First published in Legal Week, 10 December 2009.
In their 2005 book, Freakonomics, economists Steven D Levitt and Stephen J Dubner argued that sumo wrestling, that most noble and ancient Japanese sport, was riddled with corruption. They analysed data from 32,000 bouts over 11 years and controversially concluded that a considerable number of those bouts had been rigged, in each case with one wrestler having agreed to ‘tank’ or take a dive to let his opponent win (in return for a reciprocal gesture at their next meeting).
Shocking stuff, or is it? Are we really surprised when sports stars cheat, or are we in fact now coming to expect it because everyone is at it? Chicago Cubs baseball star, Mark Grace, is reported to have said, ‘if you’re not cheating, you’re not trying.’ Whether or not cheating is becoming more commonplace, we certainly should have little trouble understanding why it happens – the financial incentives alone (never mind the glory – however hollow) make it easy for us all to see how elite athletes and management are sometimes tempted to break the rules, whether by trying to win illegitimately or – like the sumo wrestlers - by trying to lose. The Sun reported that what it called Thierry Henry’s ‘hand of frog’ (his blatant handball in last month’s World Cup qualifier between France and Ireland, which allowed France to score and win the match) will add about £1 billion to the French economy and will cost the Irish economy about £100 million. That is a big carrot and stick.
Cheating has been high on the agenda in sporting circles over the last few months. Not, as it happens, for doping scandals, but rather for arguably more dramatic types of illegitimate activity. In September, before the World Motor Sport Council, Nelson Piquet Jr exposed the astonishing conspiracy between him and his (Renault) team management that resulted in him deliberately crashing his car at the 2008 Formula One Singapore Grand Prix. And this came hot on the heels of the misconduct complaints brought by ERC against one of its participating clubs, Harlequins, the club’s director of rugby Dean Richards, player Tom Williams and others for fabricating a blood injury at a Heineken Cup quarter-final in April in order to allow another player, Nick Evans, to take to the field and attempt a match-winning drop goal in the dying stages of the match. As a result of these cases, so-called ‘crashgate’ and ‘bloodgate’, respectively, some significant sanctions were imposed, including effectively a lifetime ban from motorsport for Renault’s team principal, Flavio Briatore (which is the subject of a challenge in the French courts), and a three-year worldwide ban from rugby activity for Dean Richards. And only last month UEFA announced that it is continuing investigations into seven Champions League and Europa League fixtures from July and August that are suspected to have been the subject of match-fixing.
Certainly, 2009’s summer of discontent has been unedifying, and has led to much soul-searching and hand-wringing among sports governing bodies. And understandably so: integrity, fair play and uncertainty of outcome are fundamental to sport, more important than headline-grabbing qualities like physical prowess, technical ability and teamwork, and so the impact of cheating scandals can be significant. That impact can be commercial: ING and Mutua Madrilena immediately withdrew their respective Renault sponsorships when the ‘crashgate’ story unfolded, seemingly knocking several millions of dollars off the team’s income stream. Similarly, television ratings tumbled for the Tour de France in 2006 when it was rocked by a series of doping cases. But the impact can be felt in other ways too, including in the future growth of a sport. Ask any international sports federation or national governing body and it will say (quite truthfully) that it cares passionately about nurturing the next generation of participants, making sure it is that particular sport in which mums and dads encourage their little Lewis, Jonny or Serena to participate, so that the sport grows at grassroots level and new champions emerge from a wider talent pool. That growth is put at risk when cheating is exposed.
Some may argue differently, that a few cheating scandals can in fact have a positive effect on a sport, adding to the ‘X factor’ and putting bums on seats. After the bloodgate case, Harlequins’ Chief Executive, Mark Evans, was quoted as saying that ‘there are things that go on in all sports behind the scenes, that's why people find it compelling.’ That is probably a marginal view, shared by few in sport. Perhaps a more persuasive argument might be that while cheating is undeniably bad for sport, it is too easy and lazy to lump all forms of cheating together and condemn the lot in the same way. In other words, it could be said that there are gradations of cheating so that, for example, instinctive, un-premeditated on-field actions of one individual (like Thierry Henry’s handball) are less insidious than pre-planned carefully-orchestrated conspiracies (like Nelson Piquet Jr’s crash), and that cheating to lose is usually a graver act than cheating to win.
