1. Introduction
1. At their 1194th meeting
(12-14 March 2014), the Ministers’ Deputies decided to transmit
to the Parliamentary Assembly, for opinion, the draft Council of
Europe Convention on the Manipulation of Sports Competitions (hereafter
“the draft convention”).
2. At its meeting on 11 March 2014, the Committee on Culture,
Science, Education and Media appointed me as rapporteur, anticipating
the expected reference to the committee. On 7 April 2014, the Assembly
referred the Committee of Ministers’ request for opinion to our
committee for report.
3. The Assembly was involved in the work on the draft convention
via its current President, Ms Anne Brasseur, who, until December
2013, was rapporteur on “The need to combat match-fixing”.
2. General
assessment of the draft convention
5. In its
Recommendation
1997 (2012), the Assembly called on the Committee of Ministers to
“support the work being done by the members of the Enlarged Partial
Agreement on Sport (EPAS) on the drafting of a European convention
on match-fixing, based on Recommendation CM/Rec(2011)10”, and emphasised
the urgency of such a convention.
6. The Drafting Group carried out a difficult task in a relatively
short time frame, while allowing itself time to listen to the various
partners in order to take account of their respective, and occasionally
divergent, requirements.
7. In order to assess whether the future convention is an appropriate
response to the need for an international instrument making it possible
to combat effectively the manipulation of sports competitions, there are
three parameters which are of particular importance: the scope of
the convention, the co-operation it seeks to develop between States
and the other stakeholders, and the harmonisation of national legislation
and practices that it calls for. These aspects are analysed in greater
detail below.
2.1. The scope: the
concept of “manipulation of sports competitions”
8. In dealing with such a complex subject, the first
hurdle was to find agreement on the scope of the future convention.
A narrow definition of the “manipulation of sports competitions”
could have weakened both the scope and the effectiveness of the
convention. This did not happen. The preamble of the draft convention states
that “the manipulation of sports competitions may be related or
unrelated to sports betting, and related or unrelated to criminal
offences, and … should be dealt with in all cases”.
9. In line with this statement of principle, according to Article
3.4: “‘Manipulation of sports competitions’ means an intentional
arrangement, act or omission aimed at an improper alteration of
the result or the course of a sports competition in order to remove
all or part of the unpredictable nature of the aforementioned
sports competition with a view to obtaining an undue advantage for
oneself or for others.”
10. This definition covers all practices – individual, collective,
positive or negative – intentionally aimed at improperly influencing
the uncertainty inherent in sport, with a view to obtaining an undue
advantage for oneself or others. This is the outcome we were anticipating.
Moreover, Article 3 provides a clear definition of other key terms
which could be open to debate, such as sports competition, sports
betting (detailing the concepts of illegal sports betting, irregular
sports betting and suspicious sports betting) and inside information.
2.2. Strengthening co-operation
between stakeholders
11. In the report on “The need to combat match-fixing”,
the rapporteur, Ms Brasseur, had emphasised the need for broader
and closer co-operation between all stakeholders. Co-operation is
the keyword of the draft convention.
12. It refers, first of all, to co-operation between States, which
is essential to combat the criminal organisations which operate
at transnational level, including via the Internet. The manipulation
of sports competitions, the Preamble asserts, constitutes a global
threat, and as such “needs a global response which must also be
supported by States which are not members of the Council of Europe”.
13. I unreservedly concur with this analysis and welcome the fact
that the future convention will be open for signature and ratification
by the European Union and the non-member States which took part
in its drafting
or enjoy
observer status with the Council of Europe, and that other States
will be able to accede on the invitation of the Committee of Ministers.
In this respect, I believe that we should encourage our governments
to actively seek the involvement of countries such as the United
States and China. Indeed their participation in the convention mechanisms
would considerably strengthen the latters’ effectiveness.
14. The draft convention also refers to co-operation, both at
international and State level, between the public authorities and
other stakeholders: sports organisations, competition organisers
and sports betting operators.
