Editor’s Note: Oytun Azkanar holds an LLB degree from Anadolu University in Turkey and an LLM degree from the University of Melbourne. He is currently studying Sports Management at the Anadolu University.

Introduction

On 19 October 2017, the Turkish Professional Football Disciplinary Committee (Disciplinary Committee) rendered an extraordinary decision regarding the fixing of the game between Manisaspor and Şanlıurfaspor played on 14 May 2017. The case concerned an alleged match-fixing agreement between Elyasa Süme (former Gaziantepspor player), İsmail Haktan Odabaşı and Gökhan Sazdağı (Manisaspor players). The Disciplinary Committee acknowledged that the evidence relevant for proving the match-fixing allegations was obtained illegally and therefore inadmissible, and the remaining evidence was not sufficient to establish that the game was fixed. Before discussing the allegations, it is important to note that the decision is not only significant for Turkish football but is also crucial to the distinction between disciplinary and criminal proceedings in sports.

Background of the Case

During the last weeks of the 2016/2017 season in Turkish 2^nd Division League, three teams, namely Manisaspor, Şanlıurfaspor and Gazişehir Gaziantep, were competing to avoid relegation. At the penultimate week, Manisaspor played against Şanlıurfaspor and won the game. Gazişehir Gaziantep also won its match. As a consequence of these results, Şanlıurfaspor was relegated to a lower division. At the end of the season, on 5 July 2017, Şanlıurfaspor claimed that the club Gazişehir Gaziantep had attempted to influence the outcomes of the games and Şanlıurfaspor appealed to the Turkish Football Federation (TFF).

Şanlıurfaspor’s claims mainly focused on the recording of the talk between Nizamettin Keremoğlu (Vice-President of Gazişehir), Elyasa Süme (a former Gaziantepspor player), Gökhan Sazdağı (Gazişehir player who was on loan at Manisaspor at the time) and İsmail Haktan Odabaşı (Manisaspor player). The recording was leaked and uploaded on Youtube. The content of the recording clearly demonstrates that incentives were provided to Manisaspor players by Gazişehir in order to encourage them to win against Şanlıurfaspor. Furthermore, Gökhan Sazdağı confessed in the recording that he had been involved in match-fixing before and that this would not be his first time. In addition, Gaziantepspor claimed that Elyasa Süme was involved in match-fixing. On 20 July 2017, based on these serious allegations and the incriminating evidence publically released, the TFF referred Şanlıurfaspor’s application to the Turkish Football Federation Ethics Committee (Ethics Committee). Following the Ethics Committee’s report, the TFF subsequently referred the case to the Disciplinary Committee for determining the possible sanctions to be imposed on Gazişehir Gaziantep, Nizmettin Keremoğlu, Elyasa Süme, Gökhan Sazdağı and İsmail Haktan Odabaşı. Finally, on 19 October 2017, the Disciplinary Committee decided that the evidence relevant for proving match-fixing was illegally obtained and the remaining evidence was not enough to establish an instance of match-fixing.

Separating Disciplinary and Criminal Proceedings

It is generally accepted that in sports law disciplinary proceedings are to be treated differently than criminal investigations.[1] In countries like Turkey, match-fixing and/or match-fixing attempts also constitute a crime. Article 11(1) of the Act on the Prevention of Violence and Disorder in Sports stipulates that a person providing advantages or benefits in order to influence the final result of a game shall be punished with imprisonment from five to twelve years. Article 11(5) of the same regulation also states that in case of commission of the offense by offering or promising incentive pay with the intention of enabling one team to win a match, only half of the punishment is to be imposed.

On the other hand, match-fixing and incentives also appear in Article 58 of the Turkish Football Disciplinary Instruction. The said provision makes clear that it is forbidden to influence the outcome of the games illegally or unethically. Incentives fall also within the scope of this provision. In case of a breach, individuals will face a life-long ban. In case of an attempt at match-fixing or of the provision of unlawful incentives, clubs will be sanctioned by at least a 12 points deduction.

It is important to note that Turkish prosecutors have not yet opened a criminal investigation for the allegations related to the provision of incentives, even if the allegations and evidence are serious.

