision of information about
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the types and object of the betting products to the competition organisers, and in initiating or
carrying out investigations or proceedings concerning the manipulation of sports competitions.
2 Upon request, the recipient of such information shall, in accordance with domestic law and
without delay, inform the organisation or the authority sharing the information of the follow-up given to this communication.
3 Each Party shall explore possible ways of developing or enhancing co-operation and
exchange of information in the context of the fight against illegal sports betting as set out in Article 11 of this Convention.
Article 13 – National platform
1 Each Party shall identify a national platform addressing manipulation of sports competitions.
The national platform shall, in accordance with domestic law, inter alia:
a serve as an information hub, collecting and disseminating information that is relevant to
the fight against manipulation of sports competitions to the relevant organisations and authorities;
b co-ordinate the fight against the manipulation of sports competitions;
c receive, centralise and analyse information on irregular and suspicious bets placed on
sports competitions taking place on the territory of the Party and, where appropriate, issue alerts;
d transmit information on possible infringements of laws or sports regulations referred to in
this Convention to public authorities or to sports organisations and/or sports betting
operators;
e co-operate with all organisations and relevant authorities at national and international
levels, including national platforms of other States.
2 Each Party shall communicate to the Secretary General of the Council of Europe the name
and addresses of the national platform.
Article 14 – Personal data protection
1 Each Party shall adopt such legislative and other measures as may be necessary to ensure
that all actions against the manipulation of sports competitions comply with relevant national and international personal data protection laws and standards, particularly in the exchange of
information covered by this Convention.
2 Each Party shall adopt such legislative or other measures as necessary to guarantee that the
public authorities and organisations covered by this Convention take the requisite measures
in order to ensure that, when personal data are collected, processed and exchanged, irrespective of the nature of those exchanges, due regard is given to the principles of lawfulness, adequacy, relevance and accuracy, and also to data security and the rights of data subjects.
3 Each Party shall provide in its laws that the public authorities and organisations covered by
this Convention are to ensure that the exchange of data for the purpose of this Convention
does not go beyond the necessary minimum for the pursuit of the stated purposes of the exchange.
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4 Each Party shall invite the various public authorities and organisations covered by this
Convention to provide the requisite technical means to ensure the security of the data exchanged and to guarantee their reliability and integrity, as well as the availability and integrity of the data exchange systems and the identification of their users.
Chapter IV – Substantive criminal law and co-operation with regard to enforcement
Article 15 – Criminal offences relating to the manipulation of sports competitions
1 Each Party shall ensure that its domestic laws enable to criminally sanction manipulation of
sports competitions when it involves either coercive, corrupt or fraudulent practices, as defined by its domestic law.
Article 16 – Laundering of the proceeds of criminal offences relating to the
manipulation of sports competitions
1 Each Party shall adopt such legislative or other measures as may be necessary to establish
as criminal offences under its domestic law the conduct as referred to in Article 9, paragraphs 1 and 2, of the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism (2005, CETS No. 198), in Article 6, paragraph 1 of the United Nations Convention against Transnational Organized Crime (2000) or in Article 23, paragraph 1 of the United Nations Convention against Corruption (2003), under the conditions referred to therein, when the predicate offence giving raise to profit is one of those referred to in Articles 15 and 17 of this Convention and in any event, in the case of extortion, corruption and fraud.
2 When deciding on the range of offences to be covered as predicate offences mentioned in
paragraph 1, each Party may decide, in accordance with its domestic law, how it will define those offences and the nature of any particular elements that make them serious.
3 Each Party shall consider including the manipulation of sports competitions in its money
laundering prevention framework by requiring sports betting operators to apply customer due diligence, record keeping and reporting requirements.
Article 17 – Aiding and abetting
1 Each Party shall adopt such legislative and other measures as may be necessary to establish
as criminal offences under its domestic law, when committed intentionally, the aiding and abetting of the commission of any of the criminal offences referred to in Article 15 of this Convention.
Article 18 – Corporate liability
1 Each Party shall adopt such legislative or other measures as may be necessary to ensure that
legal persons can be held liable for offences referred to in Articles 15 to 17 of this Convention,
committed for their benefit by any natural person, acting either individually or as a member of an organ of the legal person, who has a leading position within the legal person, based on:
a a power of representation of the legal person; b the authority to take decisions on behalf of the legal person; c the authority to exercise control within the legal person.
2 Subject to the legal principles of the Party, the liability of a legal person may be criminal, civil
or administrative.
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3 Other than in the cases already provided for in paragraph 1, each Party shall take the
necessary measures to ensure that a legal person can be held liable when lack of supervision or control by a natural person referred to in paragraph 1 has made possible the commission of an offence referred to in Articles 15 to 17 of this Convention for the benefit of that legal person by a natural person acting under its authority.
4 Such liability shall be without prejudice to the criminal liability of the natural persons who have
committed the offence.
Chapter V – Jurisdiction, criminal procedure and enforcement measures
Article 19 – Jurisdiction
1 Each Party shall adopt such legislative or other measures as may be necessary to establish
jurisdiction over the offences referred to in Articles 15 to 17 of this Convention where that
offence is committed:
a in its territory; or b on board a ship flying its flag; or c on board an aircraft registered under its law; or d by one of its nationals or by a person habitually residing in its territory.
2 Each State or the European Union may, at the time of signature or when depositing its
instrument of ratification, acceptance or approval, by a declaration addressed to the Secretary General of the Council of Europe, declare that it reserves the right not to apply, or to apply only in specific cases or conditions, the rules on jurisdiction laid down in paragraph 1, sub- paragraph d of this article.
3 Each Party shall take the necessary legislative or other measures to establish jurisdiction over
offences referred to in Articles 15 to 17 of this Convention in cases in which an alleged
offender is present on its territory and cannot be extradited to another Party on the basis of his or her nationality.
4 When more than one Party claims jurisdiction over an alleged offence referred to in
Articles 15 to 17 of this Convention, the Parties involved shall, where appropriate, consult
each other with a view to determining the most appropriate jurisdiction for the purposes of prosecution.
5 Without prejudice to the general rules of international law, this Convention does not exclude
any criminal, civil and administrative jurisdiction exercised by a Party in accordance with its
domestic law.
Article 20 – Measures to secure electronic evidence
1 Each Party shall adopt legislative or other measures to secure electronic evidence, inter alia
through the expedited preservation of stored computer data, expedited preservation and disclosure of traffic data, production orders, search and seizure of stored computer data, real-
time collection of traffic data and the interception of content data, in accordance with its domestic law, when investigating offences referred to in Articles 15 to 17 of this Convention.
Article 21 – Protection measures
1 Each Party shall consider adoption of such legal measures as may be necessary to provide
effective protection for:
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a persons who provide, in good faith and on reasonable grounds, information concerning
offences referred to in Articles 15 to 17 of this Convention or otherwise co-operate with
the investigating or prosecuting authorities;
b witnesses who give testimony concerning these offences;
c when necessary, members of the family of persons referred to in sub-paragraphs a
and b.
Chapter VI – Sanctions and measures
Article 22 – Criminal sanctions against natural persons
1 Each Party shall take the necessary legislative or other measures to ensure that the offences
referred to in Articles 15 to 17 of this Convention, when committed by natural persons, are punishable by effective, proportionate and dissuasive sanctions, including monetary sanctions, taking account of the seriousness of the offences. These sanctions shall include penalties involving deprivation of liberty that may give rise to extradition, as defined by domestic law.
Article 23 – Sanctions against legal persons
1 Each Party shall take the necessary legislative or other measures to ensure that legal persons
held liable in accordance with Article 18 are subject to effective, proportionate and dissuasive
sanctions, including monetary sanctions and possibly other measures such as:
a a temporary or permanent disqualification from exercising commercial activity; b placement under judicial supervision; c a judicial winding-up order.
Article 24 – Administrative sanctions
1 Each Party shall adopt, where appropriate, such legislative or other measures in respect of
acts which are punishable under its domestic law as may be necessary to punish infringements established in accordance with this Convention by effective, proportionate and dissuasive sanctions and measures following proceedings brought by the administrative authorities, where the decision may give rise to proceedings before a court having jurisdiction.
2 Each Party shall ensure that administrative measures are applied. This may be done by the
betting regulatory authority or the other responsible authority or authorities, in accordance with its domestic law.
Article 25 – Seizure and confiscation
1 Each Party shall take the necessary legislative or other measures, in accordance with
domestic law, to permit seizure and confiscation of:
a the goods, documents and other instruments used, or intended to be used, to commit the
offences referred to in Articles 15 to 17 of this Convention;
b the proceeds of those offences, or property of a value corresponding to those proceeds.
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Chapter VII – International co-operation in judicial and other matters
Article 26 – Measures with a view to international co-operation in criminal matters
1 The Parties shall co-operate with each other, in accordance with the provisions of this
Convention and in accordance with the relevant applicable international and regional instruments and arrangements agreed on the basis of uniform or reciprocal legislation and with their domestic law, to the widest extent possible for the purposes of investigations, prosecutions and judicial proceedings concerning the offences referred to in Articles 15 to 17 of this Convention, including seizure and confiscation.
2 The Parties shall co-operate to the widest extent possible, in accordance with the relevant
applicable international, regional and bilateral treaties on extradition and mutual assistance in criminal matters and in accordance with their domestic law, concerning the offences referred to in Articles 15 to 17 of this Convention.
3 In matters of international co-operation, whenever dual criminality is considered to be a
requirement, it shall be deemed to have been fulfilled, irrespective of whether the laws of the requested State place the offence within the same category of offence or use the same term to denominate the offence as the requesting State, if the conduct underlying the offence in respect of which legal mutual assistance or extradition is requested is a criminal offence under the laws of both Parties.
4 If a Party that makes extradition or mutual legal assistance in criminal matters conditional on
the existence of a treaty receives a request for extradition or legal assistance in criminal matters from a Party with which it has no such treaty, it may, acting in full compliance with its obligations under international law and subject to the conditions provided for by its own domestic law, consider this Convention to be the legal basis for extradition or mutual legal assistance in criminal matters in respect of the offences referred to in Articles 15 to 17 of this
Convention.
Article 27 – Other international co-operation measures in respect of prevention
1 Each Party shall endeavour to integrate, where appropriate, the prevention of and the fight
against the manipulation of sports competitions into assistance programmes for the benefit of third States.
Article 28 – International co-operation with international sports organisations
1 Each Party, in accordance with its domestic law, shall co-operate with international sports
organisations in the fight against the manipulation of sports competitions.
Chapter VIII – Follow up
Article 29 – Provision of information
1 Each Party shall forward to the Secretary General of the Council of Europe, in one of the
official languages of the Council of Europe, all relevant information concerning legislative and other measures taken by it for the purpose of complying with the terms of this Convention.
Article 30 – Convention Follow-up Committee
1 For the purposes of this Convention, the Convention Follow-up Committee is hereby set up.
2 Each Party may be represented on the Convention Follow-up Committee by one or more
delegates, including representatives of public authorities responsible for sport, law- enforcement or betting regulation. Each Party shall have one vote.
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3 The Parliamentary Assembly of the Council of Europe, as well as other relevant Council of
Europe intergovernmental committees, shall each appoint a representative to the Convention Follow-up Committee in order to contribute to a multisectoral and multidisciplinary approach.
The Convention Follow-up Committee may, if necessary, invite, by unanimous decision, any State which is not a Party to the Convention, any international organisation or body, to be represented by an observer at its meetings. Representatives appointed under this paragraph shall participate in meetings of the Convention Follow-up Committee without the right to vote.
4 Meetings of the Convention Follow-up Committee shall be convened by the Secretary
General of the Council of Europe. Its first meeting shall be held as soon as reasonably practicable, and in any case within one year after the date of entry into force of the Convention. It shall subsequently meet whenever a meeting is requested by at least one third
of the Parties or by the Secretary General.
5 Subject to the provisions of this Convention, the Convention Follow-up Committee shall draw
up and adopt by consensus its own rules of procedure.
6 The Convention Follow-up Committee shall be assisted by the Secretariat of the Council of
Europe in carrying out its functions.
Article 31 – Functions of the Convention Follow-up Committee
1 The Convention Follow-up Committee is responsible for the follow-up to the implementation of
this Convention.
2 The Convention Follow-up Committee shall adopt and modify the list of sports organisations
referred to in Article 3.2, while ensuring that it is published in an appropriate manner.
3 The Convention Follow-up Committee may, in particular:
a make recommendations to the Parties concerning measures to be taken for the purposes
of this Convention, in particular with respect to international co-operation;
b where appropriate, make recommendations to the Parties, following the publication of
explanatory documentation and, after prior consultations with representatives of sports organisations and sports betting operators, in particular on:
– the criteria to be met by sports organisations and sports betting operators in order to
benefit from the exchange of information referred to in Article 12.1 of this Convention;
– other ways aimed at enhancing the operational co-operation between the relevant
public authorities, sports organisations and betting operators, as mentioned in this
Convention;
c keep relevant international organisations and the public informed about the activities
undertaken within the framework of this Convention;
d prepare an opinion to the Committee of Ministers on the request of any non-member
State of the Council of Europe to be invited by the Committee of Ministers to sign the Convention in pursuance of Article 32.2.
4 In order to discharge its functions, the Convention Follow-up Committee may, on its own
initiative, arrange meetings of experts.
5 The Convention Follow-up Committee, with the prior agreement of the Parties concerned,
shall arrange visits to the Parties.
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Chapter IX – Final provisions
Article 32 – Signature and entry into force
1 This Convention shall be open for signature by the member States of the Council of Europe,
the other States Parties to the European Cultural Convention, the European Union and the non-member States which have participated in its elaboration or enjoying observer status with
the Council of Europe.
2 This Convention shall also be open for signature by any other non-member State of the
Council of Europe upon invitation by the Committee of Ministers. The decision to invite a non- member State to sign the Convention shall be taken by the majority provided for in Article 20.d of the Statute of the Council of Europe, and by a unanimous vote of the representatives of the Contracting States entitled to sit on the Committee of Ministers, after consulting the Convention Follow-up Committee, once established.
3 This Convention is subject to ratification, acceptance or approval. Instruments of ratification,
acceptance or approval shall be deposited with the Secretary General of the Council of Europe.
4 This Convention shall enter into force on the first day of the month following the expiration of a
period of three months after the date on which five signatories, including at least three member States of the Council of Europe, have expressed their consent to be bound by the Convention in accordance with the provisions of paragraphs 1, 2 and 3.
5 In respect of any signatory State or the European Union which subsequently expresses its
consent to be bound by it, the Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date of the expression of its consent to be bound by the Convention in accordance with the provisions of paragraphs 1, 2 and 3.
6 A Contracting Party which is not a member of the Council of Europe shall contribute to the
financing of the Convention Follow-up Committee in a manner to be decided by the Committee of Ministers after consultation with that Party.
