The Macolin Convention
The Council of Europe Convention on the Manipulation of Sports Competitions is a multilateral treaty that aims to prevent, detect, and punish match-fixing in the sport.
The convention was concluded in Macolin/Magglingen, Switzerland, on 18 September 2014.
At its conclusion, it was immediately signed by 15 states of the Council of Europe; it is open to ratification of Council of Europe states and other states that were involved in its negotiation.
The treaty will enter into force after being ratified by five states, three of which must be Council of Europe states.
Recent years have shown time and again that sport, too, is susceptible to scandals, and that a growing number of these are related to “match-fixing”. This phenomenon, used within the framework of the present report under the more generic concept of “manipulation of sports competitions”, is neither confined to matches, i.e. contests in which two people or teams compete against each other, nor to the sole manipulation of the final outcome of a sports competition, but covers any intentional and improper alteration of the course or result of a sports competition in order to remove all or some of the uncertainty associated with this competition, with a view to obtaining an undue advantage for oneself or for others.
Manipulation of sports competitions has taken on worrying proportions since the beginning of the new millennium.
Evidence on trends connected to the emergence of manipulation of sports results have been documented since the beginning of the 2000s in numerous studies, working papers and positions prepared by researchers, sports organisations, sports betting operators organisations and international organisations. Greater commercialisation of sport and the extensive media coverage is given to it have led to an increase in the economic stakes involved in achieving certain sports results.
This, in turn, has encouraged the development of new activities, both lawful and unlawful. Despite major efforts by sports organisations and in particular the Olympic movement to promote good governance, the sports movement is not immune to corrupt practices. At the same time, the phenomenal growth of the sports betting market due to technological improvements and the development of certain markets has created a new environment in which anyone can have a personal and direct financial interest in the course or outcome of any given competition. (1)
(1) See, for example: P. Boniface, S. Lacarrière, P. Verschuuren, “Sports betting and corruption: how to preserve the integrity of sport”, IRIS, 2012; “Interpol IntegrityinSport Weekly Media Recap” on the internet at their site:http://www.interpol.int/News-and-media/News ; D. Hill, “The Fix: Soccer and Organized Crime”, McClelland & Stewart, 2008.
This overall new context is undoubtedly one of the main reasons for the significant increase in the number of cases of manipulation of sports competitions since the early 2000s. This rise has gone hand in hand with two specific elements. Firstly, the proliferation of different types of betting provided, sometimes without being effectively supervised by the authorities responsible for the betting market, has created types of bets which are easier to manipulate and manipulations which are more difficult to detect. And secondly, the development of a
large illegal market which gives customers a very high pay-out has attracted criminal groups, interested in manipulating the sports competitions on which bets are placed so as to exploit the information through betting, and in the course of this activity laundering criminal finances. (1)
The manipulation of sports competitions poses a challenge to the rule of law because it is linked to fraud, organised crime and corruption. Because it occurs in the sports sector and when linked to betting, the economic stakes are considerable. It also, however, poses a threat to the future of the sport as a social, cultural, economic and political practice which is called into question every time doubts are raised about its integrity and values. In jeopardising sports ethics and the unpredictability that underlies every sporting contest, it calls into question the
very nature of the sport, and therefore the public’s interest in sport and the willingness of public and private sponsors to finance it.
(1) See, for example, C. Kalb and P. Verschuuren, “ White Paper – Money laundering: the latest threat to sports betting?”, IRIS, 2013.
Council of Europe initiative to promote the integrity of sport
The issue of corruption came under close scrutiny by the Council of Europe very early on because of the danger it poses to pluralist democracy, the rule of law, human rights and ethical principles. The Council of Europe’s standard-setting role in the face of growing corruption was recognised as far back as the Second Summit of Heads of State and Government of the Council of Europe, on 10 and 11 October 1997 in Strasbourg.
A reference Council of Europe instrument dealing with sport and its basic principles such as the integrity of sport and those involved in it was adopted in 1992 in the form of Recommendation No. R(92)13rev on the revised European Sports Charter. Two other recommendations, Recommendation Rec(2005)8 on the Principles of Good Governance in Sport and Recommendation CM/Rec(2010)9 on the revised Code of Sports Ethics, built on this initial document in an effort to improve the integrity of sport and ensure that it was in a stronger position and better governed.
In fulfilling its mission to defend ethical sport, the Council of Europe has played a key role in coordinating policies in the fight against doping. In the 1980s, this work led to the opening for signature of the Anti-Doping Convention (1989, ETS No. 135, hereafter “Convention 135”),
which regulated the fight against an emerging threat to the integrity of sport. In 2007, Resolution CM/Res(2007)8 established the Council of Europe’s Enlarged Partial Agreement on Sport (hereafter “EPAS”) and assigned it the task of developing standards to deal with topical issues in sport at a pan-European level and following them up. EPAS provided an opportunity to continue the Council of Europe’s standard-setting work and paved the way for targeted action in certain areas. In the course of the preparations for and follow-up to the 11th Council of Europe Conference of Ministers responsible for Sport in Athens on 11 and 12 December 2008, the issues of ethics and autonomy in sport were explored by EPAS in greater depth.
It was at this conference that States made a clear political commitment to address issues relating to ethics in sport, in particular match-fixing, corruption and illegal sports betting. This is turn resulted in the adoption at the 18th Council of Europe Informal Conference of Ministers responsible for Sport, held in Baku on 22 September 2010, of the first resolution to deal specifically with the manipulation of sports results (namely, Resolution No. 1 on the promotion of the integrity of sport against the manipulation of results). In this resolution, Council of Europe member States is called upon to adopt effective policies and measures aimed at preventing and combating the manipulation of sports results in all sports, while EPAS is called upon to continue work in this area with a view to the adoption of a recommendation of the Committee of Ministers to Member States on the manipulation of sports results.