The Position of FIFA, UEFA, and CAS with respect to Match-Fixing Allegations and Binding Rules for Turkish Authorities     

FIFA as the world's governing body of football has put in place significant provisions regarding match-fixing and corruption in football. Article 69 FIFA Disciplinary Code stipulates that anyone who unlawfully influences the outcomes of football games can be banned from taking part in any football-related activity for life. Furthermore, Article 3.10 FIFA Code of Conduct also highlights the importance of zero tolerance for bribery and corruption.  

UEFA president Michael Platini announced in 2011 that a zero tolerance policy was adopted by UEFA regarding match-fixing, and that all match-fixing allegations would be seriously investigated. Moreover, as evidenced in Sport Lisboa e Benfica Futebol SAD, Vitoria Sport Clube de Guimaraes v. UEFA and FC Porto Futebol SAD, UEFA is not bound by national associations’ decisions in this regard.

A zero-tolerance policy requires that match-fixing attempts be punished heavily. This does not mean, however, that there is no standard of proof for match-fixing allegations. According to the CAS, match-fixing allegations must be proved to its comfortable satisfaction. [2] Comfortable satisfaction is defined by the CAS as a standard that is higher than the civil standard of “balance of probability” but lower than the criminal standard of “proof beyond a reasonable doubt”.[3] In my view, considering the evidence in the case of Şanlıurfaspor, in particular the recordings and the statements of the clubs, it should be accepted that the standard of proof for match-fixing allegations was met.

What is crucial in our case is that UEFA and the CAS cannot intervene in the Turkish match-fixing proceedings due to Article 64(1) of the Statutes of the Turkish Football Federation stating that “CAS shall not, however, hear appeals on violation of the laws of the game, suspensions according to relevant provisions of the FIFA and UEFA Statutes, or decisions passed by the independent and duly constituted Arbitration Committee of the TFF”. Moreover, Article 59(3) of the Turkish Constitution provides that “the decisions of sports federations relating to administration and discipline of sporting activities may be challenged only through compulsory arbitration. The decisions of the Arbitration Board are final and shall not be appealed to any judicial authority”. On the other hand, in case of a breach, FIFA has the authority, relying on its Code of Conduct and Disciplinary Code, to take important steps in order to sanction clubs and/or individuals, even where national federations fail to do so. Therefore, on 25 October 2017, Şanlıurfaspor declared that if the Arbitration Board of the TFF did not sanction clubs and individuals who were allegedly involved in match-fixing, it would apply to FIFA to do so.

The Validity of Evidence

The main reason why the Disciplinary Committee did not find the clubs and individuals guilty of match-fixing was that the evidence, which was crucial to support the allegations, was obtained illegally. Therefore, it is of primary importance to compare this position to the one adopted by UEFA, CAS, and the Swiss Federal Tribunal with respect to the validity of illegally obtained evidence in disciplinary proceedings involving match-fixing.

UEFA’s position regarding the admissibility of evidence can be derived from specific provisions in its regulations. For instance, Article 4(2) 2017/2018 UEFA Champions League Regulations expressly states that if UEFA is comfortably satisfied that a club was involved in any activity aimed at arranging or influencing the outcome of a match, such club will be ineligible for the participation. While taking its decision, UEFA can rely on the decision of a national or international sporting body, but it is not bound by these decisions. Article 4(2) allows UEFA to punish clubs, even if they have been exonerated by other sporting bodies. Therefore, it can be concluded that if UEFA is comfortably satisfied, the validity of evidence will not be questioned. The article says nothing about the validity of evidence. In addition, even if national sports governing bodies do not punish clubs and/or individuals, UEFA is not bound by national decisions even if the evidence was illegally obtained. [4]

The CAS also supports the approach of UEFA with regard to the admissibility of evidence in match-fixing cases. According to the CAS jurisprudence, “even if evidence might not be admissible in a civil or criminal court in Switzerland, this does not automatically prevent a sports federation or an arbitration tribunal from taking such evidence into account in its deliberations”.[5] This statement clearly shows that the CAS distinguishes criminal or civil court proceedings from disciplinary proceedings. As a matter of fact, it can be argued that the CAS allows national sports governing bodies to evaluate the admissibility of match-fixing evidence less strictly than in criminal proceedings.