Article 33 – Effects of the Convention and relationship with other international
instruments
1 This Convention does not affect the rights and obligations of Parties under international
multilateral conventions concerning specific subjects. In particular, this Convention does not alter their rights and obligations arising from other agreements previously concluded in respect of the fight against doping and consistent with the subject and purpose of this Convention.
2 This Convention supplements in particular, where appropriate, applicable multilateral or
bilateral treaties between the Parties, including the provisions of:
a the European Convention on Extradition (1957, ETS No. 24);
b the European Convention on Mutual Assistance in Criminal Matters (1959, ETS No. 30);
c the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from
Crime (1990, ETS No. 141);
d The Council of Europe Convention on Laundering, Search, Seizure and Confiscation of
the Proceeds from Crime and on the Financing of Terrorism (2005, CETS No. 198).
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3 The Parties to the Convention may conclude bilateral or multilateral treaties with one another
on the matters dealt with in this Convention in order to supplement or strengthen the
provisions thereof or to facilitate the application of the principles embodied therein.
4 If two or more Parties have already concluded a treaty on the matters dealt with in this
Convention or have otherwise established relations in respect of such matters, they shall also be entitled to apply that treaty or to regulate those relations accordingly. However, when Parties establish relations in respect of the matters dealt with in this Convention other than as provided for therein, they shall do so in a manner that is not inconsistent with the Convention’s objectives and principles.
5 Nothing in this Convention shall affect other rights, restrictions, obligations and responsibilities
of Parties.
Article 34 – Conditions and safeguards
1 Each Party shall ensure that the establishment, implementation and application of the powers
and procedures provided for in Chapters II to VII are subject to conditions and safeguards provided for under its domestic law, which shall provide for the adequate protection of human rights and liberties, including rights arising pursuant to obligations it has undertaken under the Convention for the Protection of Human Rights and Fundamental Freedoms, the 1966 United Nations International Covenant on Civil and Political Rights, and other applicable international human rights instruments, and which shall incorporate the principle of proportionality into its domestic law.
2 Such conditions and safeguards shall, as appropriate in view of the nature of the procedure or
power concerned, inter alia include judicial or other independent supervision, grounds justifying the application, as well as the limitation of the scope and the duration of such power or procedure.
3 To the extent that it is consistent with the public interest, in particular the sound administration
of justice, each Party shall consider the impact of the powers and procedures in these chapters upon the rights, responsibilities and legitimate interests of third parties.
Article 35 – Territorial application
1 Any State or the European Union may, at the time of signature or when depositing its
instrument of ratification, acceptance or approval, specify the territory or territories to which this Convention shall apply.
2 Each Party may, at any later date, by a declaration addressed to the Secretary General of the
Council of Europe, extend the application of this Convention to any other territory specified in the declaration and for whose international relations it is responsible or on whose behalf it is authorised to give undertakings. In respect of such a territory the Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date of receipt of the declaration by the Secretary General.
3 Any declaration made under the two preceding paragraphs may, in respect of any territory
specified in such declaration, be withdrawn by a notification addressed to the Secretary General of the Council of Europe. The withdrawal shall become effective on the first day of the month following the expiration of a period of three months after the date of receipt of such
notification by the Secretary General.
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Article 36 – Federal clause
1 A federal State may reserve the right to assume obligations under Chapters II, IV, V and VI of
this Convention consistent with its fundamental principles governing the relationship between its central government and constituent States or other similar territorial entities, provided that it is still able to co-operate under Chapters III and VII.
2 When making a reservation under paragraph 1, a federal State may not apply the terms of
such reservation to exclude or substantially diminish its obligations to provide for the measures set out in Chapters III and VII. Overall, it shall provide for a broad and effective enforcement capability with respect to those measures.
3 With regard to the provisions of this Convention, the application of which comes under the
jurisdiction of each constituent States or other similar territorial entities that are not obliged by the constitutional system of the federation to take legislative measures, the federal government shall inform the competent authorities of such States of the said provisions with its favourable opinion, encouraging them to take appropriate action to give them effect.
Article 37 – Reservations
1 By a written notification addressed to the Secretary General of the Council of Europe, any
State or the European Union may, at the time of signature or when depositing its instrument of ratification, acceptance or approval, declare that it avails itself of the reservations provided for in Article 19, paragraph 2 and in Article 36, paragraph 1. No other reservation may be made.
2 A Party that has made a reservation in accordance with paragraph 1 may wholly or partially
withdraw it by means of a notification addressed to the Secretary General of the Council of Europe. Such withdrawal shall take effect on the date of receipt of such notification by the Secretary General. If the notification states that the withdrawal of a reservation is to take effect on a date specified therein, and such date is later than the date on which the notification is received by the Secretary General, the withdrawal shall take effect on that later date.
3 A Party that has made a reservation shall withdraw such reservation, in whole or in part, as
soon as circumstances so permit.
4 The Secretary General of the Council of Europe may periodically ask Parties that have made
one or more reservations for details about the prospects of withdrawal of such reservation(s).
Article 38 – Amendments
1 Amendments to articles of this Convention may be proposed by any Party, the Convention
Follow-up Committee or the Committee of Ministers of the Council of Europe.
2 Any proposal for an amendment shall be communicated to the Secretary General of the
Council of Europe and forwarded by him or her to the Parties, the member States of the Council of Europe, non-member States having participated in the elaboration of this Convention or enjoying observer status with the Council of Europe, the European Union, any
State having been invited to sign this Convention and the Convention Follow-up Committee at least two months before the meeting at which it is to be considered. The Convention Follow- up Committee shall submit to the Committee of Ministers its opinion on the proposed amendment.
3 The Committee of Ministers shall consider the proposed amendment and any opinion
submitted by the Convention Follow-up Committee and may adopt the amendment by the
majority provided for in Article 20.d of the Statute of the Council of Europe.
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4 The text of any amendment adopted by the Committee of Ministers in accordance with
paragraph 3 of this article shall be forwarded to the Parties for acceptance.
5 Any amendment adopted in accordance with paragraph 3 of this article shall come into force
on the first day of the month following the expiration of a period of one month after all Parties have informed the Secretary General of their acceptance thereof following their respective internal procedures.
6 If an amendment has been adopted by the Committee of Ministers, but has not yet entered
into force in accordance with paragraph 5, a State or the European Union may not express their consent to be bound by the Convention without accepting at the same time the
amendment.
Article 39 – Settlement of disputes
1 The Convention Follow-up Committee, in close co-operation with the relevant Council of
Europe intergovernmental committees shall be kept informed of any difficulties regarding the interpretation and application of this Convention.
2 In the event of a dispute between Parties as to the interpretation or application of this
Convention, they shall seek a settlement of the dispute through negotiation, conciliation or arbitration, or any other peaceful means of their choice.
3 The Committee of Ministers of the Council of Europe may establish settlement procedures
which may be used by the Parties to a dispute, subject to their consent.
Article 40 – Denunciation
1 Each Party may, at any time, denounce this Convention by means of a notification addressed
to the Secretary General of the Council of Europe.
2 Such denunciation shall become effective on the first day of the month following the expiration
of a period of three months after the date of receipt of the notification by the Secretary
General.
Article 41 – Notification
1 The Secretary General of the Council of Europe shall notify the Parties, the member States of
the Council of Europe, the other States Parties to the European Cultural Convention, the non- member States having participated in the elaboration of this Convention or enjoying observer status with the Council of Europe, the European Union, and any State having been invited to sign this Convention in accordance with the provisions of Article 32, of:
a any signature;
b the deposit of any instrument of ratification, acceptance or approval;
c any date of entry into force of this Convention in accordance with Article 32;
d any reservation and any withdrawal of a reservation made in accordance with Article 37;
e any declaration made in accordance with Articles 9 and 13;
f any other act, notification or communication relating to this Convention.
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In witness whereof the undersigned, being duly authorised thereto, have signed this
Convention.
Done in Magglingen/Macolin, this 18th day of September 2014, in English and in French, both texts being equally authentic, in a single copy which shall be deposited in the archives of the Council of Europe. The Secretary General of the Council of Europe shall transmit certified copies to each member State of the Council of Europe, to the non-member States which have participated in the elaboration of this Convention or enjoy observer status with the Council of Europe, to the European Union and to any State invited to sign this Conventi
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Appendix II
Council of Europe Treaty Series - No. 215
Explanatory Report to the Council of Europe Convention on the Manipulation of Sports
Competitions Magglingen, 18.IX.2014
1. The Council of Europe Convention on the Manipulation of Sports Competitions, prepared by an intergovernmental Drafting Group set up by the Governing Board of the Enlarged Partial Agreement on Sport, was adopted by the Committee of Ministers at the
1205th meeting of Ministers’ Deputies on 9 July 2014. The convention was opened for signature by the member States of the Council of Europe, the European Union and the non- member States which participated in its drafting or enjoy observer status with the Council of Europe on 18 September 2014, in Magglingen/Macolin (Switzerland).
2. The text of the Explanatory Report prepared by the Drafting Group and transmitted to the Committee of Ministers of the Council of Europe does not constitute an instrument providing an authoritative interpretation of the text of the convention, although it might facilitate the understanding of the convention’s context and provisions.
Introduction
3. Recent years have shown time and again that sport, too, is susceptible to scandals, and that a growing number of these are related to “match-fixing”. This phenomenon, used within the framework of the present report under the more generic concept of “manipulation of sports competitions”, is neither confined to matches, i.e. contests in which two people or teams compete against each other, nor to the sole manipulation of the final outcome of a sports competition, but covers any intentional and improper alteration of the course or result of a sports competition in order to remove all or some of the uncertainty associated with this competition, with a view to obtaining an undue advantage for oneself or for others. Manipulation of sports competitions has taken on worrying proportions since the beginning of the new millennium.
4. Evidence on trends connected to the emergence of manipulation of sports results have been documented since the beginning of the 2000's in numerous studies, working papers and positions prepared by researchers, sports organisations, sports betting operators organisations and international organisations. Greater commercialisation of sport and the extensive media coverage given to it have led to an increase in the economic stakes involved in achieving certain sports results. This in turn has encouraged the development of new activities, both lawful and unlawful. Despite major efforts by sports organisations and in particular the Olympic movement to promote good governance, the sports movement is not immune to corrupt practices. At the same time, the phenomenal growth of the sports betting market due to technological improvements and the development of certain markets has created a new environment in which anyone can have a personal and direct financial interest in the course or outcome of any given competition.
(1)
(1) See, for example: P. Boniface, S. Lacarrière, P. Verschuuren, “Sports betting and corruption: how to preserve the integrity of sport”, IRIS, 2012; “Interpol Integrity in Sport Weekly Media Recap” on the internet at their site: http://www.interpol.int/News-and-media/News ; D. Hill, “The Fix: Soccer and Organized Crime”, McClelland & Stewart, 2008.
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5. This overall new context is undoubtedly one of the main reasons for the significant increase in the number of cases of manipulation of sports competitions since the early 2000s. This rise has gone hand in hand with two specific elements. Firstly, the proliferation of different types of betting provided, sometimes without being effectively supervised by the authorities responsible for the betting market, has created types of bets which are easier to manipulate and manipulations which are more difficult to detect. And secondly, the development of a large illegal market which gives customers a very high pay-out has attracted criminal groups, interested in manipulating the sports competitions on which bets are placed so as to exploit the information through betting, and in the course of this activity laundering criminal finances.
(1)
6. The manipulation of sports competitions poses a challenge to the rule of law because it is linked to fraud, organised crime and corruption. Because it occurs in the sports sector and when linked to betting, the economic stakes are considerable. It also, however, poses a threat to the future of sport as a social, cultural, economic and political practice which is called into question every time doubts are raised about its integrity and values. In jeopardising sports ethics and the unpredictability that underlies every sporting contest, it calls into question the very nature of sport, and therefore the public’s interest in sport and the willingness of public and private sponsors to finance it.
Council of Europe initiative to promote the integrity of sport
7. The issue of corruption came under close scrutiny by the Council of Europe very early on because of the danger it poses to pluralist democracy, the rule of law, human rights and ethical principles. The Council of Europe’s standard-setting role in the face of growing corruption was recognised as far back as the Second Summit of Heads of State and Government of the Council of Europe, on 10 and 11 October 1997 in Strasbourg.
8. A reference Council of Europe instrument dealing with sport and its basic principles such as the integrity of sport and those involved in it was adopted in 1992 in the form of Recommendation No. R(92)13rev on the revised European Sports Charter. Two other recommendations, Recommendation Rec(2005)8 on the Principles of Good Governance in Sport and Recommendation CM/Rec(2010)9 on the revised Code of Sports Ethics, built on this initial document in an effort to improve the integrity of sport and ensure that it was in a stronger position and better governed.
9. In fulfilling its mission to defend ethical sport, the Council of Europe has played a key role in coordinating policies in the fight against doping. In the 1980s, this work led to the opening for signature of the Anti-Doping Convention (1989, ETS No. 135, hereafter “Convention 135”), which regulated the fight against an emerging threat to the integrity of sport. In 2007, Resolution CM/Res(2007)8 established the Council of Europe’s Enlarged Partial Agreement on Sport (hereafter “EPAS”) and assigned it the task of developing standards to deal with topical issues in sport at a pan-European level and following them up. EPAS provided an opportunity to continue the Council of Europe’s standard-setting work and paved the way for targeted action in certain areas. In the course of the preparations for and follow-up to the 11th Council of Europe Conference of Ministers responsible for Sport in Athens on 11 and 12 December 2008, the issues of ethics and autonomy in sport were explored by EPAS in
greater depth.
10. It was at this conference that States made a clear political commitment to address issues relating to ethics in sport, in particular match-fixing, corruption and illegal sports betting. This is turn resulted in the adoption at the 18th Council of Europe Informal Conference of Ministers responsible for Sport, held in Baku on 22 September 2010, of the first resolution to deal specifically with the manipulation of sports results (namely, Resolution No. 1 on promotion of the integrity of sport against the manipulation of results). In this resolution, Council of Europe
(1) See, for example, C. Kalb and P. Verschuuren, “ White Paper – Money laundering: the latest threat to sports betting?”, IRIS, 2013.
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member States are called upon to adopt effective policies and measures aimed at preventing and combating the manipulation of sports results in all sports, while EPAS is called upon to continue work in this area with a view to the adoption of a recommendation of the Committee of Ministers to member States on the manipulation of sports results.
11. Such a recommendation, namely Recommendation CM/Rec(2011)10 on the promotion of the integrity of sport against manipulation of results, notably match-fixing, was later adopted by the Council of Europe’s Committee of Ministers on 28 September 2011. Pending the finalisation of the convention to combat the manipulation of sports competitions, it constituted
the most detailed international standard to date, offering a full range of measures to combat the problem.
