Safeguarding Sport from Corruption: Reports by UNODC and IPACS

UNODC report

The resource guide entitled Legal Approaches to Tackling the Manipulation of Sports Competitions prepared by UNODC and the International Olympic Committee analyses the legal provisions of different countries concerning one of the forms of misconduct in sport.

The report is based on the analysis of information provided in response to a questionnaire issued by UNODC to 187 UN member States in June 2020 and supplemented by open-source materials, including legislation, judicial decisions, jurisprudence and academic publications.

The content of the report is divided into four parts.

Part one – General conclusions

Analysis identified 45 jurisdictions that specifically criminalize the manipulation of sports competitions. This represents a significant increase over the last years: in 2016 there were 26 such countries, whereas in 2013 only five. In particular, the relevant provisions are provided for in the legislation of the following countries: Albania, Algeria, Argentina, Armenia, Australia, Azerbaijan, Brazil, Bulgaria, China, Cyprus, Denmark, El Salvador, France, Georgia, Germany, Greece, Hungary, Israel, Italy, Japan, Kyrgyzstan, Latvia, Lithuania, Malta, Namibia, New Zealand, North Macedonia, Paraguay, Philippines, Poland, Portugal, Republic of Korea, Republic of Moldova, Russian Federation, San Marino, Slovakia, South Africa, Spain, Sri Lanka, Sweden, Switzerland, Turkey, Ukraine, United States of America and Uruguay.

In jurisdictions that do not have specific legislation in place to combat the manipulation of sports competitions, laws relating to the following areas were used in cases relating to competition manipulation:

Bribery (13 jurisdictions);
Fraud (8 jurisdictions);
Public and private corruption (7 jurisdictions);
Organized crime (6 jurisdictions);
Illegal betting and betting fraud (5 jurisdictions);
Money-laundering (4 jurisdictions);
Participation, attempt and conspiracy (3 jurisdictions);
Abuse of functions/office/authority, influence-peddling and trading in influence (2 jurisdictions – Romania and Kosovo);
Unexplained wealth, revenue and tax fraud (1 jurisdiction – the United Kingdom);
Treason (1 jurisdiction - Nepal).

Part two – Corpus delicti

In this section of the guide the authors propose the language of a dedicated legal provision criminalising competition manipulation.

“Any natural or legal person who, directly or indirectly, promises, offers or gives an undue advantage (material or otherwise) to another person, or attempts to obtain for himself, herself or for others, or otherwise coerces another with the aim of intentionally altering the result or the course of a sports competition, shall be sanctioned by [sanctions imposed]”.

“Any natural or legal person who, directly or indirectly, solicits or accepts an undue advantage (material or otherwise) or the promise, offer or attempt thereof, for himself, herself or for others, with the aim of intentionally altering the result or the course of a sports competition, shall be sanctioned by [sanctions imposed]”.

“Any natural or legal person who, directly or indirectly, improperly engages in conduct, or attempts, coerces, facilitates, discloses, uses, or conceals information or an agreement about conduct, that corrupts a betting outcome of a sports competition with the intent of obtaining or causing an undue advantage in relation to any betting on that competition, shall be sanctioned by [sanctions imposed]”.

Part three – Dedicated legal provisions

Part three is centered on the good practices of the countries that have in place specific legislation criminalizing the manipulation of sports competitions (specific examples are provided in Annex B) in the following areas:

1) Definition of the offence

The authors of the report stress that “good practices” generally imply the use of the definition of the crime as contained in article 3.4 of the Convention on the Manipulation of Sports Competitions: “manipulation of sports competitions is an intentional arrangement, act or omission aimed at an improper alteration of the result or the course of a sports competition with a view to obtaining an undue advantage for oneself or for others”. In France for instance, national legislation criminalizes the offering of any advantages to a participant in a sports competition giving rise to bets for that participant to alter, by act or omission, the normal and equitable development of the sports competition.

2) Undue advantage

UNODC experts believe that the term “advantage” is intended to apply as broadly as possible and to cover instances where non-material benefits (such as honorary positions and titles, preferential treatment or sexual favours) are offered, to the extent that they create or may create a sense of obligation on the side of the recipient towards the giver. Moreover, the findings of the analysis demonstrate that most countries follow this recommendation. In Brazil for example, the advantage or promise of advantage can be of a pecuniary or non-pecuniary nature, and actual enrichment is not necessary. Only five out of 45 countries that have criminalised the manipulation of sports competitions do not consider non-material benefits as an “advantage” (Argentina, Georgia, Malta, the Republic of Korea and Turkey).

3) Manipulation of result and course of the competition

The guide highlights that not only the manipulation of the result of a competition, but also bets on a specific subset of a game (spot-fixing) pose a substantial risk to the integrity of sport. The authors therefore recommend that offences relating to the manipulation of sports competitions allow for the sanctioning of any alteration of the competition’s result or course, including side events that may have a direct or indirect impact on the result or course of the competition. In Israel for instance, national legislation provides that a person is liable if they gave a bribe with the intention of influencing the conduct, progress or outcome of a sports contest or of some other contest, while in Portugal the law refers to conduct that could affect the truth, fairness and correctness of the competition and its outcome in any sports activity.