15. Co-operation with sports organisations should be based on
the principle of the autonomy of sport, the responsibility of sports
organisations and the obligation incumbent on States to protect
the integrity of sport.
16. In this regard, the Preamble of the draft convention acknowledges
that “in accordance with the principle of the autonomy of sport,
sports organisations are responsible for sport and have self-regulatory
and disciplinary responsibilities in the fight against manipulation
of sports competitions, but that public authorities protect the
integrity of sport, where appropriate”. It adds that “sports organisations
bear the responsibility to detect and sanction the manipulation
of sports competitions committed by persons under their authority”.
17. Article 1.1 of the draft convention states that: “The purpose
of this Convention is to combat the manipulation of sports competitions
in order to protect the integrity of sport and sports ethics in
accordance with the principle of the autonomy of sport.”
18. This approach reflects the position expressed by the Assembly
in
Resolution 1875 (2012) on good governance and ethics in sport: “Intervention
by States … must allow for the need to preserve the autonomy of
the sports movement, but also for the need to ensure that this autonomy
does not become an excuse for failure to react to the abuses eroding
sports ethics and to acts covered, or which should be covered, by
criminal law.”
19. The Preamble also underlines the essential link between co-operation
and the effective combating of the problem: “[A]n effective fight
against the manipulation of sports competitions requires increased,
rapid, sustainable and properly functioning national and international
co-operation”; and “dialogue and co-operation among public authorities,
sports organisations, competition organisers and sports betting
operators … are essential in the search for effective common responses
to the challenges posed by the problem of the manipulation of sports
competitions.”
20. Accordingly, in order to achieve its objective, the convention
seeks “to promote national and international co-operation against
manipulation of sports competitions between the public authorities
concerned, as well as with organisations involved in sports and
in sports betting” (Article 1.2.b).
21. This statement of principle is then expanded upon in several
specific provisions on the substance and mechanisms of co-operation.
Co-operation is a central theme of Chapters II, IV and VII of the
draft convention, relating respectively to “Prevention, co-operation
and other measures”, “Substantive criminal law and co-operation
with regard to enforcement”, and “International co-operation in
judicial and other matters”. In addition, Chapter III deals with
“Exchange of information”, which underlies all collaboration.
22. There are two provisions relating to co-operation to which
I would like to draw attention:
- With
regard to the offences relating to manipulation of sports competitions
covered by the convention, Article 26 provides that: “The Parties
shall co-operate with each other … to the widest extent possible for
the purposes of investigations, prosecutions and judicial proceedings
…, including seizure and confiscation” (Article 26.1) and “extradition
and mutual assistance in criminal matters” (Article 26.2);
- Article 28 stipulates that: “Each Party, in accordance
with its domestic law, shall co-operate with international sports
organisations in the fight against the manipulation of sports competitions”.
23. Accordingly, the draft convention provides a satisfactory
response to the requirement to promote co-operation, while at the
same time allowing Parties room for manoeuvre, making it possible
to take account of national specific features and complying with
the principle of the autonomy of sport.
2.3. Harmonisation of
legislation and national practices
24. Co-operation in combating the manipulation of sports
competitions could be weakened by an excessive disparity between
the Parties’ legislation and the practical arrangements concerning
its enforcement. In this regard, the draft convention contains a
series of provisions which, by calling for the adoption of legislative
or other measures to achieve certain specific results, should encourage
closer alignment of the Parties’ national legislation and practices,
without however demanding total uniformity.
25. The most important provisions are doubtless those contained
in Chapters V (Jurisdiction, criminal procedure and enforcement
measures) and VI (sanctions and measures). I shall return later
to some of these provisions. Nonetheless, I should at this stage
underline the fact that despite having some reservations, resulting
from the cautious wording of certain provisions, I believe the draft
convention comprises a number of significant advances.
