2 Bedford Row

Match-fixing 02 August 2012
Posted by: 2bedfordrowchambers

Well, it had to happen. In an era where professional athletes are becoming increasingly focused on results and divorced from their role as an entertainer for the paying fans, the Olympics represented that last bastion of athletic excellence over the pay-cheque. But on Tuesday 31^st July 2012, 6,000 spectators who had paid £80 for a ticket to see the Olympic women's badminton pairs play in the preliminary rounds of the competition, witnessed a deplorable spectacle which has been labeled as "match-fixing"[1]. Four sets of doubles pairs were subsequently expelled from the Olympics for their part in attempting to throw matches in order to secure a more favourable quarter-round draw.

When the CPS intervened and hurriedly announced that the Pakistan cricketers were to be prosecuted for "spot-fixing" some queried why the police had become involved at all, particularly when the ICC as the sport's regulator already appeared to have the investigation in hand. Nevertheless, the three cricketers (and their agent) all received custodial sentences in addition to lengthy bans from the sport, as did Mervyn Westfield when he was also prosecuted for spot-fixing during a televised county cricket match between Essex and Durham.

There has been no whisper of a prosecution being brought against the badminton players, despite them apparently attempting to throw an entire match (as opposed to a small passage of play). Some will be puzzled by the apparent contradiction in sending to prison cricketers who fixed very small passages of play that had no impact on the eventual outcome of the game, whilst badminton players who contrive to fix the result of an entire match escape with simply expulsion from the Olympic Games.

The answer may lie in the fact that there is - as yet - no suspicion of any gambling being associated with the badminton matches. Rather, the common consensus appears to be that the "match-fixing" was with a view to securing a match against lesser opponents in the next round of the competition. S.42 of the Gambling Act 2005 only creates an offence of "assisting another to cheat at gambling" and the Bribery Act 2010 only criminalises a failure to perform to the best of one's ability where there has been some form of incentive to do so from a third party. Without any gambling activity, or bribes being passed to lose the matches, these offences could not be proved. Nor does there does appear to be any common-law offence of conspiracy to defraud spectators, as I successfully argued at first instance in the Westfield case.

Absent a statutory criminal offence of "match-fixing" or "spot-fixing", the police and prosecutors are left to utilise existing legislation as best they can when investigating and deciding whether to charge individuals in such cases. This is unsatisfactory for a number of reasons. First, existing legislation poses substantial evidential difficulties in the absence of any evidence that money changed hands. But secondly, it possibly seems unfair that these athletes were labeled "match-fixers" (in some sort of criminal sense) when, in truth, they may have only been ruthlessly exploiting the existing competition rules. Indeed, the athletes involved may forever be tarnished with the reputation of "match-fixers" without ever having done anything illegal. That may or may not be an unfair label to attach to these athletes but Parliament is yet to provide any definition of "match-fixing" or "spot-fixing". Until it does so, the precise scope of any offence - and particularly any resultant defence - remains vague.

No doubt, the spectators at this badminton match may be left thinking that the criminal law is applied in a rather haphazard manner when a professional athlete deliberately underperforms. The problem is that the police appear to have no legal basis to take any action in relation to these badminton players. But if the police genuinely intend to investigate and prosecute when there is evidence of corruption in sport - and having done so previously it would appear capricious to rule out similar prosecutions in the future - it is high time that Parliament clearly codified such offences and defined the scope of any defence available to an athlete. Until then, the police will have to continue in their attempts to bang square pegs into round holes.

© Jamas Hodivala 2012

[1] www.telegraph.co.uk/sport/olympics/badminton/9443672/Badminton-match-fixing-scandal-is-embarrassing-and-truly-disgraceful-says-former-Team-GB-Olympian-Gail-Emms.html