Such a recommendation, namely Recommendation CM/Rec(2011)10 on the promotion of the integrity of sport against manipulation of results, notably match-fixing, was later adopted by the Council of Europe’s Committee of Ministers on 28 September 2011. Pending the
finalisation of the convention to combat the manipulation of sports competitions, it constituted the most detailed international standard to date, offering a full range of measures to combat the problem.
Reasons for preparing an international legal instrument
In its Resolution 1602 (2008) on the need to preserve the European sports model, the Parliamentary Assembly of the Council of Europe had noted that recent scandals in several European countries, involving illegal sports betting and manipulation of results, had seriously damaged the image of the sport in certain countries, including in Europe. It called for the introduction of mechanisms to reduce the risk of match-fixing, illegal sports betting or other forms of corruption. It further emphasised that these problems would require more active
involvement on the part of state authorities.
Furthermore, while certain important aspects of corruption in sport are already covered by existing international conventions on corruption and organised crime, namely the United Nations Convention against Transnational Organized Crime (2000) and the United Nations Convention against Corruption (2003), these international legal instruments do not specifically deal with cases involving manipulation of sports competitions, which may occur outside any transnational crime network and without any acts falling within the definition of corruption having been committed.
Two specific Council of Europe conventions in the field of corruption and money laundering, namely the Criminal Law Convention on Corruption (1999, ETS No. 173, hereafter “Convention 173”) and the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism (2005, CETS No. 198, hereafter “Convention 198”), may be used as standard-setting reference points in the definition of the mechanisms and legal means needed to combat the criminal organisations which bribe persons involved in sport in order to manipulate sports results and use sports betting as a means of laundering money and as a source of financing for their activities. However, manipulation of sports competitions may involve corrupt practices that are not covered by Convention 173 or may even not involve corrupt practices at all. As for Convention 198, illegal sports betting and profits derived from the manipulation of sports results do not necessarily fall within the scope of this instrument. (1)
Under the terms of Recommendation CM/Rec(2011)10, the Secretariat of the Enlarged Partial Agreement on Sport (EPAS) of the Council of Europe was invited, in co-operation with other national and international bodies, to carry out a feasibility study on the possibility of adopting a legal instrument on match-fixing. This study, which was presented at the Council of Europe Conference of Ministers responsible for Sport in Belgrade on 15 March 2012, concluded that an international convention dealing with all preventive measures and sanctions aimed at suppressing the manipulation of sports competitions was the most logical option.
As an international organisation having a standard-setting function in many different fields, the Council of Europe was the ideal forum for preparing such an instrument, especially in view of the international scale of the problem.
(1) See, for example, Criminalization approaches to combat match-fixing and illegal/irregular betting: a global perspective. Comparative study on the applicability of criminal law provisions concerning match-fixing and illegal/irregular betting, IOC / UNODC, Lausanne / Vienne, July 2013, pp. 276 ff.
Main features of the Convention
The advantage of an international convention in this area is that it promotes a risk- and evidence-based approach and allows commonly agreed standards and principles to be set in order to prevent, detect and sanction the manipulation of sports competitions.
To achieve this, the convention involves all stakeholders in the fight against the manipulation of sports competitions, namely public authorities, sports organisations and sports betting operators. To ensure that the problem is addressed in a global context, it allows states which are not members of the Council of Europe to become parties by the convention.
More specifically, the following parts of the convention may be distinguished:
– law enforcement;
– international co-operation measures;
– exchange of information;
– a follow-up to the convention.
As regards prevention, the aim of the convention is to pave the way for more systematic application of the measures adopted by sports organisations, sports betting operators and public authorities to enable them to jointly identify and prevent manipulation of sports competitions and ensure better co-operation between these stakeholders. While the convention recognises the autonomy of sports organisations and their role in the regulation of sports activities and competitions, in awareness-raising, training and information sharing, it
also highlights the fact that sports betting operators have a responsibility within the implementation of the anti-fraud measures mentioned in Recommendation CM/Rec(2011)10 (manipulation of results, conflicts of interest and misuse of inside information).
The convention also provides for the introduction of a mechanism to exchange information between the various national systems, the national platform. As regards public authorities, the convention encourages them to adopt the necessary legislative or other measures, including financial ones, to support any initiatives taken by other stakeholders and to combat illegal sports betting, but also to identify the authorities responsible for implementing the legal framework for the regulation of their sports betting market.
With regard to the various aspects of law enforcement, the convention seeks, inter alia, to identify those acts which should be prosecuted without, however, imposing the creation in each Party’s domestic law of a harmonised special criminal offence in the field. The purpose of clarifying which types of conduct are to be considered offences is to facilitate judicial and police co-operation between Parties. Specific references are also made to money laundering and to the liability of legal persons, which depending on the Parties’ applicable law can be
criminal, civil or administrative. With a view to ensuring an efficient enforcement system, the convention considers a broad range of criminal, administrative and disciplinary sanctions. It also requires the Parties to ensure that sanctions are effective, proportionate and dissuasive.
Because of the transnational aspect of the manipulation of sports competitions and the need to combat criminal and other acts related thereto, it was deemed vital to step up international co-operation. The convention is concerned as much with enforcement as with prevention, including detection, exchange of information and education. Accordingly, international sports organisations are recognised as having a role to play as key partners of public authorities in combating the manipulation of sports competitions, in particular where disciplinary sanctions and exchanges of information are concerned. Sports betting operators are also recognised as key partners on prevention and exchange of information of betting-related manipulations. In providing for international co-operation in investigating and
prosecuting offences, the convention does not prejudice instruments which already exist in the field of mutual assistance in criminal matters and extradition and which can facilitate