In general, the CAS is bound by Swiss law because it is domiciled in Switzerland. Therefore, the Swiss Federal Tribunal may annul the CAS awards if they are contrary to Swiss public policy. One could argue that a decision based on illegally obtained evidence violates Swiss public policy. Thus, the approach of the Swiss Federal Tribunal also needs to be taken into account. The Swiss Federal Tribunal discussed the admissibility of evidence in A. v The Football Federation of Ukraine. In this case, the appellant claimed that using illegally obtained evidence, violated Swiss public policy. As a response to this claim, the respondent (CAS) argued that there was an overriding public interest in preserving football’s integrity. Therefore, the evidence should have been admissible according to the CAS. The Swiss Federal Tribunal held that pursuant to Article 152(2) Swiss Private International Law Act (PILA), “illegally obtained evidence shall be considered only if there is an overriding interest in finding the truth”. In that particular case, the Swiss Federal Tribunal upheld the decision of the CAS and stated that if necessary to prove an instance of match-fixing, illegally obtained evidence was not inadmissible.

The Approach of Turkish Law against Match-Fixing

As explained above, the Act on the Prevention of Violence and Disorder in Sports and the Turkish Football Disciplinary Instruction contain significant provisions aimed at combating match-fixing. However, these rules say nothing about the admissibility of evidence. Pursuant to Article 38(6) Turkish Constitution, “findings obtained through illegal methods shall not be considered evidence”. Contrary to the PILA, the Turkish Constitution does not provide for exemptions. Additionally, Article 206(2) and 217(2) Turkish Criminal Procedure Code provide that illegally obtained evidence cannot be accepted by criminal courts in Turkey. Nevertheless, there is no definitive verdict about the admissibility of evidence in sporting disciplinary proceedings in Turkey. Furthermore, Turkish sports regulations do not contain specific rules for assessing the evidence in match-fixing allegations. Therefore, it can be argued that in Turkey, there is a loophole in disciplinary proceedings as to whether illegally obtained evidence is admissible or not.

Conclusion

The fight against match-fixing is vital for sports governing bodies. This article has demonstrated that UEFA, CAS, and the Swiss Federal Tribunal share the same view that illegally obtained evidence is not always inadmissible when used to evidence an instance of match-fixing. In my view, the Disciplinary Committee disregarded the approach of UEFA, CAS, and the Swiss Federal Tribunal, and instead followed the practice of the Turkish Criminal Court. Because match-fixing is also a breach of the Turkish Act on the Prevention of Violence and Disorder in Sports, it is the duty of criminal courts in Turkey to assess whether the evidence was obtained legally or not. However, as a disciplinary body, the Disciplinary Committee was not forced to deny the admissibility of illegally obtained evidence. I believe it should have followed the established practices of UEFA, FIFA, and the CAS, and assess the available evidence to determine whether it met the comfortable satisfaction standard of proof. Hence, based on the confession recorded in the YouTube video, the Disciplinary Committee should have decided that the individuals concerned, at a minimum, attempted to fix the match and it should have imposed the corresponding sanctions.   

___________________________

[1] Adam Lewis and Jonathan Taylor, Sport: Law and Practice (Bloomsbury, 3rd ed, 2014) 249.

[2] Michael J Beloff et al, Sports Law (Hart Publishing, Second edition, 2012) 188.

[3] Beşiktaş Jimnastik Kulübü v UEFA [2013] CAS 2013/A/3258 [119].

[4] Public Joint-Stock Company “Football Club Metalist” v. Union des Associations Européennes de Football (UEFA) & PAOK FC [2013] CAS 2013/A/3297 [8.8].

[5] Public Joint-Stock Company “Football Club Metalist” v. Union des Associations Européennes de Football (UEFA) & PAOK FC [2013] CAS 2013/A/3297 [2].

Editor’s note: Tomáš Grell holds an LL.M. in Public International Law from Leiden University. He contributes to the work of the ASSER International Sports Law Centre as a research intern.

Concerns about adverse human rights impacts related to FIFA's activities have intensified ever since its late 2010 decision to award the 2018 and 2022 World Cup to Russia and Qatar respectively. However, until recently, the world's governing body of football had done little to eliminate these concerns, thereby encouraging human rights advocates to exercise their critical eye on FIFA. 

