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CLEAN BOWLED: THE NEED FOR IMPOSITION OF CRIMINAL LIABILITY ON MATCH FIXERS

Updated: Jul 29

[Authored by Dhruvo Das, a 4th year B.B.A LL.B (Hons.) student at School of Law CHRIST (Deemed to be University), Bangalore.]

The commercialization of sport has given birth to a plethora of legal issues, catching the attention of the legal fraternity. One such issue that has afflicted commercial sport for a considerable period of time is match fixing. While most countries have comprehensive legislations criminalizing sports fraud, the provisions related to match fixing in India are non-existent. In the absence of a specific law dealing with match-fixing, doubt still lingers regarding action that can be taken against these erring persons. This article examines existing framework of penal laws that may apply to match fixing and argues that criminal sanctions should be imposed on match-fixers.


Assessing the validity of the existing penal laws with respect to Match-fixing


Indian Penal Code, 1860


Within the code, the two offenses which seem to apply to match-fixing prima facie are ‘cheating’ and ‘criminal conspiracy’.[1] As per the definition provided under Section 415 of the Indian Penal Code, the offense of cheating involves deceiving ‘a person’.[2] However, match-fixing involves the deception of the public at large. This section does not apply to match fixing as cheating is not an offense which can be committed in rem, but rather must be against a specific person. Another essential ingredient to constitute the offense of ‘cheating’ is the presence of a dishonest intention. It was laid down that an act becomes ‘dishonest’ only when there is an intention, irrespective of the result.[3]In the case of match-fixing it is believed that the wrongful loss to the spectators is a mere consequence of the act and the individual guilty of fixing may not have the intention to cause such loss.

In order to constitution the offense of ‘criminal conspiracy’, there must be an agreement to commit an illegal act, or a legal act by illegal means.[4] There is nothing contained in the Indian Penal Code that makes match-fixing an ‘illegal act’ and it can be committed by legal means as well.


Public Gambling Act, 1867


A major impediment in the application of this law to match-fixing comes in way Section 12 of the Act, which states that ‘Nothing in the foregoing provisions of this Act contained shall be held to apply to any game of mere skill wherever played’.[5] The interpretation of a game of chance was given as - It is a game determined entirely or in part by lot or mere luck, and in which judgment, practice, skill or adroitness has honestly no office at all or are thwarted by chance’.[6] A sport or an athletic game falls under the ambit of ‘game of skill’, since an athlete, with superior strength, skill, ability, practice and form, has a greater chance to win over an athlete or a team with lower skills.[7] Under this explanation, the game of cricket should also fall within the purview of ‘game of skill’ and is hence outside the ambit of the Public Gambling Act, 1867.


Prevention of Corruption Act, 1988


Only ‘public servants’ can be prosecuted under this Act. The term ‘public servant’ means any person who holds an office by virtue of which he is authorized or required to perform any public duty.[8] The term ‘public duty’ means a duty in the discharge of which the State, the public or the community at large has an interest.[9]


The Board of Control for Cricket in India is responsible for selection of the best team to represent the country, controls the game at the national level and wields great influence over the entire field of cricket. Therefore, it discharges ‘public function’ and thus cannot act arbitrarily, whimsically or capriciously.[i]The court has also stated in the case of that, “When India plays in an international match, it attracts the attention of millions of people. The win or loss of the game brings 'joy' or 'sorrow' to them. Cricket when it comes to competitive matches no longer remains a mere entertainment - it commands such a wide public interest”. [10] Thus, when cricketers indulge in match fixing and underperform in a match, the interest of the public is affected at large. The public not only suffers from monetary loss but mental harm is also inflicted upon them. Therefore, it can be argued that cricketers should also be included under this Act.

However, a contrary view will suggest that cricketers are governed by independent contracts and do not fall under the scope of ‘public servant’. Moreover, even if the Act is made applicable to cricketers, it will not apply to bookies who are the primary culprits, as they can never be brought within the purview of ‘public servant’.

A Possible Case for Imposing Criminal Sanctions on Match-Fixers

As discussed in the previous sections of the paper, neither do any of the existing penal laws apply to match fixing nor is there any specific law that deals with match-fixing. In such a scenario, it becomes necessary to enact a substantive law making all forms of manipulation of sports, corruption and malpractices a criminal offense.


Inadequacy of disciplinary sanctions

First, the maximum punishment that can be given under the present disciplinary measures is a ban for a few years and a life ban in exceptional circumstances. Such a ban might not prove sufficient because the amount of money an athlete gets from indulging in match fixing is enormous. As a result, an athlete might not only consider fixing matches again after the ban is lifted, but might also consider fixing at the cost of such a ban. Hence, it can be argued that these measures are not stringent enough to cause deterrence. Secondly, there are many private leagues across the world, which are outside the purview of international and national sporting bodies. For example, the Indian Cricket League (ICL) was outside the purview of the BCCI and the Premier Futsal League was outside the purview of the All India Football Federation. Thus, even if a player is banned by these bodies on account of fixing matches, the banned sportsman can still participate in such private leagues. Thirdly, bookies induce the athletes to indulge in match fixing and are the actual perpetrators but the present disciplinary sanctions cannot be made applicable to them. In light of the above arguments, the author submits that the disciplinary measures are inadequate to combat match fixing.


