[Author – Sharun Salvi, a first year student of law at NALSAR University of Law, Hyderabad]
Betting and gambling in football has been ever present. What started as a basic wagering activity has boomed into a multi-billion industry that is intrinsically tied with the footballing one. Modern day betting has evolved from simply putting money on the outcome of matches, companies such as Betway and Sky Sports also offer odds on predicting team line ups, the number of goals scored in the match and even the number of cards shown. Betting on transfer of players is a rising trend and companies have received calls of criticism from players causing a plethora of legal issues. The inside information rule has appeared to be of quite some significance in recent judgements and the author through this article attempts to examine the laws and understand its application through cases. The English context here involves the regulations and laws put forth by the English FA. The morality of the betting industry has often been called into question, case in point the West Ham and Betway debacle. Keeping this in mind, we also look at how this affects the penalties and regulations put on players.
Understanding the technicalities and legal matter
Before we go further, we must first understand what inside information exactly means. The exact definition of inside information is not permanent and is used on a case-to-case basis to keep the scope of interpretation wide. In the case of FA vs Daniel Sturridge, the understanding was that “Any information relating to football which the Participant has obtained by virtue of his or her position within the game and which is not publicly available at that time”. This means that any information relating to matchdays, teams, transfers or anything that a player or official is privy to. This sensitive information can be used to influence betting odds and betting based on such information is illegal.
The FA has strict regulations against gambling and inciting betting which were brought about in 2014. The main law is Rule E8(1) which is further divided into 3 sub categories.
Rule E8(1)(a) states that “A Participant shall not bet, either directly or indirectly, or instruct, permit, cause or enable any person to bet on the result, progress, conduct or any other aspect of, or occurrence in, a football match or competition; or any other matter concerning or related to football anywhere in the world, including, for example and without limitation, the transfer of players, employment of managers, team selection or disciplinary matters.” This rule covers the incitement of betting part of the law.
Rule E8(1)(b) states that “Where a participant provides to any other person any information relating to football which the participant has obtained by virtue of his or her position within the game and which is not publicly available at that time, the participant shall be in breach of this Rule where any of that information is used by that other person for, or in relation to, betting.” This rule covers the trading of sensitive information part of the law. These have been subdivided to incorporate a broad range of cases.
Interestingly, the FA guidelines also provides for a defence against the inside information rule. This is mentioned in the third part of the law. Rule E8(1)(c) states that “It shall be a defence to a charge brought pursuant to sub-paragraph E8(1)(b) if a participant can establish, on the balance of probability, that the Participant provided any such information in circumstances where he did not know, and could not reasonably have known, that the information provided would be used by the other person for or in relation to betting.” This rule is commonly known as ‘The Regulatory Defence’ and is the go-to defence in most inside information cases.
The Daniel Sturridge Case
Daniel Sturridge, the former Liverpool striker, received a ban of 4 months and a fine of £150,000 for breaching the betting regulations. This was one of the first cases to be tried under this law. Sturridge was charged with breaching the FA betting rules and 11 breaches of the E8(1) rule. He was accused of giving information regarding moves to Inter Milan, Sevilla and West Bromwich Albion. The FA alleged that this was a ‘family affair’ where Sturridge supplied the information and his brother got the best betting odds through his contacts and various family members were then told to bet. Bets worth £13,800 were made which returned almost £10,800.
In the summer transfer window of 2018, Sturridge was set to move away from Liverpool and at various points had multiple offers on the table. The WhatsApp messages that were retrieved from his phone show that he discussed everything with his family members and also discussed various betting odds of his moves. The breaches were divided under the two rules – 2 counts under Rule E8(1)(a) for allegedly instructing his brother to bet on him moving to Sevilla and 9 counts under Rule E8(1)(b) for allegedly supplying inside information regarding moves to West Brom and Inter Milan to various friends and relatives and bets being made based on it.
The arguments used in Sturridge’s defence were twofold- Firstly, he argued that the ‘Regulatory Defence’ was applicable under most charges and secondly that the FA should consider that these decisions are life changing ones and the information sent to family members was innocent and intended to keep them up to date and get their thoughts on the moves.
