Introduction
It is in the long-term interest of professional sport to increase legal intervention and examine alternative methods of regulation. Sport has been described as a “universal language that cuts across lines of class, nationhood, ethnicity and culture that might otherwise divide.”It provides multiple positive social values including entertainment, it inspires teamwork, opportunities, respect, skill acquisition, achievement and self-expression and provides some of the world’s leading role models. The extraordinary power of sport is undoubted and in order to protect such a precious and unique entity, those who seek to exploit and manipulate the very essence of the game need to be controlled in the interests of the public and upholding fair, equitable justice. The purpose of this analysis is to provide evidence and context to support the need for increased legal intervention in professional sport in order to; combat serious and contrived methods of cheating; erode the legal protection the sports arena affords participants, and achieve justice, equity and equality in the treatment of fraudulent activity.
Cheating In Professional Sport
The year of 2009 brought about some of the most astonishing incidents of sporting scandal to date, with a variety of innovative methods of subverting fair contest on display. There is no doubt cheating has historically plagued amateur and professional sport, and in particular cases of doping, but the incidents described illustrate how cheating has gone beyond mere rule breaks; deception, conspiracy and dishonesty are all too common in sporting competition and the line between a rule break and a public law crime is substantially blurred.
Exemplary Incidents
One of the most documented incidents at the height of covert cheating was named ‘Bloodgate’. In the Heineken Cup quarter-final, April 2009, Harlequins RFC were losing 6-5 with just twenty minutes to full time. Thomas Williams, the player in question, had taken to the field as a substitute with a fake-blood capsule hidden in his sock; with the intention of faking a blood injury. Within the rules of the sport, this prompted an immediate blood replacement that allowed a specialised goal-kicker to return to the field, giving a potentially decisive advantage to Harlequins. The incident was dealt with by the sports governing body for rugby, the European Rugby Committee (ERC), which held an investigation and a disciplinary hearing. Originally, Williams was banned for twelve months and the club was given a suspended fine of £215,000, judged by the public to be unfairly harsh on the player who clearly did not act entirely voluntarily. However, more revelations emerged as Williams sought an appeal, claiming he was coerced into the act and admitting he had asked the club doctor to serrate the inside of his mouth to cover up any suspicion. At the appeal hearing evidence was presented that Richards, the head coach, had ordered the club doctor to purchase fake blood capsules with the sole intention of using them on the rugby field to violate the rules. It soon became clear this was a pre-meditated conspiracy, albeit executed in a puerile manner, co-ordinated by both the coaching team and an acquiescent player. The ERC subsequently banned Richards from the game for three years and reduced William’s ban to four months, increasing the overall club fine to 300,000 euros.
The second instance arose in the wealthy world of motor sport. This case involved an allegation that the Renault motor team ordered one of their drivers, Nelson Piquet Junior, to deliberately crash whilst driving at over 100mph, in the Singapore Grand Prix 2008. This instruction was given with the intention that Piquet would deploy a safety car to the advantage of his teammate, Alonso, would then win the race for Renault. This has to be one of the most serious and lurid acts of pre-meditated race-fixing the world of sport has seen. Despite the voluntary departures of those involved from team Renault, the FIA awarded Briatore, the former boss of Renault, a indefinite ban from motor sport with prolonged bans for other Renault representatives. Nelson Piquet Junior was spared any sanction in recognition of his voluntary exchange of evidence. Not only was it a cynical violation of the Formula One Sporting Regulations, it endangered the lives competitors and spectators alike.
A third recent example, perhaps not as calculating, but no less serious in consequence, is also worth considering for relativity. Thierry Henry, the French international footballer was competing in the lucrative World Cup qualifying playoff between France and Republic of Ireland in 2009. Television cameras clearly showed Henry handled the ball twice in order to keep the ball in play and pass it to a fellow teammate to score. The match official failed to see the incident. This became the crucial goal that resulted in a French victory. FIFA, the internal sports governing body, accepted that Henry was guilty of “blatant unfair play” but decided to take no disciplinary action. This is an instance where, as replays show, there was a violation of the internal rules of the game but the perpetrator had no pre-meditated intention to deceive the opposition or match officials.
As well as these highly publicised isolated incidents, there is the ongoing problem of match fixing and doping, which also fall under the umbrella of cheating and have continued to plague sport for decades. Match fixing is most prevalent in cricket and horseracing and recently football, has also fallen victim to connived fraudulent exploitation for financial gain. Independent governing bodies have made frequent attempts to respond to match fixing and corruption within the most affected sports. Illegal doping is another highly publicised source of corruption within professional sport, particularly in athletics. There is a vast literature that proposes criminal justice as a solution to the problem, the regulatory approaches and their justifications will be compared and contrasted to justify the most appropriate degree and means of regulating the acts of cheating depicted above.
In terms of the law, there is an ironic injustice that emerges from the examples of serious methods of cheating outlined. If the perpetrator had acted outside the sporting arena, defrauding a public bank of substantial amounts of money, followed by a surreptitious and deceitful cover up, this would most certainly amount to a fraudulent offence worthy of imprisonment. Currently, the sporting arena inadvertently acts as a protective shield, preventing the subjection of perpetrators to public sanctions. This prejudice is the overarching theme and crucial justification for increased legal intervention.
The Criminology Of Cheating
It is important to touch on cheating as a criminological phenomenon in order to understand its causes and discuss the most effective mechanisms by which the phenomenon may be regulated. Seldom is cheating actually defined, particularly in terms of sport, where it is more than a mere moral wrong. An attempt should be made to find some degree of agreed clarity as to what constitutes cheating in order to propose reform. Furthermore, once an agreed definition is found, it is vital to briefly highlight the intended outcomes of legal intervention and potential difficulties based upon criminological thought.
The Phenomenon Of Cheating
It is incredibly difficult to define any morally and ethically loaded concept when such diverse opinion of what is right and wrong exist. Within such a social field that is privately governed, the subjectivity involved makes distinguishing punishable cheating even more complex. A very simplistic account of cheating is given as “the principle of equality of chance beyond differences of skill and strategy is violated”. This is a purely ethical definition, which justifies to an extent why cheating is morally unacceptable in sport, however it has to be furthered to justify legal intervention.
