Maurice Holmes acts for PTIOs in tennis anti-corruption hearing
Summary
22-year old Colombian tennis player Barlaham Zuluaga Gaviria (“the Player”) has been suspended for three years and fined $5,000 after being found guilty of failing to co-operate with a Tennis Integrity Unit (“TIU”) investigation.
The decision followed a hearing before Anti-Corruption Hearing Officer (“AHO”) Professor Richard McLaren, in which the Professional Tennis Integrity Officers (“PTIOs”) were represented by Maurice Holmes, instructed by Ross Brown of Onside Law.
Click here to access the AHO’s decision.
The Offence
Pursuant to Section F.2.b of the Tennis Anti-Corruption Program (“TACP”), all Covered Persons “must cooperate fully with investigations conducted by the TIU“.
There is no exhaustive list of conduct that constitutes non-cooperation, although Section F.2.b specifies, by way of illustration, that “No Covered Person shall tamper with or destroy any evidence or other information related to any Corruption Offense.”
Further, Section F.2.c provides that the TIU may make a demand to a Covered Person including for “electronic information storage devices“, and that upon any such demand a Covered Person must “furnish such information within seven business days of the making of such Demand, or within such other time as may be set by the TIU.”
Any violation of the TACP is, pursuant to Section D, “shall constitute a Corruption Offense for all purposes of this Program.”
Submissions
The charge followed an investigation by the TIU into possible corruption offences. In particular, the TIU was responding to betting operator alerts for unusual betting patterns. In July 2017 the TIU attended the Colombian F2 Futures Tournament, being played in Manizales, in which the Player was competing, and requested that the Player attend an interview.
The PTIOs submitted that the Player’s subsequent conduct constituted a breach of Section F.2.b., and that such conduct fell into two categories.
The first category of conduct related to the Player’s mobile phone(s). At the interview in Manizales the Player refused to furnish the TIU with the mobile phone that he had with him despite a demand for it. Furthermore, in September 2017, some months after the interview, he eventually submitted a mobile phone to the TIU but – as an expert report following a forensic examination concluded – this was either a different phone or the same phone having been reset to factory default settings.
The second category of conduct related to the Player’s non-cooperation both at the interview in Manizales – which was never completed because the Player had complained of feeling unwell – and in failing or refusing to comply with the TIU’s attempts to reschedule an interview thereafter.
The Player submitted that he had complied with his obligations under the TACP. At the time of the interview in Manizales the Player had refused to provide his mobile phone because he had said he needed to stay in contact with his mother.
The AHO commented that “Both the AHO and the counsel for the PTIOs did everything possible to assist the Player to ensure that a fair procedure and hearing were arranged, including accommodating a last minute switch from participation in the hearing from Rome, Italy via video conference to being present in London for the Hearing and then re-arranging on the day of the Hearing to be present via a telephone call.” [20]
The Decision – charge
In his decision the AHO commented that “[the] cross-examination of Zuluaga Gaviria revealed several matters.” [53] Among these, most materially the Player:
- “admitted the reason he did not turn over the phone [at the interview in Manizales] had nothing to do with his mother.” [55]
- “admitted that he had two phones and he sent along in September the one he had on him at that time which was not the one he had with him [at the interview in Manizales]”
The AHO concluded: “[the] consequence of the admission at the Hearing means that he has never fulfilled the Demand made for the phone […] and committed a further refusal to fulfil the Demand by hiding the fact that he had two phones until he so advised at the Hearing. The foregoing conduct is a breach of F.2.c. of the TACP.” [66-67]
Further, the AHO concluded that the provision of a second phone following “an elaborate charade” amounted to a breach of Section F.2.b. in that “the mobile phone that was provided was either tampered with or was part of a ruse to cover up other information related to a Corruption Offense.” [69]
The AHO also agreed that the “incomplete investigation interview which remains incomplete to this day” [70] also constituted a failure to cooperate fully.
The Decision – sanctions
The AHO agreed with the PTIOs’ submission that in the circumstances it was appropriate to impose a suspension at the maximum available level of three years.
The AHO also accepted the PTIOs’ submission that a fine of $5,000 was appropriate, which took into account the Player’s restricted financial circumstances.
Commenting on the gravity of the Players’ conduct, the AHO observed that it was “of the most serious nature” [85] and “at the top of a possible range” [84].
It is also perhaps notable that the Player completed the mandatory Tennis Integrity Protection Programme on 16 June 2017, only weeks before the interview in Manizales [23].
Comment
One of the more prosaic passages in the AHO’s decision serves to analyse the important function of Section F.2.b. in upholding the effectiveness of the TACP generally, and the justification for this offence carrying serious sanctions in its own right [80-83]:
“The idea behind the TACP provisions on supplying information is based on a principle of those who are innocent have nothing to hide, and inversely by inference, that those who appear to be hiding something possibly may have reasons for doing so. The TIU is a civil body and has no coercive powers of investigation as law enforcement may have. Thus, the criminal principle that a person charged with a crime does not have to incriminate themselves has no application to a tennis player with knowledge or information concerning match or spot fixing. This type of activity is capable of destroying the integrity of the sport of tennis and must be dealt with by strong measures such as the ТАСР contains. […]
The gravity of the conduct in breaching F.2.b. and c. at the level of non-cooperation as an offense goes to the very heart of the ТАСР. The TIU has no coercive investigative powers. It is dependent upon the contractual agreement of the Player to cooperate fully with investigations conducted by the TIU. This principle must be rigorously observed and applied when a Player fails to cooperate. […]
A Player who engages in the type of conduct exhibited in this case may well be engaged in a fallback position to receive a lighter charge of non-cooperation to avoid the more serious charges which the ТАСР provides for up to ineligibility for life. The ТАСР would be undermined if this is the case.”
Both the fact that the charge was brought as a standalone offence in the first place (when more frequently it is brought in conjunction with other anti-corruption charges), and the AHO’s decision, indicate that conduct amounting to non-cooperation will not be treated lightly. Given the importance of the offence in underpinning the remainder of the TACP, as highlighted in the AHO’s decision above, tennis fans may agree with the need for a firm stance.
