Match fix­ing: the le­gal per­spec­tive,

AR­TI­CLE IN BRIEF: A le­gal as­sess­ment of the match-fix­ing scan­dal that rocked the world of Turk­ish foot­ball this sum­mer. Turkey’s foot­ball es­tab­lish­ment was hit hard on July 3 by the de­ten­tion of almost 60 peo­ple in a ma­jor match­fix­ing probe. Po­lice raided

Turkish Review - - CONTENTS - By Emin Özkurt

On July 3 Turk­ish po­lice de­tained ap­prox­i­mately 60 peo­ple in an in­ves­ti­ga­tion into al­leged foot­ball match-fix­ing, in­clud­ing Fener­bahçe Pres­i­dent Aziz Yıldırım and se­nior Fener­bahçe of­fi­cials Sekip Mos­tur­oğlu (vice pres­i­dent), İl­han Ekşioğlu (board mem­ber) and Tamer Yelko­van (club ac­coun­tant). Also de­tained in the op­er­a­tion were Si­vass­por Pres­i­dent Mec­nun Odyak­maz; Gire­sun­spor Pres­i­dent Ömer Ulku and for­mer Pres­i­dent Ol­gun Peker; for­mer Di­yarbakır­spor Pres­i­dent Ab­dur­rah­man Yakut; and Mersin Id­manyurdu Vice Pres­i­dent Beşir Acar.

Over a week after the first se­ries of ar­rests, on July 12 the po­lice de­tained a fur­ther 15 in­di­vid­u­als, in­clud­ing Trab­zon­spor’s Sadri Şener (pres­i­dent) and Nevzat Şakar (vice pres­i­dent), and Beşik­taş’s Ser­dar Adalı (pres­i­dent), Tay­fur Havutcu (coach) and Ah­met Ateş (se­cu­rity man­ager). In ad­di­tion, Trab­zon­spor of­fi­cials Hasan Yener (sec­re­tary-gen­eral) and Caner Çul­vacıoğlu (ad­min­is­tra­tive man­ager) were also taken in for ques­tion­ing by the au­thor­i­ties. Turk­ish po­lit­i­cal lead­ers ex­pressed con­cern and the de­ten­tions sent shares Fener­bahçe, Trab­zon­spor and Beşik­taş on the İstanbul Stock Ex­change (İMKB) tum­bling by as much as 30 per­cent.

The in­ves­ti­ga­tion was car­ried out un­der the aus­pices of the spe­cially au­tho­rized pub­lic pros­e­cu­tor and re­lated to match fix­ing, use of in­cen­tive pre­mi­ums and es­tab­lish­ing a crim­i­nal or­ga­ni­za­tion. The in­ves­ti­ga­tion has been de­clared con­fi­den­tial, mean­ing that not even de­tainees’ coun­sels have de­tailed for­mal in­for­ma­tion re­gard­ing the file. All the in­for­ma­tion pro­vided by the Turk­ish Foot­ball Fed­er­a­tion (TFF) to the Union of Euro­pean Foot­ball As­so­ci­a­tions (UEFA) has been based on me­dia re­ports.

The TFF Ex­ec­u­tive Com­mit­tee held a meet­ing on July 11, after which its pres­i­dent is­sued a state­ment re­gard­ing the in­ves­ti­ga­tion: “The TFF has no for­mal doc­u­ments or in­for­ma­tion. There­fore no dis­ci­plinary pro­ce­dure can be started for the time be­ing. The dis­ci­plinary pro­ce­dure will be started after the prepa­ra­tion of the indictment by the pub­lic pros­e­cu­tor and its ac­cep­tance by the court.”

In support of the TFF’s po­si­tion, UEFA is­sued a state­ment on July 12: “There is no doubt that this is a com­plex case which is still evolv­ing, but the matches un­der sus­pi­cion clearly fall within the sport­ing ju­ris­dic-

tion of the TFF and the le­gal ju­ris­dic­tion of the Turk­ish ju­di­cial sys­tem. UEFA there­fore can­not com­ment on any po­ten­tial out­comes. […] Given the in­for­ma­tion re­ceived so far by UEFA there is noth­ing ac­cord­ing to the UEFA statutes or reg­u­la­tions that leads UEFA to refuse en­try to any of the clubs cur­rently in­volved in the in­ves­ti­ga­tions in Turkey.”