Reasons for preparing an international legal instrument
12. In its Resolution 1602 (2008) on the need to preserve the European sport model, the Parliamentary Assembly of the Council of Europe had noted that recent scandals in several
European countries, involving illegal sports betting and manipulation of results, had seriously damaged the image of sport in certain countries, including in Europe. It called for the introduction of mechanisms to reduce the risk of match-fixing, illegal sports betting or other forms of corruption. It further emphasised that these problems would require more active involvement on the part of state authorities.
13. Furthermore, while certain important aspects of corruption in sport are already covered by existing international conventions on corruption and organised crime, namely the United
Nations Convention against Transnational Organized Crime (2000) and the United Nations Convention against Corruption (2003), these international legal instruments do not specifically deal with cases involving 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.
14. Two specific Council of Europe conventions in the field of corruption and money laundering, namely the Criminal Law Convention on Corruption (1999, ETS No. 173, hereafter “Convention 173”) and the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism (2005, CETS No. 198, hereafter “Convention 198”), may be used as standard-setting reference points in the definition of the mechanisms and legal means needed to combat the criminal organisations which bribe persons involved in sport in order to manipulate sports results, and use sports betting as a means of laundering money and as a source of financing for their activities. However, manipulation of sports competitions may involve corrupt practices that are not covered by Convention 173 or may even not involve corrupt practices at all. As for Convention 198, illegal sports betting and profits derived from the manipulation of sports results do not necessarily fall within the scope of this instrument.
(1)
15. Under the terms of Recommendation CM/Rec(2011)10, the Secretariat of the Enlarged Partial Agreement on Sport (EPAS) of the Council of Europe was invited, in co-operation with other national and international bodies, to carry out a feasibility study on the possibility of adopting a legal instrument on match-fixing. This study, which was presented at the Council
of Europe Conference of Ministers responsible for Sport in Belgrade on 15 March 2012, concluded that an international convention dealing with all preventive measures and sanctions aimed at suppressing the manipulation of sports competitions was the most logical option.
(1) See, for example, Criminalization approaches to combat match-fixing and illegal/irregular betting: a global perspective. Comparative study on the applicability of criminal law provisions concerning match- fixing and illegal/irregular betting, IOC / UNODC, Lausanne / Vienne, July 2013, pp. 276 ff.
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16. As an international organisation having a standard-setting function in many different fields, the Council of Europe was the ideal forum for preparing such an instrument, especially in view of the international scale of the problem.
Main features of the Convention
17. The advantage of an international convention in this area is that it promotes a risk- and evidence-based approach and allows commonly agreed standards and principles to be set in order to prevent, detect and sanction the manipulation of sports competitions. To achieve this, the convention involves all stakeholders in the fight against manipulation of sports competitions, namely public authorities, sports organisations and sports betting operators. To ensure that the problem is addressed in a global context, it allows states which are not members of the Council of Europe to be become parties by the convention.
18. More specifically, the following parts of the convention may be distinguished:
– prevention; – law enforcement; – international co-operation measures;
– exchange of information; – follow-up to the convention.
19. As regards prevention, the aim of the convention is to pave the way for more systematic application of the measures adopted by sports organisations, sports betting operators and public authorities to enable them to jointly identify and prevent manipulation of sports competitions and ensure better co-operation between these stakeholders. While the convention recognises the autonomy of sports organisations and their role in the regulation of sports activities and competitions, in awareness-raising, training and information sharing, it also highlights the fact that sports betting operators have a responsibility within the implementation of the anti-fraud measures mentioned in Recommendation CM/Rec(2011)10 (manipulation of results, conflicts of interest and misuse of inside information). The convention also provides for the introduction of a mechanism to exchange information between the various national systems, the national platform. As regards public authorities, the convention encourages them to adopt the necessary legislative or other measures, including financial ones, to support any initiatives taken by other stakeholders and to combat illegal sports betting, but also to identify the authorities responsible for implementing the legal framework for the regulation of their sports betting market.
20. With regard to the various aspects of law enforcement, the convention seeks, inter alia, to identify those acts which should be prosecuted without, however, imposing the creation in each Party’s domestic law of a harmonised special criminal offence in the field. The purpose of clarifying which types of conduct are to be considered offences is to facilitate judicial and police co-operation between Parties. Specific references are also made to money laundering and to the liability of legal persons, which depending on the Parties’ applicable law can be criminal, civil or administrative. With a view to ensuring an efficient enforcement system, the convention considers a broad range of criminal, administrative and disciplinary sanctions. It also requires the Parties to ensure that sanctions are effective, proportionate and dissuasive.
21. Because of the transnational aspect of the manipulation of sports competitions and the need to combat criminal and other acts related thereto, it was deemed vital to step up international co-operation. The convention is concerned as much with enforcement as with prevention, including detection, exchange of information and education. Accordingly, international sports organisations are recognised as having a role to play as key partners of public authorities in combating the manipulation of sports competitions, in particular where disciplinary sanctions and exchanges of information are concerned. Sports betting operators are also recognised as key partners on prevention and exchange of information of betting- related manipulations. In providing for international co-operation in investigating and prosecuting offences, the convention does not prejudice instruments which already exist in the field of mutual assistance in criminal matters and extradition and which can facilitate
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investigations and prosecutions, such as the European Convention on Extradition (1957, ETS No. 24, hereafter “Convention 24”), the European Convention on Mutual Assistance in Criminal Matters (1959, ETS No. 30, hereafter “Convention 30”) and its Additional Protocol
(1978, ETS No. 99). The Parties’ task to encourage the principle of mutual recognition of disciplinary sanctions adopted by national sports organisations is also envisaged, in order to avoid an athlete sanctioned by a national organisation managing to evade punishment by participating in other competitions or the risk of disciplinary sanctions being imposed twice for the same offence.
22. The setting-up of a convention follow-up committee to monitor implementation of the convention has the merit of providing an institutional base and ensuring sustainability. This type of monitoring is similar to that used by the European Convention on Spectator Violence
and Misbehaviour at Sports Events and in particular at Football Matches (1985, ETS No. 120, hereafter “Convention 120”) and by Convention 135.
Preamble
23. The Preamble reaffirms the commitment of the signatories to the convention to tackling the problem of manipulation of sports competitions. In order to pave the way for possible
ratification by the European Union, the term “Parties” was deemed preferable to “State Party” throughout the convention. The convention seeks to contribute to greater national and international co-operation, which is instrumental in fighting this worldwide scourge, and more specifically co-operation between the main stakeholders who are: public authorities, the sports movement and sports betting operators.
24. The reference to “notions of pluralist democracy, rule of law, human rights and sports
ethics” is derived from Recommendation CM/Rec(2011)10 on “Promotion of the integrity of sport against manipulation of results”, adopted by the Committee of Ministers of the Council of Europe on 28 September 2011.
25. The term “sports ethics” is defined in Recommendation CM/Rec(2010)9 of the Committee of Ministers to member States on the revised Code of Sports Ethics, adopted by the Committee of Ministers of the Council of Europe on 16 June 2010. It has two underlying principles: fairness and sport as an arena for individual self-fulfilment. Fairness refers to practising a sport while faithfully respecting the rules of competition, and to providing everyone with an equal chance of taking part in sport. Sport should be practised according to fair play, be free of discrimination and be an activity for all. Moreover, sport should be an arena for self-fulfilment in which everyone is given the opportunity for self-development and self-control according to their potential and interests. In this way, sport can become an important ethical and cultural factor in society.
26. The Preamble recalls that the manipulation of sports competitions has the potential to affect all countries and all sports and that it constitutes a worldwide threat to the integrity of sport. In this respect it outlines the need for a legal instrument open to states other than members of the Council of Europe. Integrity of sport is understood as an ethical fundamental
value in the sport movement characterised by credibility, transparency and fairness as well as by the unpredictability of sports competition results.
27. The Preamble states that the manipulation of sports competitions may be linked to
transnational organised crime and poses a direct threat to public order and the rule of law.
28. The Preamble includes a reference to the main international instruments, whose
implementation may contribute to effective action against the manipulation of competitions. These instruments are as follows:
– Convention for the Protection of Human Rights and Fundamental Freedoms (1950,
ETS No. 5, hereafter “Convention 5”) and the Protocols thereto;
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– European Convention on Spectator Violence and Misbehaviour at Sports Events
and in particular at football matches (1985, ETS No. 120);
– Anti-Doping Convention (1989, ETS No. 135);
– Criminal Law Convention on Corruption (2002, ETS No. 173);
– Council of Europe Convention on Laundering, Search, Seizure and Confiscation of
the Proceeds from Crime and on the Financing of Terrorism (2008, CETS No. 198);
– United Nations Convention against Transnational Organized Crime (2000) and the
Protocols thereto;
– United Nations Convention against Corruption (2003).
29. The Preamble emphasises the importance for the Parties to effectively, and without undue delay, investigate offences within their jurisdiction. Given the importance of this phenomenon, each Party should recognise the need to lead such investigations and to mobilise resources with this in mind, in accordance with their legislation. According to the seriousness of the acts committed, the competent authorities may consider that effective investigation may involve monitoring communications, seizing material, covert surveillance, monitoring bank accounts and other financial investigations. According to the seriousness of the conduct, they may involve co-operation between different public authorities, and those responsible for investigations or criminal prosecutions: this co-operation may include an exchange of information between relevant authorities, on their own initiative or upon request. In some countries, these competent authorities are prosecutorial authorities which operate under the responsibility of autonomous magistrates.
30. Referring to the key role of Interpol, the Preamble emphasises that the intention of the
convention is not to introduce a framework that would act as a substitute for the work done by other organisations such as Interpol, but rather to enhance the role that these organisations play, by complementing it.
31. While noting the principle of autonomy of sport and that the sports organisations are responsible for sport – and therefore for the fight against manipulation of sports competitions,
the Preamble states that public authorities may have a responsibility to protect the integrity of sport and support the sports movement in the fight against the manipulation of competitions.
32. The principle of autonomy of sport referred to in the Preamble has the same meaning as in Recommendation CM/Rec(2011)3 of the Committee of Ministers to member States on the principle of the autonomy of sport in Europe. This recommendation specifies the main features of the autonomy of sport, namely the possibility for non-governmental sports organisations to establish, amend and interpret the “rules of the game” appropriate to their sport freely, without undue political or economic influence; to choose their leaders democratically, without interference by States or third parties; to obtain adequate funds from public or other sources, without disproportionate obligations; to use these funds to achieve objectives and carry out activities chosen without severe external constraints. It should be underlined that the principle of autonomy as mentioned here does not intend to exclude the sports movement from compliance with the rule of law and the applicable law in each jurisdiction.
33. Recognising that the development of sports betting activities (and in particular illegal betting) increases the risk of the manipulation of sports competitions, and emphasising the transnational nature of the risks of manipulation, as well as the potential involvement of organised crime, the Preamble sees this development of the sports betting activities as a potential threat to the integrity of sport, something which the convention seeks to address in a
practical manner.
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34. It should be noted here that the Parties have a wide margin of discretion when making policies regarding sports betting, in accordance with applicable law. One consequence of this approach is that the convention aims to be compatible with all types of sports betting market
organisation (prohibition, monopoly, market open to licensed operators or free market). The reference to compliance with the “applicable law” draws attention to the fact that states must nevertheless abide by the rules in force and in particular the relevant applicable international and European Union law.
35. The Preamble makes it clear that this convention covers cases of national or transnational manipulation of sports competitions, whether or not they are linked with sports betting or
involve a criminal offence. It thus recognises that the manipulation of sports competitions is not necessarily linked to sports betting or criminal offences.
36. Lastly, the Preamble refers to all the initiatives taken by the Council of Europe to promote the integrity of sport, in particular Resolution No. 1 adopted at the 18th Council of Europe Informal Conference of Ministers responsible for Sport in Baku on 22 September 2010, which invited the Enlarged Partial Agreement on Sport (EPAS) to carry out a feasibility study concerning the possibility of adopting an international convention. This same study, which found that an international convention was the most logical option, was conducted on the basis of Recommendation CM/Rec(2011)10 against manipulation of sports results. Resolution No. 1 on international co-operation on promotion of the integrity of sport against the manipulation of results (match-fixing), adopted at the 12th Council of Europe Conference of European Ministers responsible for Sport, later paved the way for the negotiation of an international convention on this subject, a culmination of the work done by the Drafting Group responsible for drafting an international convention to combat the manipulation of sports competitions.
CHAPTER I – PURPOSE, GUIDING PRINCIPLES, DEFINITIONS
Article 1 – Purpose and main objectives
37. Article 1 concerns the purpose of the convention, namely to combat manipulation of sports competitions. By including a reference to sports ethics and the integrity of sport, this article emphasises that all forms of manipulation pose a threat to the values of sport. In stating that the main purpose of the convention relates to sport. This reference to the autonomy of sport needs to be understood in the sense of Recommendation CM/Rec(2011)3 of the Committee of Ministers to member States on the principle of autonomy in sport in Europe (see the Preamble above) which, like Recommendation Rec(92)13rev of the Committee of Ministers to member States on the revised European Sports Charter, specifies that sports organisations are to set up autonomous decision-making mechanisms within the limits laid down by the law of the State within whose territory they have their seat.
38. The second paragraph of Article 1 specifies that in order to achieve its purpose, the convention aims to prevent, detect and sanction manipulation of competitions and to promote
national and international co-operation between those concerned, principally public authorities, sports organisations and sports betting operators.
39. The term “public authorities” as used here encompasses, inter alia, the legislature, the judiciary, the police, the authorities responsible for regulating sports betting, the governmental authorities in charge of sport, the authorities responsible for personal data protection and local authorities. This broad definition does not imply that each public authority concerned in one way or another by a provision of this convention is systematically covered by all the references to public authorities. The definition of relevant or competent public authorities, referred to in subsequent articles, should be applied with regard to the specific nature of the task and the statutory mandate of the authorities. “Organisations involved in sport” refers primarily to sports organisations and competition organisers, but can also cover supporters’ clubs and players’ organisations, organisations which seek to promote sports ethics or good governance in sport and their fraud detection systems. The term “organisations involved in sports betting” refers to any operator, publicly or privately owned, authorised to provide
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betting services but may also cover umbrella organisations of operators (for example of the
lotteries or commercial gambling operators) and their fraud detection systems.
Article 2 – Guiding principles
40. Article 2 provides a list of guiding principles which those involved in combating the manipulation of sports competitions must observe, both in their activities and in their respective relations. These principles are as follows:
– human rights; – legality; – proportionality; – protection of private life and personal data.
The principles of respect for human rights, legality and proportionality must apply both to state authorities and to private stakeholders in the fight against manipulation of sports competitions. Human rights must indeed be respected inasmuch as they are rules dictated by public policy which are essentially enshrined in international law instruments such as Convention 5; the same applies to the principles of legality and proportionality inasmuch as they constitute general principles of law.