26. In particular, it requires Parties to establish as criminal
offences:
- the manipulation
of sports competitions when it involves either coercive, corrupt
or fraudulent practices (Article 15);
- the laundering of the proceeds of the manipulation of
sports competitions (Article 16);
- the aiding and abetting of the manipulation of sports
competitions (Article 17).
27. Other key provisions deal with:
- establishing the jurisdiction of Parties (Article 19);
- corporate liability (Article 18);
- the provision of dissuasive sanctions (Articles 22 to
25);
- the protection of personal data (Article 14);
- measures to secure electronic evidence (Article 20).
28. It should also be pointed out that, indirectly, the convention
seeks to define the minimum obligations for partners, or the obligations
which the Parties should impose on them. For example, Article 16.3
provides that: “Each Party shall consider including the manipulation
of sports competitions in its money laundering prevention framework
by requiring sports betting operators to apply customer due diligence,
record keeping and reporting requirements.”
29. Future Parties to the convention shall adapt, if necessary,
their legislation before the convention enters into force in their
respect. Of course, it is not possible to set a time frame, but
I propose urging our governments to proceed swiftly with the adaptation
process – and the ratification.
30. Lastly, the draft convention calls on Parties to “integrate
… the prevention of and the fight against the manipulation of sports
competitions into assistance programmes for the benefit of third
States” (see Article 27). It seems to me that the Council of Europe
has a key role to play here and there should be targeted co-operation programmes
to support Parties wishing to benefit from the Council of Europe’s
expertise in order to reform their systems. I therefore propose
that a recommendation in this regard be drafted.
31. In its
Resolution
1876 (2012), the Assembly addressed specific recommendations to
member States regarding prevention, detection and sanction mechanisms.
It is important to verify the extent to which these are taken into
account by the provisions in the draft convention.
3.1. Prevention measures
32. With regard to prevention,
Resolution 1876 (2012) contains two specific recommendations:
- ensure the introduction of training
and awareness-raising programmes for young amateur and professional
sportspeople (paragraph 6.4);
- prohibit betting on those competitions most vulnerable
to attempted corruption, and in particular youth competitions (for
sportspeople aged under 18), amateur competitions and, for some
sports such as football, lower-division professional competitions
(paragraph 6.5).
33. The draft convention contains several provisions dealing with
prevention, two of which relate directly to the above recommendations.
34. Article 6.1 provides that: “Each Party shall encourage awareness-raising,
education, training and research to strengthen the fight against
manipulation of sports competitions.” The verb “encourage” implies
a “weak commitment”. Cautious wording may be justified since awareness
raising, education, training and research have to be developed in
co-operation with the other partners and require a financial effort.
It is worth noting that this provision is supplemented by others,
including Article 7.2.d. However, training
and awareness-raising programmes for young sportspeople are not
explicitly mentioned. Therefore, I propose to strengthen in this
direction paragraph 72 of the explanatory report (which relates
to Article 6) and Article 7.2.d of
the draft convention.
35. Article 9 provides that each Party shall identify one or more
authorities “entrusted with the implementation of sports betting
regulation and with the application of all relevant measures to
combat the manipulation of sports competitions in relation to sports
betting”. Among these measures, the draft convention refers to “the
limitation, where appropriate, of the supply of sports betting,
following consultation with the national sports organisations and
sports betting operators, particularly excluding sports competitions:
- designed for those under the
age of 18; or
- where the organisational conditions and/or stakes in sporting
terms are inadequate”.
36. This provision is perhaps not as ambitious as the Assembly’s
recommendation, but it is clearly along the same lines and covers
its main thrust. The Convention Follow-up Committee (see section
4 below) will have an important role in clarifying the criteria
restricting the supply of sports betting. However, the list of measures in
Article 9.1 is introduced by “such as”. This could lead to the interpretation
that the Parties can consider relevant only some, or none, of the
measures listed. Such an interpretation should be avoided. Therefore,
I propose recommending that the words “such as” be replaced with
“including in particular”.
