Thanks to the level technology has reached, an amateur match or a wrestling bout played today in a small district of Türkiye can be watched from every corner of the world. The increase in visibility has also expanded the economic volume of sport, and that growing volume has made it progressively harder to protect fairness and equity on the field of play.
The fact that domestic and foreign betting companies open betting on almost every encounter has been a further factor making equality still harder to secure. Against this background, the enactment of legal rules aimed at preventing match-fixing and incentive bonuses, so that sporting matches may be played on equal and fair terms, has become unavoidable.
In this note we address the legal framework of the concepts of match-fixing and the incentive bonus, who the perpetrator and the victim of this offence are, and the elements required for the offence to arise.
Concepts of Match-Fixing and the Incentive Bonus
Act No. 6222 on the Prevention of Violence and Disorder in Sport entered into force on 14 April 2011 and, by its Article 11, made match-fixing and incitement to match-fixing criminal offences. The purpose of the provision is to forestall the practices of match-fixing and incentive bonuses which had become widespread in the field of sport. The penalties attached to these acts in the original text of the Act were mitigated by the amendment made by Act No. 6250, which entered into force on 15 December 2011.
The subject is not confined to the criminal legislation. Among the objectives assigned to the Federation in the Act on the Establishment and Duties of the Turkish Football Federation, the following wording is included:
"To combat violence, match-fixing, incentive bonuses, racism, doping and discrimination of every kind"
Article 55 of the Football Disciplinary Directive and Article 25 of the Football Match Directive issued by the TFF also contain provisions on the same subject. Federations outside football have likewise taken measures against match-fixing and incentive bonuses in their own rules.
The Turkish Language Association (TDK) defines match-fixing as follows:
"An agreement reached in return for a pecuniary or non-pecuniary benefit in order to alter the result of a sporting encounter"
Since match-fixing is a term peculiar to the field of sport, its dictionary meaning and its counterpart in sports law coincide. Act No. 6222 has likewise defined the act as "procuring a gain or other benefit for another person with the aim of influencing the result of a particular sporting match…".
An incentive, or an incentive bonus, is defined by the TDK as follows:
"A reward given in the form of financial support and legal facilities in order to attain a particular economic or social objective"
Proceeding from that definition, a description of the incentive bonus for the purposes of sports law expresses the following: unrecorded sums of money or benefits provided in return for an attempt to motivate the players of another team so that they perform in a way which serves the interests of third teams, or win the encounter they are to play.
In the Act's own words, the incentive is defined as "the giving or promising of an incentive bonus with the aim of ensuring that a team is successful in a match".
Perpetrator and Victim of the Offence
Article 11 of the Act does not require the perpetrator to hold any particular capacity or quality; this offence may therefore be committed by anyone. That said, the Act has aggravated the penalty as regards persons holding certain capacities.
Where the perpetrator is a public official and commits the act by abusing the trust or influence afforded by public office, a heavier penalty is required. The same aggravation applies to the chairmen and members of the general assembly and board of directors of sports clubs, federations and legal persons operating in the field of sport, to technical or administrative managers, and to agents and representatives of clubs and athletes. Moreover, the person for whose benefit the advantage is procured, and persons who, being aware of the existence of the match-fixing agreement, contribute to the match ending in accordance with that agreement, are also held liable for this offence.
Since match-fixing and the incentive bonus are among the offences committed against society, their victim, as with the other offences in that category, is society itself. Persons, clubs and federations harmed by the acts have the possibility of joining the criminal proceedings as intervening parties.
Elements of the Offence
The material element of the offence is fixed in the Act as the procuring of a gain or other benefit for a third person with the aim of influencing the result of a match. In the face of the express wording of the Act, the offence of match-fixing is deemed to have arisen once agreement has been reached, even if the benefit is not in fact procured. For this reason, the encounter not ending in the manner intended does not affect the coming into being of the offence. Nor is the position altered by whether the gain or benefit procured is of a pecuniary nature or takes the form of a non-pecuniary advantage (such as a transfer agreement).
Act No. 6222 provides that, where an incentive bonus is given or promised with the aim of ensuring that one of the teams is successful in a match, a penalty of one half of that prescribed for the offence of match-fixing is to be applied. What distinguishes the incentive from match-fixing is the structure itself: in the case of an incentive, there is an agreement between a third person seeking to profit from the performance of one of the parties taking part in the match and one of the parties to that match. For the purposes of the Act, it is not necessary for the bonus actually to be paid for the offence to arise; a promise that it will be given is sufficient. Even where the expected result does not come about despite the bonus having been promised, the offence is complete.
Since the acts of match-fixing and incentivising are unlawful in every circumstance, no ground of justification can be spoken of in their regard. As to the mental element, the offence may be committed only intentionally; it cannot be committed by negligence.
The criminal and administrative sanctions to be applied where the act is established are addressed in detail in the note entitled "Sanctions for the Offence of Match-Fixing and Incentivising".
Related Legislation
Code of Criminal Procedure No. 5271
Turkish Penal Code No. 5237
Independent Legal Assessment
In match-fixing and incentive bonus investigations the argument is for the most part concentrated not on the result of the match but on the point whether an agreement was concluded. Since the Act does not make the offence dependent on a result, the match not having ended in the expected manner is not on its own a foundation for the defence. Because the concepts of gain and benefit are, by contrast, open to broad interpretation, the line between ordinary sporting relationships and conduct constituting an offence must be drawn on concrete evidence.
In these files communication records, payment flows and witness statements play a decisive role; moreover, since federation disciplinary processes and the criminal proceedings may run in parallel, managing the two lines together becomes essential. In an individual file we recommend that priority be given to the following headings:
- Clarifying whether the act charged is match-fixing or an incentive bonus, and assessing the difference in penalty which follows from that
- Examining, in terms of aggravating grounds, whether the perpetrator holds the capacity of public official, or of official, agent or representative
- Analysing in detail the moment at which the agreement is said to have been concluded and the evidence relating to it
- Establishing the distinction between the nature of the benefit alleged to have been procured and ordinary sporting payments
- Following the procedural position of clubs and federations seeking to join the criminal proceedings
- Planning in advance the mutually affecting consequences of the criminal proceedings and the disciplinary processes
Independent Legal advises and defends athletes, clubs and officials in criminal investigations and disciplinary processes in the field of sports law.