Editorial Sports Law & Taxation, Volume 14.3, September 2023
It is with much pleasure that we welcome readers to the September 2023 edition (citation: SLT 2023/3) of our ground-breaking journal Sports Law and Taxation (SLT) and online database www.sportslawandtaxation.com.
Not surprisingly, association football (soccer) continues to dominate the sporting headlines and this is reflected in the Editorial of this issue of SLT.
At the end of May 2013, UEFA, the governing body of European association football, approved the membership of the Gibraltar Football Association. To mark this historic event, we invited Ian Felice and Gian Massetti of Hassans International Law Firm, Gibraltar, who act for the Gibraltar Football Association, to contribute to the SLT Editorial the following account of the phenomenal growth of association football in Gibraltar (known colloquially as “the Rock”) at the elite and grass roots levels, which, as you will read, has been no mean achievement:
“Football on the Rock: 10 years of UEFA membership
On 24 May 2013, at the 37th Ordinary Congress of the Union of European Football Associations (“UEFA”) in London, the Gibraltar Football Association (“GFA”) was admitted as the 54th full member of UEFA. Gibraltar became UEFA’s smallest member state by population (just under 33,000) and surface area (6.8 km2), behind San Marino, Liechtenstein and the Faroe Islands. The President of the Gibraltar Football Association at the time, Gareth Latin, described the development as "a momentous occasion for football in Gibraltar”, declaring that “UEFA membership means that we can begin the next chapter of Gibraltarian football”.
This marked the end of a long and arduous process of over twenty years, from May 1991, when the GFA had first made representations seeking membership, which was resisted principally by Spain, which claims sovereignty over Gibraltar. In 2007, forty-eight UEFA member associations voted against Gibraltar’s application, with the only votes in favour coming from England, Scotland, Northern Ireland and Wales. Following an August 2011 ruling from the Court of Arbitration for Sport (“CAS”) in Gibraltar’s favour, it was accepted as a provisional member of UEFA in October 2012, with definitive admission approved unanimously in May 2013.
That day was arguably the most significant in the long history of the GFA, which dates back to 1895. One of the oldest football associations in the world had finally achieved international recognition. Gibraltarians could now support their own national teams in competitive matches. Gibraltarian clubs were now able to compete in UEFA competitions, opening new opportunities and marking the start of a new professional era for football in Gibraltar.
FIFA membership was subsequently confirmed in 2016, and the GFA has since revolutionised its operational, administrative, and sporting structures, with the express intention of developing into a modern and forward-thinking organisation. The past ten years has seen significant development in grassroots, women’s football, youth football and futsal, as well as the elite-level sport.
Elite level
At the elite level, Gibraltar has punched above its weight with some historic moments on the pitch in the last ten years.
Gibraltar played its first ever recognised international friendly at the Estadio Algarve in Faro, Portugal on 19 November 2013, drawing 0-0 with Slovakia, a nation with a population of over five million. A first ever victory in a recognised international followed in 2014, with a 1-0 win over Malta, again at the Estadio Algarve.
The Gibraltar national team competed in European Championship qualifiers for the first time, drawn in Group D for the UEFA EURO 2016 tournament alongside Germany, Poland, Republic of Ireland, Scotland and Georgia, with their first match a 7-0 defeat to Poland. By quirk of fate, Gibraltar was initially drawn in Group C, but with Spain already in that group, UEFA moved Gibraltar to Group D.
Despite disappointing results against higher ranked nations in qualifiers for the FIFA World Cup 2018, UEFA EURO 2020 and FIFA World Cup 2022, the introduction of the UEFA Nations League has given Gibraltar the opportunity to play against the continent’s smaller nations more frequently. With more competitive games against teams of roughly the same level, some noteworthy results have been achieved.
Gibraltar completed another first in its international football history as they finished in a respectable third place in Group D4 in the UEFA Nations League 2018-2019, following memorable victories over Armenia and Liechtenstein.