4) Application to all sports

The authors of the report stress that with no sport or jurisdiction immune to the risk of competition manipulation, the application of the offence of the manipulation of sport competitions to all sports and competitions is preferable. The analysis demonstrates that this is the approach which most countries have opted for. In spite of the fact that several jurisdictions specifically restricted the types of sports/competitions to which the offence applies (for example, Japan’s national legislation limits the scope of the competition manipulation offence to football games, in the Russian Federation the competition manipulation offence is limited to official sports competitions, while in Italy it is limited to the manipulation of professional competitions organized by any association recognized by the Italian National Olympic Committee, the Italian Horse Breeding Union or any State-recognized sports body and its member associations), the legislation stipulates that those cases may fall outside the remit of the relevant provisions.

Furthermore, the UNODC experts assert that in criminalising the manipulation of sports competition consideration should be given to sports-related events and transactions which may also be at risk of manipulation such as award voting, player transfers and signings, and the hiring of coaches and managers.

5) Active and passive participants

The authors of the report discovered that in most jurisdictions both active and passive manipulation was identified as objective elements of the offence, whereas participants in the manipulation of sports competitions are identified in general terms. In Portugal for instance, the relevant provisions apply to any sport agent, which covers a broad range of persons, including players, sports managers, club directors, coaches, doctors, physiotherapists, sports entrepreneurs, referees, legal persons and sports legal persons).

However, in eight jurisdictions, the active participant’s position or qualifications are set out in more specific terms (notably, these jurisdictions distinguish between direct participants in the competition such as players and referees and their professional entourage): in Spain for example, national legislation distinguishes between the directors, administrators, employees and collaborators of a sporting entity (including coaches) on the one hand, and the sportspeople, referees or judges on the other hand.

The report highlights that if the elements of the offence do not cover all possible categories of participants of sports competitions, it should be ensured that coercive acts beyond bribery, such as blackmail, extortion, duress, violence, intimidation and lone-wolf schemes, where the manipulation is exercised by a sole perpetrator, are covered in the legislation.

6) Liability of legal persons

The authors stress that the explicit establishment of the liability (criminal, civil or administrative) of legal persons for the manipulation or a wide scope of application of legislation to national and foreign public officials, to officials of public international organizations and to the private sector is a good practice. However, the analysis revealed that not all jurisdictions have legal provisions that provide for criminal liability of legal entities for the manipulation of sports competitions (for example, Lithuania’s Criminal Code provides for the liability of a legal entity that unlawfully affects the fair progress or outcome of a professional sports competition.

7) Betting fraud

The authors recommend establishing liability for the manipulation of both the results of competitions and the altering of the outcome of a bet, underlining that in most jurisdictions (34 out of 45) these offences are dissociated from each other. Sports betting manipulation is established as a separate offence in six jurisdictions: China, Republic of Moldova, Slovakia, South Africa, Sri Lanka and United States; and in further six jurisdictions, it is an aggravating factor regarding the competition manipulation offence. In some jurisdictions, however, the competition manipulation offence excludes competitions that do not give rise to sports bets (France, Australia).

8) Use of inside information

The use of inside information such as advance notice of a manipulated match, player injury and health information, team lineups, team strategy, player suspensions etc. is generally considered a disciplinary offence by sport governing bodies. Some jurisdictions have inside information offences: in Sri Lanka for example, the Prevention of Offences Relating to Sports Act criminalises the provision of inside information by any person to any person, including a betting operator, other than in connection with bona fide media interviews or the use of inside information to place a bet.

9) Intent as an element of the crime

The authors of the report stress that in civil law systems, a good practice is for legislation to include reference to the intentional or reckless nature of the perpetrator’s action or omission: in Finland for example, a district court found a person guilty of bribery for the act of accepting a bribe to get a red card and to give away a penalty in order to try to lose the match, even though the result was only a yellow card. In common law systems, courts may presume mens rea on proof of actus reus completed with intent or recklessly: in particular, mens rea, i.e. a person’s intention to commit a crime, implies criminal liability in the common law systems of Australia, Canada, Ghana, India, Ireland, Israel, Kenya, New Zealand, Nigeria, Pakistan, Philippines, South Africa, the United Kingdom and the United States.

10) Attempt, encouraging or assisting, incitement and conspiracy

The findings of the analysis conducted by UNODC demonstrate that in many common law systems, there is liability not only for an offence that has been committed but also for inchoate offences that cover attempt, encouraging or assisting, incitement and conspiracy. Because of the unpredictability of sport, these provisions are particularly relevant to the establishment of liability for the manipulation of sports competition. The authors therefore assert that they should be enshrined as general provisions in the criminal legislation or be taken into account in the formulation of the elements of a crime related to the manipulation of competitions. In Namibia for example, attempts and conspiracy are covered in a separate legal provision, framed to also cover section 44 of the Anti-Corruption Act in relation to corruption at sporting events.

