Prof. Avv. Lucio Colantuoni

Transcription

1 Prof. Avv. Lucio Colantuoni UNIVERSITY OF MILAN Faculty of Law (Italy) Director of (Italy) TAS/CAS Arbitrator Lausanne (Switzerland) Attorney in Milan (Italy) President of UIA Sports Law Commission Board Member of International Association of Sports Law (IASL) - with the cooperation of Cristiano Novazio (SportsLawRC), Edoardo Revello (SportsLawRC)

2 Recommendation of the Council of Europe on promotion of the integrity of sport against manipulation of results, notably match-fixing, states: "the manipulation of sports results covers the arrangement on an irregular alteration of the course or the result of a sporting competition or any of its particular events (e.g. matches, races ) in order to obtain financial advantage, for oneself or for other, and remove all or part of the uncertainty normally associated with the results of a competition". Match-fixing motivations can refer to obtaining direct or indirect economic benefits: Betting motivated cases involve fixing competitions with the primary aim of achieving an economic gain indirectly from sport through betting activity; Non-betting cases, concern so called sports motivated match-fixing the fixing of a competition with the primary aim of achieving a sporting advantage directly from its result.

3 th Council of Europe Conference of Sport Ministers responsible for Sport concluded with a Resolution on Ethics in Sports; th Council of Europe Informal Conference of Ministers responsible for Sport concluded with a Resolution on Promotion of the integrity of sport against the manipulation of results(match-fixing); Recommendation on the promotion of the integrity of sport against manipulation of results, notably match-fixing Since match-fixing is a significant threat to the integrity of sport, it invites Member States of the Council of Europe to adopt policies and measures aiming to prevent and combat the manipulation of results in all sports. It contains a detailed list of guidelines concerning issues such as definitions of the manipulation of sports results and the responsibilities of public authorities, sport organisations and betting authorities.

4 Article 165 TFEU - The Union shall contribute to the promotion of European sporting issues, while taking account of the specificity of sports. Union acts shall be aimed at developing the European dimension in sport, by promoting fairness and openness in sporting competitions and cooperation between bodies responsible for sports, and by protecting the physical and moral integrity of sportsmen and sportswomen, especially the youngest sportsmen and sportswome ; Resolution of the European Parliament(EP) on integrity of online gambling (2009); Resolution of the EP on online gambling (2011) - concerns over links between criminal organisations and the development of match-fixing in relation to online betting; Resolution of the EP on the European Dimension of Sport, which urges Member States to take all necessary action to prevent and punish illegal activities affecting the integrity of sport and making such activities a criminal offence ; European Commission: Communication on sport and Communication on fighting corruption in the EU (2011); Council of the European Union adopted the Resolution on a EU Work Plan for Sport that identifies match-fixing as a priority theme and announces the creation of an Expert Group on Governance in Sport.

5 In 2009, the IOC set up International Sports Monitoring GmbH (ISM) in cooperation with Interpol to monitor betting activities on Olympic Games (see also articlesa5anda6of thecodeof Ethics); The «Early warning system» GmbH, (EWS) was set up by FIFA prior to the 2006 FIFA World Cup in Germany to monitor sports betting on all FIFA football competitions. The EWS works in partnership with national and international bookmakers and betting operators(see also Code of Ethics of 2006); In May 2011, FIFA entered into a cooperation agreement with the International Criminal Police Organisation(Interpol) to perform proper investigations on match-fixing cases. UEFA also makes use of an early warning system (managed by the company Sportradar) which works with licensed gambling operators to detect suspicious betting patterns. UEFA also established a network of Integrity Officers across its member countries to coordinate action against match-fixers (see also Article 5 bis of Uefa Regulations).

6 Law 13 December 1989, n. 401 Art. 1 punishes with imprisonment from 1 month to 1 year and a fine from 250 to 1000 Euro anyone who offers or promises money or other benefits or inducements to any participant in a sports competition [ ] in order to achieve a result that is different from that resulting from fair and proper competition. Similar penalties are defined for passive actions, covering those who request or accept benefits; Art. 3 includes an obligation to report the facts concerning the criminal offences referred to in Art.1. Provisions concerning "associazione a delinquere" (i.e. criminal consirancy), have also been considered to inculpate certain people involved in the calcioscommesse affair. The offence is contained in Art. 416 of the Criminal Code aiming to punish the association of three people who intended to commit criminal offences. The reference to Art. 416 is extremely important, since in Italy the interception of communications is only possible for certain kinds of crimes, notably for those with penalties higher than 5 years imprisonment. Penalties under Art. 1 of the act 401/89 would not justify the adoption of such measures.

7 Sports law framework The Italian Sports Federations adopted some specific internal regulations in order to fight against match fixing issue; The FIGC Sports Justice Code expressly provides for the prohibition of betting for those individuals belonging to the football federation. Article 1 enforces compliance with the principles of loyalty, fairness, probity Article 5 introduces a ban on facilitating bets with privileged information towards all theaffiliatedpersons,aswellastheobligationtoreportanyfraudanindividual isawareof Article6 general banon betting Article 7 sporting fraud for those conducts altering the regularity of competitions In both the two hypothesis above, there is a general obligation to report any fraud regarding Articles 6 and 7 As to the Club, according to the principle of strict liability, the applicable sanctions shall be generally a deduction of point. While, in case of the direct involvement of the club by its legal representatives, the sanctions shall be the relegation to a lower division up to the exclusion from the leagues.