An extended, very plausible definition is offered by Green: “In order for us to say that X has cheated, X must 1) violate a fair and fairly enforced rule, 2) with the intent to obtain an advantage over a party with whom he/she is in a cooperative, rule bound relationship.” In terms of how this is applicable to sport: part 1), would be a violation of an internal rule from the sporting federation constitution and part 2) would be the intention to gain an unfair advantage over the opponents and win. The legality of what is being discussed goes further than unsportsmanlike behaviour: at the heart of the matter are serious and covert methods of deception, which is, as Green recognises, more than a simple definition of a rule break.
The distinction between a mere rule break and breaking a rule with the intention to deceive is of great importance to the debate surrounding legal intervention. The intention is the determining aspect of publicly punishable cheating, as it must be an “offence against the principle of justice as well as against a particular rule or norm of behaviour” in order to warrant legal sanction. There is a loophole in this definition, as it does not cover those who break rules without the intention to deceive; for example, committing a professional foul. So essentially it can be said that there are two different types of cheating, one with the intention to deceive, the other without. The latter is of no concern to the proposals for increased legal intervention in serious forms of cheating, as it would be unduly castigatory and place an overwhelming burden on the courts to introduce legal sanctions for plain rule breaks that match officials and governing bodies can efficiently deal with. The “injustice is magnified” if there is intention to deceive as well as break rules; this falsehood is the crucial element that, is argued to be, corrupting sport and therefore the target for legal reform.
Whilst there is no real scholarly consensus as to the true definition of cheating, Green provides a firm basis, which, in essence, is the ethical principle behind statutory fraud. The difficulty is the disassociation that has emerged between cheating and the law, in order to justify public law intervention, cheating must be recognised as more than a purely moral concept and thus become justiciable. By assimilating rule breaks with deception, the definition of cheating is advanced to include a criminal dimension beyond a moral wrong. Ultimately, with such uncertainty surrounding the exact definition of what amounts to cheating, it would be incredibly difficult and potentially unjustifiable to formulate brand new statutory legislation to prevent such actions. Therefore, legal intervention must be invoked by enforcing already existing public legislation, akin to the definition of cheating discussed.
Criminological Theory And Justification
The fundamental justifications, essentially the factual reasons, as to why increased legal intervention is required are discussed in Chapter 4. Criminological theory is to be reviewed briefly in order to evaluate the social need, desired effect and likely success of the implementation of criminal sanctions in the sports sphere.
Whilst the aim of introducing criminal sanctions is to control cheating in sport, there is an overarching necessity of procedural transparency and equitable justice that is key to any proposals being introduced. Sherman originally suggested that fairness and legitimacy are required to control crime; “procedural justice of experienced punishment is essential for the acknowledgement of shame, which conditions deterrence; punishments perceived as unjust can lead to unacknowledged shame and defiant pride that increases future crime.” As it is, the sports world is afforded isolation from the public law, the public view the current punishments enforced as unduly lenient and the growth of professional cheating shows the current sanctions lack deterrent effect. However, the line must be drawn to avoid overly excessive punishment, which as Sherman suggests will increase crime, so therefore the key factor in mind when suggesting reform to control cheating, is ensuring the disciplinary procedures are fair, transparent and legitimate in the eyes of participants, governing bodies and the public. Recently there have been numerous academic writings recently with the suggestion that a criminal framework should be introduced to specifically control doping in sport. Justificatory arguments in favour of a legal framework against doping, also relate to cheating and the suggestion that invoking public law would “restore public confidence and respect…and ensure adherence to the essential values of fairness, justice and equality in terms of competitive sport” are supportive of Sherman’s theory. The certainty of punishment rather than severity of punishment is crucial and the criminal law provides a preventative, definite source of sanctioning. In turn this will ultimately lead to more effective outcomes and a reduction in cheating.
As well as legitimacy, Sherman also suggested three other “emotional responses to sanctioning experiences: [legitimacy] social bonds, shame and pride”. Shaming is crucial to sport sanctioning and provides further justification for criminal intervention. Braithwaite described the social process of “reintegrative shaming”, suggesting that social control and deterrence could be achieved by shaming certain acts within the family or community and punishments should be enforced by those closest to the perpetrator. Arguably, the sports’ self-regulatory system has relied on criminological notions of shaming, towards both the club and individuals, by publicly issuing penal sanctions. However, this type of shaming in the sports arena is no longer adequate in deterring covert methods of cheating, whilst some shame may be felt by the participant and club who have breached internal rules of the game, this shame is not sufficient to deter themselves and other competitors from subsequent cheating. Braithwaite states, “shaming is an important backstop to be used when consciences fail to deliver conformity…formal punishment is another.” It is fair to say that the moral conscience within sport has been slowly eroded by commercialisation. Therefore, by adopting formal, transparent and fairly implemented criminal sanctions in the sports sphere, certain and effective punishment for serious acts of cheating will be enforced uniformly by the higher authority. It is hoped that this certainty of proportional punishment will bring about the reincarnation of shaming as a deterrent and increase social control so formal punishment will remain a ‘backstop’.
Fundamentally, the overarching imperative to increasing legal intervention is not to increase the severity of punishment, this is merely a by-product, rather, the emphasis is on the creation of a fair and transparent regulatory system that efficiently deals with fraudulent behaviour directly, as if it occurred in ordinary society. Sherman suggests the key to crime reduction is if the “police and courts treated all citizens with fairness and respect.” Based on these criminological theories the aim is; for all sports participants to be subject to the same uniform criminal sanctions as ordinary society; for a shift in judicial and public perception of serious acts of cheating so they are recognised as ordinary ‘white -collar crime;’ for public law to remain a secondary regulator so social control and self-regulatory control can still prevail. In turn this procedural justice will erode the protection of the sports sphere from public law and increase participant’ compliance, obedience and moral conscience.
