2 Bedford Row

Betting on a sticky wicket 09 December 2011
Posted by: 2bedfordrowchambers

Betting on a sticky wicket

On 3^rd November 2011, Mr Justice Cooke sentenced three international cricketers and their agent to custodial sentences. His Lordship concluded that such sentences were required in order to deter others who might be tempted by the encroaching tentacle of a multi-billion pound illegal gambling industry. The warning has been sent out, but detection remains a key issue.

The Indian Premier League has been the focus of intense speculation, culminating in the Indian Tax authorities declaring about the 2010 competition: "During IPL, the match fixing and betting racket has scaled new heights"[1]. The Gambling Commission was set up under the Gambling Act 2005 but, as it declares on its website, its function is to regulate commercial gambling in Great Britain. It can provide useful information to the prosecuting authorities about irregular betting patterns (bookmakers are bound by Licence Conditions and a Code of Practice that obliges them to report suspicious betting activity) but it obviously cannot assist in the collation of information about international gambling, particularly when such gambling is illegal in any event.

The International Cricket Council has come under intense scrutiny since the News of the World sensationally revealed the result of its "sting" operation. Many players (past and present) declared that the ICC needs to do more to stamp out corruption in the sport. Indeed, many sports' governing bodies are very much alive to the issues posed by international gambling. As long ago as 2009, the International Olympic Committee announced the creation of a betting monitoring programme ahead of the Vancouver Winter Games and London 2012 owing to alarm at the increase in corruption in sports.

As the "Pakistan cricketers" case has highlighted, corruption in sport is a modern reality. The real issue is not whether players who under-perform in return for payment should go to prison, but how such deliberate under-performance is detected in the first place. The News of the World operation was the most expensive that the newspaper had ever undertaken in its 168-year history. In fact, Mr Justice Cooke declined to order any compensation for the payments the newspaper had made as part of the sting, owing to the increased newspaper sales that the story generated. The ICC cannot hope to fund the sort of undercover operation that was funded by News International.

The custodial sentences handed down on 3^rd November will inevitably cause those who are tempted to deliberately under-perform to think twice before doing so. But the reality is that the chances of detection remain small; the detection of the Pakistani cricketers involved the News of the World obtaining over 5,000 text messages and there were several staged meetings with the players' agent (most of which were covertly recorded and videoed) in which the undercover journalist related a sophisticated and extravagant background story to others in order to inveigle himself into the relevant people's confidence, including promises to set up an international cricket tournament and share the resulting proceeds of multi-million pound television rights. It was a sting regulated neither by RIPA, nor by any of the same procedural safeguards faced by the police. It is very difficult to see how the police could - or would - have mounted a similar operation. It is also impossible to see how the ICC could hope to repeat a similar operation.

How, then, could the ICC respond to the fallout from this case? Its position is made even more complicated by the dust thrown up from other situations within the sport. Players have been approached to find out if they are prepared to assist bookmakers; some of whom have reported such approaches but undoubtedly others of whom have not, as has been demonstrated by the Indian Tax authorities comments about the IPL. Some of those approached will have no doubt been prepared to see through the bookmakers' requests, whereas others will have rejected those requests. Article 2.4.2 of the ICC Anti-Corruption rules makes it a disciplinary offence for a player to fail to declare (without undue delay) any approach or invitation to act in a manner that would amount to a breach of the Anti-Corruption Code. It is also an offence for a third party to fail to report activity that amounts to a breach of the Anti-Corruption code. The England and Wales Cricket Board has introduced an Anti-Corruption Code[2] in similar terms to that adopted by the ICC. The success of this approach rests entirely upon the players embracing self-regulation; seasoned campaigners may be more comfortable engaging with the authorities and reporting an approach by a bookmaker, than inexperienced individuals just starting out in their careers.

In some respects, the ICC faces a similar task to that faced by the Office of Fair Trading, which had to invent means of successfully detecting and prosecuting cartels. The ICC and the OFT face similar tasks; the ICC has to eradicate corruption in the sport and the OFT has to eradicate what might be termed as "corruption" in business. The OFT has arguably adopted a sophisticated approach to the problem of detecting cartel activity by adopting a policy that allows for civil and criminal immunity - as well as up to a £100,000 financial reward - for those who are involved in the cartel activity if they report it to the OFT. Whilst there are other conditions that must be satisfied before such immunity will be provided, it is perfectly conceivable that the ICC could adopt a similar approach to "whistleblowers".

As laudable as a zero-tolerance policy is to corruption within the sport (and one which is impossible to argue against in principle), the inevitable corollary of such a position is that the governing body must have the resources to detect the offending in the first place. Otherwise, its tough policy amounts to sabre-rattling and posturing without obtaining the necessary evidence to prosecute players who deliberately under-perform. Fear of a custodial sentence may now be another reason for players on the periphery of corruption within the sport to decline to engage with the authorities. The ICC's job detecting corruption may have just got harder.

© Jamas Hodivala, November 2011

[1] The Telegraph, 23^rd April 2010

[2] With effect from 1^st April 2011