Football bungs, Panorama and the Law

Given all the hype surrounding the Panorama programme on corruption in football yesterday, it was surprising to see how little hard evidence they were able to present after such an extensive investigation. In particular, so much of it appeared to be based upon gossip and innuendo.

One of the things that seems to have been missed out in most of the coverage is the potential legal implications. These are just a few. First, if proven, there may be criminal law implications. 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 7 years in prison. Other potential offences include conspiracy to corrupt or defraud and also tax evasion. Second, there may be civil law implcations. For example, an employee of a club might be sacked for gross misconduct and potentially for breach of fiduciary duties. There may also be liability for deceit. Besides this, the bung may also serve to undermine and re-open the whole contract. Finally, there are the FA 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.

As for 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 of Human Rights (ECHR). They may also suggest that it was an infringement of Article 8 of the ECHR and their right to privacy. Potentially they might also consider actions for breach of that right to privacy and also in defamation depending upon the circumstances.

It should be remembered that this is nothing new to the sport. Preston North End were found guilty of making illegal payments to players as early as the 1880s and Leeds United were only formed after Leeds City were kicked out of League Division 2 in the 1920s for making illegal payments. It is noteworthy that there is a forthcoming report to be made by Lord Stephens on this issue. 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.

The most obvious room for improvement is an end to the alleged culture of turning a blind eye and a little more transparency being introduced. This has to come from the governing bodies and the boardrooms down. 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. If the push to clean up football is to succeed, it needs to be from the top down.

This could be coupled with a review of the system of punishments within the game. To some it seems somewhat anomalous that whilst the criminal law could end up sentencing someone for up to 7 years for taking a bribe, the regulatory bodies realistically threaten only fines and relatively short bans from the game. This leaves at least the suggestion of there being a different law for the rich. It is to be hoped that Lord Stephens makes the most of the opportunity with which he is now presented.

by Tim Kevan, barrister, 1 Temple Gardens (www.timkevan.com)