The Current Self-Regulatory System
Regulation is a fundamental requirement in professional sport for multiple reasons, particular benefits include: consistent administration, clear rules and discipline procedures, protection of competition, equality and fair play and to provide an internal structure that embodies constitutionalism. Historically, sport has operated as an entirely autonomous entity, each individual sports’ governing body formulating its own rules and regulations and relying on sub-legal procedures to maintain cohesion, obedience and integrity. There are three distinctive ways in which governing bodies oversee the management of the individual sport: firstly, through the basic playing and penal rules of the game; secondly by relying on sub-legal ethical principles; and thirdly through public administrative law, accompanied by natural justice. There are two contrasting opinions on how sport should be governed: one directly in favour of self-regulation, and the other in favour of public legal intervention. Both have fair standing, however, it will be highlighted that there is obvious systematic failure, weakness and inefficiency in the self-regulatory system, amounting to the first justification for legal intervention.
Penal Rules Of The Game
The power of self-regulation stems from the contractual relationship between the club and the player. If a player violates the internal rules of the game, they will be subject to disciplinary procedures derived by their governing body. The contract is the legal binding tie between the association and the player, many sports still operate this system, which allows for the unique area of sport to run it’s own private legal procedure, incorporating administrative, judicial and executive functions that validate the mere supervisory roles of Parliament and the judiciary. There are many benefits to this such as; avoiding the expense of the public system; a relatively quick system of adjudication; and maintaining the emphasis on the sports policy, rather than becoming embedded in deep legal analysis. The informal nature of the proceedings also allows governing bodies some flexibility and proceedings are adaptable to the individual case. Both the legal world and sports world have had a gentlemen’s agreement that private jurisdiction inherent to the specialist knowledge of the individual governing bodies is the most satisfactory means of handling internal sporting disputes. Lord Denning expressed his support for a self-regulatory legislature in the sporting sphere remarking that justice was better achieved “by a good layman than a bad lawyer”.
However, in light of sport’s commercialisation as a business industry, it is highly questionable whether self-regulation is still a suitable means of disciplining and curtailing acts of cheating. Lucrative revenue generated from television deals, sponsorship, ticket sales and merchandise have transformed the world of sport into a worldwide profit making enterprise, exploiting its natural social magnetism. Academics have argued forcibly that the “myth of sporting autonomy has been used as an argument against intervention for too long.” The examples above of attempts made by the self-regulatory bodies starkly highlight the lack of proportionality between the private sanctions imposed and the subvert, dangerous and complex acts of cheating that occur. From a public interest point of view, this is simply unjustified and represents a palpable need for legal intervention. Whilst there are numerous benefits to the self-regulatory system, the inefficiency of penal rules provides definite scope for the introduction of a legal framework.
Sub-Legal Governing Principles
‘Corinthian spirit’ also known as fair play, is the sub-legal, ethical principle that prevents cheating, but which has recently faded from professional sport and no longer serves it purpose. Historically, the Corinthians were a highly successful amateur football team in the 1880’s, that gave name to the emerging ethos of fair play sportsmanship and a sporting moral code of behaviour. The type of selfless, non-violent, gentlemanly behaviour was inherent to the values of the amateur game. Today’s sporting world has changed dramatically, via two main drivers; mass media and money. Both of these influences would have been entirely alien to the Corinthians. As sport continues to develop as a professionalised and publicised business industry, it would be reasonable to expect that Corinthian spirit would still be the prevalent intrinsic value in sport. Unfortunately this is not the case. The moral principle of fair play is no longer equipped to regulate the industry, the explosion in sports litigation is enough to show that fair play has dissolved from the forefront of national and international sport. The fair play principles and Corinthian values have succumbed to commercialisation, which in turn has catalysed such intricate methods of cheating for gain. This has been named the ‘corruption of sporting morals by money’ and there is now an urgency required in introducing public legal procedures in sport.
The gulf between Corinthian spirit and the modern game is enormous, although not beyond repair. In any competitive match there is evidence of participants possessing a winning mentality, whether for money or success, it is unmistakable. If a solid legal framework is introduced it could be the key to deterring, and proportionally punishing, those who display serious misconduct and damage the game. Grayson, the ‘founding father’ of the relatively new hybrid between sport and the law, was adamant that dispute resolution should not be in the hands of sports governing bodies and predicted that ‘if sport and its rules cannot or will not try to preserve the Corinthian tradition…then the courts can and will do it for them, through the law of the land at both criminal and civil levels.” This is the beginning of a body of evidence that points towards recognising legal intervention as the substitute for inefficient, normative, self-regulatory procedure. In turn, it is hoped that Corinthian spirit will instinctively resurface and fair play will be protected.
The Court Of Arbitration For Sport
Law is reactive, regulation is proactive, when regulation fails, the law should intervene and self-regulation should be open to legal examination. This was essentially the legal vacuum the Court of Arbitration for Sport (CAS) was designed to fill as disputes in sport rose dramatically in the 20th Century. The CAS is the highest authority in sports litigation and offers an additional international judicial dispute resolution service. The International Olympic Committee (IOC) established the CAS in 1983 that comprises 300 arbitrators originating from 87 different countries, selected for their own specialist sport and legal expertise. The CAS has a comprehensive list of rules and common-law principles which it must abide by, set out in the CAS Code. The court is commonly used by players, coaches and clubs alike as an appeals procedure to a decision made by their relevant sports governing body. The individual federation must include an arbitration clause in the participant’s contract permitting the individual to refer disputes to the CAS in order to make use of the procedure. Whilst signing up to the CAS is entirely voluntary, there are significant benefits to the sports governing bodies, including reduced public judicial intervention and a knock on increase in the legitimacy of the sports body themselves. The CAS operates independently of the rather more intimidating and formal national courts, with the view to settle disputes quickly, inexpensively and effectively. However, there is significant disadvantage to this independence; in particular, that the court is not a recognised legal institution; it is essentially just an extension of self-regulation and contributes to the defence of sporting bodies by applying minimum common law standards.
