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Tuesday, September 16, 2014

Opening for signature: the COE Sports Betting Convention

It's not every day that a brand new multilateral convention opens for signature, but this Thursday all eyes will be on the Scottish referendum in the Swiss Magglingen (Macolin) the Council of Europe Convention on the Manipulation of Sports Competitions (explanatory report) will be signed. It goal is "to protect the integrity of sport and sports ethics in accordance with the principle of the autonomy of sport."

UPDATE: according to Daniel Holtgen (@CoESpokesperson), Director of Communications at the Council of Europe, tomorrow "some 12 states" will sign the convention tomorrow! It seems Russia and Bulgaria will be amongst them.   

Content

The following points are addressed in the convention 
  1. Prevention, co-operation and other measures
  2. Exchange of information
  3. Substantive criminal law and co-operation with regard to enforcement
  4. Jurisdiction, criminal procedure and enforcement measures
  5. Sanctions and measures
  6. International co-operation in judicial and other matters
  7. Follow up
The first point is not "hard law", but mainly encourages states to take preventive measures, and to subsidise, encourage and assist sports organisations to do so. The Law enforcement part requires countries to render certain acts illegal. Exchange of information is envisioned through national platforms that every country should constitute. 

The criminal law (point 3) is not to be harmonised through the convention but criminal sanctions should be available for i) manipulation of sports contributions, ii) money laundering related this manipulation and iii) aide for these activities. Sanctions should furthermore be available for organisations. 

So who has jurisdiction over such activities? The rule is quite simple as jurisdiction lies with the location where the bet is placed AND with a person's nationality. The convention furthermore requires to render illegal any sports betting activity that is not legal in this jurisdiction. This means that a Swiss resident that places a sports bet over the internet (wether manipulated or not!) in Liechtenstein, this is only allowed if it is legal in ... Switzerland.

The follow up section (which institutes a follow up committee) shows that COE sees the convention only as a beginning for a more comprehensive and harmonised way of prosecution in the future.

Signature

Countries that may sign; COE countries (blue) and others (green)
The convention is open for signature for all 47 COE members, its 6 observers (Canada, Holy See, Israel, Japan, Mexico and the United States), the European Union, the 4 other states that were involved in the negotiations (Australia, Belarus, Morocco and New Zealand) and further members of the European Cultural Convention (at the moment only Kazakhstan). Besides those 59 members any other interested state may request to be invited to sign.

CJEU questions

In the enthusiasm of a signature ceremony, one country seems determined to spoil the party. Malta has problems with the jurisdiction regime in combination with the definition of "illegal betting". Its Lotteries and Gaming Authority has filed a request for an opinion from the Court of Justice of the European Union, asking "whether the envisaged Convention, and in particular the definition of “illegal sports betting” [sports betting not allowed according to the applicable law; the law where the bet was placed or of the nationality of the person], coupled with the betting provisions, Articles 9 [combat the manipulation of sports competitions  ensures regarding the betting regulatory authority or other responsible authority or authorities] and 11 [The fight against illegal sports betting] thereof, are compatible with the Treaties and in particular, with Articles 18 [no discrimination on nationality], 49 [right of establishment] and 56 [freedom to provide services] TFEU."
The main risk for non-compatibility in the EU was the jurisdiction linked to the nationality of the person. Therefore EU states are free to declare not to apply this jurisdiction rule and only link to the place where the bet was placed. The services concern seems to have more merit: if sports betting is legal in 1 EU country, it may be deemed illegal in another country and according to Malta, this goes against the freedom to provide services. Any ideas on the chances of Malta and its effect on the convention? I assume signature is still possible, but for ratification, EU states must wait until the CJEU has given its judgement, which will probably by the end of next year!

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