On July 13 the TFF an­nounced that it had been de­cided at the ex­ec­u­tive com­mit­tee meet­ing of July 11 to bring the mat­ter be­fore the TFF Ethics Com­mit­tee. Just over a month later, on Aug. 16, the com­mit­tee’s decision was is­sued. Its con­tent was as fol­lows: The in­ves­ti­ga­tion is con­fi­den­tial (Pe­nal Pro­ce­dures Code (CMK) Ar­ti­cle 157). More­over a fur­ther con­fi­den­tial­ity rul­ing is also avail­able in this case (CMK Ar­ti­cle 153/2). Ac­cord­ing to the rel­e­vant law, shar­ing doc­u­ments and ev­i­dence re­lat­ing to this case will con­sti­tute a crime (Turk­ish Pe­nal Code (TCK) Ar­ti­cle 285) and any­one in vi­o­la­tion of such clause will be sentenced to be­tween one and three years’ im­pris­on­ment. Not be­ing able to share the doc­u­ments cre­ates a sit­u­a­tion in which the right to de­fense (Euro­pean Con­ven­tion for the Pro­tec­tion of Hu­man Rights Ar­ti­cle 6, Turk­ish Con­sti­tu­tion Ar­ti­cle 36 and TFF Foot­ball Dis­ci­plinary Reg­u­la­tions Ar­ti­cle 72), right to seek jus­tice, and right to fair trial may be vi­o­lated. The in­ves­ti­ga­tion doc­u­ments do not in­clude all the re­lated doc­u­ments in the file. The scope of the in­ves­ti­ga­tion was en­larged and is still pend­ing. No new in­for­ma­tion or doc­u­ments were sub­mit­ted to the TFF in or­der for it to con­duct dis­ci­plinary pro­ceed­ings in an eq­ui­table way. At this stage it is not pos­si­ble to reach a con­sid­ered opin­ion with­out ac­cess to all the ev­i­dence and en­abling the right to de­fense in ac­cor­dance with the law. The con­fi­den­tial­ity decision must be lifted in or­der for the TFF to con­duct dis­ci­plinary pro­ceed­ings. For this, the indictment must be ac­cepted in ac­cor­dance with CMK Ar­ti­cle 175. Only in this way can the sus­pected clubs and per­sons see all the al­le­ga­tions against them and gain the abil­ity to make use of their right to de­fense. The cor­rect decision will be taken after re­ceiv­ing the fi­nal re­port from the TFF Ethics Com­mit­tee, based on the ex­am­i­na­tion of the state­ments of the de­fense and the con­tent of the in­ves­ti­ga­tion file. The above not­with­stand­ing, with­out await­ing the fi­nal decision re­gard­ing the clubs, the TFF has de­cided to take dis­ci­plinary ac­tion against some of the foot­ball fam­ily mem­bers. Fol­low­ing the above-stated decision, ev­ery­one was wait­ing for the indictment to be ac­cepted in ac­cor­dance with CMK Ar­ti­cle 175, since only after this could the nec­es­sary steps be taken. How­ever, in­stead UEFA Chief Le­gal Coun­sel Pierre Cornu came to İstanbul on Aug. 22, act­ing un­der the di­rec­tions of UEFA Pres­i­dent Michel Pla­tini.

Cornu met with the pros­e­cu­tor for about an hour. The pros­e­cu­tor did not hand over or show him a sin­gle doc­u­ment re­gard­ing the case, due to con­fi­den­tial­ity. The coun­sel had sev­eral other con­tacts with TFF of­fi­cials and left the coun­try the very same day.

The fol­low­ing day, UEFA sent a let­ter to the TFF ask­ing Fener­bahçe to with­draw vol­un­tar­ily from the

Cham­pi­ons League, fail­ing which the TFF was to force the club to with­draw or would it­self face sanc­tions. UEFA also re­quested an an­swer by noon the next day.

Fener­bahçe re­sponded on Aug. 24 at 11 a.m., telling the TFF that it had not had enough time to de­cide on such a cru­cial is­sue. It also noted that Fener­bahçe saw no rea­son for the TFF to de­part from its decision Aug. 16.

Mean­while, via its web­site the TFF an­nounced its of­fi­cial decision to with­draw Fener­bahçe from the UEFA Cham­pi­ons League 2011/12 due to the match-fix­ing al­le­ga­tions, cit­ing the re­quest by UEFA.

A fur­ther UEFA state­ment then de­clared that the UEFA Emer­gency Panel had ruled that Fener­bahçe was to be re­placed by Trab­zon­spor, run­ners-up in the 2010/11 Turk­ish Su­per League, in the draw for the UEFA Cham­pi­ons League group stage.

Fol­low­ing the above-men­tioned de­vel­op­ments, Fener­bahçe opened a court case against UEFA and the TFF at the Court of Arbitration for Sport (TAS) over its ex­clu­sion from the Cham­pi­ons League in con­nec­tion with the match-fix­ing in­ves­ti­ga­tion.