41. The term “personal data”, as used in the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (1981, ETS No. 108, hereafter “Convention 108”), means “any information relating to an identified or identifiable individual ("data
subject")”. The protection of private life and personal data is part of human rights; however, it
was decided to mention it to stress that the implementation of this convention must abide with the relevant standards on protection of private life and personal data.
Article 3 – Definitions
42. Article 3 contains several definitions that apply throughout the convention.
i. Definition of “sports competition”
43. This definition is based on three criteria:
– a real sports event;
– organised in accordance with the rules of an organisation mentioned in the list drawn up by the Convention Follow-up Committee in accordance with Article 31.2, as well as its continental and national affiliated organisations, if necessary;
– recognised by a competent sports organisation.
44. The term “competition” covers each event, i.e. each race and match, but should not necessarily be interpreted as covering either the whole tournament (for example a championship where the winner is determined following a series of competitions) or all of the competitions taking place within the framework of an event involving several competitions or tournaments (for example the Olympic Games). Since processes such as the draw of the opponents or the designation of the referee matter to the competition, it should be considered as part of the competition.
45. The term “real sports event” does not include virtual sports events such as those simulated by certain fixed-odds betting terminals. Other events organised by sports organisations, for example assemblies or conferences, should not be considered as sports events.
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46. The term “competent sports organisation” refers to a sport organisation, as defined in Article 3, paragraph 2, which has the right to include in its fixture list a competition involving
competitors from a given geographical area.
ii. Definition of “sports organisations”
47. This term refers to any organisation which governs sport, namely those mentioned in the list drawn up by the Convention Follow-up Committee in accordance with Article 31.2, as well as any continental or national organisations affiliated thereto.
48. According to this definition, continental organisations are deemed to be “international”, while local organisations are deemed to be “national”. National organisations also include national umbrella organisations (for example “national confederations of sport”) which bring together the national sport federations.
iii. Definition of “competition organisers”
49. “Competition organiser” means any sports organisation or any other person, irrespective of their legal form, which organises sports competitions. This definition therefore covers both natural persons and legal persons. In most cases, competition organisers are sports
organisers, but sometimes sports organisations recognise competitions organised by other entities (e.g. organisation in charge of a multi-sport event or private company).
iv. Definition of “manipulation of sports competitions”
50. This is a general definition which describes the different types of manipulation that the
convention intends to cover. This definition is an integral part of “criminal offences relating to the manipulation of sports competitions”, defined in Article 15, but this definition alone does not intend to define the scope of criminal offences.
51. The words “aimed at” indicate that the definition includes not only arrangements, acts or omissions which improperly alter the result or course of a competition, but also the acts
committed with the intention of improperly altering the result or course of a competition, even if the arrangement, act or omission is unsuccessful (e.g. if a player on whom pressure has been brought to bear is not actually selected for the competition).
52. The term “in order to” indicates an intention to obtain an undue advantage for oneself or
others, even if this intentional arrangement, act or omission, aiming at improperly modifying the results or course of a sports competition, fails to obtain the advantage sought (e.g. if the competition in question is the subject of an alert issued by the regulator and the sports betting operators refuse to take bets on the competition, thereby preventing the undue advantage from being obtained).
53. The term “improper” refers to an arrangement, act or omission which infringes the existing
legislation or the regulations of the sports competition or organisation concerned. It may be aimed at alterations of the course or result of a competition that would be sanctioned by sports regulations only.
54. The term “intentional” means that the arrangement, act or omission is deliberately aimed
at improperly influencing the natural and fair course (notably through a foul, penalty or action on the field altering the intermediate result or phase of the game) or the result of a sports competition (through the score, marks, time or ranking, for example).
55. The objective of such an arrangement, act or omission is to obtain an undue advantage (undue because it arises from an improper arrangement, act or omission) for oneself or for another person: this advantage may take the form of financial gain (for example, a bonus paid to the winner by the competition organiser, a bonus paid to a competitor by their employer, a bribe accepted by a competition stakeholder, winnings from a sports bet placed on the
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relevant competition or a capital gain realised by the owner of a qualified club who sells their shares), or some other tangible or intangible advantage, such as advancing to a higher level in the competition, or simply the “glory” of winning. The term “undue advantage” therefore
does not imply that every manipulation is related to criminal offences such as fraud or corruption.
v. Definition of “sports betting”
56. The definition of “sports betting” refers to the predictions made by wagering a stake on an event occurring during a sports competition in order to obtain winnings. Some specific forms
of betting are given as examples: fixed and running odds, spread betting, betting exchanges, pools/totalisors and live betting. The expression “sports betting operators” used in the convention therefore covers all kinds of operators providing sports betting services, land- based or remote, publicly or privately owned, specialised in sports betting or not (bookmakers, specialised sports betting operators, gambling operators and lotteries offering sports betting services) and regardless of the type of sports bet provided.
57. The term “sports” used in this definition refers to sports competitions, as defined in the
convention, on which bets are placed. The expression “stake of monetary value” means risking an economic loss.
58. Three different types of betting activities relevant for the convention are described: illegal sports betting, irregular sports betting and suspicious sports betting. The identification of these different types of bets may trigger specific sets of measures by the stakeholders.
59. “Illegal sports betting” refers to any sports betting whose type or operator is not allowed (such as by exclusive rights, a licence or automatic recognition of licences granted by certain third countries) by virtue of applicable law in the jurisdiction of the Party where the gambler is located. The term “applicable law” includes national law, EU law and the law of federated entities. The use of "in the jurisdiction where the consumer is located” may provide a conflict of law rule whereby the applicable law can be identified in order to determine the legality or illegality of a sports bet, when it comes to implementing the prevention measures in the fight against illegal sports betting and the co-operation measures foreseen in this convention (Articles 9, 11, and 12). In order to clarify that the principle of territoriality applies and to prevent conflict of jurisdiction, the choice of using the term “jurisdiction where the consumer is located” rather than “jurisdiction of the consumer” refers to the territory where the consumer is located at the time of placing the bet.
60. “Irregular sports betting” means sports betting activity inconsistent with usual or anticipated patterns of the market in question or which concerns a sports competition whose course has unusual features. Identifying irregular sports betting therefore depends not only on the betting market, but also on the sports competition in question. Unusual features of a competition may be detected by organisations or authorities involved in betting market surveillance, by sports betting operators who follow the competitions on which bets are placed, but also by the sports organisations. An irregular sports bet is liable to be the subject of exchanges of information or an alert issued by the betting monitoring systems, regulatory authorities, sports betting operators, sports organisations or by the national platform foreseen in Article 13. Such an alert may encourage other stakeholders to take precautionary measures and to examine the case in greater depth, if necessary. The criteria (indicators) used to identify irregular sports betting will be developed if necessary by the Convention Follow-up Committee, but the convention does not intend to harmonise at international level the way these criteria are combined or the precise thresholds beyond which betting should be considered “irregular” as such factors depend notably on the characteristics of every national betting market and the sports competition in question.
61. “Suspicious sports betting” means any sports betting activity which, according to well- founded and consistent evidence, appears to be linked to a manipulation of the sports competition to which it relates. Suspicious sports betting will form the subject of exchanges of information and measures on the part of national platforms, public authorities, and where
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appropriate, sport betting operators and sports organisations. The criteria for determining suspicious sports betting will, where necessary, be set by the Convention Follow-up Committee. However, the convention does not intend to harmonise at international level the
way these criteria are combined or the precise thresholds beyond which betting should be considered “suspicious” as such factors depend notably on the characteristics of every national betting market and the sports competition in question.
vi. Definition of “competition stakeholders”
62. This definition lists all those involved, directly or indirectly, in the organisation and/or running of sports competitions. It covers three types of persons:
– “athletes”: active participants in sports events (sportsmen, sportswomen). “Group of persons” refers to teams in the case of team sports;
– their “support personnel”: trainers, medical personnel, agents, officials of clubs or other entities taking part in the competition, as well as persons acting in this capacity
and any other persons working with the athletes, including players’ unions, and
– “officials”, meaning the owners, executives and staff members of the entities which organise and promote sports competitions, as well as any other accredited persons, irrespective of their role, including sponsors or journalists, taking part in the activities of sports organisations. Referees, official judges and stewards are considered to be officials. The term also refers to executives and staff members of sports organisations which recognise the competition.
63. The definitions of “athlete” and “support personnel” are derived from the UNESCO
International Convention against Doping in Sport (2005).
vii. Definition of “inside information”
64. The term “inside information” refers to information acquired or possessed by persons who were able to obtain it only because of their position vis-à-vis a particular athlete, sport or competition, which may be used especially for the purpose of manipulating a sports competition or to bet on the competition with an advantage. Examples include information regarding competitors, the conditions and tactical considerations, unless this information has already been made public in accordance with the law or according to the rules and regulations of the competition in question.
CHAPTER II – PREVENTION, CO-OPERATION AND OTHER MEASURES
Article 4 – Domestic co-ordination
65. Under the terms of Article 4, paragraph 1, the Parties to the convention undertake to co- ordinate, in a comprehensive manner, the policies and action undertaken by the public authorities in the fight against the manipulation of sports competitions. This article is not concerned with specific co-operation activities with other stakeholders, such as sports betting operators and sports organisations, like exchanges of information or issuing alerts, which are
dealt with elsewhere in the convention.
66. The second paragraph calls on the Parties to encourage sports organisations, competition organisers and sports betting operators to co-operate in the fight against the manipulation of
sports competitions and to implement the relevant provisions of the convention. The term “encourage” leaves Parties some flexibility as to the means to be employed, which differ widely according to how the sports movement and betting market are organised at national level.
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Article 5 – Risk assessment and management
67. Article 5, paragraph 1, invites the Parties to put in place, if necessary in co-operation with sports betting operators, sports organisations, competition organisers and other relevant organisations the measures required to identify, analyse and evaluate the risks associated with the manipulation of sports competitions.
68. In all circumstances, this risk assessment includes a long-term analysis and development of the capacity to respond to specific risks.
69. Under Article 5, paragraph 2, each Party is to encourage sports organisations, sports betting operators, competition organisers and any other relevant organisation to establish procedures and rules in order to combat manipulation of sports competitions. Each Party adopts, where appropriate, legislative or other measures necessary for this purpose. The reference to “any other relevant organisation” may cover other organisations related to sport (e.g. players’ unions, supporters’ or referees’ organisations.), as well as anti-corruption organisations.
70. Details of the measures expected from sports organisations and operators are given in
Articles 7 and 10.
Article 6 – Education and awareness-raising
71. According to Article 6, Parties are to encourage awareness-raising, education, training
and research in order to strengthen the fight against the manipulation of sports competitions.
72. This provision covers sports organisations and sports betting operators, although more specific provisions relating to awareness-raising or training within them are foreseen in Articles 7 and 10 of this convention. This provision also covers training of groups such as
young athletes, civil servants, judges or awareness-raising of the general public. It may be implemented through means such as an Anti-Manipulation-Code, Internet platforms, E- learning tools, etc.
Article 7 – Sports organisations and competition organisers
73. Article 7 concerns measures to be taken by sports organisations and competition organisers in the fight against the manipulation of sports competitions. It supplements Article 5, going into greater detail. In order to reflect the variety of ways in which the sports movement is organised at national level and to accommodate the principle of the autonomy of sport, this provision calls on the Parties to encourage sports organisations, without specifying
how this is to be done.
74. Paragraph 1 contains provisions that are to be implemented within the framework of
regulations adopted by sports organisations. These rules and principles are general in scope. Failure to observe such rules may give rise to disciplinary procedures and sanctions.
75. When interpreting the notion of “principles of good governance” mentioned in paragraph 1, reference may be made to Recommendation Rec(2005)8 of the Committee of Ministers to member States on the principles of good governance in sport. For the purposes of this
convention, these principles include, inter alia, ensuring transparent proceedings in financial and administrative issues and democratic structures.
76. Paragraph 1.a calls for the prevention of conflicts of interest among competition stakeholders by proposing that they be prohibited from betting on sports competitions in which they themselves are taking part, and that the misuse or dissemination of inside information be forbidden. The encouraged ban on betting on one’s own competitions relates to competitions in which the stakeholders are directly involved and represents the minimal scope of application of such a ban. Sports organisations and the Parties may extend this
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prohibition to include all competitions in the tournament (for example, the championship) or event (for example, the Olympic Games) in which competition stakeholders are taking part.
The prohibition on betting on one’s own competition is already part of the disciplinary regulations of several national and international sports federations.
77. Article 7.1.b provides that sports organisations should consider adopting rules to ensure that they honour their contractual, statutory and other obligations. This is the case, for instance, in countries that have a licensing system which requires clubs to fulfil certain criteria in order to participate in competitions. Such a system may be used to compel clubs to meet
their obligations, among others towards athletes. Other mechanisms may be considered to ensure compliance with contractual, statutory and other obligations. The aim is to provide sports organisations and professional athletes with proper conditions in which to pursue their activities.
78. Paragraph 1.c specifies that in the event of any approach or incentive to behave in a certain way, competition stakeholders should be required to report the full details immediately. This requirement covers “any approach or incentive which could be considered an infringement of the rules against the manipulation of sports competitions”. The rules to which it refers may be statutory provisions, but also regulations adopted by sports organisations or competition organisers. This provision defines an internal rule of the sports movement which covers a wide range of offences, mainly disciplinary. It is for the sports organisations concerned to decide what the procedure should be and which body or person should be responsible for gathering information and taking further action (e.g. disciplinary inquiry, disciplinary procedure, referral to the courts and referral to the national platform.). Many national and international sports organisations have already integrated this rule in their disciplinary regulations.
79. Paragraph 2 of Article 7 contains measures which sports organisations are encouraged to adopt and which may be implemented through procedures, policies, practices or even
regulations.
80. Paragraph 2.a calls for the introduction of tight and efficient controls of sports competitions exposed to risks of manipulation. Such supervisory procedures include provisions for acquiring the necessary expertise to assess and follow up warnings issued by
betting monitoring systems, but also supervision of sporting events with sport experts (e.g. representatives, stewards or referee inspectors). This practical follow-up does not in itself imply any public disclosure.
81. Paragraph 2.b specifies that where suspicious activities linked to the manipulation of sports competitions come to the attention of sports organisations (notably as a result of reports received under paragraph 1.c, or internal disciplinary inquiries), they must inform the relevant public authorities and/or national platforms. In this context, the expression “linked to the manipulation of sports competitions” should include at the very least activities which could constitute criminal offences. They may also include, however, other suspicious activities or information about conduct which, although not a criminal offence, could form the subject of exchanges of information (via the national platform) with other authorities or organisations, within the country or abroad.