Match fixing fulfills the elements necessary to invoke criminal liability


The elements necessary to invoke criminal liability can be categorized into three, namely, public harm, moral wrongfulness and culpability.

The harm caused to various stakeholders by match fixing is manifold. The spectators suffer from financial harm as they lose the value of the money that they have paid to watch a match at the stadium or on television. They also suffer from mental harm as an individual derives lesser thrill and satisfaction from a fixed match as compared to a match not fixed. Allegations of match fixing may also result in the spectator losing interest in sport. Consequently, the ticket sales will reduce and the sporting body will suffer humongous losses. Moreover, if an individual indulges in the act of fixing during the IPL for instance, not only will the reputation of the franchise get tarnished but the franchise might also be banned in some circumstances, resulting in massive financial loss to the franchise owners and other stakeholders.

Culpability, which is substantially subjective, refers to the defendant's moral blameworthiness or state of mind.[11] It flows from the assumption that individuals in general have the capacity and sufficient free will make meaningful choices and must be made responsible for such choices. In the case of match fixing, the player, the official or the bookies have the requisite mens rea and engage in the act knowingly. Furthermore, these individuals indulge in the activity of match-fixing freely and are not coerced. Thus, the element of culpability is satisfied.

Moral wrongfulness involves conduct that violates a moral norm or standard.[12] Commercial sport occupies a significant position in modern society. Sportsmen are treated as role models and are highly revered by the public. They are idolized by the youth for the manner in which they compete, their steely determination and sportsmanship, their never say die attitude and the manner in which strive for excellence. When sportsmen indulge in acts of corruption and fixing, not only do the children emulate their heroes, but the society tends to disintegrate from within as sport is largely considered as an activity that is devoid of any sort of corruption. It evokes feelings of intolerance, indignation and disgust among ordinary members of society, threatens common morality and therefore is a proper object of criminal law. Hence, the element of moral wrongfulness is satisfied as well.


Involvement of Illegal Crime Syndicates


Another factor that deserves adequate consideration is the relationship that match-fixing shares with organized crime. The manipulation of sports competitions is often carried out by organized crime networks comprising of numerous individuals, each of whom contribute in their way, either directly or indirectly, to the commission of the illegal activities.[13] Criminal groups generate a large proportion of their income through match-fixing and illegal betting which is then utilized towards the funding of various illicit activities, some of which may also threaten the national security of a country. To make matters worse, these criminal groups use threats of violence against players who fail to perform after accepting expensive gifts and money.[ii]Therefore, it is necessary to criminalize the act match fixing because the influx of illegal money and terrorist elements is causing a serious threat to national security of the country.

Conclusion


The existing penal laws are incompetent in dealing with cases of match fixing as are the present disciplinary measures. In such a scenario, enacting a law criminalizing sports fraud seems like the only plausible alternative. The ‘Prevention of Sporting Fraud Bill’ is a positive step that has been taken to combat sports fraud. However, it has not been introduced before either house of the parliament and has been ignored by the government in recent times. In the absence of a specific law, athletes will continue to indulge in such conduct believing that they can get away with the law and thus set a wrong example for the future generation of sportsmen. Therefore, it is essential that this issue is addressed with utmost seriousness and with a strong determination to bring transparency back into sport.


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[1] The Indian Penal Code, 1860, No. 13, Acts of Parliament, (India). [2] Id., § 415 [3] Ahmed & Anr. v. The State, (1967) CriLJ 1053 (India). [4] Supra note, § 120 A. [5] Public Gambling Act, 1867, §12. [6] Rex v. Fortier, 1957 13 Q.B. 308. [7] KR Laksmanan v State of Tamil Nadu and Ors., AIR 1996 SC 1153 (India). [8] Prevention of Corruption Act, 1988, § 2 (c) (viii). [9] Id., § 2 (b). [10] Zee Telefilms Ltd. and Ors. v. Union of India and Ors., AIR 2005 SC 2677 (India). [11] Stuart P. Green, Why It's a Crime to Tear the Tag Off a Mattress: Overcriminalization and the Moral Content of Regulatory Offenses, 46 Emory L. J. 1551 (1997). [12] Arnold H. Loewy, Culpability, Dangerousness, and Harm: Balancing the Factors on which Our Criminal Law Is Predicated, 66 N.C. L. REV. 283 (1988). [13] Mike Lasusa, Organized Crime a Player when it comes to Match Fixing, InSight Crime (August 29, 2016), https://www.insightcrime.org/news/analysis/organized-crime-a-player-in-match-fixing/.

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