Law No. 6222, on the “Preven­tion of the Vi­o­lence and Disorder in Sports” came into force on April 14, 2011. Match fix­ing and the use of in­cen­tive pre­mi­ums are reg­u­lated by Law No. 6222 Ar­ti­cle 11, which de­tails penal­ties of five to 18 years’ im­pris­on­ment.

Legally speak­ing, a pos­si­ble penalty of 18 years for a sin­gle in­ci­dent of match fix­ing is just not ra­tio­nal. This penalty is ex­ces­sive when com­pared with in­ter­na­tional ex­am­ples and the Turk­ish crim­i­nal sys­tem it­self.

In Eng­land match fix­ing is not a crim­i­nal of­fense and pub­lic au­thor­i­ties are not in­volved if there is no gambling or bet­ting el­e­ment. There is a ba­sic prin­ci­ple which al­lows only sport­ing au­thor­i­ties to sanc­tion those who en­gage in match-fix­ing ac­tiv­i­ties.

In a le­gal sys­tem where pos­si­ble penal­ties even for hu­man trafficking and tor­ture start from three years, it is almost im­pos­si­ble to con­vince the pub­lic that an 18-year penalty is jus­ti­fi­able in cases of match fix­ing or use of in­cen­tive pre­mi­ums.

Bad moves from UEFA and TFF

It should also be noted that when Fener­bahçe was ex­cluded from the Cham­pi­ons League by the UEFATFF decision of Aug. 24, the le­gal process within Turkey’s ju­di­cial au­thor­i­ties was still pend­ing and the TFF Arbitration Com­mit­tee had not is­sued a decision.

In fact, Fener­bahçe learned of the TFF decision from its of­fi­cial web­site on the night of Aug. 24; within just two hours UEFA made the decision to re­place Fener­bahçe with Trab­zon­spor. The pro­ce­dural wrong­do­ing is that the TFF decision was not fi­nal and was ap­peal­able. Of course, Fener­bahçe used its right to ap­peal and brought the mat­ter to the TFF Arbitration Com­mit­tee the very next day. Although the fi­nal ver­dict from the TFF Arbitration Com­mit­tee was in fa­vor of the TFF and con­firmed its decision to ex­clude Fener­bahçe from the Cham­pi­ons League, it was ob­vi­ous that nei­ther UEFA nor the TFF re­spected the le­gal process and its com­ple­tion within the rel­e­vant ju­di­cial sys­tem.

The above-men­tioned ex­er­cise is also very much at odds with the re­cent case of the Greek team of Olympiakos Volou. The team was ex­cluded from this sea­son’s UEFA Europa League due to their al­leged in­volve­ment in match fix­ing. Olympiakos Volou fin­ished fifth in the Greek league last sea­son and played in the Europa League against Lux­em­burg team FC Dif­fer­dange 03. Fol­low­ing their first game against Dif­fer­dange, Olympiakos Volou was de­moted to the sec­ond di­vi­sion by a decision from the Greek Foot­ball Fed­er­a­tion Dis­ci­plinary Com­mit­tee.

How­ever, de­spite its de­mo­tion, Olympiakos Volou was given the op­por­tu­nity by UEFA to play the sec­ond leg of the Europa League match against FC Dif­fer­dange 03. Only when the Greek team’s ap­peal against the match-fix­ing charges was re­jected by the Greek Foot­ball Fed­er­a­tion Arbitration Com­mit­tee did UEFA ex­clude Olympiakos Volou from the com­pe­ti­tion (Aug. 11).

This re­cent case demon­strates that UEFA takes mea­sures re­gard­ing such vi­tal mat­ters only after when there is a fi­nal and bind­ing decision reached within the rel­e­vant fed­er­a­tion’s ju­di­cial sys­tem. How­ever, it is clear that this prin­ci­ple has not been re­spected in Fener­bahçe’s case. This ex­er­cise can also be deemed as un­equal treat­ment by UEFA to­ward and against the in­ter­ests of a Turk­ish club in almost iden­ti­cal cir­cum­stances.

It is not wrong to say that the ex­ces­sive penal­ties that came into force with Law No. 6222 should be re­vised. No other coun­try sets such a high penalty, and the sanc­tion is also at odds with those ap­plied else­where in the Turk­ish pe­nal sys­tem. In ad­di­tion, na­tional and in­ter­na­tional foot­ball fed­er­a­tions must un­der­stand that they can­not con­tinue to do as they please; they should also re­spect gen­eral con­cepts such as pre­sump­tion of in­no­cence. If they con­tinue to act as they like, they will face fur­ther chal­lenges, per­haps even in courts of law.


Fener­bahçe play­ers Dia and Cris­tian Ba­roni sport T-shirts sup­port­ing club Pres­i­dent Aziz Yıldırım.

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