In response to growing criticism, the Extraordinary FIFA Congress, held in February 2016, decided to include an explicit human rights commitment in the revised FIFA Statutes which came into force in April 2016. This commitment is encapsulated in Article 3 which reads as follows: ''FIFA is committed to respecting all internationally recognized human rights and shall strive to promote the protection of these rights''. At around the same time, Professor John Ruggie, the author of the United Nations Guiding Principles on Business and Human Rights ('UN Guiding Principles') presented in his report 25 specific recommendations for FIFA on how to further embed respect for human rights across its global operations. While praising the decision to make a human rights commitment part of the organization's constituent document, Ruggie concluded that ''FIFA does not have yet adequate systems in place enabling it to know and show that it respects human rights in practice''.[1]

With the 2018 World Cup in Russia less than a year away, the time is ripe to look at whether Ruggie's statement about FIFA's inability to respect human rights still holds true today. This blog outlines the most salient human rights risks related to FIFA's activities and offers a general overview of what the world's governing body of football did over the past twelve months to mitigate these risks. Information about FIFA's human rights activities is collected primarily from its Activity Update on Human Rights published alongside FIFA's Human Rights Policy in June 2017.

The most salient human rights risks

FIFA faces human rights risks through its events, commercial subsidiaries and business partners, member associations or other parties. This section identifies sources of human rights risks that are most often associated with FIFA's activities.

Bidding and selection

Allegations of corruption have cast a shadow over FIFA's decision to organize the 2018 and 2022 World Cup in Russia and Qatar respectively.[2] If these allegations were proven to be true, it would be conceivable that financial incentives provided by the successful candidates helped them not only to secure the right to stage the tournament, but also to evade certain requirements, including those related to human rights. As Ruggie puts it, ''lack of financial integrity […] is a foundational source of human rights risks''.[3]

Moreover, in the past, countries bidding to host FIFA's tournaments have not been required to present a strategy addressing human rights risks that may arise in connection with the tournament’s organization. This allowed Qatar to win the bidding contest for the 2022 World Cup without explaining how it plans to protect migrant workers from the adverse impacts of the kafala system. Another example is Papua New Guinea that was awarded the 2016 U-20 Women's World Cup despite the country's high rate of sexual violence against women.

Construction

FIFA delegates the organization of the World Cup to the Local Organizing Committee ('LOC'), a separate legal entity created by the government and the national football association of the Host Country. The LOC is responsible, inter alia, for the delivery of World Cup-related infrastructure. In order to meet their deadlines, contractors hired by the LOC may ignore safety standards or force their employees to work overtime. Other reported practices include, for instance, appalling living and working conditions, non-payment of salaries, withholding identity documents or restrictions on the freedom of association.

In March 2017, Norwegian football magazine Josimar uncovered a series of human rights abuses faced by North Korean men working at Zenit Arena in Saint Petersburg. As recently as 14 June 2017, Human Rights Watch documented the mistreatment of construction workers at five other World Cup stadium construction sites in Russia. As the situation in Qatar has not been much better,[4] the Netherlands Trade Union Confederation filed in December 2016 a lawsuit with the Commercial Court of the Canton of Zürich, asking the court to find FIFA responsible for alleged human rights violations of migrant workers. The court dismissed the lawsuit on jurisdictional grounds in January 2017 (for a detailed analysis, see our blogs here and here).

Discrimination

Article 4 of the FIFA Statutes prohibits ''discrimination of any kind against a country, private person, or group of people on account of race, skin colour, ethnic, national or social origin, gender, disability, language, religion, political opinion or any other opinion, wealth, birth, or any other status, sexual orientation or any other reason''. In practice, FIFA must enforce this provision by taking further action to tackle issues such as anti-gay legislation in countries where its tournaments are staged, homophobic chants by fans or gender discrimination in the world of association football. 