82. Paragraph 2.c mentions effective mechanisms to enable competition stakeholders to provide information. These mechanisms are in addition to the reporting requirement set out in paragraph 1.c. In order to be effective, they must enable competition stakeholders to report activities in confidence. The recipient of the information must be of the utmost reliability and integrity. In particular, they must not themselves be involved in the competition (e.g. club managers). Such mechanisms may include, for example, a telephone helpline, a mobile application, an independent place, an independent and trustful ombudsperson with the obligation of secrecy or the possibility of remaining anonymous when reporting an activity or during proceedings. They will also include measures which are the responsibility of sports organisations and which are designed to protect whistle-blowers who report suspicious activities to the competent bodies of the sports organisation, or to the authorities (e.g. anonymity, protection against wrongful dismissal or assistance in their subsequent career).
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83. Competition stakeholders including young athletes should be made sufficiently aware of the issue of manipulation of sports competitions (paragraph 2.d). This can be done through
education and training provided by sports organisations or players’ unions, for example.
84. It is noted that supporters, although not “competition stakeholders” in the strict sense,
should nevertheless be informed and involved in the fight against the manipulation of sports competitions.
85. Under paragraph 2.e, sports organisations should also be asked to delay appointing officials until the latest possible stage before the competition. This can help to protect the integrity of referees, for example.
86. The adoption and implementation of disciplinary sanctions applied by sports organisations, such as suspension from other sports activities, must be done in accordance with the national law. This includes, in particular, respecting human rights and the principle of proportionality, as mentioned earlier in the convention.
87. These disciplinary procedures must respect the general principles of law recognised at international level and guarantee the fundamental rights of the suspected athletes. According to these principles, which are reiterated in Convention 135, the investigating body must be separate from the disciplinary body, those suspected have the right to a fair trial and the right to be assisted or represented, and there must be clear and enforceable provisions allowing for a right of appeal, which implies that disciplinary sanctions imposed by sports organisations must be subject to an appeal before a court or an arbitration body.
88. Any disciplinary sanctions imposed by sports organisations should form the subject of
mutual recognition procedures by foreign sports federations and by international federations. Such mutual recognition is dependent on the rules of international sports organisations on implementation of disciplinary sanctions and measures. This provision was inspired by the standards applied in the fight against doping.
89. Paragraph 7.4 stipulates that disciplinary liability shall in no way exclude any criminal, civil or administrative liability within the framework of state court sanctions. The sports disciplinary sanctions are within a different jurisdiction of criminal law and are driven into separate standards applied according to the procedures and other types of evidence. Also, disciplinary sanctions should not be classified as criminal sanctions. Therefore, the "non bis in idem"
principle does not exclude that an act is punishable in both disciplinary and criminal courts. The same act may be punished by disciplinary procedure without coming under criminal law, or criminally without incurring disciplinary sanctions.
Article 8 – Measures regarding the financing of sports organisations
90. Article 8 concerns measures to ensure the financial transparency of sports organisations, and Parties’ financial support for these organisations in the fight against the manipulation of sports competitions. The article also provides for the possibility of withdrawing financial (or other) support from sports organisations which do not respect the regulations regarding the fight against the manipulation of sports competitions, or from competition stakeholders
sanctioned for the manipulation of sports competitions.
91. Paragraph 1 calls for appropriate transparency regarding the funding of sports organisations when they are financially supported by a Party. This provision is concerned not with the use of public funds but rather with the kind of transparency that is expected in terms of governance and funding (maintenance of proper accounts, for example, by identifying funding sources). The obligation by Parties to ensure appropriate transparency of those organisations “financially supported by the Party” is a minimum standard set out by the convention. The Parties whose national legal systems allow or require comparable transparency with regard to a broader group of organisations, may apply it. Nonetheless, certain Parties may not be able to achieve wider transparency due to the limitations imposed by their legal system.
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92. Bearing in mind that non-governmental sports organisations play a key role in the fight against the manipulation of sports competitions, paragraph 2 asks governments to consider the possibility of supporting sports organisations, where appropriate, for example by funding
suitable mechanisms for combating the manipulation of sports competitions. The form of any support is left to the discretion of the Parties. It might be an example that the support is through direct subsidies or grants, or by taking into account the cost of any such mechanisms and efforts deployed by sports organisations when determining the overall subsidies or grants to be awarded to these organisations.
93. Under paragraph 3, each Party is requested, where necessary, to consider withholding financial support or inviting sports organisations to withhold financial support from competition stakeholders sanctioned for manipulating sports competitions, for the duration of the sanction.
This paragraph echoes a similar provision in Convention 135 (Article 4.3.b). Parties should have a framework authorising its possible implementation. This provision shall be implemented in accordance with the principles of legality and proportionality.
94. Lastly, paragraph 4 invites Parties, where appropriate, to withhold some or all of their support from any sports organisation that fails to effectively apply regulations for combating
the manipulation of sports competitions. It is emphasised that this provision should be implemented in accordance with the principles of legality and proportionality.
Article 9 – Measures regarding the betting regulatory authority or the other responsible
authority or authorities
95. Alongside sports organisations, the betting regulatory authorities (or other responsible authorities) have a key role to play in ensuring exchanges of information between sports organisations and sports betting operators, and in co-ordinating the rules governing sports betting operators as well as a duty to supervise compliance with these rules. The exercise of certain functions need to be fulfilled by public authorities: the coordinated enforcement of some preventative measures by all the sports betting operators should be ensured by a public authority. Similarly, the co-ordination of some exchange of information, in compliance with the relevant national and international personal data protection laws and standards, as set out in Article 14 of the convention and in preserving the legitimate interest of both the sports betting operators and sports organisations, should be fulfilled by a neutral person or institution. Article 9.1 obliges each Party’s competent authorities which are responsible for implementing sports betting regulations, to fight against the manipulation of sports competitions in relation to sports betting, through measures including where appropriate those referred to in letters a to f.
96. In general, the term “regulatory authority” refers to a public authority or authorities tasked by law with contributing to the provision of a service and to the proper functioning of a market involving in general multiple suppliers for the benefit of consumers. Within the framework of this convention “Regulatory authority” is used as a generic term to mean the authority responsible for the sports betting market. This indirect reference to a market model involving several suppliers should not be misleading, as the present convention is meant to apply whatever the organisational structure of the market, and does not purport to express an opinion for or against opening up the betting market to competition. The authority in question could equally well be the supervisory authority for a state lottery operating in a monopoly market, or the authority responsible for monitoring activities in cases where a ban is in place. These authorities do not define the policy of sports betting market regulations, e.g. opening up the market, but are responsible for co-ordinating its implementation. It should be for each state to decide how supervisory duties of the manipulation of the sport competitions are carried out. Moreover, several authorities may co-exist within the same Party in cases where the sports betting market is organised at the level of federated entities of a federal state or if responsibilities are divided between several authorities.
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97. Paragraph 1.a refers to the exchange of information, in a timely manner, with and between other competent authorities or the national platform about illegal, irregular or suspicious sports betting and other infringements of the regulations established in accordance with the present convention. While this provision establishes the principle of the introduction of exchanges of information, the regulatory authority or the other responsible authority or authorities are competent to determine, on a case by case basis, whether such exchanges are appropriate and the type of information to be provided.
98. Paragraph 1.b refers to the limitation, where appropriate, of the supply of sports betting, as a relevant measure to combat the manipulation of sports competitions in relation to sports betting. This limitation is expected to take effect following consultation with the national sports organisations and sports betting operators. This provision states that, in particular, sports competitions which are designed for those under the age of 18 and where the organisational conditions and/or stakes in sporting terms are inadequate should not be subject to sports betting. Thus, during the drafting process it was underlined that offering bets on competitions in which mostly under 18s participate, exposes them to the risks of being approached for manipulation. The expression “where the organisational conditions and/or stakes in sporting terms are inadequate” is likely to encompass non-official competitions such as friendly matches with no impact on rankings, or of little interest in sporting terms, therefore nothing at stake, making these competitions easy to manipulate. The Convention Follow-up Committee may specify criteria for this limitation in a recommendation to the Parties of this convention.
99. Paragraph 1.c states that competition organisers should be provided in advance with information about the types and the objects of sports betting products. Such information includes in principle the operator, as well as the type and object of the bets. It does not include information about the amounts, the transactions, the total value of the bets or the identity of the consumers. The way in which information is to be provided to competition organisers may be decided by the regulatory authority or the other responsible authority or authorities. The purpose of such information is to support the efforts of competition organisers to identify and manage the risks of manipulation of sports competitions they organise, in particular when these risks are identified within the risk assessment referred to in Article 5, paragraph 1. It allows, for example, competition organisers or sports organisations to put in place effective arrangements for supervising the course of the competition and, where appropriate, to establish a connection between unusual behaviour during a game and any bets that might have been offered on the competition in question.
100. Paragraph 1.d refers to measures that should be taken to ensure the systematic use of traceable means of payment for financial flows above a certain threshold, to be set by each
Party. This traceability, allowing the identification of the senders, recipients and the amounts of these flows, can be important in cases where there is an investigation, whether in combating the manipulation of sports competitions or with regard to the fight against money laundering or other fraudulent activity.
101. Under paragraph 1.e, the responsible authority or authorities should also provide for appropriate mechanisms, in co-operation with sports organisations, and, where appropriate, between sports organisations and sports betting operators, to prevent competition
stakeholders from betting on competitions in which they themselves are taking part. The rule prohibiting competition stakeholders from betting on their own competitions should be enshrined at disciplinary level, by sports organisations (cf. Article 7.1.a). Ensuring compliance with this rule, however, is not a task for sports organisations alone. Each Party has a certain amount of freedom to make their own arrangements.
102. Paragraph 1.f states that betting, in respect of which an appropriate alert has been issued, may be suspended, that is to say, no further bets may be accepted on the object in question. The competent authority may delegate the management of alerts to a specialised unit. The article does not specify whether bets placed earlier on the same object should be able to be declared void or should stand. It is for each Party to determine what the procedure should be in such cases, depending on the applicable law. The reference to an “appropriate” alert means that each type of alert does not necessarily lead to the automatic suspension of betting. It is up to the Parties to define which alerts may trigger this mechanism.
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103. Paragraph 2 requires the Parties to communicate to the Secretary General the names and addresses of the betting regulatory authority or the other responsible authority or authorities. According to the practice on such notifications, Parties are expected to notify this
information, by means of a declaration addressed to the Secretary General of the Council of Europe, at the time of signature or when depositing its instrument of ratification, acceptance or approval. They subsequently may, at any time and in the same manner, change the terms of their declaration.
Article 10 – Sports betting operators
104. The requirements laid down for sports betting operators in this provision are similar to those used for the sports movement. It deals first and foremost (paragraph 1) with the prevention of conflicts of interest and misuse of inside information by any natural or legal persons involved in providing betting products. In particular, it calls on the Parties to place restrictions on:
– persons involved in providing sports betting products betting on their own products
(paragraph 1.a);
– abuse of a position as sponsor or part-owner of a sports organisation to facilitate the manipulation of a sports competition or to misuse inside information
(paragraph 1.b);
– a competition stakeholder being involved in compiling betting odds for the
competition they are involved in (paragraph 1.c);
– the offering of bets on a competition in which the sports betting operator controls the competition organiser or one of the competition stakeholders or is itself controlled by a competition organiser or a competition stakeholder (paragraph 1.d).
105. It should be noted that paragraph 1.b does not introduce a ban on sports sponsorship by sports betting operators. This provision does, however, highlight a risk of conflict of interest which needs to be recognised by the competent authorities and punished in cases where an abuse has occurred. These risks of abuse include using their privileged position as sponsors giving them an advantage over their customers or in looking to influence the course of competitions.
106. According to the generally accepted definition, a conflict of interest arises from a situation in which a person has a private interest which is such as to influence, or appear to
influence, the impartial and objective performance of his or her official duties. A person’s private interest includes any advantage to himself or herself, to his or her family, close relatives, friends and persons or organisations with whom he or she has or had business or political relations. It includes also any liability, whether financial or civil, relating thereto.
107. This definition, which can serve as a reference when interpreting the concept of conflict of interest, is notably applied to public officials in Recommendation No. R (2000) 10 of the
Committee of Ministers to member States on codes of conduct for public officials.
108. Paragraph 2 requires the Parties to encourage the introduction by sports betting
operators, and through them international organisations of sports betting operators, of programmes to raise awareness among owners and employees of the consequences of and the fight against manipulation of sports competitions, through education, training and the dissemination of information.
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109. Lastly, paragraph 3 requires the Parties to adopt such measures as may be necessary to oblige sports betting operators to report irregular or suspicious sports betting to the betting regulatory authority or the other responsible authority or authorities and/or the national platform. Moreover, the convention cannot commit national public authorities to cooperate (e.g. exchange information) with organisations which are considered as illegal.
Article 11 – The fight against illegal sports betting
110. Illegal sports betting operators represent a threat in the area of manipulation of sports competitions, because they may operate without any control and may not co-operate with the sports movement. In addition, sports betting operators whose activities are illegal under the applicable law of the jurisdiction where their customers are located may be unwilling to share information highlighting the illegal nature of their activity. These two situations complicate the
task of the competent authorities and sports organisations which, as a result, have great difficulty in identifying all the sports competitions which might be endangered through match- fixing and do not have full access to information about this illegal segment of the market.
111. Article 11 requires the Parties to consider adopting the most suitable means, in accordance with the applicable law, to combat illegal sports betting. In doing so, the Parties are free to explore various direct and indirect ways of restricting access to physical and online operators (paragraph a): e.g. closing down operators, forcing them to operate lawfully or blocking access to their websites. Article 11 also provides that consideration be given to blocking financial flows between illegal sports betting operators and consumers (paragraph b), to prohibiting advertising for these same operators (paragraph c) and to introducing measures to raise consumers’ awareness of the risks associated with illegal sports betting (paragraph d). The exact scope to such measures shall be defined, where appropriate, by each Party, in accordance with the applicable law.
CHAPTER III – EXCHANGE OF INFORMATION
Article 12 – Exchange of information between competent public authorities, sports
organisations and sports betting operators
112. The fight against the manipulation of sports competitions requires substantial exchanges of information on various issues between the relevant public authorities, including law enforcement and judicial authorities, sports organisations, competition organisers, sports betting operators and national platforms. Under Article 12, the Parties undertake to facilitate such exchanges of information and overall co-operation between the stakeholders involved, in compliance with the domestic legislation. The latter naturally includes domestic law resulting from the implementation of international legal instruments and, where appropriate, the directly applicable provisions of international treaties. In particular, the standards relating to the protection of personal data and the confidentiality of investigations must be taken into account. This provision requires Parties, in compliance with the law, to offer the maximum assistance to the other Parties and the organisations concerned, by allowing the spontaneous exchange of information where there are reasonable grounds to believe that offences or infringements of the laws referred to in this convention have been committed, and providing, upon request, all necessary information to the national, foreign or international authority requesting it. The wording of this article grants the Parties a margin of discretion. This provision does not involve a strict requirement to communicate specific types of information, but provides a guide to the purpose of these exchanges.