The key question remains; is if the court is serving the needs of sport and regulating cheating? Evidence suggests, the answer is no, based upon two fundamental flaws in the system; the first relating to the restricted powers of the CAS and the second relating to the CAS’ integrity.
Firstly, the CAS holds no greater power than the sports bodies themselves and does not possess any legal status. The court does not adhere to the ‘stare decisis’ principle for example, which means legal decisions are left to the discretion of the court, legal certainty and precedent is severely lacking. Furthermore, there is no cross-examination or dissenting opinions and the award eventually granted is only accompanied by “brief reasons.” There are two primary weaknesses in the power of the CAS that signify it is incapable of handling serious incidents of cheating. One being that a case is only brought by mutual consent, therefore, both parties have to consent to higher authority involvement, so the CAS cannot proactively intervene. It is notable that the most common cases of cheating to reach the CAS only involve doping. Secondly, by its very arbitrary nature, the court cannot enforce statutory punishments; the awards the CAS can grant are specialist resolutions based upon the penal penalties already imposed. This means that those incidents sufficiently grave to be crimes cannot be fairly and proportionally sanctioned by any other jurisdiction than the national courts.
Secondly, sporting disputes are settled “within the family of sport,” which inevitably leads to distrust and suspicion of the arbitration process, similar to that which surrounded the family courts prior to their recent opening. The current self-regulatory framework has been criticised directly as lacking “certainty, consistency and transparency.” By relying on mutuality and confidence of the parties, an approach not favoured by the traditional courts, the CAS is commonly viewed as somewhat of an untouchable entity of justice. For internal regulation of sports federation’s decisions, the CAS serves its purpose, albeit impinging on key common law principles and lacking in transparency and accountability. In order to prevent the more serious acts of cheating avoiding disproportional, private sanction; the inequitable, unjust system that regulates sport needs reform to fulfil the public interest for fair, transparent justice.
Fundamentally, the CAS cannot be expected to do anything more than act as an arbitrator and attempt to uphold natural justice. Arbitration as a method of justice is insufficient to successfully and proportionately deal with the elaborate and controversial methods of cheating and the legal issues that arise. The CAS and sports administrators now face disciplinary matters that warrant sanction beyond their jurisdiction and consequently but perhaps inadvertently, the CAS serves to protect not only the perpetrator, but sport as a whole, from public law sanctioning.
Public Administrative Law
Examining the examples of cheating highlighted earlier from a legal perspective, it is fair to conclude that certain public law obligations placed on the self-regulatory system such as natural justice and rule of law, are being floundered. When sports federations discipline players, particularly in matters of cheating, they must allow the player legal representation and the decision made will effect the career of the individual and is often accompanied by a fine for the club responsible. However, increasingly so, the decisions are made with regard to the economic and social consequences for the sport, this is particularly true in cases of cheating which attract huge media attention, and thus drastically conflict with the fundamental principles of natural justice. These cases often don’t reach the CAS as sports governing bodies are keen to deal with the incident quickly and divert media attention. This is at the expense of fair and just legal proceedings. A prime example of the sports governing body not acting in accordance with the natural justice principle was in ‘Bloodgate’, where at the first hearing the victim was held solely responsible for the act of cheating and the perpetrator, coach and club, were spared punishment. This is a direct result of sporting feudalism and the lack of a wholly impartial, unbiased and separate higher authority.
Whilst it has been found that the sports regulatory system is failing to uphold natural justice, it is highly questionable whether the rule of law is evident either, or if in fact as it has been argued; the growing entity of sports law is merely a “cloak for continued self regulation.” Legal regulation is entirely in the hands of sports governing bodies, essentially making decisions that are immune from any formal law and based upon their own general norms. Public law is not viewed as the supreme authority in professional sport. This incredibly unique power masquerades as justified by the apparent common law principles, namely natural justice, applied by the higher authority, CAS. However, additional public legal avenues need to be extended and applied to proceedings in professional sport in order to meet the requirements of democratic legitimacy, national accountability and proportionality. Self-regulation as a sole supervisory system was adequate when sport was a pastime, but in the excessively commercialised world of sport, governing bodies control large economic, social and politically powered resources, which are longer outside the concerns of the state. The degree of uncertainty and lack of transparency that comes with self-regulation can no longer be tolerated in the interests of the public.
Judicial Review
Judicial review is concerned with the lawfulness of decisions made by public bodies. Sport governing bodies are private entities but are still required to act lawfully, fairly, reasonably and rationally and in accordance with legitimate expectations. They are not however, subject to judicial review and only accountable to the supervisory jurisdiction of the ordinary courts. The legal binding between sport governing bodies and their players is a contractual relationship, therefore, challenges to the decisions made by sports governing bodies are brought in private domestic proceedings, via the CAS, not by way of judicial review. A possible avenue for reform would be to allow judicial review to act as the highest authority for appeal, in order to regulate the fairness and legitimacy of the decisions made by the self-regulatory bodies. The difficult hurdle to overcome is proving that sports governing bodies are performing public functions and existing as public bodies per se.
During the 20th Century the issue of judicial review in sport was addressed on numerous occasions, in particular in relation to decisions made by the former horse racing governing body, the Jockey Club. The cases have centred on whether sporting bodies are public or private entities for the purposes of judicial review, which was clarified in a non-sporting case. In R v Datafin v Panel for Takeovers and Mergers, it was explained that where power derives from statute, judicial review applies, but where power derives from contract, then judicial review cannot be invoked. However, it was deemed vital to assess not only the “source of the power but [also at the] nature of the power” and it is possible for a governing body to fall “between the extremes” of contractual and statutory status. This middle ground has the potential to encompass a sports governing body.
