A sporting chance?

It has often been said that the law has been drawn into sport as a by-product of increasing professionalism and commercialisation. The same factors have now been responsible for the illegality infecting sport.There are breaches of not only the rules of the game, but of the laws of the land. Dishonest behaviour, of which it used to be said “it just isn't cricket”, nowadays often is. And not just cricket, but football too. Bruce Grobbelaar, despite his protestations of innocence, has as prominent a place in the rogue's gallery as has Hansie Cronje with his admission of guilt.
Sportspersons have an incentive to win, and those of them that cheat often do so by using performance-enhancing drugs. However, the common law offence of cheating was abolished by Section 32(1) of the Theft Act 1968 and, in the absence of drug-specific offences, their deception does not engage the criminal law. To override this incentive to win by supplying a counter-incentive to lose is the prerogative of the gambler. Boxing and horse racing are two sports notorious for cheating, with the ubiquitous thrown fights and pulled horses. And the infection has spread. Recent scandals should encourage the strengthening of sports bodies and increase the level of scrutiny of all those involved in professional sport.
Traditionally, for reasons of effectiveness and the reputation of the sport, athletes and clubs have not wanted to involve the police or the courts in their disputes – starstruck juries may anyhow be imperfect instruments of justice.
Sporting bodies which play a key role in preventing corruption in sport have had mixed success for a variety of reasons. In some cases, the sporting body itself is discredited because of the alleged behaviour of some of its directors – in the case of the International Boxing Federation, for example. In other cases, the lack of a strong and well-funded organisation has facilitated the growth of corruption in the sport, such as in the case of the International Cricket Council (ICC). In addition, where there is a multiplicity of otherwise effective bodies responsible for the same sport, a lack of coordination may allow illegal practices to go unchecked, as in the case of the football passport scandal.

“Some sporting bodies have not reformed quickly enough to match the commercialisation of their games”

Some sporting bodies have not reformed quickly enough to match the commercialisation of their games. The recent corruption scandals in cricket and football revealed longstanding illegal practices that simply increased in intensity when greater rewards became available.
To accept a bribe incurs civil and criminal liability. As the Court of Appeal noted in Grobbelaar News Group Newspapers, players owe a fiduciary duty to their clubs. They must account to their clubs for any unauthorised sums that they receive.
Under the criminal law, an agent who accepts or agrees to accept a bribe is guilty of conspiracy under common law. It is an offence contrary to Section 1 of the Prevention of Corruption Act 1906 for an agent corruptly to accept or to agree to accept any gift or consideration as an inducement or reward for doing, or forbearing to do, any act in relation to their principal's affairs.
In both criminal and common law, it is sufficient to show that the player received a gift as an inducement to show favour. It is not necessary to prove that they actually did show favour, or that their club suffered loss, as a consequence of them receiving the gift.
And fraud exists in sport in forms other than straightforward bribes – to carry a false passport knowingly is clearly a criminal offence, for example. But players, agents and clubs may also incur civil liability when they participate in transfer deals with the knowledge that the player carries a false passport. As well as contractual obligations, agents and players owe fiduciary duties, violation of which may lead to a personal duty to account for any sums received as a result of the breach.
As a result of the cricket match fixing scandals, the ICC established the Anti-Corruption Unit (ACU) in June 2000 and appointed Sir Paul Condon as its director. From the ACU Report published on 23 May, it is clear that a lack of legal certainty contributed to the growth of corruption in cricket. While players were aware that match fixing was illegal, to receive gifts or hospitality from a businessman with an interest in match fixing without any intention of acting on their suggestions was seen as acceptable conduct. The Grobbelaar case should dispel such illusions. But match fixing is still rife, despite the life bans imposed on three former cricket captains – Cronje of South Africa, Mohammad Azharuddin of India and Salim Malik of Pakistan.
Another reason for the growth of corruption in cricket has been the preference to not wash dirty linen in public. In 1994, the ICC and the Australian Cricket Board (ACB) decided not to disclose payments made to Australian cricketers Shane Warne and Mark Waugh after those illicit payments came to light. The cricketers admitted taking the money and were fined by the ACB in secret.
Condon said that the ICC did not have the financial security or the collective will from the constituent boards to provide an adequate infrastructure of administration and control. Until the creation of the ACU there was no structure in place to receive allegations about corruption.
In football, the hundreds of cases of false passports have revealed that agents, clubs and leagues have not generally examined the status of players' passports, despite the nationality restrictions imposed by each national league.
Clubs have been defrauded by agents and other clubs when they pay large transfer fees for players who are then prevented from playing when found to be carrying inadequate documentation. Only recently, Spanish club Real Racing Club de Santander alleged that agents offered it players with passports the agents knew to be false.
In February this year, former Sports Minister Kate Hoey declared that the Football Association had stated that regulation of footballers' passports was a matter for Fifa, while Fifa stated that it was the responsibility of the national associations. The lack of coordination between the governing bodies has led to the intervention of the National Criminal Intelligence Service (NCIS). The NCIS has commenced investigations in respect of 80 cases and any findings it may make regarding false passports will have consequences in the civil courts.
Where violation of sporting rules also involves fraud, a single dispute may create three different sets of proceedings before a criminal and a civil court, as well as before a sporting disciplinary body.
Pending the decision of the civil court, the defendant may seek an injunction to suspend the proceedings before the sporting disciplinary body, especially where both proceedings concern the same questions of fact.
Whether or not an injunction or suspension will be granted in cases where there are concurrent proceedings is a question of fact in each case. In the case of Conteh Onslow-Fane, in which an injunction was granted, the issues in both proceedings were exactly the same. Normally, such a suspension will be difficult to obtain, as this power is only exercised when there is a real risk of serious prejudice that may lead to injustice.
In the post-Bosman world, it is clear that professional sport will be treated as any other commercial industry. Self-regulation by sporting bodies has many advantages over adjudication in the ordinary courts – in particular, knowledge of the game and proximity to evidence. But as the ACU report makes clear, sporting bodies must become more effective in the administration and scrutiny of the million-pound industries for which they are responsible. In football and cricket, lawyers have always been involved at the disciplinary stage. It is at the pre-dispute stage that players, agents, clubs and leagues must become more legally aware.
Michael Beloff QC and Brian Kennelly are barristers at Blackstone Chambers. Beloff is also a member of the Court of Arbitration for Sport