Part four – Other legal provisions

The last part of the resource guide analyses the enforcement of other criminal law provisions in the countries where the manipulation of sports competitions does not constitute a separate criminal offence, in particular those that regard bribery, abuse of functions, fraud, money laundering organised crime etc. (the examples of relevant provisions in different jurisdictions and specific law enforcement cases are provided in Annex B).

In Luxemburg for example, national legislation applies general provisions on corruption to cases of sports bribery; in the United States, the manipulation of sports competitions and other breaches of integrity are punishable under various laws addressing private corruption, such as those prohibiting mail and wire fraud; in Sweden, in 2019, the Court of Appeal found a former Nigerian international football player guilty of attempted competition manipulation under the charge of attempted bribery under section 5 of the Swedish Criminal Code; in Austria, the manipulation of sports competitions is dealt with under the offences of fraud or major fraud (offences with damages of more than €5,000), and it must be shown that financial losses by betting operators are attributable to the use of inside information or corrupt athletes.

IPACS report

The report entitled Tackling Bribery in Sport: An Overview of Relevant Laws and Standards has been developed by an IPACS task force whose aim is to enhance effective cooperation between law enforcement agencies, criminal justice authorities and sports organisations (Task Force 4).

The authors of the paper stress that the developments in international sports have triggered the evolution in corrupt practices related to this area. The IPACS report is focused on the three most widespread and discussed forms of malpractices in sport:

1) bribery linked with the manipulation of sports competitions,

2) bribery linked with the concealment of the existence of prohibited substances (doping), and

3) institutional bribery linked with the organization and management of major sporting events.

The report highlights that crime in sport generally falls in the intersection of three sectors: 1) transnational crime, 2) organised crime, and 3) violations of international law. For example, the authors of the report assert that the FIFA case lies in all sectors, whereas the Calciopoli scandal, where football club owners manipulated results and the selection of referees in the Serie A and Serie B football leagues, lies in sectors two and three.

Depending on where the misconduct lies, the set of instruments to hold the perpetrators liable is chosen. Consequently, the measures for countering corruption in sport should be taken not only at the level of international organisations, whose powers are limited to the application of disciplinary sanctions for violations directly related to sport, but also at the regional and domestic levels.

In this context, IPACS has created a database consolidating information on the provisions of legal acts of different countries on countering corrupt practices in sport which can be employed in a deeper analysis of relevant provisions in a specific country or with a view to compare the approaches adopted by different jurisdictions.

The database has been developed with the use of the information submitted by countries at the request of IPACS and obtained from relevant research. The stocktaking data are presented in a series of tables for each region (Asia, Africa, Europe, Latin America and the Caribbean, North America, and Oceania). Each table has been developed using spreadsheets to enable conversion to .csv files for sharing on other proprietary software and for uploading to databases or other analytical software at a future date.

The tables list data in the following columns:

column 1 – country;
column 2 – national legal system;
columns 3 to 8 – data on the status of the jurisdictions in relation to international instruments and initiatives (United Nations Convention against Corruption, United Nations Convention against Transnational Organized Crime and Protocols Thereto, Organization for Economic Cooperation and Development Convention on Combating Bribery of Foreign Public Officials in Business Transactions, International Criminal Police Organization, International Institute for the Unification of Private Law, Council of Europe Convention on the Manipulation of Sports Competitions);
columns 9 to 10 – national criminal laws that regulate corruption, including active and passive bribery of national and foreign public officials and commercial bribery (according to the report, the texts of relevant legal provisions are compiled in an accompanying spreadsheet, which is not annexed to the paper at the moment);

columns 11 to 14 and 15 to 16 – details of the applicable penalty for natural persons and corporate entities respectively.

The analysis conducted by IPACS revealed that only a few jurisdictions have incorporated bribery in sport as a separate criminal offence in their legislation. These are Armenia, France, Moldova, Namibia, North Macedonia, Russia (article 184 of the Criminal Code), Spain, as well as Bulgaria and Cyprus. Some other states use their criminal legislation to criminalise certain offences related to bribery in sport such as the manipulation of sports competitions. In Finland for instance, there is a separate corpus delicti for the crimes related to the manipulation of sports competitions, whereas non-betting-related competition manipulation offences are prosecuted as bribery in business.

As regards penalties for bribery in sport imposed in different countries, in most cases the relevant punishment implies the imposition of fines and prison sentences, including life imprisonment (these provisions are in place in Egypt, Indonesia, Laos, Palau, the Republic of Korea, the United States, Vietnam, the Philippines, the State of Palestine and (technically) Haiti). Moreover, the authorities can request that the perpetrators return the unlawful benefits, as well as impose such sanctions as removal of political or voting rights (Colombia, the Democratic Republic of the Congo, Mozambique), the right to enter into contracts (Ethiopia, the Philippines, Spain), the right to hold public or private office, the right of freedom of movement (Lichtenstein, Ukraine, Poland, Tajikistan, Russia) and the right to practice a profession (for up to 14 years in Mexico, for the period of the jail sentence in Nicaragua, can be permanent in Argentina).