This possibility was explored in relation to sport in the case of R v Disciplinary Committee of the Jockey Club ex p. Aga Khan, where the sports federation was challenged with a claim that its decision to suspend the jockey was ultra vires. An important point was raised, which is even more prevalent in contemporary society; that the substantial de facto control sports governing bodies have essentially monopolised the entire individual sport industry. Bingham MR added that “if the Jockey Club did not regulate this activity the government would probably be driven to create a public body to do so.” The case overwhelmingly highlighted the situational irony in a private body exercising public powers. However, the court disagreed, and held that the Jockey Club was not subject to judicial review, relying on the determining fact that there was a private contractual relationship between the parties and quashing the notion that the Jockey Club performed a role equivalent to the government.
The case strongly expressed the private contractual reality between the parties involved in self-regulation and the significant national activity involved but the contractual framework and the rules to which it operates are not equivalent to governmental public powers and therefore prevents judicial review. Much debate surrounds judicial review of sporting bodies; if they are performing public functions, receiving public funding and granted governmental powers that affect large sections of the public then surely they should be susceptible to judicial review. The difference between academic interpretations and the foregoing case law shows how academic argument is fultile in light of the marked reluctance for English courts to extend the scope of judicial review to sports governing bodies. Essentially, the unsatisfactory end product from an academic point of view is governance by privately recognised bodies with public powers.
It is a matter of public interest that judicial review should intervene so that sanctions imposed on professional athletes can be challenged and accounted for. Sport has become a worldwide money driven business, a social, political and economic force, it can no longer be regarded as a private and autonomous entity it once was. In light of the nature of sport, the Datafin precedent should desirably now apply to all sports governing bodies. Other jurisdictions including; Australia, New Zealand and Scotland, have accepted judicial review as a means of external regulation of sports federations, the constitutional norms and values of the individual sport are still upheld.
In terms of the impact on cheating, invoking judicial review would be the first step towards recognising the role of public law in English sport. On the evidence presented, it appears that the minimum intervention should be judicial review, although arguably the CAS is already the private equivalent. The CAS, as already discussed, assesses the procedural lawfulness of the decision and goes one step further by issuing legally binding, arbitrated awards if necessary, albeit within the private law realms. There is little benefit to the proportionality of sanctioning if legal intervention in sport is increased via judicial review; the sanctions issued to those who cheat will remain the same penal penalties administered by the sports body. The crucial benefit to invoking judicial review would be the increase in equality of law and transparency of justice, which in turn would increase public confidence in the sporting regulation system. Other jurisdictions have recognised this importance, however, judicial review has not been invoked in English sports law, even with continuous, hard-fought case law. As Beloff points out “no less than three Vice-Chancellors of different generations have taken the view that Courts should abstain where possible from interfering with the decisions of bodies controlling sporting spheres.” Indeed it is this exact reluctance by the national courts to review private law that has led to somewhat of a stalemate in terms of judicial review in the sporting sphere. This reluctance, coupled with the ever- decreasing chasm between public and private law in modern times, means it is difficult to see any benefit in discussing judicial review as an avenue of greater legal intervention any further; although it would be a favourable move, a more radical legal intervention is required.
Proportionality Of Sanctioning
“The chief concern of the criminal law is to prohibit behaviour that represents a serious wrong against an individual or against some fundamental social values or institution.” The ‘serious wrong’ in this instance directly correlates to cheating and therefore greater criminal intervention in professional sport could be enforced to control and suitably punish severe and serious acts of cheating. In purely legal terms, the balance between the harm principle and the de minimis principle needs to be determined in order to ascertain the most effective, proportional and justified form of regulation for sport. The argument that there is a significant injustice in the proportionality of sanctioning under the current system is used to strongly support that, on balance, invoking criminal sanction is the solution.
The harm principle, coined by Mill, affirms “the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. So in order for criminal sanction enforcement to be invoked, criminalisation must be the most proportional and effective means of negating or limiting wrongful harm or the risk of harm to others. The harm being caused by the acts of cheating at hand has an overwhelmingly wide impact on individuals, which cannot be identified per se. Sport touches so many people that the effects of cheating not only cause individual harms but many consequential remote harms also; for example, harm to young children who see their idolised sporting role models break rules and learn to mimic this deceptive, immoral behaviour outside the protection of the sporting arena. So whilst individuals may not class themselves as a victim of harm, it is essentially the state as a whole that falls victim to acts of cheating in sport, which is sufficient justification for criminalisation.
This harm could be controlled if an adequate self-regulatory procedure was in place. However, the self-regulatory bodies only have the power to punish incidents of cheating in professional sport with penal penalties. The crucial question is whether these are proportionate and just sanctions and effective in reducing the risk of harm to competitors and the public. Or, as is argued, these sanctions are in fact inadequate methods of social control and disproportionate and unjust sanctions in relation to the perpetration. Proportionality is crucial in sentencing, the metaphor; ‘one can not use a sledgehammer to crack a nut’ is the potential effect if disciplinary measures are too stringent and punitive. However, in light of the new level cheating has reached, the sanctions the sporting bodies and the CAS are empowered to enforce have become insufficient, unduly lenient and do not ‘fit the crime’. The more serious the conduct, the more serious the punishment must be, with that comes more complex law and issues such as causation, intention, remoteness and harm which only the external courts can fully comprehend. Without underestimating the effect of a ban from sport, which removes salary, career and has a detrimental affect on the competitor’s livelihood, common moral instinct would deem a mere ban disproportional punishment for ordering a competitor to deliberately crash a racing car. Whats more, the acts of cheating in discussion are akin to serious crimes, but under the current system; whether an act is performed inside or outside the sporting arena ultimately determines whether the punishment is a ban or a prison sentence. It is this injustice and the increasing occurrence of disproportional penalties imposed on serious cheats that is harming society and eroding social values. The new criminal reform is specifically designed to fill this loophole in self-regulation.
