Indian Prevention of Sporting Fraud Bill 2013

Almost two years ago, I commented that the Prevention of Corruption Act 1906, Gambling Act 2005 and the Bribery Act 2010 were blunt instruments to specifically tackle the problems posed by spot-fixing and match-fixing in sport.

No doubt fuelled by renewed allegations of corruption in this season’s IPL, the Indian Government has now sought to tackle this legislative void by the draft Prevention of Sporting Fraud Bill. Whether or not the draft Bill makes its way onto the final podium in its current format, its structure seeks to bring clarity to a problematic area. This is to be welcomed by participants and prosecutors alike.

Clause 3 of the draft Bill casts the offence widely, but attempts to do so within defined parameters. A person will commit the offence of sporting fraud in relation to a sporting event if he directly or indirectly:

• Manipulates a sports result, irrespective of whether the outcome is actually altered or not;
• Makes arrangement of an irregular alteration of the field of play or the result of a sporting event including its incidental events;
• Deliberately misapplies the rules of the sport, in order to obtain any economic or any other advantage or benefits or promise of an Advantage or benefits, for himself or for any other person so as to remove or reduce all or part of the uncertainty normally associated with the results of a sporting event;
• Wilfully fails to perform to his true potential for economic or any other advantage or benefit for himself or for any other person unless such under performance can be attributed to strategic or tactical reason deployed in the interest of that sport or team;
• Being in possession of inside information as a member, discloses such information to any person before or during any sporting event with the knowledge that disclosure of such information is likely to result in financial gain or is likely to be used in relation to betting or manipulation of a sporting event; or
• Anyone in possession of any information as to the commission of any of these acts fails to give the information to the appropriate authority or the team management or the National Sports Federation, in writing.

The maximum sentence is 5 years’ imprisonment in the case of participation in arrangements to deliberately underperform, whereas the maximum is reduced to 3 years’ for disclosing inside information to any third party.

Clause 8 provides that the offence can also be committed by companies or associations of individuals: every person who was in charge of, and responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence. The draconian effects of this reverse-burden” are mitigated by a specific defence where an individual can establish that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of the offence.

Interestingly, sporting event” includes any event held abroad in which the Indian team or a member from India participates. The extra-territoriality of the draft Bill enables the Indian authorities to prosecute individuals, or companies, wherever the criminal acts took place.

Whilst there may be some interpretative difficulties with the present drafting of definitions in the Bill – it is unclear where the elements of the offence stop and defence starts – the genuine attempt to logically distinguish between the sporting cheat and the sporting fraud is to be welcomed. For example, the South Korean, Chinese and Indonesian badminton teams who were famously dismissed from the 2012 Olympic Games for deliberate under-performance would not have committed any offence, as they would have successfully claimed that their performance was tactically for the benefit of the team.

The Bill also introduces a corporate responsibility towards exercising all due diligence to prevent the commission of the offence; legislative words which have required companies to put in place extensive anti-corruption procedures in the context of the Bribery Act 2010.