They then went one better in the UEFA Nations League 2020-2021, making history by achieving promotion to League C. Gibraltar finished top of Group D2 with a 1-1 draw against Liechtenstein at the Victoria Stadium in Gibraltar, having already beaten San Marino and Liechtenstein.
Gibraltar’s international teams of all ages, women’s football and futsal now compete regularly in recognised UEFA tournaments, as do club sides who qualify for UEFA competitions by virtue of their performance in domestic competitions.
In July 2014, European club football came to Gibraltar with Lincoln Red Imps FC and College Europa FC becoming the first Gibraltarian clubs to participate in qualifiers for the UEFA Champions League and UEFA Europa League respectively. July 2016 saw perhaps one of the most memorable results in Gibraltar football history, with Lincoln Red Imps FC beating former European champions Celtic, 1-0 at the Victoria Stadium in the home leg of the UEFA Champions League second qualifying round.
Lincoln Red Imps FC have also since become the first Gibraltarian club to reach the group stages of a European club competition after defeating Latvian champions Riga in a play-off round of the UEFA Conference League in 2021.
The experience and exposure gained from participation in competitions of this level has naturally brought about further opportunities for Gibraltarian footballers to play at higher levels and in different countries. At senior level, a number of current Gibraltar internationals are contracted to clubs abroad, from EFL League One and below in England, to the League of Ireland Premier Division and the lower leagues in Spain. At youth level, there are over 150 Gibraltarians playing in the Spanish regional youth leagues.
Grassroots
Football has long been the most popular sport in Gibraltar, but UEFA membership has acted as a catalyst for the growth of football at grassroots level. The past ten years has seen increased participation in all forms of non-elite football, for children and adults of all ages and abilities.
The GFA has worked with local schools to establish a Schools Programme, with futsal and football sessions offered for all ages. Programmes and events have become more frequent, as part of the curriculum, playing a big role in the GFA Grassroots programme. Qualified coaches visit schools to offer them bespoke coaching sessions as part of PE lessons. The Department of Education, in conjunction with the GFA, has organised football themed fun days in which pupils are encouraged to participate in pressure free football activities. The GFA Grassroots Department also organises annual inter school competitions, for boys and girls, which are always well attended and competitive.
The GFA also organises mixed summer camps outside the school term, which have, in recent years, been booked to capacity. The GFA also launched the Gibraltar FA Youth Academy in 2021, starting with twice weekly sessions for children aged 4 and 5, with the intention to add an additional age group every year. The uptake for the Academy has been considerably higher than any in history for players of that age group. There has been a surge in the number of teams participating in development leagues, with over 800 children involved.
Aimed at keeping the older generation actively involved in the game, walking football is becoming more and more popular in Gibraltar, with a national team already having competed in amateur tournaments in the UK and Portugal.
Women’s football
The women’s game has seen an increase in participation as has the level of interest from girls wishing to join football and registering. The inaugural Gibraltar Women’s Football League was contested between three teams in 2018, growing to five teams in 2021. Away from the domestic league, a number of Gibraltarian women’s footballers are competing in the lower leagues in Spain and at various levels in the UK, up to the Women’s Championship.
Although the senior national women’s team are yet to take part in a UEFA tournament, an under-19s squad was entered into qualification for the 2023 UEFA Women's Under-19 Championship, competing against Israel, North Macedonia and Georgia and becoming the first Gibraltar women’s national football team to enter a UEFA competition.
In May 2022, Gibraltar’s Tercentenary Sports Hall hosted Group B of the preliminary qualifying round of the UEFA Women’s Futsal EURO. Gibraltar’s women’s futsal team earned a point against Moldova and performed well in narrow defeats to Belgium and Slovakia.
Looking to the future
Undoubtedly, the biggest barrier to the development of football in Gibraltar is the infrastructure. With limited space in a densely populated area, there are only two full-size pitches in Gibraltar. All national league and youth league matches are played on an artificial pitch at the Victoria Stadium.