When enforcing criminal sanctions, it is of paramount importance that it is done so with extreme care, particularly in this instance as the transition is being made from regulation to criminalisation. Criminalisation is the “most powerful form of censure” and sport is already controlled by domestic rules that protect those in competition from harm. The ‘de minimis non curat lex’ principle, literally translated as ‘the law does not concern itself with trifles,’ favours maintaining self-regulation in sport and the areas that require civil liability and administrative regulation are already in place. The minimalist would profess that “the law’s most coercive and condemnatory technique (criminalization) should be reserved for the most serious invasions of interests,” which would not extend to cheating in sport. The unique benefits attached to sport including; entertainment, national pride and competitive spirit would be at steady risk of destruction if a participant’s performance and their civil liberty is hindered by the fear of potential punitive and undue litigation in sport. This would inadvertently harm the image and social effect of sport even further.
It is reiterated that only the most serious of incidents would be criminal. In the examples given in Chapter 1, only the most serious are included, whereas minor matters of moral misconduct are excluded due to a lack of pre-meditation that is undeserved of a punitive response. However, keen to maintain sport’s private legal status and discretion, the minimalist approach could offer a less punitive, more proportional alternative to regulation and sanctioning of the most serious incidents that would aid a reduction in cheating in professional sport and more just, fair disciplinary procedure. A minimalist possibility would be to establish a similar independent governing body to the World Anti-Doping Agency (WADA), founded on Swiss private law in 1999, which harmonized anti-doping regulations across the globe in the World-Anti-Doping Code (WADC). It aimed to formalise a growing international effort to reduce the epidemic levels of doping in sport using strict liability; a uniform two-year ban was introduced as the sole sanction if any of the substances on the official Prohibited List were found in a participant’s bloodstream. However, reluctance shown by many sports governing bodies to sign up to WADA, results in some hesitance in suggesting an independent cheating body. Furthermore, WADA still only serves a two year ban on doping perpetrators, which still sends a message to the public that sports competitor’s are escaping liability and justice. It is notable that there are already independent institutions that have attempted to protect, govern and promote fair play ethical values in international sport. The most prominent anti-corruption agency is Play the Game. Attempts have been made to unite the world of sport through public relations exercises, conferences and newsletters, however, this approach has been very understated and had little, if any, positive effect on the reduction of cheating or proportional sanctioning.
The balance between harm and minimalism has highlighted the significant harm caused to competitors, the public and sporting integrity itself by the serious acts of cheating outweighs the minimalist approach. This coupled with disproportional sanctioning and severe injustice, is sufficient justification for increased legal intervention. Such explicitly wrongful cheating is fundamentally harming the overall benefit of sport to the public, as well as advertising a blatant irregularity in punishment between the sports field and civil society. The alternatives to criminalization are not proportional or effective means of reducing harm nor achieving justice. Therefore, the key to not impinging on civil liberties or causing further harm will be to introduce well-thought out, transparent and legitimate reform.
Public Interest And Social Preservation
At the heart of all the justifications for criminal intervention is a compelling public interest. Firstly, cheating is fundamentally immoral which if not prevented, defies an overall public morality and harms society. Secondly, it is of paramount importance to the general public interest that the sporting arena is not used to masquerade what are fundamental crimes and in particular, fraud. This is a long held principle of English law, which ties into the rule of law; “no rules or practice of any game whatever can make that lawful which is unlawful by the law of the land.” It is a complete injustice for the powerful, wealthy sportsmen and women to avoid public prosecution and in the interest of the public; sport cannot condone fraud and cheating.
Civil liability is already in place; the law of tort and contract are prominent additions to the world of sports law. Criminal law will go one step further as a “mechanism for the preservation of social order.” Criminal law declares the wrongful behaviour, issues potential punishments with justificatory reasons and reprimands those who nevertheless commit the crime. In recent years criminologists have commented on how the law has become governmental in nature and a form of ‘social control’. The law is infiltrating all types of popular culture to control deviance and protect the state, at the same time, the impact sport has on government and society is overwhelming and protecting the image of sport is of huge value to maintaining social control. There is evidence to suggest that ‘almost no government department is left untouched by the social, economic and diplomatic power of sport and the tasks in the fields of integration, education and health which it is capable of accomplishing.’ Sport’s very own mechanisms of ‘social control’ such as fair play and Corinthian spirit are proven to be failing. There is potential, if external regulatory jurisdiction is enforced and abided by, for the image of sport to improve and role models to regain their respect. Sport has the power and influence to benefit positive public attitudes, restore public unity, safeguard social values and set a leading example of accepted social behaviour.
Those who view sport as less important than more pressing social matters and suggest, “legal interference with trivia is likely to cause more harm than it prevents,” omit to fully consider the dominance of sport in society. There are potentially catastrophic effects on the public and society if immoral, fraudulent behaviour continues to be publicly condoned or leniently punished week in week out. Granted it may not be a matter of urgency for a government driven by populism and a public fear of crime, but by applying the same legal parameters inside the sporting arena that exist outside, sport can be regulated thoroughly and deviant behaviour can be controlled. There is further strong opinion that there is a “growing recognition of the political and electoral power of sport in the 21st century.” If a national team achieves sporting success or the country wins a bid to host the Olympic Games, the government capitalizes and engineers this as political fortune, national glory and a boost to their political integrity. This is proof of the profound social impact sport has on society as a whole. Of course, there is also the disadvantage of sport having a political basis. There is a common belief that a “feel good factor” arises from sporting success that boosts national morale. The abominable instances of cheating discussed earlier thus damage not only damage the integrity of sport, but with such close affiliation to the government, the popularity of the political party also. Therefore, it cannot be expressed enough just how important it is that, in the public interest, sport is regulated efficiently, transparently and equitably.
