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
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.