113. The facilitation of these exchanges of information requires the setting up of mechanisms for communicating the relevant information gathered to each type of stakeholder, where such information may assist in the undertaking of risk assessment referred to in Article 5 and namely the advanced provision of information about the types and object of the betting products to the competition organisers, and in initiating or carrying out investigations or proceedings concerning the manipulation of sports competitions (paragraph 1). “Relevant information” could mean any information gathered by a stakeholder which may be of interest to another stakeholder in the context of its involvement in the fight against the manipulation of
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sports competitions. Such information may, for instance, be the volume of bets registered for a particular competition, an unusual change in odds or the geographical location of persons placing irregular bets. It may also include rumours about manipulation received from a
competition. The stakeholders may give consideration to jointly defining the type of such relevant information.
114. Upon request, the authority or organisation which receives such information must inform
the organisation which shared the information of the follow-up to the communication (paragraph 2). Domestic legislation may, however, impose restrictions. For instance, a prosecutor investigating a criminal case on the basis of information communicated by private organisations would not be able to pass on certain information about the case to these organisations, due to the investigation or prosecution confidentiality.
115. With regard to the fight against illegal betting, each Party must explore possible ways of developing or enhancing co-operation and exchange of information, as set out in Article 12 of the convention (paragraph 3). For instance, any Party which identified a sports betting
operator offering services contravening the legislation in force in the jurisdiction where the gambler was located could notify any other Parties likely to be concerned.
116. The reference to Article 14 of this convention recalls that exchanges of information may
relate to personal data and that the relevant protection laws and standards must be respected.
Article 13 – National platform
117. Article 13 provides for the identification of a national platform responsible for the fight against the manipulation of sports competitions by each Party.
118. The identification of the body fulfilling the function of national platform will be made in accordance with national law, and at the Parties’ discretion, taking into account existing
structures and the distribution of national administrative functions. A public authority would provide a neutral framework for co-operation between private stakeholders from different sectors and a suitable framework for the exchange of information. Therefore, national platforms are also implicitly covered by the generic references made to “competent public authorities”. However, this feature is not explicitly specified in the provisions of the
convention, so as to give the Parties a margin of discretion in identifying their platform.
119. The national platform serves as an information hub, collecting and disseminating
information relevant to the fight against manipulation of sports competitions to the relevant organisation and authorities (paragraph 1.a).
120. In particular, the national platform is responsible for receiving, centralising and analysing information on irregular and suspicious bets placed on sports competitions taking place on the territory of the concerned Party and, where appropriate, issuing alerts (paragraph 1.c) and transmitting information to public authorities, sports organisations, and/or sports betting operators, in connection with possible breaches of legislation or sports regulations
(paragraph 1.d). The information may, for instance, concern the placing of bets by a person involved in the competition or irregular or suspicious bets. However, this article does not involve a strict requirement to transmit specific types of information.
121. The national platform, the name and address of which must be communicated by each Party to the Secretary General of the Council of Europe (paragraph 2), is responsible for the co-ordination of the fight against the manipulation of sports competitions at national level (paragraph 1.b) and must co-operate with all organisations and relevant authorities at national and international level, including national platforms of other states (paragraph 1.e). This may include co-ordinating the diffusion of public information. Given the transnational nature of the risks related to the manipulation of sports competitions, it is very important for information to be exchanged quickly between the Parties.
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122. When the information exchanged constitutes personal data, it should be processed subject to the relevant national and international personal data protection laws and standards,
as set out in Article 14 of the convention, in particular those defined under the Convention 108.
123. Paragraph 2 requires the Parties to communicate to the Secretary General the names and addresses of the national platform. According to the practice on such notifications, Parties are expected to notify this information, by means of a declaration addressed to the Secretary General of the Council of Europe, at the time of signature or when depositing its
instrument of ratification, acceptance or approval. They subsequently may, at any time and in the same manner, change the terms of their declaration.
Article 14 – Personal data protection
124. The fight against the manipulation of sports competitions concerns many sectors of
activity: administrative co-operation, consumer protection, child protection, combating fraud and money laundering, tackling identity theft and other forms of cybercrime, ensuring the security of gambling equipment, safeguarding the integrity of sport and combating match- fixing. Moreover, provision is made for exchanges of information between a wide variety of entities (public authorities, online betting operators, sports organisations in the broad sense,
national, federal and international, and competition organisers). It is important therefore to ensure the protection of personal data.
125. Under Article 14, the Parties undertake to comply with relevant (national and international) personal data protection laws and standards when drawing up the measures needed to combat the manipulation of sports competitions and, in particular, when exchanging information between the public authorities and the organisations covered by the convention. At international level, the data protection standards are set out in particular in Convention 108 and the 2001 protocol thereto regarding supervisory authorities and trans- border data flows (2002, ETS No. 181). Implementation of the present convention cannot in any way prejudice the implementation of Convention 108 by the Parties who have ratified it.
126. Paragraph 2 specifies the key principles mentioned indirectly in paragraph 1. The principles of lawfulness, adequacy, relevance and accuracy regulate the collection, processing and exchange of personal data. The processing of personal data (a generic term covering the collection, recording, alteration and exchange, of the data) is actually the vital tool for the international co-operation on which the fight against the manipulation of sports competitions should be based.
127. Given that the organisation of sports competitions and the activities of sports betting operators generate a large volume of personal data, there is a risk that the data shared includes data that goes beyond the purposes pursued or of the data being kept longer than necessary. Paragraph 3 therefore provides that the Parties must pass legislation so that the stakeholders ensure that data are exchanged solely for the purposes of the convention and that the data sharing does not go beyond the strict minimum needed for the pursuit of the stated objectives of the sharing. Parties might wish to consider the setting up of consultation committees involving the various stakeholders at national level and personal data protection experts to agree to the type of data to be shared and the time they should be preserved, as one of the means of addressing these requirements for security and integrity and, more broadly, improving the effectiveness of co-operation between stakeholders and ensuring greater protection in terms of how personal data are used.
128. Lastly, under paragraph 4, the Parties must encourage the stakeholders to ensure the security of the data, the integrity and availability of computer systems and the identification of their users. The security of the systems and exchanges can also be a tricky issue because the overall mechanism is only as secure as the lowest level of security adopted by the stakeholders. Article 14, paragraph 4, therefore requires each Party to invite the various stakeholders to implement the technical means required to ensure the security of the data exchanged and to guarantee their reliability and integrity as well as the availability and
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integrity of the systems and the identification of their users. The consultation committees may
be tasked with checking the security of the systems and exchanges.
CHAPTER IV – SUBSTANTIVE CRIMINAL LAW AND LAW ENFORCEMENT CO-OPERATION
Article 15 – Criminal offences relating to the manipulation of sports competitions
129. The purpose of Articles 15 to 18 is to make sure that the manipulation of sports competitions is covered by the domestic legislation of the Parties in such a way that manipulation of sports competitions may be punished in accordance with their seriousness,
when they involve certain conduct.
130. Article 15 of the convention seeks to make sure that manipulation of sports competitions may be criminally sanctioned when it either involves coercion, corruption or fraud, as defined by domestic law. It does not require the establishment of a specific and uniform offence for the manipulation of sports competitions. Depending on the definition of existing offences and the related case law, the Parties may decide to rely on existing general criminal legislation (e.g. on extortion, corruption or fraud), or to establish new offences (e.g. on manipulation of sport competitions) so that the conduct concerned (alternatively of manipulations involving either coercion, corruption or fraud) is covered appropriately. This means that if the mentioned practises are criminalised by either one of the offences, it is not required to criminalise them by (one of) the others too.
131. The manipulation of sports competitions is understood here as defined in Article 3.4 of this convention. Insofar as the definition of criminal offences relating to the manipulation of
sports competitions refers to the definition of manipulation of sports competitions which itself includes an element of intent, such an element is necessary to characterise these criminal offences.
132. Some acts relating to the manipulation of sports events are in principle already covered
by existing criminal offences. This may apply to acts such as extortion, blackmail, poisoning or violence to which competition stakeholders, both athletes and otherwise, and those around them may be subjected. Such acts, which may be described with the generic term “coercion”, are covered by existing offences. However, this reference is a reminder that such conduct is among the methods employed in certain manipulations of sports competitions.
133. Corrupt practices are frequent when it comes to the manipulation of sports competitions. For example, offering a bribe to an amateur referee in exchange for him influencing the
course of the game in favour of a competitor, or influencing a competitor to accept to lose a game in exchange for a promise to play for another team the next season, may – in coherence with domestic law – constitute such corrupt practices.
134. Irrespective of practices of coercion or corruption, the manipulation of sports competitions may take the form of agreements freely entered into. Even in such situations, they may fall under the domestic law on fraud in particular when there is fraudulent intent to secure, without right, an economic benefit for the offender or for a third party, causing a loss of property to another person. Such a benefit could take the form, for example, of a bonus paid to the winner by the competition organiser, a bonus paid to a competitor by their employer, winnings from a sports bet placed on the relevant competition, or a capital gain realised by the owner of a qualified club who sells their shares. Victims of fraudulent behavior, i.e. those who suffer a loss due to the relevant fraudulent manipulation, may be, for example, other persons having placed bets, the opposing team, or, where applicable, the national or international federation responsible for organising the competition.
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Article 16 – Laundering of the proceeds of criminal offences relating to the manipulation of sports competitions
135. Article 16, paragraph 1, requires Parties to adopt, in their domestic law, the measures necessary to establish, as criminal offences, conduct involving money laundering as defined, for example, in one of the three conventions mentioned below, when the predicate offence giving raise to profit is one of those referred to in Articles 15 and 17 of this convention, and in any event in the case of extortion, corruption and fraud.
136. In order not to establish a new definition of conduct involving money laundering, the
convention refers to three customary definitions, namely those in:
– Article 9, paragraphs 1 and 2, of Convention 198;
– Article 6, paragraph 1, of the United Nations Convention against Transnational
Organised Crime, and
– Article 23, paragraph 1, of the United Nations Convention against Corruption.
137. The offences of extortion, corruption and fraud are included in Appendix 2 to
Convention 198, which sets out a minimum range of offences to be regarded as predicate offences of money laundering. These offences are also covered in the recommendations of the Financial Action Task Force (FATF), laying down the international standards in this area.
138. Laundering, whose objective is to disguise the illicit origin of proceeds, always requires a
predicate offence from which the said proceeds originate.
139. Under this definition, in accordance with the above-mentioned conventions, the expression “predicate offence” means all offences such as defined by these conventions as a
result of which proceeds were generated that may become the subject of an offence or, in other words, the offence that generated such proceeds.
140. For many years, anti-laundering efforts focused on drug proceeds, but recent international instruments, including Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (1990, ETS No. 141, hereafter “Convention 141”), Convention 198 and also the 40 Recommendations of the Financial Action Task Force (FATF), recognise that a wide range of offences (e.g. fraud, terrorism, trafficking in stolen goods and arms) can generate proceeds which may need to be laundered through subsequent recycling in legitimate businesses. Convention 141 already applies to the proceeds of any kind of criminal activity, including corruption, unless a Party has entered a reservation to Article 6, thereby restricting its scope to proceeds from particular offences or categories of offences. The authors of Convention 141 felt that, given the proven close links between corruption and money laundering, it was of primary importance that the convention also criminalised the laundering of corruption proceeds.
141. Paragraph 2 allows the Parties, when deciding on the range of offences to be covered as predicate offences under each of the categories mentioned in paragraph 1, to decide, in accordance with their domestic law, how they will define those offences and the nature of any particular elements of those offences that make them serious.
142. The purpose of paragraph 3 of Article 16 of the Convention against the Manipulation of Sports Competitions is to require Parties to consider including the manipulation of sports competitions in their money laundering prevention framework. This prevention framework, which includes requirements of due diligence with respect to consumers, keeping records and reporting, corresponds to measures such as those mentioned in Article 13 of Convention 198, in Article 7 of the UN Convention against Transnational Organized Crime or in Article 14 of the UN against Corruption. It was noted that Article 16.3 is not a provision of substantive
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criminal law and law enforcement co-operation. However, it was kept together with the other
provisions on money laundering to ensure unity.
Article 17 – Aiding and abetting
143. The purpose of Article 17 is to establish, as criminal offences, aiding or abetting the commission of the offences covered by Article 15 of the convention.
144. Liability for aiding or abetting arises where the person who commits a crime referred to in
this convention is aided by another person who knowingly aids and abets by facilitating the preparation or commission of the offence. Therefore, aiding or abetting must be committed intentionally.
145. This provision reflects the one in Article 5.1.b of the United Nations Convention against
Transnational Organised Crime, which extends the convention offences to any person who aids and abets by facilitating and counselling the commission of the offences.
146. The manipulation of sports competitions is often carried out by organised crime networks
comprising numerous individuals, each of whom contribute in their own way, either directly or indirectly, to the commission of the illegal activities. That was why it was important to include
in the convention’s offences, all acts that intentionally contribute to the offences.
Article 18 – Corporate liability
147. Like the Article 16 concerning the laundering of the proceeds of criminal offences
relating to manipulation of sports competitions, Article 18 seeks to include the usual references to corporate liability and link them to the main provisions applicable to the manipulation of sports competitions.
148. The term “legal person” within the meaning of Convention 173 refers to any entity having such status under the applicable national law. For the purpose of active corruption offences, however, the definition should exclude the state or other public bodies exercising state authority, such as ministries or local government bodies, as well as public international organisations such as the Council of Europe. The exception applies to the different levels of government: State, regional or local entities exercising public powers. The reason is that the responsibilities of public entities are subject to specific regulations usually embodied in administrative law or, in the case of public international organisations, in agreements or treaties. It is not, however, aimed at excluding the responsibility of public enterprises.
149. Under Article 18, paragraph 1, legal persons shall be held liable if the following conditions are met. Firstly, the offence is one of those referred to in Articles 15 to 17 of the convention. The second condition is that the offence must have been committed for the benefit of, or on behalf of, the legal person by any natural person, acting either individually or as a member of an organ of the legal person, who has a leading position within the legal person. The leading position assumed to exist in the three situations described (a power of representation or authority to take decisions or to exercise control) demonstrates that such a natural person is legally or in practice able to engage the liability of the legal person.
150. Paragraph 2 states that according to the Parties’ domestic law, the liability of a legal
person may be criminal, civil or administrative.