37. The need to improve prevention is taken into account by other
provisions, particularly with regard to preventing conflicts of
interest.
38. For example, Article 7 of the draft convention provides that
each Party shall encourage sports organisations and competition
organisers to adopt rules and principles of good governance in order,
amongst other things, to:
- prevent
conflicts of interest (prohibiting competition stakeholders from
betting on sports competitions in which they are involved; prohibiting
the misuse or dissemination of inside information);
- raise awareness among competition stakeholders of the
risk of manipulation of sports competitions and the efforts to combat
it, through education, training and the dissemination of information;
- ensure the appointment of relevant officials for a sports
competition, in particular judges and referees, at the latest possible
stage.
39. In addition, Article 10.1 provides that “Each Party shall
adopt such legislative or other measures as may be necessary to
prevent conflicts of interest and misuse of inside information by
natural or legal persons involved in providing sports betting products”
and makes specific reference to certain situations of conflict of interest
on which particular attention must be focused.
40. Lastly, surveillance measures and sanctions, which I will
discuss in the following sections, also have a key dissuasive role.
3.2. Surveillance and
detection
41. With regard to surveillance and detection mechanisms,
in
Resolution 1876 (2012), the Assembly recommended that member States:
- establish a national betting-regulatory
authority in every country and consider setting up in each country an
“integrity of sport” monitoring centre and a “sports betting” working
group, with a view to Europe-wide networking of information (paragraph
6.6);
- work with national and international betting operators
to introduce effective procedures for detecting suspicious betting
(paragraph 6.10).
42. The draft convention satisfies if not exceeds expectations.
In particular, not only does Article 9 of the draft convention require
each Party to appoint one or more sports betting regulatory authorities,
but, in addition, Article 13.1 provides that “Each Party shall identify
a national platform addressing manipulation of sports competitions”.
43. This platform should serve as an information hub and carry
out key tasks, in particular with regard to managing the flow of
information between partners, sounding the alert, co-ordinating
the fight against the manipulation of sports competitions and ensuring
co-operation at national and international level.
44. It should also be noted that under Article 10.3 “Each Party
shall adopt such legislative or other measures as may be necessary
to oblige sports betting operators to report irregular or suspicious
betting without delay to the betting regulatory authority, the other
responsible authority or authorities, or the national platform”.
3.3. Prosecution and
sanctions
45. With regard to the prosecution procedures and sanctions
applicable in the manipulation of sports competitions,
Resolution 1876 (2012) called on member States to:
- develop, in co-operation with sports institutions, appropriate
rules and mechanisms to ensure that any disciplinary penalties imposed
by federations’ committees and any criminal law penalties for corruption are
a sufficient deterrent and are effectively applied (paragraph 6.7);
- promote mutual recognition of criminal, administrative,
disciplinary and sports penalties by States and sports federations
(paragraph 6.8);
- ensure co-operation between judicial authorities and national
and international police to enhance the effectiveness of investigations
into and the prosecution of match-fixing cases (paragraph 6.9).
46. Here the draft convention directly impacts on the competences
of States in criminal law matters. When analysing the question of
harmonising national legislation, I already mentioned a number of
central provisions, but it would be helpful to look at them in greater
detail.
47. As the explanatory report makes clear, the draft convention
does not place an obligation on Parties to introduce into their
respective legal systems a harmonised special criminal offence relating
to the manipulation of sports competitions. Nonetheless, Parties
must ensure that practices falling within the concept of the manipulation
of sports competitions are covered appropriately in their criminal
law and must therefore identify the acts which will be prosecuted
in this connection; this is a precondition for the effectiveness
of judicial and police co-operation between Parties.
48. In this regard, the draft convention refers specifically to
instances of manipulation which involve either coercive, corrupt
or fraudulent practices (Article 15), the intentional aiding and
abetting of such practices (Article 17) and the laundering of the
proceeds of these offences (Article 16).
