SPOT-FIXING
Opinion: Spot-fixing scandal:
The role of the ICC
Like many cricket lovers, I've
followed the recent spotfixing
scandal with mixed emotions:
sadness, shock, and hope that this
might be the key turning point in the
battle against corruption faced by
cricket and many other sports.
World Online Gambling Law Report - December 2011
The media's condemnation of the
jailed players - Salman Butt,
Mohammad Asif and Mohammad
Amir, and their agent Mazhar
Majeed - has been relatively
consistent. However, its coverage of
the role played by the International
Cricket Council (ICC) and its
Anti-Corruption and Security Unit
(ACSU) reflects a degree of
misunderstanding.
Events at Southwark Crown
Court have reminded us that
sports corruption is an organised
international criminal enterprise
which goes beyond the jurisdiction
of any sports governing body and
that sport needs the support of
national legislators and
international enforcement
authorities in fighting it. The ICC's
role in this battle has three key
aspects: education, detection, and
enforcement.
Educating players is the
foundation of any integrity
initiative. Under the ICC's AntiCorruption Code, both the ICC
and the national cricket boards
have a responsibility to promote
awareness and education amongst
all players and support personnel.
All top level international
cricketers already pass through the
ACSU's education programme.
However, Amir's case - in
particular - shows the importance
of educating promising players at a
young age, before they are
recognised at international level. It
is the national cricket boards who
are best able to do that and to
tailor programmes to address any
country-specific risks. The ICC can
and does encourage them to
address that issue, but the boards
ultimately remain autonomous.
Players' associations (where they
exist - there isn't one currently in
Pakistan) should also be well
placed to assist national boards and
the ICC in formulating and
delivering education programmes,
as they may have closer day-to-day
relationships with the players. This
is an area where it is in the interests
of all parties to work together.
However, even the best education
programme is unlikely to prevent
every player from engaging in
corruption. The twin deterrents of
a high likelihood of being caught
and the severity of the punishment
are critical.
Detecting corruption and
obtaining evidence of it, is by far
the most difficult area for the ICC
and for all sports governing bodies.
Sanctions against players must be
supported by sufficient evidence.
The fact that it was a newspaper
sting - rather than the ACSU which caught Butt, Amir, Asif and
Majeed has been a source of
criticism of the ICC. The ICC was
not, however, ignorant of the
problem. The inference is that the
ACSU suspected what was going
on and who the perpetrators were,
but hadn't compiled sufficient
evidence to bring a case. So should
the ACSU conduct stings against
players? That would be comparable
to WADA offering athletes drugs.
Lord Condon, the former head of
the ACSU, has stated that the
ACSU rejected the idea because the
laws of entrapment would make
prosecution harder and it would
weaken the educational message
that approaches from fixers are
real. Perhaps Steve Waugh's
proposal for using lie-detector tests
to assist in detection and to
provide a deterrent, is not as
outlandish as it may appear, being
the closest thing there is to a drug
test for corruption.
Ultimately, however, successful
prosecution is likely to require
evidence obtained from
undercover investigations and/or
detailed analysis of phone records
and financial transactions. That is
the kind of evidence which
criminal law enforcement agencies
such as Interpol are best placed to
obtain, rather than a sports
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SPOT-FIXING
governing body.
Something else which can help
with the detection of corruption is
the proper regulation of gambling.
In India and elsewhere in Asia,
where the majority of cricket
betting appears to take place,
gambling is generally an illegal and
unregulated activity. There is,
therefore, no visibility or reporting
of suspicious betting patterns.
The ICC has been criticised in
some quarters for the leniency of
the bans handed out to Butt (10
years, five suspended), Asif (seven
years, two suspended) and Amir
(five years). The ICC's AntiCorruption Code allows for a life
ban to be imposed for corruption
and it has been reported that the
ICC pushed for the maximum
bans. However, to ensure fairness
in the process, the case was heard
by an independent tribunal led by
Michael Beloff QC. The length of
the bans was decided upon by that
tribunal - and, ultimately, its
findings were consistent with those
of the criminal court in terms of
the guilt and relative culpability of
the three players.
What really shook the cricket
world, however, was not the bans
imposed on the players, it was the
fact they were put behind bars. For
that deterrent to exist, sports
corruption must constitute a crime
under national laws. In this case,
cricket can be thankful for Great
Britain's Gambling Act 2005,
which regulates gambling and
makes cheating an offence for
which the players were convicted.
And both Australia and Pakistan
have recently announced plans to
criminalise sports corruption.
That is also the only way in which
Ultimately,
however,
successful
prosecution
is likely to
require
evidence
obtained
from
undercover
investigations
and/or
detailed
analysis of
phone
records and
financial
transactions
the fixers behind sports corruption
- typically illegal gamblers - can be
caught, as they fall outside the
jurisdiction of any sports
governing body. Whilst the ICC
can consider (and is considering)
regulating agents as well as players,
national laws must enable all of the
parties behind sports corruption to
be brought to justice.
After cricket's previous matchfixing scandal of a decade ago, the
ICC put in place - and has
maintained - one of the leading
anti-corruption regimes in sport.
Let's hope that this latest case
enhances the resolve of national
legislators and enforcement
authorities to assist sports
governing bodies in fighting
corruption.
Andrew Danson Senior Associate
K&L Gates LLP, London
andrew.danson@klgates.com
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World Online Gambling Law Report - December 2011