Players' rights 

In January 2017, the international players' association FIFPro published a Global Employment Report on working conditions in men's professional football. Out of nearly 14,000 players interviewed, 41% reported having experienced delayed salary payments over the past two seasons. Players who lodge a formal complaint against their club put themselves at risk of being excluded from the squad or subjected to violence and harassment. FIFPro strongly condemned these practices and called upon FIFA to reform its Regulations on the Status and Transfer of Players ('RSTP') to ''provide stronger protections of players against material breaches of contracts by clubs''.[5] Another issue that merits closer attention is human trafficking in football, especially as it often involves minors.[6]

Other 

In addition to the above, FIFA could better address human rights abuses that may occur (i) in the supply chains of its licensees; (ii) in the process of land acquisition for stadiums and event-related infrastructure; or (iii) in connection with event-related security measures.

Overview of the measures taken by FIFA

First and foremost, FIFA strengthened its internal capacity to deal with human rights risks. In 2016, FIFA established the Governance Committee which provides, via its Human Rights Working Group, strategic guidance to the FIFA Council on human rights-related matters. At the operational level, the overall responsibility for the implementation of FIFA's human rights commitment rests with the Secretary General who delegates the day-to-day management of human rights-related work to the Sustainability and Diversity Department. In September 2016, FIFA employed a Human Rights Manager to work within this department. Moreover, in March 2017, FIFA appointed an independent Human Rights Advisory Board with the view of accelerating its efforts to embed respect for human rights. Composed of experts from the United Nations, trade unions, civil society and business, the Advisory Board is scheduled to meet at least twice a year. It has already contributed to the development of FIFA's Human Rights Policy, a landmark document clarifying FIFA's approach to the implementation of its human rights commitment in accordance with the UN Guiding Principles.

The rest of this section looks at the most significant steps taken by FIFA in each of the areas outlined above.

Bidding and selection

The FIFA Council has recently agreed that, as of the 2026 World Cup, human rights requirements will feature in the bidding procedure. This is of paramount importance as it means that countries failing to present an effective human rights strategy should not be allowed to host the World Cup. In other words, the protection of human rights will constitute a material factor in the bid evaluation. Had such requirements existed at the time of the bidding procedure for the 2022 World Cup, Qatar would arguably never have been selected.

The bidding procedure for the 2026 World Cup, the first to feature 48 teams, is currently in an early stage, and therefore bidding requirements are not yet available. The Host Country of the 2026 World Cup will be announced in 2020 at the latest.

Construction

As part of the implementation of the Sustainability Strategy for the 2018 World Cup, FIFA and the Russia 2018 LOC have launched a Decent Work Monitoring System aimed at detecting non-compliance with labour standards at World Cup stadium construction sites. Under this system, two-day on-site inspections are conducted on a quarterly basis by the Klinsky Institute of Labour Protection and Working Conditions, at times accompanied by the Building and Wood Workers' International ('BWI') and the Russian Building Workers Union ('RBWU').[7] After each inspection, companies are provided with a report containing recommendations for further improvement of working conditions. This report is forwarded to FIFA and the Russia 2018 LOC, and, in cases where the health or safety of workers are seriously threatened, also to the competent Russian authorities. As of 14 June 2017, a total of 58 inspections have been carried out.[8]

In Qatar, the Supreme Committee for Delivery and Legacy ('Supreme Committee'), an entity tasked with the delivery of World Cup-related infrastructure,[9] has developed a comprehensive set of Workers' Welfare Standards ('WWS'). Inspired by international labour standards, the WWS are mandatory for all contractors working on World Cup-related construction projects. To see whether contractors are adhering to these standards, the Supreme Committee has designed a four-tier monitoring system which comprises due diligence conducted by the Supreme Committee, the British company Impactt Ltd.,[10] the Qatari Ministry of Labour and contractors themselves. As of February 2017, the implementation of the WWS is further monitored via on-site inspections carried out jointly by the Supreme Committee and the BWI.[11]

Discrimination 

Establishment of the Anti-Discrimination Monitoring System in May 2015 is regarded as the most significant step taken by FIFA to combat discrimination in the world of football. This system uses independent observers who are present at matches identified as involving heightened risks of discriminatory incidents. Based on the reports provided by these observers, FIFA may open disciplinary proceedings and eventually impose sanctions on member associations. For instance, several Latin American associations have been sanctioned for homophobic chants by spectators during the 2018 World Cup qualifying matches.