49. Parties are also asked to establish the corporate liability
of legal persons where the offences in question are “committed for
their benefit by any natural person, acting either individually
or as a member of an organ of the legal person, who has a leading
position within the legal person” (Article 18). This provision is
of major importance since if corporate liability were not established,
and bearing in mind the separation of their assets, organised crime
would continue to prosper behind the screen of these entities.
50. The system that is envisaged seeks to reconcile the need for
a common framework and States’ room for manoeuvre. In my view, the
Drafting Group has achieved an acceptable balance. Nonetheless,
in paragraph 5.3.4 of
Recommendation
1997 (2012), we called on the Committee of Ministers to define “a
minimum framework in order to establish sports fraud as a criminal
offence in different countries”. The provision in the Parties’ legal
systems of a special harmonised offence would facilitate collaboration
between States and between the public authorities and the other
stakeholders. I would therefore suggest that the Convention Follow-up
Committee (see section 4 below) be explicitly tasked with drawing
up model provisions, whose introduction into the national legal
systems would nonetheless remain optional.
51. The draft convention anticipates a range of criminal, administrative
and disciplinary sanctions which satisfy our expectations. In particular:
- Article 22 calls for criminal
sanctions against natural persons to be “effective, proportionate
and dissuasive”, and they should include monetary sanctions and
penalties involving deprivation of liberty that may give rise to
extradition;
- Article 23 has a similar wording relating to sanctions
against legal persons;
- Article 25 calls for Parties to provide for the seizure
and confiscation of both the goods, documents and other instruments
used, or intended to be used, to commit the manipulation, and the
proceeds of the offence or property of a value corresponding to
those proceeds.
52. I feel it is important to express an opinion on the Drafting
Group’s decision to include in the draft the question of combating
illegal sports betting. Some quarters were somewhat reluctant and
others made a point, including before the Committee of Ministers,
of expressing their strong reservations with regard to the provisions
of the draft convention in this respect. Personally, I believe that
the Drafting Group’s decision was not only perfectly justified but
also indispensable. There would be no sense in addressing legal
sports betting and ignoring illegal betting, or in seeking the co-operation
of betting operators working in full transparency and in compliance
with the law, and leaving the others to act with impunity.
53. In contrast, I believe that in attempting to overcome the
reluctance shown by some members, the Drafting Group ended up with
a provision that accomplishes little. Here, I refer to Article 11.1
of the draft convention which stipulates that “each Party shall
explore the most appropriate means to fight operators of illegal
sports betting and shall consider adopting measures, in accordance
with the applicable law of the relevant jurisdiction”.
54. With regard to the fight against illegal betting, it is difficult
to understand why the Parties should not accept a firmer commitment
than agreeing to “explore”, a vague term which ultimately places
no obligation of result. We would like to see Parties adopt and
implement appropriate measures. One should therefore propose a different
wording stipulating that each Party “shall adopt effective measures” such
as those listed subsequently in the same article.
55. Lastly, there is a loophole in the system: the fact that a
Party may declare that it reserves the right not to establish its
jurisdiction (or to do so only in specific cases or conditions)
where an offence covered by Articles 15 to 17 is committed “by a
person who has his or her habitual residence on its territory” (see
Article 19.2 in conjunction with Article 19.1.e).
56. The explanatory report states that this therefore covers “the
case of foreign athletes having their habitual residence in one
country who commit criminal acts during competitions taking place
in other countries”. I note that such cases often concern top-level
sportspeople.
57. I cannot see any reason to provide a sort of impunity for
sportspeople who cheat, by foregoing the jurisdiction to prosecute
them and I find it quite simply absurd that one should allow people
to slip through the net by making it possible for not only unscrupulous
sportspeople but also any other person with ill intentions to settle
– and in particular set up shell companies – on the territory of
a State which had not established jurisdiction in respect of them
for offences relating to the manipulation of sports competitions
committed in another country. This absence of jurisdiction would,
in addition, weaken the effectiveness of the rule “aut dedere, aut judicare” (extradite
or prosecute) provided for in Article 19.3. I therefore propose
that Article 19.2 be deleted.