8 Italian match-fixing cases The so-called Totonero scandal in the s The so-called Genoa case in 2005; The so-called Calciopoli scandal in 2006.

9 The last scandal: the Scommessopoli case Everything started on 1 June 2011 when many individuals belonging to the world of football and betting were remanded in custody following the investigations (operation "Last Bet") carried out by the Prosecutor's Office of Cremona; Following the investigations of the Sports Federal Prosecutor's Office, 26 registered individuals with the Federation and 18 clubs were judged by the National Disciplinary Committee of the FIGC (the Italian Football Federation) on several charges ranging from sporting fraud to breaching the prohibition of betting on football matches worldwide. During the sports proceedings in August 2011, the judges essentially confirmed what the Prosecutor had reconstructed during his investigations: many registered individuals were sentenced for sporting fraud and suspended, while the clubs received a reduction of points due to their strict or presumed liability. Furthermore, 2 clubs were considered directly liable. Then, the second phase of criminal investigations involved 22 clubs and 61 registered individuals, to be judged by the sports justice bodies as well (showing a good level of cooperation between ordinary justice and sports justice). Then the sports proceedings started from May 2012: at first instance, 21 clubs and 52 registered individuals were condemned (only 4 cleared). Furthermore, on 6 July 2012, before the FIGC Court of Federal Justice, only 7 appeals wereupheldoutof thetotalof 46.

10 The particular case of the head coach of Juventus: Antonio Conte Conte got suspended because several matches fixed were involving the team he coached at that time, A.C. Siena. His role has been considered relevant in two matches of the 2010/2011 season, Novara vs. Siena and Albinoleffe vs Siena. Both ended in a draw and the result was allegedly fixed by some of the players of the teams involved; The federal prosecutor and the Disciplinary Committee held that Conte was aware of the fixing putin place, and thathe failed toreportthe sporting fraud totheauthority, aconductin breachof thearticle7.7of thecode; In the appeal, the Federal Court of Justice confirmed the 10 months suspension, despite the fact that one of the charges was dropped, and the Conte's awareness was imputed to only one match, Albinoleffe vs. Siena. In fact, the Court found that the gravity of Conte's conduct, who at worst had failed to report the sporting fraud he was aware of, justified the 10 months suspension; Then the final award was issued by the TNAS (the National Court for Sports Arbitration) which represents the final instance body within the Italian sporting justice system): a 120 days suspension. The arbitrators could recalculate the sanction with a larger degree of freedom, since the minimum prescribed of 6 months for any omitted report of frauds was only introduced in June 2011, shortly after the alleged facts.

11 The football governing bodies increased the penalties as established by the FIGC Code of Sports Justice and the obligation to report unlawful conduct has been broadened. Secondly, the new collective bargaining agreement ('CBA') between footballers and clubs of Lega Serie A as valid for 2012/13 season, now expressly states the suspension of the payments when the player receives a ban by the sports justice bodies due to illegal betting or sporting fraud. Since the relevance of match fixing in sport, there has been always a close cooperation between the governing bodies and the sports authorities: Law n.401/ as said - introduced the specific offense of sporting fraud with regard to match fixing in sport; Article 24 of Law n.88/2009 establishes new regulations on online gaming and the fight against illegal gaming; Law n.220/2010 introduces fiscal measures and measures on the protection of consumers and minors, fighting against organized crime; The Information Unit on Sports Betting (UISS) was activated within the Ministry of the Interior; The Investigation Unit on Sports Betting (GISS) was activated within the Department of Public Security; The State Monopolies created a specific Unit on anomalous flows of sporting bets(gass); The Council of Ministers created the National Unit on the Governance of Sport, chaired by the Ministry of Sport.

12 ManyClubadoptedaCodeof Ethicsinordertodefinetheprinciplesof businessconductas well as the responsibilities of its representatives and cooperators. Furthermore, such tool provides with some information regarding the problem solving on commercial and ethical issues. The main purpose is to re-evaluate the world of football as a training and educational instrument not only through the activity of youth camps but also with the cooperation with local institutions. As a positive examples: Article17of Codeof Ethicsof JuventusF.C. Rulesofconductonsportingactivity ; Novara Calcio adopted specific controlling measures in order to prevent the commission of some criminal offenses, including sporting fraud and illegal betting. In December 2011, a specific Anti-Fraud Codewasenacted inordertomonitortheflowsof betswiththecooperationof afederbet(afederation specialized in gambling and betting on sporting events). It consists of a mechanism of self-control, designed to protect the Club in the event of attempted unlawful conducts, giving an active contribution to governing bodies in the fight against match-fixing.

13 Thank you for your attention UNIVERSITY OF MILAN Faculty of Law (Italy) Director of (Italy) TAS/CAS Arbitrator Lausanne (CH) Attorney in Milan (Italy) President of UIA Sports Law Commission Board Member of International Association of Sports Law (IASL) - With the cooperation of Cristiano NOVAZIO, Edoardo REVELLO