There are additional training pitches at the Victoria Stadium, and the GFA works closely with the Gibraltar Sports and Leisure Authority towards maximising the use of other facilities in Gibraltar, including the Lathbury Barracks Sports Complex, the Europa Point complex, local school buildings and the Special Olympics Sport Complex, for smaller sided games and other football activities.
The GFA has long been working towards the construction of a new national stadium. Initial plans for a stadium at the Lathbury Barracks or Europa Point did not materialise, but there are now plans for an 8,000-seater stadium to be built on the Victoria Stadium site. This is to be designed as a modern, functional football stadium, together with all the associated facilities and accommodation requirements as may be deemed necessary by the GFA for it to conduct its day-to-day operations. The stadium is to be fully compliant with the UEFA Infrastructure Regulations 2018 for Category IV stadiums and the relevant facilities requirements. In addition, the increased capacity will open opportunities to away fans attending matches in greater numbers.
It is anticipated that the new stadium, once constructed, will be the next step for the growth of Gibraltar’s football. The state-of-the-art facilities will host the domestic league and international fixtures, hopefully inspiring the next generation of Gibraltarian footballers by ensuring that home matches in UEFA and FIFA qualifying tournaments can be played in Gibraltar and not in Faro, Portugal.”
Saudi Arabia aims to become a so-called football powerhouse!
Saudi Arabia has a very ambitious project to make the kingdom an international football hub and it began with the transfer in January 2023 of Cristiano Ronaldo to the Al Nassr club on a two-and-a-half deal, reputedly worth for the player the sum of more than US$ 400 million in wages.
In June 2023, Karim Benzema moved to the Al Ittihad Club and in August 2023, Neymar Junior joined the Saudi Arabia’s most decorated club Al Hilal.
Also, during the current summer “transfer window”, several other high-profile players from the European leagues have joined the Saudi Pro League. These include Sadio Mane, Riyad Mahrez, Jordan Henderson and N’Golo Kante, all for eye-watering sums.
In fact, during this period, the Saudi Pro League has spent more than US$ 900 million on transfer fees for foreign players in its aim to compete with the likes of the English Premier League and become one of the top football leagues in the world.
Saudi Arabia has invested billions of US dollars, which has been described by some commentators as “sports washing” designed to distract people from its poor record on human rights!
2023 summer “transfer window”
The transfer windows for the Premier League, English Football leagues, Bundesliga, La Liga, Ligue 1 and Serie A all closed on 1 September 2023. The transfer window for the Saudi Pro League remained open until 7 September 2023.
We publish below the Deloitte news release issued on 2 September 2023:
“Records eclipsed as Premier League clubs spend over £2bn for the first time:
– Premier League clubs’ gross spend of £2.36bn is almost £440m higher than the previous record (£1.92bn) set last summer;
– Gross spend in the 2023/24 season (£2.36bn) is already the second-highest ever after the record last season (£2.73bn), with the January transfer window still to come;
– Premier League clubs received a total of £550m in transfer fees from overseas clubs, more than two-and-a-half times higher than ever before (summer 2022: £210m), with £245m of these receipts coming from Saudi Pro League clubs;
– With the exception of La Liga, gross transfer spend increased in all of Europe’s “big five” leagues, with the aggregate expenditure increasing by almost €1.16bn (26%) (2023: €5.68bn; 2022: €4.52bn);
– Only two of Europe’s “big five” leagues spent more on transfers than they received (Premier League: net spend €1.18bn; Ligue 1: net spend €35m; Bundesliga: net receipt €290m; Serie A: net receipt €165m; La Liga: net receipt €115m);
– Championship clubs’ gross spend (£140m) was the highest since before the pandemic (2019: £160m), however the overall net receipt (£320m) was also the highest on record.
Premier League
The 2023 summer transfer window saw Premier League clubs spend a record £2.36bn, according to Deloitte’s Sports Business Group. This exceeds the previous record (£1.92bn), set only last summer, by almost £440m.