The Independent Regulatory Committee in charge of the case ruled that he was liable only under the two breaches of Rule E8(1)(a) and the 9 other charges were dismissed. It also deemed the ‘regulatory defence’ applicable for most of the charges and dismissed the case that it was a ‘family affair’. The committee noted that this case was the first breach of this rule and hence had no precedent to base its penalty on. The decision of 6 week ban and fine was awarded keeping all the mitigating factors in mind yet it was successfully appealed by the FA and was extended to a ban of 4 months from any footballing activity with a fine of £150,000.
The Kieran Trippier case
The most recent breach of the rules was by England right back Kieran Trippier. The Atletico defender was charged with seven breaches of E8(1)(b) for providing information relating to his transfer to Atletico Madrid from Tottenham Hotspurs to close friends who in turn bet on it. The main differences between this case and the Sturridge one is that Sturridge’s offences were much more serious and Trippier actually cooperated with the investigation while Sturridge provided misleading information in his interviews. Another thing to be noted is that the amount earned in this case was just over £1300 whereas the Sturridge case earned over £13,000. Nonetheless, Trippier was banned from all footballing action for 10 weeks and fined £70,000. After a personal hearing, 3 charges were dismissed but he was held guilty under 4 others.
In the summer transfer of 2019, Trippier was set to transfer to Atletico and as his move was imminent, he told his friends about it who subsequently bet on it. But the WhatsApp messages which were used to determine his role show that Trippier in no way incited betting nor did he gain anything out of it. He has also come out and said that it was in no way intended to defraud the betting market.
Trippier, in his defence pleaded the ‘regulatory defence’ as well but the Regulatory Committee decided that he ought to be reasonable enough to foresee that the information provided by him could possibly be used for betting purposes.
The FA, in a move to kill all applicable loopholes, applied to FIFA to give this ban a worldwide jurisdiction. The FA can only ban a player in its jurisdiction, which is England. As Trippier plays in Spain, he falls outside that jurisdiction. This was appealed by Atletico Madrid and they got the ban suspended for 2 weeks until the procedure was complete. Eventually, FIFA ruled that their decision was the right one and the ban was upheld and would continue till 28th February 2021. Atletico has decided to take this matter to the Court of Arbitration for Sport (CAS), whose decision is still pending.
Were these decisions slightly harsh?
As is evident through the judgements, the authorities are strict regarding the violations of these laws. But why the sudden iron hand? To answer this question, we will have to understand the connection between the FA and the betting industry. These laws came into force in 2014. While the betting industry is one that receives constant public condemnation and deemed as immoral by the FA, they generate staggering amounts of revenue for the English football industry. In the 2019-20 season the clubs earned a whopping £349 million from shirt sponsors of betting companies. The 2020-21 season has 40% (8 of 20 clubs) of the teams sponsored by betting companies. The championship (2nd tier of English football) has 70% of the teams sponsored by betting companies. In issues such as betting scandals the FA receives flak both from the players body for not regulating adequately and the public who continue to deem the sponsors immoral. The FA chooses the easier route and enforces severe punishments on players to deter such scandals rather than getting into hot water with its biggest income generator. This has set the strict precedent to enforce policing on violators.
Another aspect to this issue is that the FA guidelines are vague on the punishment aspect of the law. The judgements are purposely made harsher to deter any future action and actions of other players as well. In its decisions in both the cases, the decision of J Richards in Bradley v Jockey club 2004 was used. This incorporates the fact that harsher penalties are allowed for the sake of deterrence in the judgement and thus deemed proportionate. What this does is that in turn it sets a high bar as a preceding case for future violations.
The author understands that betting and gambling issues in sport are not uncommon but the dependence on this industry for revenue should be curtailed. As can be seen in both the cases, the FA goes to great lengths to punish players and sets examples for others as well. It appealed to extend Sturridge’s ban because it thought it was too short and went to the international bodies to punish Trippier further. While this does show excellent intent on part of the FA to curb immoral activities, their motives remain to be questioned. The FA has left itself open to criticism for the fervent promotion of betting companies whilst on the other hand severely policing the players, who in reality are their actual income generators.
*For any query, feedback or discussion, the Author can be contacted at [firstname.lastname@example.org].
PREFFERED CITATION: Sharun Salvi, Inside Information laws in Football: Understanding betting regulations in the English context, SLPRR, <https://sportslawandpolicyreviewreporter.com/?p=1175> March 1, 2021.