Finally, it is by no means a novel proposal that criminal law should intervene in the regulation of sport. There has been an increasing propensity for public law to be involved in all areas of society; it is fast intervening into private matters of public concern to increase social control. New domestic violence law applicable to events inside the privacy of the home is a prime example. In sport, parallels can be drawn to the existing criminal intervention through the application of grievous bodily harm legislature; punishing unnecessary violence on the sports field with public sanctions. The line has been drawn as to when deliberate assault in sport transcends to become criminal; dangerous assaults no longer carry a defence of being performed in the spirit of the game. Everyday injuries that occur within the ambit of the sports arena are exempt from prosecution; however, intent to cause serious harm beyond the internal rules of the game is not. There have been multiple cases, particularly in the sports of rugby and football where prosecution has been sought for unlawful violence; sport has not condoned unlawful violence as a matter of public interest and social preservation. Furthermore the decline in sporting autonomy has been evident in the last few decades merely by the increase in statutory intervention, as Parliament has frequently passed new forms of sports-specific legislation in response to public concern. The most noticeable impact has been in the sport of football where examples of legislation include ticket touting, spectator safety and football disorder. Cheating in sport, it is argued, is now another matter of public concern for government address. To impose bilateral, proportional and just sanctioning will uphold public interest.
Criminal law has paternalistic roots to protect public society from harm and maintain cohesion. It is not being suggested as a last resort and neither will it change the outcome of sports fixtures that have been corrupted by acts of cheating. After careful consideration, balancing public interest and proportionality against the negative, punitive effects of criminal law, it appears criminal intervention is the solution to control and minimise the harmful effects of cheating in sport. It is strongly postulated that, “the argument is now not whether and why the law should intervene, but when the law does intervene, how and to what extent it should.” The proposals will demonstrate how it is possible to maintain a primary self-regulated system with a secondary legal backing initiated in response to the widespread effects of commercialisation, one of which is serious cheating.
The Application Of The Fraud Act 2006
Morris and Little described an ideal system that favoured a “shift toward self-regulatory control mechanisms which are transparent, accountable and enjoy a measure of independence with the courts performing a “fail-safe” function of intervening in cases of self-regulatory failure or the presence of a compelling public interest dimension to a sports dispute which warrants external judicial intervention.” This is the exact type of reformed system this analysis concludes is required.
The self-regulation system in place, although not as effective as it could be, does not necessitate reform, most of the menial sporting disputes are handled effectively by the bodies themselves and the CAS if required. The lex sportiva is now an established principle for the autonomous decision to protect the legitimate interests of the participants, spectators and sport as a whole. However, it is the serious and extreme violations of internal rules that are failed by autonomy and the self-regulatory system, and which in turn justify the introduction of an external framework. What is to be defined as ‘serious’ is essentially a crime that, if not performed within the sporting arena, would be subject to prosecution in society. Therefore, the proposals are substantive, deriving from criminal law, as opposed to a major overhaul of institutional reform: self-regulation can continue but with closer, increased regulation by external public law.
In essence, the sophisticated interaction between internal sports law and external criminal law, as discussed in Chapter 5 in relation to unlawful violence, is the exact harmony that must be achieved in respect of acts of cheating. The difference between everyday, instinctive cheating traits, and illegitimate, contrived, dangerous acts of fraud is the line between internal discipline and criminal jurisdiction. Rather like implied consent applies to legitimate acts of causing injury in the course of playing, valid, heat of the moment, trivial matters of cheating must be allowed for, particularly in high-stake, vigorously competitive sports matches. However, the Fraud Act 2006 can proportionally punish and deter those who engage in pre-meditated, acts of cheating that warrant such criminal sanctions and can go some way to correcting the statement so often associated with sporting disputes ythat; “harsh cases make bad law”.
To blanket criminalise all acts of cheating in professional sport at this stage, would not only be difficult and beyond realistic possibility, it would also give way to criticism as a knee jerk government response to a moral panic fuelled by media speculation. The proposals conveyed in this discussion are not designed to criticise or pressure the government and are not suggested simply because cheating is taking place and escalating, as it has historically always occurred.
By extending the courts existing supervisory jurisdiction over sports proceedings, public criminal statute can be invoked to counter disproportional sentences and is the preferred option to issuing complex, uncertain sports specific legislation. For the first time, the Fraud Act 2006 offers the external, national legislation that covers the acts of violation of internal rules by assimilating them to acts of fraud. Taking advantage of the often criticised,broad scope of the Fraud Act 2006, the framework could be introduced into sport as the basis for combating and proportionally sanctioning cheating and striving for fair, equitable justice. The serious acts of cheating are analogous to fraud by misrepresentation, defined as:
“Dishonestly making a false representation, in fact or in law, that is untrue or misleading, with the intention to make a gain for himself or another or to cause loss or risk of loss to another. The representation is false if it is untrue or misleading and the person making it knows that it is or might be.”
This relatively new, flexible legislation has the effect of making every deliberate act in professional sport in England, Wales and Northern Ireland, considerable as fraud. Crucially, the legislation is conduct focussed and therefore, if all the necessary components are evident, liability is proved. The result of the fraud is immaterial. The legal guidance to the Act explains just how broadly the provisions can be applied. The application of these provisions to the specific issue of cheating in sport will now be addressed.
Firstly the representation can be express or implied therefore, it can be written, spoken or most likely in sport, communicated through conduct. This is the actus reus element to the offence, significant televised media attention would enable prosecution. The offender only has to make the representation, so for example, feigning injury in order to be substituted for strategic advantage, would be a potential misrepresentation. The second required element is that the representation is false; this is the men’s rea of the offence and the key to composing fraudulent liability. The representation will be deemed false if “it is untrue or misleading and the person making it knows that it is, or might be, untrue or misleading.” The burden of proof is with the courts to find actual knowledge that the misrepresentation is or might be untrue. In the examples of cheating and match-fixing, the intention to deceive was apparent in hindsight and with the benefit of television, could be proved with relative ease. The third required element is dishonesty, to which the subjective and objective components of the Ghosh test apply. This question is solely for the jury in the particular case. The fourth and final element to liability for fraud by misrepresentation is intention to cause gain and loss. Crucially, no gain or loss needs to have actually been made, so long as there is clear intention by the offender to do so. The gain or loss suffered extends to money and other property, including information. It is the changing nature of sport that allows for this particular provision to be invoked. As previously discussed, professional sport is now a profit-making business industry where participants compete to win and secure sponsorship, bonuses, international fame and recognition and substantial financial reward. It is fair to say that participants in professional sport have multiple motives for competition but it is ultimately the participants’ intention that is crux of fraud. The breadth of conduct now covered by the Act allows for matters of cheating to be considered, this in turn, allows for the extension of the supervisory jurisdiction of the national courts and public law legislation into the sporting arena. Issues of contract that prohibit judicial review intervention have no standing against the introduction of public law legislation.