Following the introduction of the current transfer system in January 2003, it took 14 summer transfer windows for gross spend to exceed £1bn in a single window (summer 2016: £1.16bn). It has taken half the time (seven summer windows) for spending in an individual window to surpass £2bn, highlighting the Premier League’s exponential growth.
Tim Bridge, lead partner in Deloitte’s Sports Business Group, commented: “A second successive summer of record spending by Premier League clubs suggests that year-on-year revenue growth could return following the pandemic.
Nearly three quarters of Premier League clubs (14) spent more this summer than the last, reflecting the increased intensity of competition. There continues to be pressure on clubs to acquire top talent to satisfy their on-pitch objectives, whether that’s qualifying for European competition or simply maintaining their position in the Premier League.
Last season did not disappoint in terms of unscripted drama, proving the worth of the Premier League’s product in the first year of a new, improved value broadcast cycle. Revenue from this new deal has certainly facilitated the unprecedented levels of spending we’ve seen this summer, with the emergence of a new spending power in the global transfer market and heightened competition throughout the Premier League also acting as drivers.”
Europe’s “big five”
Gross transfer spend across Europe’s “big five” leagues totalled €5.68bn in this summer’s window, an almost €1.16bn increase on last summer’s total (2022: €4.52bn). Gross spend increased compared to the previous summer in all the “big five” leagues except La Liga, which was also the only one of these leagues not among the top five global spenders.
Premier League clubs’ gross spend of €2.74bn accounted for 48% of total spending across the “big five” European leagues. Ligue 1 was the next highest spender after the Premier League, responsible for 16% of “big five” expenditure with a gross spend of €900m, whilst Serie A (€850m), Bundesliga (€745m) and La Liga (€440m) contributed 15%, 13% and 8% respectively.
This growth in spending among the continent’s highest revenue-generating leagues may have been catalysed by increased Premier League receipts, with Premier League clubs spending €1.08bn with “big five” peers, an increase of €160m on last summer. This amounted to almost 75% of Premier League clubs’ overseas expenditure, and 40% of their total expenditure.
Only two of the “big five” leagues recorded a net transfer spend this summer (Premier League: €1.18bn; Ligue 1: €35m), with the other leagues all receiving more in transfer fees than they spent (Bundesliga: €290m; Serie A: €165m; La Liga: €115m). As a result, net spend across the “big five” leagues (€640m) totalled just over half the previous summer window’s result (€1.2bn).
Calum Ross, assistant director in the Sports Business Group at Deloitte, said: “Premier League clubs continue to dominate Europe’s “big five” leagues from a spending perspective, suggesting that the gap between English clubs and the rest of Europe’s elite is widening.
With the spending power of Europe’s “big five” now also being matched by emerging leagues, future transfer windows will become increasingly competitive. However, the glamour of playing in Europe’s elite divisions remains an attractive prospect for the world’s best players, with some of the Premier League’s top talent opting for a move to the continent this summer.”
Saudi Pro League
With just under a week left to go until their transfer window closes, Saudi Pro League clubs have so far spent €805m, the fourth-highest transfer spend of any league globally, behind the Premier League, Ligue 1 and Serie A.
Almost half of the transfer fees received by Premier League clubs from overseas (€640m) came from Saudi Pro League clubs. These transfer receipts (€285m) were concentrated among seven clubs, with four of these among the Premier League’s “big six”. Two Premier League clubs, Fulham and Liverpool, saw 100% of their transfer receipts come from Saudi Pro League clubs.
Across the rest of Europe, receipts from Saudi Pro League clubs currently stand at €135m, €110m, €70m and €30m in Ligue 1, Serie A, La Liga and Bundesliga respectively.
Calum Ross, assistant director in Deloitte’s Sports Business Group, commented: “The money spent so far by Saudi Pro League clubs on players from Premier League clubs eclipses any such spending with clubs in the rest of Europe’s “big five” leagues. The Saudi Pro League has provided an additional active market in which clubs can earn a substantial fee on the sale of their players.
