GCRC Interview: Kevin Carpenter from LawInSport

Here at GCRC our sports section has been designed to stimulate conversation among our community about law in sport. We are hoping to do this through panel discussions, surveys and polls and also by interviewing leading experts in the area, such as LawInSport’s Kevin Carpenter. We talked to Kevin about some of the big issues in sports law and the other issues that we don’t hear so much about.

Match-fixing in sport has been prominent in the news again recently following the Europol investigations into match-fixing in football. It feels as though we may have only just seen the tip of the iceberg. Is this the case? How prominent could it be in English football?

Although the recent Europol investigation has been grabbing many of the headlines there is little doubt this is indeed only the tip of the iceberg, as can be seen by the global reach of match-fixing which is often viewed as a “pandemic”. Conservative suggestions by Interpol, the international police organisation, have said that sports betting has become a $1 trillion a year industry. In 2012 there were a number of new scandals which arose, including at the Olympic Games, with the women’s doubles badminton tournament tainted by sports related match-fixing. This being different to betting-related match-fixing in that it is done for pure sporting gain and not direct financial gain.

As for its prominence within English football, it is often said it is unlikely the Premier League would be tainted by the fixing of matches due to the vast sums of money the players earn, which is probably true. However, further down the football pyramid there have been previous issues relating to betting-related match-fixing. Indeed, there are investigations currently going on into a number of clubs in the Blue Square Bet South Division, which is a semi-professional football league just below the Football League.

There have also been recent allegations made regarding historic Premier League matches and the issue of spot-fixing for betting purposes. Spot-fixing being where you manipulate a certain aspect of a match for financial gain. In this instance it was said that the ball had been deliberately kicked out of play for a throw in at a certain time for betting purposes. Although match-fixing has not affected the English game as much as others (i.e. Italy), we have to be ever vigilant in this area.

2. Such is the global nature of both the game and the game-fixers, and the power garnered by these game-fixers, just how difficult is it for authorities to counteract match-fixing?

It is extremely difficult for the various authorities to counteract match-fixing due to the global nature of the problem and the number of actors involved. This has been seen recently in the arrest of a Singapore national in Italy which took the cooperation of the Italian authorities, Singapore authorities and Interpol.

There is also the difficulty between the powers of the sports governing bodies and those of the national and international police authorities. Before the London Olympic Games, the International Olympic Committee realised this and saw that, due to the inherent amateur nature of the Games, this would be a significant threat. This is why in the Host City Contract for the London Games for the first time there was a requirement for the organising committee to monitor sports betting and cooperate with various stakeholders in order to combat the threat on match-fixing. This was done through the auspices of a Joint Assessment Unit which included a number of stakeholders in the sport, including the London Organising Committee of the Olympic Games, the IOC, UK police force, non-Olympic sports, sports governing bodies, betting operators and associations, Interpol and the media.

Given the fact that there were no instances of the insidious betting-related match-fixing uncovered during the Games indicates this model may be able to be used on an international basis. This would satisfy some of the calls for a WADA-type body.

3. Are options for betting becoming so minute and disperse (i.e. you can probably bet on Gareth Bale getting booked in a particular minute for diving or bowlers bowling no-balls in a certain over etc) such that betting irregularities are becoming increasingly difficult to manage?

Although the type of bets being offered by sports betting operators, particularly on-line, are indeed becoming increasingly diverse, it is not spot-fixing that is a major concern overall. This is because the amounts of money to be made out of spot-fixing are relatively small compared to being able to fix entire sporting events. The one case which has received significant attention as regards spot-fixing was the recent imprisonment of three Pakistani cricketers for deliberately bowling no-balls during a test match against England.

What spot-fixing does allow however is for professional gamblers to spot differences in markets and make profits due to the slow reaction of the markets. These strategies are similar to those used in financial trading. This is often not the same issue as is often reported with regards large organised crime organisations involved in betting-related match-fixing.

4. In Australia sport – Rugby League in particular – The Melbourne Demons as a side were accused of losing deliberately to benefit from the draft system and better younger players. They were cleared of “tanking” but severely fined anyway. How difficult is to prove the illicit motives of some clubs?

Australian sport has suffered various integrity issues in the past few months, particularly following the publication of a report by the Australian Crime Commission titled “Organised Crime and Drugs in Sport”. There have also been various other issues separate to this relating to match-fixing including this case with The Melbourne Demons.

It is extremely difficult to prove the illicit motives of clubs and other actors when match-fixing occurs. However, this is no different to any other potentially criminal matter where you are having to supplant yourself in the mind of the alleged match fixer. This is why at the Court of Arbitration for Sport their case law consistently suggests that the required standard of proof is that of “comfortable satisfaction” not the criminal standard of “beyond reasonable doubt”. This is done because a perception that a sport is clean is just as important as it actually being clean. However, to counteract this problem of proof, there are an increasingly diverse range of tools being used by the authorities.

These include lie detector testing which is seen as an increasingly attractive tool to use by various sports, particularly football, despite concerns about the validity of the methods employed. My view on the controversial use of lie-detector testing is that so long as the way in which it is carried out does not infringe the accused’ human rights, it can be an important additional evidential tool. However, it should not be relied upon in isolation to secure a successful sporting conviction.

5. What could be the other significant threats to sports in the next few years other than the obvious problems like match-fixing and doping?