In essence, it could therefore be an incredibly powerful and justified means of punishing the most serious acts of cheating and retribution will prevail. The potential success of criminal legislation as a deterrent to reduce cheating if greater risk is attached to such acts is also considerable justification. The sentences enforceable on those who commit fraud are tough, a maximum prison term of ten years and a fine. A discussion of the pros and cons of imprisonment is not intended, it is crucial to remember the justifications of public interest, justice and equality and applying uniform proportional punishments to acts performed in and outside the sporting arena. So, whilst the maximum punishment may be excessive and unjustifiable, it is postulated that it would be far more suitable and proportional for Briatore to be handed a short-term prison sentence for his abominable act of fraud, than a mere ban from the sport. Furthermore, in 2008, the precedent established by American jurisdiction, when the first major, international sportstar, Marion Jones, was imprisoned for 6 months following illegal substance abuse and subsequent deceit. The exact aim of introducing such legislation is to acknowledge this process; issuing proportionate sanctions that fit the crime, regardless of the status of the perpetrator or the context in which the act took place. In turn, the public demand for equality and justice is operationalised.
However, introducing the Fraud Act into sport has potential negative effects. Firstly the practical effect of juridification is one these: juridification defines the change from “intrinsically social relationships between humans within a social field becoming imbued with legal values and are understood as constituting legal relationships.” Essentially, social norms are now transformed into legal values and so, inadvertently, “a legal remedy is seen as the primary remedy”. The complex mix of legal and quasi-legal reform proposed, despite reflecting a more litigious society overall, can be dangerous to sport. Secondly, introducing legislation that carries a maximum sentence of ten years is very radical and open to criticism from those who criticise imprisonment as ineffective rehabilitation, unduly incapacitating and placing considerable strain on an already saturated public jurisdiction system.
The final potential negative effect is the possibility that if sports disputes become entangled in the national criminal courts, the case will become embroiled in heavy legal arguments surrounding causation and conflict of interests, slowing the case down significantly, when in fact simple jurisdiction may be required. However, it is noticeable that professional sports players already possess public law rights and remedies deriving from employment law, tortuous negligence and the doctrine of common law restraint on trade. These procedures favour the participant and relied upon as remedies to unfair sanctions or contract clauses, this mechanism provides evidence that the option for public legal intervention is already present. So it is not the novelty of public law intervention that could cause unrest, but in order to maintain cohesion the legislation must be carefully invoked into sport, alongside self-regulation to avoid confusion and disruption and so that the positive social aspects of sport still remain. So, the reform must anot conflict or directly compete with self-regulation, public law will merely overlap self-regulation on the discretion of the national courts, this complex arrangement, known as ‘legal pluralism’ could then prove very successful.
The benefits of sport are being destroyed by acts of complex fraud and therefore, law can successfully regulate if implemented correctly and efficiently. The most effective way to call upon criminal liability and proportionate legal regulation in sport is through a Crown Prosecution Service (CPS) policy document from the Department of Public Prosecutions (DPP). This is with the intention of having a similar effect as the interim policy issued on assisted suicide, another hazy area of criminal liability in a social arena. The statutory legislation already exists, therefore, the guidelines will endeavour to detail the circumstances to which the legislation is applicable and where exceptions will be made. This could simply be formulated to aid the national courts with the extenuating factors relevant to criminal liability of fraud in sport; in particular the difference between spontaneous, instinctive rule-breaking in the field of play and pre-meditated roguery designed to corrupt fair competition. Incorporating the requirement for the courts to ask; ‘would the perpetrator be liable for statutory fraud if the same act was performed outside the sporting arena?’ is integral. This will determine if the act is sufficiently serious to be equivalent to fraud and punishable. This published guidance would prevent the law becoming the primary punitive remedy and intend to give guidance to participants, coaches, clubs and sports governing bodies on what will be unacceptable circumstances liable for criminal prosecution.
The notorious case of Fallon v Horse Regulation Authority (HRA) provides an example of where the national courts have exercised supervisory jurisdiction in a case of sporting fraud. Fallon faced trial for conspiring to defraud the betting company, Betfair, by deliberately placing bets on horses which he rode, the HRA banned Fallon from competition until the trial had concluded, which led to yet more failed attempts at invoking judicial review. The eventual, incredibly costly trial collapsed due to insufficient evidence, relations had soured between the CPS and HRA, both blaming each other for failing to investigate matters fully. The CPS have shown an increasing willingness to engage in frequent lengthy investigations into corruption in sport. With the clear proposals outlined above, the supervisory jurisdiction of the national courts becomes obligatory jurisdiction over incidents of fradulent acts of cheating and the approach is significantly more unambiguous.
Conclusion
Is it recognised that imposing blanket criminal sanctions on those who break internal rules is too heavy-handed and it has proven to be an impossibility to criminalise ‘cheating’ per se. The proposals outlined are radical and far-reaching and in serious cases of cheating, England, Wales and Northern Ireland could set the exemplar sentences the rest of the sporting world urgently requires
There is a reason for the paucity of literature in this field of judicial reform, precisely because there is no real harmony between sport and the law with both jurisdictions very reluctant for mutual involvement. Undoubtedly the proposals will invoke reluctance and concern that disputes could be adjudicated by judges who are insufficiently cognisant of the environment of sport and yet possess the power to enforce severe sanctions.
Nevertheless the impact of sport on every aspect of society is undeniable. There is sufficient justification beyond mere legal moralism, through the means of public interest, proportionality of sanctioning and the overarching need for fair and equal justice that criminal intervention is required. With the protective measures accompanying the invocation of the Fraud Act 2006, the most destructive acts of cheating can be targeted successfully and effectively from the secondary regulatory position.