The emergence of more active participants in the global transfer market has the potential to accelerate clubs’ efforts to establish financially sustainable business models. In this summer’s transfer window, clubs that have sold players to those from emerging international leagues have then gone on to spend receipts with a large number of other clubs, both within and outside of the Premier League. This distribution of the new flow of funds into the market will be key to ensuring the financial benefits of a more active global market are enjoyed across the board, serving to reduce rather than widen any existing gaps.”
EFL Championship
Championship clubs’ gross spend amounted to £140m during this summer’s window. Although an increase of almost £55m (63%) on last year’s total (£85m), it was still some way below pre-pandemic levels (2017-19 three-year average: £170m). Net transfer receipts (i.e. player transfer receipts less player transfer spend) among Championship clubs was, however, at a record high (£320m).
Bridge commented: “Revenue from player sales has long stood as a key aspect of Championship clubs’ business models. Appetite to spend with Championship clubs had seemingly dried up in recent years, so this summer’s record-breaking receipts, on the surface, seems a positive step on the road to financial recovery. However, these record-breaking receipts were concentrated among a small number of clubs and, notably, clubs already in receipt of Premier League parachute payments.”
The three clubs relegated from the Premier League at the end of last season, Leicester City, Leeds United and Southampton, collected almost £300m (65%) of Championship receipts, greater than total Football League receipts in each of the last two summer transfer windows. Although these clubs were also responsible for almost half (£65m) of Championship clubs’ expenditure, only £15m of this was spent with other Championship clubs.
Bridge concluded: “Significant receipts from player sales coupled with parachute payments provide those clubs relegated from the Premier League with a substantial financial advantage against other Championship clubs. Whilst those clubs may only be covering their cash shortfalls as a result of their contracted cost base, on the face of it, it makes it increasingly difficult for other clubs to break out of the division in a sustainable manner. The current regulatory considerations being debated across English football need to focus on finding a solution to what has become an ever-exacerbating challenge.”
Summary of other key findings from the analysis by Deloitte’s Sports Business Group include:
– Chelsea’s aggregate transfer spend across the three windows since the club’s takeover has almost reached the £1bn mark;
– There were two transfers-in to Premier League clubs with reported fees of £100m or more compared to none last summer, and the number of transfers-in valued at over £50m (13) was significantly higher than in recent years (2022: 7; 2021: 4);
– Premier League clubs’ transfer receipts (£1.35bn) increased by over £520m compared to the previous summer window. Both EFL and overseas clubs spent more with Premier League clubs than last year, with receipts from overseas clubs (£550m) higher than ever before;
– Premier League clubs’ net spend (£1.01bn) was down just £65m on the previous summer (£1.07bn). This meant that net spend as a percentage of estimated revenue (£5.8bn) was also lower, falling from 19% in the summer 2022 window to 17%;
– Premier League gross spend amounted to £255m on deadline day, which is more than double the £120m spent on deadline day during last summer’s window;
– Premier League clubs brought-in a total of 29 players from Football League clubs compared to 19 in summer 2022;
– The summer 2023 transfer window saw the first shift in the demographic of the global top five transfer spenders since summer 2016, but this time it was the Saudi Pro League rather than the EFL Championship displacing one of Europe’s “big five” leagues;
– 14 Championship clubs recorded a transfer surplus, up from nine last year. Of the nine whose expenditure exceeded income, only two recorded a net spend of more than £5m;
– Collective net transfer receipt among Championship clubs was almost triple the previous summer (2022: £110m; 2023: £320m).
