Type: Client Alerts
It will have saddened many people to read further allegations of wrongdoing in English football. The story, based on classic secret recording methods, was broken by The Daily Telegraph and has been picked up by the entire national and international media.
We have written about this subject before, in 2013 and again in 2015, when ex-player Delroy Facey was one of the first offenders prosecuted under the Bribery Act 2010. This time the allegations relate to managers and player—agents at the very top, in the English Premier League.
It’s useful to split the main types of alleged behaviour into categories:
- The first is giving gifts, usually money, to managers so as to persuade them to sign particular players for their club. Let’s call these ‘transfer bungs’.
- The second we can call ‘wage commissions’, where a manager agrees to raise a player’s wages in exchange for, say, 50 per cent of the increase.
- The third is making particular selection or in-play decisions (e.g., substitutions) so as to trigger extra fees or bonuses for agents, or other clubs. Let’s call this ‘operational bias’.
- The fourth is encouraging or allowing betting on matches.
- The fifth category, closely allied to the fourth, although not alleged in the present cases so far, is agreements to achieve a particular result or a particular statistic (number of corners, yellow cards, etc.). Match-fixing, as this is known, is commonly alleged in various competitions but rarely proven1.
- A sixth category, standing somewhat apart from the others, is advising investors on how to buy an ownership interest in a player’s economic rights (i.e., earnings and transfer fees), which we can call ‘player shares’.
So what is the relevant law? The first point is the most important one: everyone is innocent until proven guilty. Indeed, one significant person in the story, the agent Pino Pagliara, has explained his remarks about bribing managers were made up in order to impress people he thought would give him a lucrative job2.
If we assume for now that the alleged events happened in England after July 2011, the starting point is the Bribery Act 2010. The Act provides that people who offer, promise or give “a financial or other advantage” to someone else, intending to induce or reward improper performance of a person’s duties or knowing that the offer or gift should not be accepted, are guilty of bribery. This is known as ‘active’ bribery. Similarly, someone who seeks or accepts an advantage in connection with the improper performance of duties is also guilty. This is known, misleadingly, as ‘passive’ bribery.
A key concept here is ‘improper’ performance of duties. People are paid every day to do their official duties properly. Doing things improperly, within the meaning of the Bribery Act, does not mean being incompetent or negligent. It means acting in breach of the expectations of good faith or impartiality or, if the person is in a position of trust, the expectations as to performance which arise as a result of that position.
All Bets Are Off
Take the case of Ron Manager, long-serving boss of Melchester Rovers FC3. He owes various duties to his club, all of which are likely to carry with them an expectation that he will act in good faith and impartially. He is also plainly in a position of trust and should not act in his own interests if this would conflict with the interests of the club.
So in the case of transfer bungs, Ron should try to acquire the best first-team players for the best available prices. Seeking money for himself in exchange for a decision to sign Player A ahead of Player B would be improper performance of his duties and Ron could face charges under Section 2 of the Bribery Act.
We can say the same on wage commissions. There may be footballing reasons to pay more wages to retain talent but as soon as Ron agrees to take a cut for himself he is no longer considering those reasons alone and is not performing his duties properly.
Operational bias is another example of improper performance. Selection and substitutions in matches should be aimed at getting results for the club and have nothing to do with extra earnings for Ron or his friends.
It hardly needs to be said that attempts at match-fixing in exchange for payments amount to bribery.
Betting on matches is less straightforward from the legal point of view. FA rules prohibit certain people involved in the professional game, at least the top five English divisions, to bet on any football-related matter anywhere in the world4. However, it is not obvious what crime would be committed if Ron simply turned a blind eye to his players doing this. He would (probably) have breached his duties as an employee and would be likely to face disciplinary proceedings. But an essential part of the bribery equation, a payment or advantage in connection with this conduct, would be missing. If the players offered him a cut of their winnings if he looked the other way then the situation would be different.
Advising on player shares is also a murkier matter. The FA prohibits third-party ownership of players. So we can assume a manager must not get directly involved in this, and if Ron did get involved and was rewarded for doing so it might amount to bribery. However, simply discussing how to get around the rules, or pointing out loopholes, does not amount to the same thing.
No Harm, No Foul?
There will be some who are sanguine about this whole issue. There has been a general assumption that at least some of the money washing around transfer business ends up in places it shouldn’t, including in the pockets of managers, whose notorious job-insecurity might be thought to incentivise a ‘take what you can’ attitude. There have been stories about ‘bungs’ in connection with player transfers going back to George Graham in the 1990s, and long before. What’s a bit of insider-dealing, as long as the show goes on?
These arguments misunderstand the basic premise of sport, which is founded on integrity. Top sportsmen and coaches aren’t pretending, they are really trying to win. A fair and open competition means that victories are sweet and defeats can be accepted, and, maybe, overcome next time. Bribery in football erodes the value of skill and honest effort. It means clubs are being defrauded, fans duped and careers ruined.
There is no shortage of strong language at football matches but the worst insult on a football pitch remains the word ‘cheat’. Long may that continue. Cynicism about corruption in football risks permanent defacement of the beautiful game.
- At least in this country. The record is different elsewhere; see, for example, the Calciopoli scandal of the mid-2000s http://news.bbc.co.uk/sport1/hi/football/europe/4989484.stm.
- Sky Sports has the story here: http://www.skysports.com/watch/video/sports/football/10600458/agent-i-lied-to-impress-businessmen
- No reference to any actual person is intended save for the work of the brilliant Paul Whitehouse.
- Since 2014. The previous rule was that players and managers could not bet on matches or competitions in which they themselves were involved.
Client Alert 2016-264