Tuesday, September 26, 2006

Football bungs

This article was published in The Times on 26 September 2006. A different article on this topic was also published in the Solicitors' Journal in the same week.

Investigations into football's "bung culture" by undercover BBC reporters have produced footage of a leading agent alleging that he knows of "six to eight" managers willing to receive illegal payments. But take away all the hype surrounding last week's BBC Panorama programme, and what is the hard evidence? In particular, what are the potential legal implications?

If the allegations of bung-taking are proven, then there may, clearly, be breaches of the criminal law. The Prevention of Corruption Act makes it an offence for agents -and this potentially could include managers and other club officials to offer or receive a bribe. The offence is punishable by up to seven years in prison. Other potential offences include conspiracy to corrupt or defraud and also tax evasion.But it goes farther than the criminal law. There may be civil law ramifications: an employee of a club may be sacked for gross misconduct and potentially for breach of fiduciary duties, for example. There may also be liability for deceit. Besides this, the bung may also serve to undermine and re-open the whole contract.And finally, there are the Football Association and other professional body regulations. These emphasise that payments should not be made direct to agents and further that clubs should not have any interest in an agency. Conflicts of interest should be declared.

What of the possible victims of secret filming? Although, strictly, entrapment is not a defence in England, they may argue that the use of such evidence is in breach of their right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR). They may also suggest that it was an infringement of Article 8 of the ECHR and their right to privacy. Potentially, too, they could consider actions for breach of that right to privacy and also in defamation depending on the circumstances.

Payments to players are nothing new to football. Preston North End was found guilty of making illegal payments to players as early as the 1880s and Leeds United was formed only after Leeds City was kicked out of League Division Two in the 1920s for making illegal payments.Meanwhile, a report by Lord Stevens of Kirkwhelpington on the same issue is awaited. This coincides with the Italian football investigations. Perhaps the time is ripe for an overhaul of the system similar to that undertaken in the 1990s in relation to doping offences.

What, though, could be done? The most obvious area for improvement is an end to the alleged culture of turning a blind eye. This has to come from governing bodies and boardrooms. Much has been said about the alleged behaviour of managers and agents but it should not be forgotten that the people running the upper echelons of the sport, those deciding whether to put resources into investigations or not, are very often the chairmen and directors of clubs.

This could be coupled with a review of the system of punishments within the game.To some it seems anomalous that while the criminal law could sentence someone for up to seven years for taking a bribe, the regulatory bodies realistically threaten only fines and relatively short bans from the game. This leaves the suggestion that there is one law for the rich and another for everyone else. Lord Stevens has an excellent opportunity to clean up what looks like seedy practice. Let's hope he makes the best of it.

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