Basis of preparation
The information on player transfers is based on publicly available information in respect of player registration acquisitions by clubs, including from club websites, www.bbc.co.uk and www.premierleague.com, and further analysis carried out by the Sports Business Group at Deloitte. The information is based on reported transfers as at 23:00 on 1 September 2023. The figures contained in this release will not necessarily be the same as the cost of acquiring players’ registrations as recognised in the financial statements of each club. Under accounting requirements, the cost of acquiring a player’s registration includes the transfer fee payable (including any probable contingent amounts), plus other direct costs such as transfer fee levy and fees to agents. The exchange rate at 1 September 2023 has been used to convert figures between euros and pounds sterling (£1 = €1.17).”
Articles in this issue
As you will see from the Table of contents for this issue, as usual, we include a variety of topical sports law and sports tax articles, which will engage our readers’ attention and also provide them with many things to consider. Amongst them, we would draw your particular attention to the following two articles.
– A major and thought-provoking article by Layckan van Gensen on the legal protection of sports image rights in South Africa and the need for legal certainty.
In her introduction, she writes as follows.
“Concepts such as the “image”, “likeness” and “image rights” are often cited by South African scholars and practitioners alike, alluding to the fact that South Africa recognises an image right. However, this is not the case. In fact, no clear legal definition of what an individual’s image or likeness encompasses currently exists in South Africa. Although no image right is recognised in South Africa, the concept is not foreign in our law. Image rights are often mentioned in sport athletes’ contracts and in merchandising/endorsement agreements.
It is common practice for celebrities (and social media influencers alike) to engage in the marketing, merchandising and commercial exploitation of their own image for commercial gain. Through this practice many individuals have successfully generated a livelihood. Where a valid contract exists, the law of contract will regulate the use of the individual’s image. This provides protection to the individual when their image has been used in a manner which breaches the agreed-upon terms and conditions. In these instances, the individual can rely on contractual remedies to rectify the breach.
The problem arises where no such contract exists between the parties. In this regard, great legal uncertainty exists on what remedies are available to an individual who has suffered patrimonial harm for the loss of, for example, licensing fees or the dilution of the commercial value of the individual’s image due to its unauthorised use in South Africa. As in the United Kingdom, South African law fails to recognise the existence of a discrete image right and, as a result, the individual will have to rely on other areas of the law to provide them with a legal remedy for the patrimonial harm suffered due to the unauthorised use of their image.
This article will provide a brief overview of the legal position in South Africa when a plaintiff in an image rights infringement matter would like to remedy the unauthorised use of their image, where no contractual relationship exists, by relying on existing law. Furthermore, this article will recommend how image rights infringement matters should be regulated in South Africa to create legal certainty in our jurisdiction.”
In her conclusion, she remarks as follows.
“[...] common law countries, such as South Africa, should promulgate legislation to address specifically image rights infringements. This legislation would provide clear guidance on what the image of an individual encompasses, when an image right infringement occurred, list possible exemptions, and, most importantly, outline which remedies will be available to plaintiffs. In South Africa, legislation to address image rights would have certain distinct and important benefits, such as:
“1 It would create legal certainty regarding the regulation of image rights infringements in South Africa.
2 It would provide a definition of what constitutes the image of an individual and which aspects of such image will be protected, as well as providing a definition of “image rights”. Case law and scholars alike have been using the term “image rights” without providing a pertinent definition of what these rights entail (or what their source is in law).
3 It would be best suited to prescribe appropriate remedies for those individuals whose image has been misappropriated. As discussed above, the law of delict may provide satisfaction for the infringement of any personality right (under the actio iniuriarum), but the primary concern of these individuals may very well in most cases be to recover patrimonial loss. As also mentioned earlier, pure economic loss will probably be the appropriate form of patrimonial loss which would be present in an image rights infringement scenario. Whilst pure economic loss may be recovered under the actio legis Aquiliae (when a personality right infringement occurred), the plaintiff will only be successful if all the requirements are satisfied. It was determined that the requirement of wrongfulness may be a significant obstacle in such matters.
4 Statutory regulation of image rights could more easily address the need for balancing of constitutional rights in this context, by, for example, expressly providing for exemptions from liability for infringements and special defences in infringement cases.