151. Paragraph 3 expressly mentions Parties’ obligation to extend corporate liability to cases where the lack of supervision within the legal person makes it possible to commit the offences referred to in Articles 15 to 17. It seeks to hold legal persons liable for the omission by persons in a leading position to exercise supervision over the acts committed by subordinates acting on behalf of the legal person. A similar provision also exists in the Second Protocol to the European Union Convention on the Protection of the Financial Interests of the European
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Communities. Like paragraph 1, the nature of the liability is to be decided by the Contracting
Party itself.
152. Paragraph 4 provides that the liability of legal persons is without prejudice to the criminal proceedings against natural persons who are perpetrators of, or accessories to, the criminal offences referred to in paragraph 1.
CHAPTER V – JURISDICTION, CRIMINAL PROCEDURE AND ENFORCEMENT MEASURES
Article 19 – Jurisdiction
153. This article lays down various requirements whereby Parties must establish jurisdiction over the offences with which the convention is concerned.
154. Paragraph 1.a is based upon the principle of territoriality. Each Party is required to establish jurisdiction for the offences referred to in the convention that are committed in its
territory.
155. Paragraphs 1.b and 1.c are based on the principle of personal jurisdiction of the state, which is well established in international law. It allows each Party to assert its jurisdiction over
offences committed on board ships flying its flag or aircraft registered in that Party. This basis of jurisdiction is primarily intended to apply when the ship or aircraft is located in a maritime area or airspace that is not within the jurisdiction of any State (on the High Seas for example). If, however, an offence is committed on board a ship flying the flag of one State but within the territorial waters of another State, the latter may exercise its territorial jurisdiction.
156. The first part of paragraph 1.d is based on the nationality principle. The nationality theory is most frequently applied by countries with a civil-law tradition. Under it, nationals of a country are obliged to comply with its law even when they are outside its territory. Under this provision, if one of its nationals commits an offence abroad, a Party is obliged to be able to prosecute him/her. The second part of paragraph 1.d applies to persons having their habitual residence in the territory of the Party. It provides that Parties shall establish jurisdiction to investigate acts committed abroad by persons having their habitual residence in their territory. It therefore applies to the case of foreign athletes having their habitual residence in one country who commit criminal acts during competitions taking place in other countries.
157. Paragraph 2 refers to the possibility for Parties to make reservations on rules on jurisdiction laid down in paragraph 1.d.
158. Paragraph 3 concerns the principle of “aut dedere aut judicare” (extradite or prosecute). Jurisdiction established on the basis of this paragraph is necessary to ensure that Parties which refuse to extradite a national have the legal ability to undertake investigations and proceedings domestically instead, if asked to do so by the Party which requested extradition under the terms of the relevant international instruments.
159. Given the increasingly international nature of the manipulation of sports results, it will sometimes happen that more than one Party has jurisdiction over some or all of the participants in an offence established under the convention. In order to avoid duplication of procedures and otherwise facilitate the efficiency or fairness of proceedings, the Parties involved are required under paragraph 4 to consult in order to determine the most appropriate jurisdiction for the purposes of prosecution. In some cases, it will be most effective for them to choose a single jurisdiction for prosecution; in others, it may be best for one country to prosecute some alleged perpetrators, while one or more other countries prosecute others. Either method is permitted under this paragraph. Finally, the obligation to consult is not absolute; consultation is to take place “where appropriate”. Thus, for example, if one of the Parties knows that consultation is not necessary (e.g. it has received confirmation that the other Party is not planning to take action), or if a Party is of the view that consultation may impair its investigation or proceedings, it may delay or decline consultation.
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160. Paragraph 5 of this article enables Parties to establish other types of criminal, civil and administrative jurisdiction according to their domestic law. Thus, some states adopt a broad reading of their territorial and personal jurisdiction. The principle of effectiveness, for example,
allows a State to be competent in respect of an offence committed abroad by a foreigner but only when the offence has effects/consequences in the State’s territory.
Article 20 – Measures to secure electronic evidence
161. Offences relating to the manipulation of sports competitions may involve the use of information and communication technologies, as well as the commission of acts considered,
according to applicable law, as violations of existing standards in the fight against cybercrime. It may include, for example, illegal interception of data for the purposes of blackmail, computer-related forgery aimed at altering the publication of information on sports competitions or related betting, illegal system interference aimed at cancelling a betting transaction in the case of an unsuccessful manipulation.
162. Furthermore, information and communication technologies can be used to commit an offence, for example passing on instructions to an accomplice to intimidate a competition
stakeholder or to place a bet.
163. Lastly, these computer systems, even if not directly used to commit an offence, can
record information which can be relevant for establishing facts: an unexplained variation of odds, unusual transactions by customers located in the same region, or the records of incorrect transmission of results of certain sports competitions, can provide useful clues in the course of investigations into manipulation of sports competitions.
164. Article 20 aims to give the competent national authorities the possibility, in the course of criminal investigations into offences referred to in Articles 15 to 17, inter alia, to order or similarly obtain the expeditious preservation of stored computer data, the expedited preservation and disclosure of traffic data, production orders, search and seizure of stored computer data, the real-time collection of traffic data and interception of content data. Such
measures shall be in compliance with the relevant national and international personal data protection laws and standards, as set out in Article 14 of the convention.
165. Expedited preservation of stored computer data and expedited preservation and partial disclosure of ”traffic data” refers only to data preservation, and not data retention. It does not mandate the collection and retention of all, or even some, data collected by a service provider or other entity in the course of its activities. The preservation measures apply to computer data that "has been stored by means of a computer system", which presupposes that the data already exists, has already been collected and is stored. They do not apply to the real-time collection and retention of future traffic data or to real-time access to the content of communications. Article 20 does not imply an obligation to ensure that real-time collection of traffic data or interception of content data are applicable measures according to domestic law, when investigating offences referred to in Articles 15 to 17 of the convention.
166. The following definitions, derived from Articles 16, 17, 19, 20, and 21 of the Convention
on Cybercrime (2001, ETS 185, hereafter “Convention 185”) may provide guidance for interpreting the following concepts. However, these specific investigation measures are given
here as examples and Article 20 does not impose an obligation to implement all of them.
167. Expedited preservation of stored computer data can be understood as the set of measures enabling the competent authorities to order or similarly obtain the expeditious preservation of specified computer data, including traffic data, that has been stored by means of a computer system, in particular where there are grounds to believe that the computer data is particularly vulnerable to loss or modification. Where a Party addresses for this purpose an order to a person to preserve specified stored computer data in the person’s possession or control, the Party shall adopt such legislative and other measures as may be necessary to oblige that person to preserve and maintain the integrity of that computer data for a period of time as long as necessary, which, according to Convention 185, cannot exceed ninety days,
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to enable the competent authorities to seek its disclosure. A Party may provide for such an order to be subsequently renewed. This procedure can be combined with measures to oblige
the custodian or other person who is to preserve the computer data to keep confidential the undertaking of such procedures for the period of time provided for by its domestic law.
168. Expedited preservation and partial disclosure of traffic data can be understood as all measures adopted to ensure that expeditious preservation of traffic data is available regardless of whether one or more service providers were involved in the transmission of that communication, as well as measures to ensure the expeditious disclosure to the Party’s
competent authority, or a person designated by that authority, of a sufficient amount of traffic data to enable the Party to identify the service providers and the path through which the communication was transmitted.
169. Production order can be understood as all measures permitting competent authorities to order a person in its territory to submit specified computer data in that person’s possession or control, which is stored in a computer system or a computer-data storage medium, as well as to order a service provider offering its services in the territory of the Party to submit subscriber
information relating to such services in that service provider’s possession or control.
170. Search and seizure of stored computer data can be understood as all measures
permitting competent authorities to search or similarly access a computer system or part of it and computer data stored therein, as well as a computer-data storage medium in which computer data may be stored in its territory.
171. This term may also include measures guaranteeing that where the authorities search or similarly access a specific computer system or part of it, and have grounds to believe that the data sought is stored in another computer system or part of it in its territory, and such data is
lawfully accessible from or available to the initial system, the authorities will be able to expeditiously extend the search or similar access to the other system.
172. Moreover, this term may involve all measures adopted to empower the competent
authorities to seize or similarly secure computer data (accessed along with measures described above), and including the power to:
a. seize or similarly secure a computer system or part of it or a computer-data storage
medium;
b. make and retain a copy of those computer data;
c. maintain the integrity of the relevant stored compuer data;
d. render inaccessible or remove those computer data in the accessed computer system.
173. Lastly, the term may also encompass all measures necessary to empower the competent authorities to order any person who has knowledge about the functioning of the computer system or measures applied to protect the computer data therein to provide, as is reasonable, the necessary information to enable the undertaking of the measures referred to above.
174. Real-time collection of traffic data may be understood as all measures authorising the
competent authorities to:
a. collect or record through the application of technical means on the territory of that
Party, and
b. compel a service provider, within its existing technical capability:
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i. to collect or record through the application of technical means on the
territory of that Party; or
ii. to co-operate and assist the competent authorities in the collection or recording of traffic data, in real-time, associated with specified communications in its territory transmitted by means of a computer system.
175. This term may also involve, where a Party, due to the established principles of its domestic legal system, cannot adopt the measures referred to above in a), measures adopted to ensure the real-time collection or recording of traffic data associated with specified communications transmitted in its territory, through the application of technical means on that territory.
176. It may also include measures permitting to oblige a service provider to keep confidential the fact of the execution of any power provided for in this article and any information relating
to it.
177. Interception of content data may be understood as all measures empowering the competent authorities, in relation to a range of serious offences to be determined by domestic law, to:
a. collect or record through the application of technical means on the territory of that
Party, and
b. compel a service provider, within its existing technical capability:
i. to collect or record through the application of technical means on the
territory of that Party, or
ii. to co-operate and assist the competent authorities in the collection or
recording of content data, in real-time, of specified communications in its territory transmitted by means of a computer system.
178. In addition, this term may include, where a Party, due to the established principles of its domestic legal system, cannot adopt the measures referred to above in a), measures adopted to ensure the real-time collection or recording of content data on specified communications in
its territory through the application of technical means on that territory.
179. Finally, this term may also involve measures permitting a Party to oblige a service provider to keep confidential the fact of the execution of any power provided for in this article and any information relating to it.
Article 21 – Protection measures
180. This Article proposes that Parties ensure, in the course of proceedings, the protection of persons holding information regarding possible offences referred to in this convention as well as witnesses. These general measures of protection apply at all stages of the proceedings, both during the investigation phase (whether they are carried out by a police service or a judicial authority) and during the court proceedings.
181. These protective measures are necessary, especially when it comes to protecting
persons approached by or being under pressure from criminal organisations. Indeed, many cases of manipulation can involve threats, coercion or blackmail towards competition
stakeholders or their support personnel.
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182. Different categories of persons may be witnesses or sources of information in the fight against manipulation of sports competitions. However, their depositions, testimonies or exchange of information present real risks and therefore their safety may be at stake. Providing them with effective protection also aims at increasing their willingness to testify.
183. The question of protection for witnesses and persons collaborating with the judicial authorities was comprehensively dealt with by the Council of Europe in Recommendation No. R (97) 13 of the Committee of Ministers to member States concerning intimidation of witnesses and the rights of the defence, adopted on 10 September 1997. The recommendation establishes a set of principles as guidance for national law on witness intimidation, whether the code of criminal procedure or out-of-court protection measures. The recommendation offers member States a list of measures which could help protect the interests both of witnesses and of the criminal justice system effectively, while guaranteeing the defence appropriate opportunities to exercise its rights in criminal proceedings.
184. During the drafting process, and in light of, in particular, Recommendation No. R(97)13, it was considered that the phrase “persons who provide, in good faith and on reasonable grounds, information concerning offences referred to in Articles 15 to 17 of this convention or otherwise co-operate with the investigating or prosecuting authorities” refers to any person who faced criminal charges or had been convicted of offences referred to in Articles 15 to 17 of this convention and who agreed to co-operate with criminal justice authorities, in particular by giving information about offences in which they had taken part so that the offences could be investigated and prosecutions brought.
185. The word “witness” refers to any person who possesses information relevant to criminal proceedings concerning offences referred to in Articles 15 to 17 of the convention and it includes whistle blowers and informers.
186. Intimidation of witnesses, whether direct or indirect, may take different forms, but its purpose is nearly always to destroy and discredit evidence against defendants so that they have to be acquitted.
187. The beneficiaries of protection measures referred to in Article 21 are illustrative. However, the expression “effective protection”, used in this article refers to the need to adapt the level of protection to the threats to collaborators with the judicial authorities, witnesses, informers and, when necessary, family members of such persons. The measures required have to be identified depending on the assessment of the risk such persons may run. In some cases, it will be sufficient to install preventive technical equipment, establish an alert procedure, record incoming and outgoing telephone calls or provide a confidential telephone number, a protected car registration number or a mobile phone for emergency calls. In other cases, the person under protection may need bodyguards or, in extreme circumstances, further-reaching witness-protection measures such as a change of identity, employment and place of residence may be necessary.
188. If protection measures are to be effective, action should be taken to prevent offenders being aware of them. Parties therefore have to make sure that any information about the
protection measures is safe from unauthorised access.
189. Protection measures should be granted only with the consent of the persons concerned.
CHAPTER VI – SANCTIONS AND MEASURES
190. Combating the phenomenon of manipulation of sports competitions requires not only the development of preventive measures, but also the setting-up of an efficient system of sanctions.
191. Based on legal principles and the domestic law of the Parties, the liability for manipulation of sports competitions can be criminal, civil or administrative. Such a liability also includes disciplinary sanctions imposed by sports organisations.
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Article 22 – Criminal sanctions against natural persons
192. According to Article 22, the Parties undertake to establish necessary measures to ensure that the sanctions for offences referred to in Articles 15 to 17, in particular monetary sanctions, are effective, proportionate and dissuasive. As far as offences committed by natural persons are concerned, penalties involving deprivation of liberty may give rise to extradition, in accordance with each Party’s domestic law.
193. The reference to sanctions involving deprivation of liberty which can give rise to extradition indicates that, in some cases, the manipulation of sports competitions can constitute a serious offence, subject to national criminal law.
Article 23 – Sanctions against legal persons
194. Legal persons should also be subject to effective, proportionate and dissuasive sanctions, which include monetary sanctions, as well as, where appropriate, other measures such as temporary or permanent disqualification from exercising commercial activity,
placement under judicial supervision or a judicial winding-up order.
195. This article offers some flexibility as to the nature of the sanctions applied to legal persons, in order to take into account the diversity of sanctions available under domestic law. In particular, it does not entail any obligation to apply sanctions of a criminal nature.