4. Monitoring mechanism
58. To ensure the effective implementation of the convention,
the draft provides for the setting up of a “Follow-up Committee”
composed of representatives of the Parties.
59. Article 30.3 provides that “The Parliamentary Assembly of
the Council of Europe, as well as other relevant Council of Europe
intergovernmental or scientific committees, shall each appoint a
representative to the Convention Follow-up Committee in order to
contribute to a multisectoral and multidisciplinary approach”, without
the right to vote. This allows for the regular participation of
bodies such as the Group of States against Corruption (GRECO) and
the European Committee on Crime Problems (CDPC).
60. Furthermore, it is foreseen that the Follow-up Committee may
invite, by unanimous decision, any State which is not a Party to
the convention, or any international organisation or body to be
represented at its meetings as an observer. In this way it could
benefit from the expertise and experience of organisations already involved
in the fight against the manipulation of sports competitions or
other relevant activities.
61. The terms of reference of the Follow-up Committee are listed
in Article 31 of the draft convention. It will be able, amongst
other things, to “make recommendations to the Parties concerning
measures to be taken for the purposes of this Convention, in particular
with respect to international co-operation” (Article 31.2.b) and also to make recommendations
on highly technical matters, such as on the criteria relating to
the restriction of the supply of sports betting and the criteria
for defining irregular and suspicious sports betting (Article 31.2.c). The text suggests that tasks
are not compulsory: the Follow-up Committee “may” perform them.
This is acceptable, except for the one mentioned in Article 31.2.a. The adoption and updating of
the lists of sports organisations is clearly a pre-condition for
the effective implementation of the convention. Therefore we should recommend
redrafting Article 31.2 so that it provides that the Follow-up Committee
“shall” adopt and modify this list.
62. The Follow-up Committee will also be responsible for keeping “relevant
international organisations and the public informed about the activities
undertaken within the framework of this Convention” (Article 31.2.d). Lastly, it should be pointed
out that this Committee will be able to carry out visits to the
States Parties, subject to their agreement (Article 31.4).
63. Article 30.6 provides that: “The Convention Follow-up Committee
shall be assisted by the Secretariat of the Council of Europe in
carrying out its functions.” It will therefore be essential to see
to it that sufficient resources are allocated for this purpose and
ensure that the effectiveness of the mechanism is not undermined by
a lack of resources.
64. Finally, Article 29 states that: “Each Party shall forward
to the Secretary General of the Council of Europe, in one of the
official languages of the Council of Europe, all relevant information
concerning legislative and other measures taken by it for the purpose
of complying with the terms of this Convention.” The draft does not
stipulate the frequency of these reports, but the explanatory report
states that the Follow-up Committee may specify the type of information,
frequency and methods of gathering information.
5. Concluding remarks
65. The Drafting Group has produced excellent work. We
should congratulate it and ask for the speedy conclusion of its
work and the opening for signature and ratification of the convention,
if possible before the end of 2014.
66. Accordingly, we must ensure that our proposals do not provide
a pretext to slow down the process. Nonetheless, I feel it is important
to draw the attention of the Committee of Ministers to a number
of provisions which warrant reconsideration in order to strengthen
the anticipated system. I have included my proposals in this connection
in the draft opinion. I have also added some proposals for some
amendments of a technical nature which I would consider useful.
67. Above all, it is essential to ensure that the Committee of
Ministers, under the pressure of certain recalcitrant States, does
not give in to the temptation to go back on certain solutions. We
must therefore underline the importance we attach to the anticipated
commitments and recommend that they are reviewed only insofar as
this will strengthen them and under no circumstances dilute them,
as this would be detrimental to the effectiveness of the system.