5 Statutory regulation of image rights can most efficiently and, importantly, speedily address the rapid development in technology which enables image rights infringements to occur more easily and more frequently […].”
Seeing that the South African legislator was willing to promulgate special legislation to regulate the misuse and theft of an individual’s personal information, one cannot foresee any reason why the same approach cannot be followed for the misappropriation of an individual’s image for commercial benefit by third parties.
The benefits of promulgating such legislation will not only create legal certainty but will also develop an area of South African law which has been lacking in comparison with other jurisdictions.”
– And an article by Rafael Braegger on combatting match-fixing in Switzerland. He sets the scene for this important subject in his introduction as follows.
“Switzerland is home to many major international sports federations, including the International Olympic Committee (IOC), FIFA, UEFA, IIHF, UCI, and FIS. It is these federations, which are chiefly responsible, not only for organising major sports events and international competitions, but also for tackling the downsides of sporting competition, a pivotal of which is the manipulation of such competitions – commonly referred to as “match fixing”. This, in turn, entails an elevated degree of responsibility for Switzerland as the domicile of those federations.
Regrettably, it took the Swiss legislature quite some time to realise its responsibility and to act upon it – yet outside help and impulses were still necessary. It was not until January 2019, when an amendment to the “Sport Promotion Act” (“SpoPA”) entered into force following the signing of a pertinent Council of Europe Convention, that Switzerland finally put in place robust provisions dedicated to the fight against match fixing.
Several years have passed since, which is why it is about time to look more closely at what has happened and to draw some related (interim) conclusions. To this end, this article outlines the relevant legal framework in Switzerland on the fight against match fixing, spotlights the evolution of legal practice since the adoption of the 2019 SpoPA, and points to some deficiencies that remain to be tackled by legislators both of a public (state/confederation) and private nature (sports federations).”
And reaches the following conclusions in his article.
“The start of the new provisions of Swiss law on the fight against match fixing in the SpoPA and in the MGA has been slightly rocky as the competent authorities appear to be somewhat hesitant to apply them to their full extent (yet). However, it will only be a question of time until the first decisions applying the new provisions will be handed down and publicly available.
Until then, legal uncertainty regarding specific legal questions arising under the SpoPA and the MGA will remain, such as:
– Does there have to be official sports betting available for art. 25a SpoPA to apply? If yes, this would leave out the countless competitions where betting takes place illegally or without public scrutiny.
– If there is betting available, does it have to be domestic bets (bets placed with a Swiss sports betting company) or are all bets (also foreign ones) equally covered? Given the purpose of the SpoPA and the MGA, the latter seems to be true, but until a corresponding ruling is available the uncertainty remains.
– Is it unlawful or not to manipulate a sporting competition where only sporting or social merits are at stake? The latter appears to be the case (no liability), since the MGO does not even allow such bets to be offered. This poses a considerable legal loophole in Swiss legislation and in the fight against match fixing as such.
– Is a sanction possible if there is proof of manipulation but no element of bribery at all? Apparently not, as the SpoPA provisions strictly adhere to the bribery provisions of the Criminal Code. This poses another substantial weakness of the pertinent provisions and of the fight against match fixing in Switzerland. It is, however, a question that needs to be addressed and resolved by the legislator rather than by the courts, given the “nulla poena sine lege” principle (art. 1 SCC). In addition, it is up to the sports federations concerned to tackle this kind of manipulation with the legal means that they have at their disposal, namely, bans, fines, expulsions, and so on.”
As always, we would welcome and value your contributions in the form of articles and topical case notes and commentaries for our journal and also for posting on the SLT dedicated website www.sportslawandtaxation.com, which has an increasingly wide international footprint!
So, now read on and enjoy the September 2023 edition of SLT.
Dr. Rijkele Betten (Managing Editor)
Prof. Dr. Ian S. Blackshaw (Consulting Editor)
September 2023