Article 24 – Administrative sanctions
196. According to their domestic legislation, Parties shall adopt necessary measures, where appropriate, to punish infringements referred to in the convention by effective, proportionate and dissuasive sanctions following proceedings brought by the administrative authorities, where the decision may give rise to proceedings before a competent court. According to paragraph 2, the application of administrative measures may be entrusted to the regulatory authority or other responsible authority or authorities, in accordance with its domestic law. Such measures may include licence withdrawal for a sanctioned operator or website access being blocked.
Article 25 – Seizure and confiscation
197. Seizure and confiscation of assets derived from criminal activity or used by criminal organisations is an efficient means to fight against organised crime. Article 25 requires Parties
to allow goods, documents and materials that are used to commit offences referred to in Articles 15 to 17 of this convention, to be seized and confiscated, as well as the proceeds of such offences.
198. The term "seizure" (or " freezing"), as defined in the UN Convention against
Transnational Organized Crime , means temporarily prohibiting the transfer, conversion, disposition or movement of property or temporarily assuming custody or control of property on
the basis of an order issued by a court or other competent authority.
199. As regards the definition of "confiscation", it includes, where applicable and within the
meaning of the UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988), the “forfeiture” and means the permanent deprivation of property by order
of a court or other competent authority.
200. The term “proceeds” is used within the meaning of the Council of Europe Convention 141, which follows the wording of the UN Convention against Transnational Organized Crime. Consequently, the definition of "proceeds" should be as broad as possible and may include, where appropriate, objects of offences. The wording of the definition does not rule out the inclusion of property and assets that may have been transferred to third
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parties and includes any economic advantage derived from or obtained, directly or indirectly,
from criminal offences.
201. It is noted that the implementation of the provision relating to confiscation may include specific protective measures in respect of persons who are not offenders of, or accessories to, the offence and whose assets were used to commit the offence without their knowledge.
CHAPTER VII – INTERNATIONAL CO-OPERATION IN JUDICIAL AND OTHER MATTERS
Article 26 – Measures with a view to international co-operation in criminal matters
202. As regards judicial co-operation in criminal matters, the Council of Europe already has an important normative framework. Thus, Convention 24, Convention 30, their Additional Protocols (1975, ETS No. 86; 1978, ETS No. 98; 1978, ETS No. 99; 2001, ETS No. 182, 2010, CETS No. 209) and Convention 141, which are cross-cutting instruments applicable to a large number of offences, can also be implemented to grant judicial co-operation in criminal
matters in the course of proceedings in respect of offences referred to in Articles 15 to 17 of the convention.
203. For this reason, during the drafting process it was decided not to reproduce provisions similar to those found in cross-cutting instruments such as those mentioned above in the convention. Therefore, they did not want to create a separate mutual assistance regime which would replace other applicable instruments or agreements, considering that it would be more efficient to rely generally on regimes established by the existing treaties on mutual assistance and extradition. Consequently, only provisions with added value compared to existing conventions have been included in this chapter.
204. In addition, the Parties may provide for co-operation on the basis of existing international instruments, in particular the aforementioned conventions of the Council of Europe, and – for EU member States – the instruments adopted within the framework of the European Union, particularly the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between member States. The Parties can also provide for co- operation under arrangements agreed on the basis of uniform or reciprocal legislation.
205. Investigations and prosecutions in cases of manipulation of sports competitions may require the co-operation of several states. The transnational character of these manipulations
is reflected in the cross-border nature of criminal networks, in registering suspicious bets with sports betting operators established in different jurisdictions, and in manipulation of international sports competitions or national competitions in several countries at the same time.
206. Article 26 therefore calls for co-operation between the Parties, in accordance with international law, for the purposes of investigation, prosecution and judicial proceedings regarding the offences referred to in Articles 15 to 17 of this convention, including the seizure
and confiscation (paragraph 1). This co-operation also applies to extradition and mutual legal assistance (paragraph 2).
207. Article 26 further stipulates that as regards international co-operation, where dual
criminality is considered to be a requirement, it shall be presumed, even if the laws of the Party requested place the offence within a different category or use different terminology to the offence than the requesting Party, provided that the conduct at the origin of the offence in respect of which a request for mutual assistance or extradition was made, constitutes an offence under the laws of both Parties (paragraph 3).
208. Similarly, if a Party that makes extradition or mutual assistance in criminal matters conditional on the existence of a treaty, receives such a request from another Party with which it has not concluded such a treaty, it may, acting in full compliance with its obligations under international law and subject to the conditions provided for by its own domestic law,
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consider this convention to be the legal basis for extradition or mutual legal assistance in
criminal matters in respect of the offences referred to in Articles 15 to 17 of this convention.
Article 27 – Other measures with a view to international co-operation in respect of prevention
209. The Parties should endeavour to integrate, where appropriate, the prevention of and the fight against manipulation of sports competitions in development of assistance programmes for the benefit of third States.
Article 28 – International co-operation with international sports organisations
210. Under Article 28, the Parties shall develop co-operation with international sports organisations in the fight against the manipulation of sports competitions, in accordance with their domestic law.
211. This co-operation may concern the different aspects of the convention: prevention,
awareness-raising of stakeholders, detection or exchange of information
CHAPTER VIII – FOLLOW UP
212. Chapter VIII of the convention contains provisions aiming to ensure the effective implementation of the convention by the Parties. During the drafting process, the existence of a credible and legitimate monitoring mechanism was considered to be essential. This monitoring is based primarily on the Convention Follow-up Committee, a body composed of representatives of the Parties to the convention, and responsible for follow-up duties relating to the convention.
Article 29 - Provision of information
213. The purpose of this article is not primarily to check the effectiveness of the convention but, through the offices of the Secretary General, to exchange information and experiences between Parties and observers. The Convention Follow-up Committee may specify the type of information, frequency and methods of gathering information.
Article 30 – Convention Follow-up Committee
214. Under Article 30, each Party shall appoint a representative or representatives to the Committee, and will be free to appoint representatives of public authorities responsible for the sport, betting regulation and/or law enforcement (police, justice). Each Party shall have one vote.
215. Like other monitoring mechanisms (e.g. the Committee of the Parties responsible for the implementation of the Convention of the Council of Europe on the Counterfeiting of Medical Products and Similar Crimes involving Threats to Public Health (2011, CETS No. 211), Article 30, paragraph 3 provides that the Convention Follow-up Committee may invite, by unanimous decision, any State which is not a Party to the convention, any international organisation or body to be represented at its meetings as an observer. This is an important feature of the Committee. It may thus benefit, where appropriate, from additional expertise and experience of organisations already involved in the fight against manipulation of sports competitions or other relevant activities. Accordingly, the Convention Follow-up Committee may consider the involvement of bodies such as GRECO or the European Committee on Crime Problems (CDPC), which could bring positive support to the monitoring of this convention.
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216. The Convention Follow-up Committee will hold its first meeting at the request of the Secretary General of the Council of Europe, within one year from the entry into force of the convention. Subsequently, it will meet at the request of at least one third of the Parties or the Secretary General.
217. The Committee will draw up and adopt its own Rules of Procedure (by consensus). It will
be assisted by the Secretariat of the Council of Europe in carrying out its functions.
Article 31 – Functions of the Convention Follow-up Committee
218. In the context of the convention’s monitoring framework, the Convention Follow-up
Committee is responsible for the follow-up of its implementation and thus carries out several functions, specified in Article 31.
219. The Convention Follow-up Committee shall adopt and amend the list of sports organisations referred to in Article 3.2, while ensuring that it is published in an appropriate manner. The definitions of sports competitions (Article 3.1) and sports organisations (Article 3.2) refer to this list, whose adoption and publication are essential for the implementation of the convention. The list of sports organisations will mainly be published on the EPAS website.
220. The Committee may also address recommendations to the Parties, in particular with respect to international co-operation. Where appropriate, these recommendations will be prepared in co-ordination with other relevant bodies of the Council of Europe which prepare recommendations on these issues (e.g. GRECO).
221. Following prior consultations with representatives of sports organisations and sports betting operators, the Convention Follow-up Committee may, where appropriate, make recommendations to the Parties on the conditions to be met by sports organisations and sports betting operators to benefit from the exchange of information referred to in Article 12.1 of the convention, as well as on other ways aimed at enhancing the operational co-operation between the relevant public authorities, sports organisations and betting operators, as mentioned in this convention. These may include for instance, criteria relating to the restriction of the supply of sports betting mentioned in Article 9.1.b of the convention, the definition of irregular sports betting (for example, inconsistent with usual or anticipated patterns of the specific market) or the definition of suspicious sports betting (for example, reliable and consistent evidence).
222. The Committee may also keep relevant international organisations and the public informed about the activities undertaken within the framework of this convention and it will prepare opinions to the Committee of Ministers on applications from non-member States of the Council of Europe asking to be invited by the Committee of Ministers to sign the convention.
223. The Committee may hold meetings of experts in order to carry out its functions. The Convention Follow-up Committee shall arrange visits to the Parties, subject to the prior
approval of the Parties concerned.
224. It is intended here to use the "peer review" mechanism, which is an examination by other States of one State’s performance or practices in a particular area, for instance through visits
or hearings. The point of the exercise is to help the State under review improve its policymaking, adopt best practices and comply with established standards and principles (OECD definition).
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CHAPTER IX – FINAL PROVISIONS
225. With some exceptions, Articles 32 to 41 are essentially based on the Model Final Clauses for Conventions and Agreements concluded within the Council of Europe, which the Committee of Ministers approved at the Deputies' 315th meeting, in February 1980.
Article 32 – Signature and entry into force
226. The convention is open for signature by Council of Europe member States, other States Party to the European Cultural Convention, the European Union, and states not members of
the Council of Europe which took part in drawing it up (1)
or enjoying observer status with the
Council of Europe.
227. Given the truly transnational character of the risk of manipulation of sports competitions and the necessity of combating this threat beyond European borders, this provision allows the
convention to be applied on a wider scale.
228. The convention will enter into force on the first day of the month following the expiration of a period of three months after the date on which five Signatories, including at least three member States of the Council of Europe, have expressed their consent to be bound by the convention. The number of ratifications, acceptances or approvals required for the entry into force of the convention is not very high in order not to delay unnecessarily the entry into force of the convention, but reflects nevertheless the belief that a minimum number of Parties is needed to successfully set about addressing the major challenge of combating manipulation of sports competitions.
229. The article permits any other non-member State of the Council of Europe, which has not participated in the elaboration of the convention, to sign it. The decision to invite such a non- member State to sign the convention is taken by the Committee of Ministers by the majority provided for in Article 20.d of the Statute of the Council of Europe, and by unanimous vote of the representatives of the Contracting States entitled to sit on the Committee of Ministers, after consulting the Convention Follow-up Committee, once established.
Article 33 – Effects of the convention and relationship with other international
instruments
230. In accordance with the 1969 Vienna Convention on the Law of Treaties, Article 33 seeks to ensure that the convention harmoniously coexists with other treaties dealing with matters covered also by this convention. In particular, the convention supplements the provisions of Convention 24, Convention 30, Convention 141 and Convention 198.
231. The Parties may conclude other bilateral or multilateral agreements in order to supplement or strengthen the application of this convention. When Parties establish such other instruments, they will do so in a manner that is not inconsistent with the convention’s objectives and principles.
232. In particular, this convention does not alter their rights and obligations arising from other agreements previously concluded on the fight against doping and consistent with the subject and purpose of this convention.
(1) Australia, Belarus, Canada, Israel, Japan, Morocco, New Zealand.
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Article 34 – Conditions and safeguards
233. Article 34 ensures, in particular, that the measures taken within the framework of this convention will be subject to the conditions and safeguards provided for under domestic law and international law, in particular Convention 5 and the United Nations’ International Covenant on Civil and Political Rights (1966), and other applicable international human rights instruments, and whereby these conditions and safeguards shall incorporate the principle of proportionality.
234. Such conditions and safeguards shall, as appropriate in view of the nature of the procedure or power concerned, inter alia include judicial or other independent supervision, grounds justifying application, and limitation of the scope and the duration of such power or
procedure.
Article 35 – Territorial application
235. Article 35 is dedicated to the territorial application of this convention. Any contracting State or the European Union may specify the territory or territories to which this convention shall apply. It can also choose to extend the application of this convention to any other territory specified in a declaration addressed to the Secretary General of the Council of Europe, and for whose international relations it is responsible or on whose behalf it is authorised to give undertakings.
236. It is well understood, however, that it would be contrary to the object and purpose of this convention for any contracting Party to exclude parts of its main territory from the convention’s scope and that it was unnecessary to make this point explicit in the convention.
This provision is only concerned with territories having a special status, such as overseas territories.
Article 36 – Federal clause
237 The convention contains a federal clause, whereby a federal State may reserve the right to apply the provisions of Chapters II, IV, V and VI consistent with its fundamental principles governing the relationship between its central government and constituent States or other similar territorial entities provided that it is still able to assume its obligations to co-operate under Chapters III and VII. This provision shall not undermine the effective application of the present convention. In addition, it is the responsibility of Parties to inform its constituent States of these provisions and to encourage them to take appropriate action to give them effect.
Article 37 – Reservations
238. Article 37 specifies that the Parties may make use of the reservations provided for in Article 19, paragraph 2 and in Article 36, paragraph 2, only when they give their assent to the convention. They then may withdraw such reservations as soon as possible, and they can receive requests from the Secretary General of the Council of Europe about the prospects of
withdrawal of such reservation(s).
Article 38 – Amendments
239. According to Article 38, amendments to articles of this convention may be proposed by the Parties, the Convention Follow-up Committee or the Committee of Ministers of the Council of Europe. These amendments shall then be communicated to all member States of the Council of Europe, signatories, Parties, non-member States having participated in the elaboration of this convention, or enjoying observer status with the Council of Europe, the European Union, as well as any State having been invited to sign this convention. The Convention Follow-up Committee shall submit to the Committee of Ministers its opinion on the proposed amendment.
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240. The Committee of Ministers shall consider the proposed amendment and any
opinion submitted by the Convention Follow-up Committee, and may possibly adopt the amendment by the majority provided for in Article 20.d of the Statute of the Council of
Europe.
Article 39 – Settlement of disputes
241. Article 39 provides that in the event of a dispute between Parties as to the application of this convention, they shall seek a settlement through peaceful means, and that the Committee of Ministers of the Council of Europe may establish settlement procedures, the application thereof being subject to the consent of the Parties to the dispute.
242. Article 39 also requires that the Convention Follow-up Committee, as well as the other relevant bodies of the Council of Europe shall be informed of any difficulties regarding the interpretation and application of this convention.
Article 40 – Denunciation
243. In accordance with the Vienna Convention on the Law of Treaties (1969), Article 40
provides for the possibility for any Party to denounce the convention.
Article 41 – Notification
244. Article 41 lists the notifications that, as the depositary of the convention, the Secretary
General of the Council of Europe is required to make, and designates the recipients of these notifications (States and the European Union).