The other significant threat to the integrity of sport is undoubtedly internal corruption and governance issues for sports governing bodies. The most high profile of which in recent times has been at the governing body of football, FIFA. Not only have they faced issues regarding internal corruption with the bidding process for the 2018 and 2022 World Cups, they have also been embroiled in a scandal involving the sports marketing company, ISL, where members of its Executive Committee have been found to have received illicit payments. Following the drive to try and improve the image of the governing body, FIFA instituted an independent ethics review. However, despite recent recommendations made by the leading anti-corruption expert, Mark Pieth, these have been widely disregarded by the powers that be at FIFA.

There have also been significant governance issues regarding the world governing body of cycling, the UCI, in light of the Lance Armstrong affair. Indeed, many questions remain unresolved in the sport with there still being a great deal of dissatisfaction both inside and outside the sport that there has not been an admission of responsibility by former President Hein Verbruggen or by current President Pat McQuaid.

6. What are the big IP issues in sports law at the moment?

The exploitation of intellectual property is the biggest commercial driver in sport, with any legal issues surrounding intellectual property in the field of sport are often headline news. Therefore, one of the major issues in sports law at the moment on the intellectual property side is the exploitation of sports data. The seemingly never-ending case of Football Data Co. v Sports radar and Stan James highlights what a contentious issue this can be. Football Data Co. are the official data suppliers for the Premier League and the Football League in England and for the Scottish Premier League and Scottish Football League in Scotland and the most recent ruling by the Court of Appeal said that both Sports radar and Stan James, by using Football Data Co’s data without licence, were both primary infringers, despite the fact that practically it was actually the users of those websites who had infringed.

There are also significant intellectual property aspects to the recent sports broadcasting cases including the infamous Karen Murphy case.

Another significant issue in the field of intellectual property in sport is the development of formal image rights for sports people, with Guernsey having recently passed the first law allowing registration of image rights and numerous high-profile cases over in the United States around the use of player’s images and likeness for promotional purposes, including in video games.

Finally, an issue very much on the horizon and an interesting inter-play between intellectual property and gambling law is the development of a so-called “right to bet” that is being proposed, particularly in France. This would mean that betting companies would have to pay for the right to use sports data arising out of sports events with levies having to be paid to the governing bodies of those sports. This is likely to be a contentious issue in the years to come and one to keep a close eye on.

7. Will FFP actually change anything in football?

The introduction of Financial Fair Play by UEFA is intended to ensure the long-term sustainability of European club football. Indeed, there has been much discussion by the legal and financial professionals, as well as the media, about its introduction and application. The regulations are extremely detailed but they are only just beginning to take effect due to the “reporting periods”. Therefore, we are very much in an area of the unknown. However, the regulations are indeed well drafted and any attempts to cap the continuing largesse of football clubs in Europe is to be applauded. However, the effectiveness of such regulations will only be felt through the strength of the enforcement mechanisms and sanctions applied by UEFA. There is some considerable doubt as to whether, for example, they would be willing to place draconian sanctions against a large high-profile football club for breaches of the regulations, for instance, denying them the right to play in the lucrative UEFA Champions League.

Individual leagues in Europe are also now looking to protect their member clubs and the management of them by introducing similar cost controls to their leagues, including both the Premier League and the Football League. This may come as a bit of a surprise to some given that the introduction in the 2000’s of wealthy owners to the clubs has brought with it increased commercial success for the Premier League and attracted the biggest stars to the competition.

As a football fan concerned more with the competitive nature of the league than the same teams continuing to dominate, one can only hope that not only will Financial Fair Play and the enforcement of it lead to sustainability of football across Europe but also lead to new teams winning competitions.

8. Sports law is something that perhaps doesn’t get as much as attention as it does – which is why LawInSport serves such a good purpose. Just how important is a sports club or institution’s in-house lawyer, behind closed doors, in making their club work? How does a football club’s in-house lawyer’s work compare to that of an in-house lawyer at a business like HSBC or IBM?

It is certainly true that in the past the area of sports law, which encompasses a number of specific legal disciplines including intellectual property, commercial, dispute resolution and governance to name but a few, has not had the attention or recognition it deserves. However, with the increasing commercialisation of sport this is becoming a fast growing area.

As an in-house lawyer, it is often difficult to obtain access to the resources necessary due to prohibitive costs however, this is where we find law and sport fill the void. Being an open resource with an aim to disseminate information not only to private practice lawyers but also to in-house lawyers, sports business professionals and those studying the subject, we are continuously told by in-house lawyers that it is an extremely helpful resource.

For any sport club, employing an in-house lawyer can be extremely important as they are often themselves, or operate in an environment, which is unique in many aspects. For instance, there are few industries whereby you are subject to a significant amount of specific regulations in addition to the wider legal framework. Also as sports have historically not been seen as a money making venture, many of those in positions of power require significant commercial and legal guidance as the individuals sports develop at their own pace.

The work of a football club in-house lawyers differs in significant respects to those at, for example, a blue chip company, for many of the reasons I have mentioned already yet a further example is having to deal with agents in contractual negotiations who are having increasing influence over players and increasing power in the world of football. There are also likely to be a number of unique legal questions arising on any day to day basis ranging from questions of integrity for the players of a club, to compliance with the Financial Fair Play Regulations, to dealing with issues of on-field disciplinary sanctions.

About William Barns-Graham

William is the content manager and head of communications at GC Research Club. He is a professional journalist, researcher and strategist. He has worked at GC Research Club since February 2013 and has rapidly become a distinguished voice in the in-house legal blogging community, writing on Lexis Nexis and interviewing leading legal thinkers and writers, in house lawyers and CEOs within the legal tech world. He has also coordinated the GCRC Sports Panel series.
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