Assuming that there is some degree of consensus that cheating is a ‘bad thing’ (even if there is a sliding scale of impropriety), the real question then becomes: what can be done about it? That is a complex issue, but the answer has to include federations and governing bodies continuing to educate and communicate their membership, so that participants fully understand what is expected of them and why. There must also be a firm regulatory structure, to get to those participants whom the education and communication don’t reach. In order to function against cheating, sporting regulations have to be robust and at the same time flexible. They have to establish jurisdiction for the appropriate authority over all relevant participants, outlaw the relevant misconduct and allow for detailed investigations where such misconduct is alleged. They have to provide for fair and transparent procedures when charges are laid, and permit impartial decision-makers to impose meaningful but proportionate sanctions when charges are upheld.
Sports betting poses particular risks for sports because of the dangers of matches (or events within matches) being manipulated, and regulators must consider whether and how to deal with such risks within the rules that govern participation (for example, outlawing a player betting on matches or competitions in which he is participating; the FA’s rules do just that and were relied on in a number of cases brought by the FA in July 2009 against Accrington Stanley FC players for betting on the result of Accrington’s Football League 2 match against Bury FC in the previous season). In June of this year, the Department of Culture Media and Sport announced the establishment of a Sports Betting Integrity Panel to be chaired by former Liverpool FC Chief Executive, Rick Parry, and to include representatives from sport, the gambling industry and the police, to develop a strategy to uphold integrity in sports betting, which is likely to include the incorporation by the sports authorities of regulations governing betting by participating players and management.
But regulations alone won’t combat cheating; the relevant sporting authorities need to have the necessary will to enforce them. Federations and governing bodies have to be prepared to investigate and prosecute suspected wrongdoing, even if that means some short term pain, like the loss of sponsors or star teams/players being suspended or withdrawn. Turning a blind eye is not a realistic alternative. The long-term price of soft-pedalling cases or covering up is usually going to be much more costly. Of course, bringing proceedings against those that cheat will not always be straightforward: along the way lawyers or administrators will find something to disagree about, be it the facts of a case, the interpretation of regulations, the extent of jurisdictional reach, the merits of ‘plea-bargaining’ or the leniency or severity of sanction. But if cheating in sport is to be kept at bay, there has to be a steady and firm line held by those in charge.
Take the bloodgate case as an example. It would have been very easy for ERC to consider the allegations and then not proceed with them on the basis that it was going to be a very hard case to prove (after all, everyone concerned vehemently denied any wrongdoing), there was a risk that the tournament and the sport would suffer negative publicity whatever the result, and no harm actually came from the incident (Nick Evans missed the drop goal and so Harlequins lost the match anyway). But instead ERC brought the proceedings, defended the various legal challenges that were made along the way (on, for example, the jurisdiction of the tribunals, the admissibility of evidence, the right to call certain witnesses, the interpretation of the regulations and the proportionality of sanctions) and ultimately exposed the truth.
This has undoubtedly been a tough year for sporting integrity, but the industry has not shirked its responsibility – it has taken on difficult cases, put its regulations to the test, identified wrongdoing and dealt with the perpetrators. If players, spectators, sponsors and broadcasters are going to continue their love of, and faith in, sport (as well as maintaining their commercial investments), that is the only viable approach.
Max Duthie is a partner in the sports group at Bird & Bird LLP. He prosecuted the misconduct complaints against Harlequins and others in the ‘bloodgate’ case and advises ERC, Six Nations, the International Cricket Council, World Snooker and others on their respective regulations and disciplinary procedures.