Internally, FIFA promotes gender equality by requiring each of the six confederations to reserve at least one seat in the FIFA Council for women.[12]

Players' rights

As far as the protection of players' rights is concerned, FIFA informs that it has introduced certain measures intended to preserve confidentiality of the data available in the Transfer Matching System.[13] Furthermore, on 1 March 2015, FIFA modified the RTSP so as to put in place 'fast-track' proceedings for disputes concerning overdue payable claims (for a detailed analysis, see our blogs here and here).[14]

Other

In addition to contractors working on World Cup-related construction projects, other companies having business relationships with FIFA are now required to strengthen their human rights compliance. These include the suppliers of FIFA-licensed balls, artificial turf and technology used in games. Before a license agreement is entered into between FIFA and the supplier, FIFA must satisfy itself that both the supplier and its manufacturer are in compliance with the World Federation of the Sporting Goods Industry ('WFSGI') Code of Conduct, whose purpose is ''to guide WFSGI members in the standards and practices expected in the workplaces that they operate or contract from''.[15] Should FIFA-licensees cease to comply with the standards laid down in the WFSGI Code of Conduct, FIFA may decide to withdraw its license.

Concluding Remarks

The aforementioned report on human rights violations of World Cup-related construction workers in Russia, published by Human Rights Watch in June 2017, came as a major setback to the otherwise encouraging measures taken by FIFA in respect of human rights compliance. This and similar reports demonstrate that FIFA's human rights activities have not yet produced their desired effect. To increase the efficiency of its human rights activities in the future, FIFA should probably engage in a tougher discussion with the competent authorities of the Host Country. This is important because event-related human rights abuses often flow from inadequate domestic legislation and administrative practices of the Host Country.[16] Examples from the past show that FIFA is able to exert pressure on the future Host Country to modify its domestic legislation when it is in the interest of FIFA's sponsors.[17] At the risk of stating the obvious, it is hard to understand why FIFA's sponsors should be prioritized over thousands of people facing human rights abuses in connection with the organization of the World Cup. Thus, a lot will depend on FIFA's amendment of the bidding requirements for the 2026 World Cup. Though it may sound optimistic and far-fetched, if FIFA were to award the World Cup taking into account human rights compliance of the potential Host Countries, it could become a strong force in spreading the human rights gospel across the globe.

[1]    John G. Ruggie, 'For the Game. For the World. FIFA and Human Rights' (April 2016) p. 19.

[2]    Jonathan Calvert and Heidi Blake, 'Plot to Buy the World Cup' (The Sunday Times, 1 June 2014). See also David Conn, 'France Investigates Votes for 2018 and 2022 World Cups and Questions Blatter' (The Guardian, 27 April 2017).

[3]    See Ruggie's report (n 1) p. 21.

[4]    Amnesty International, 'The Ugly Side of the Beautiful Game: Exploitation of Migrant Workers on a Qatar 2022 World Cup Site' (30 March 2016).

[5]    FIFPro, '2016 FIFPro Global Employment Report: Working Conditions in Professional Football' (January 2017) p. 30.

[6]    See Ruggie's report (n 1) p. 25.

[7]    In August 2016, the BWI and the RBWU signed a memorandum of understanding with FIFA and the 2018 World Cup LOC.

[8]    FIFA, 'Statement on Human Rights Watch Report on Russia' (14 June 2017).

[9]    The Supreme Committee works closely with the Qatar 2022 LOC.

[10]   In April 2017, Impactt Ltd. published its first report.

[11]   The Supreme Committee and the BWI signed a memorandum of understanding in November 2016.

[12]   FIFA Statutes, Article 33(5). See also FIFA, '2016 Reform Committee Report' (2 December 2015) p. 9.

[13]   RSTP, Definitions.

[14]   RSTP, Article 12bis.

[15]   WFSGI Code of Conduct, Introduction.

[16]   It should be noted that, in December 2016, the Qatari government introduced certain reforms to its labour laws. However, Amnesty International asserted that these reforms ''barely scratch the surface of labour exploitation''.

[17]   One such example is the well-known 'Budweiser Law' – a law enacted by Brazil in the run-up to the 2014 World Cup allowing beer sales at match venues despite the fact that the sale of alcohol had been prohibited in Brazil's stadiums for almost ten years.