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Ligue 2 match-fixing: the relationship between criminal and disciplinary proceedings Reg – Paris – Wednesday 15 April 2015 – Essential no. 39014 ‘In sport, the natural sanction is disciplinary. However, when the alleged conduct also constitutes a criminal offence, criminal justice also applies,’ says Joëlle Monlouis, a specialist in business law and sports law, in an analysis for News Tank on 15/04//2015. Suspicions of match-fixing at the end of the 2013–14 Ligue 2 season prompted the opening of both disciplinary and criminal proceedings. ‘The concurrent use of disciplinary and criminal proceedings to address the same facts is not only entirely possible: the two are wholly independent,’ stresses Joëlle Monlouis, who analyses the relationship between these proceedings for News Tank. Six people, including the president of Nîmes (Jean-Marc Conrad), its principal shareholder (Serge Kasparian), and the president of Stade Malherbe de Caen (Jean-François Fortin), were placed under formal investigation for corruption on 20/11/2014, as part of the investigation into suspected match-fixing during the previous Ligue 2 championship season (2013–14), and were placed under judicial supervision in the case. The LFP Disciplinary Committee in turn opened disciplinary proceedings on 23/12/2014 concerning ‘alleged breaches of sporting ethics and morals consisting of arrangements and/or attempted arrangements of Ligue 2 matches played by Nîmes Olympique at the end of the 2013–14 season’ [1]. Under Article 407 of the LFP Administrative Regulations, the League’s Disciplinary Committee has jurisdiction, in particular, over ‘any breach of sporting morals’. On 16 and 17/03/2015, the Disciplinary Committee examined the case concerning the integrity of matches played by Nîmes Olympique at the end of the 2013–14 season. Following its investigation, the committee considered that the alleged conduct constituted ‘a particularly serious breach of sporting morals and a clear infringement damaging the reputation and standing of professional football’, and imposed a number of sanctions on Nîmes Olympique, which was relegated by one division, and on its officials. The four Ligue 2 matches (2013–14 season) that were subject to an ‘attempted arrangement’, according to the LFP Disciplinary Committee: CA Bastia – Nîmes Olympique (0–0, Ligue 2 matchday 32), 11/04/2014 Dijon FCO – Nîmes Olympique (5–1, Ligue 2 matchday 34), 24/04/2014 SM Caen – Nîmes Olympique (1–1, Ligue 2 matchday 28), 13/05/2014 US Créteil-Lusitanos – Nîmes Olympique (1–1, Ligue 2 matchday 38), 16/05/2014 It should be noted that no sanction was imposed on Stade Malherbe de Caen or its president. At this stage, the questions arising in this case are: What are the consequences of this decision for the ongoing criminal proceedings? More generally, how do disciplinary proceedings interact with ongoing criminal proceedings? Ligue 2 match-fixing: Disciplinary Committee decisions (17/03/2015) 1/2 Nîmes Olympique (Ligue 2): the club will be ‘relegated by one division’ at the end of the 2014–15 season, announced Sébastien Deneux, Chairman of the LFP Disciplinary Committee, on 17/03/2015. Serge Kasparian, former majority shareholder of Nîmes Olympique: prohibited from obtaining a licence for ten years. Jean-Marc Conrad, former president of Nîmes Olympique: suspended from all official duties for seven years. Franck Toutoundjian, president of AS Ararat, a football club based in Issy-les-Moulineaux (DHR, tier 8): suspended from all official duties for two years. Ligue 2 match-fixing: Disciplinary Committee decisions (17/03/2015) 2/2 Michel Moulin, an associate of Jean-Marc Conrad: prohibited from obtaining a licence for one year. Mohamed Regragui: suspended from all official duties for one year, with six months suspended. Kaddour Mokeddel, SM Caen’s head of security: suspended from all official duties for two months. Stéphane Rossi (CA Bastia coach), Olivier Dall’Oglio (Dijon FCO coach), Armand Lopes (US Créteil-Lusitanos president) and Michel Milojevic: reprimand. Jean-François Fortin, president and shareholder of SM Caen: no sanction from the LFP Disciplinary Committee, but he remains under formal investigation and judicial supervision for active and passive corruption. What is the nature of a disciplinary sanction? Disciplinary sanctions imposed by federations holding delegated authority, although emanating from private bodies, are regarded as genuine unilateral administrative acts (CE, 22 November 1974, no. 89828) [2]. Under Article L. 132-1 of the Sports Code, a federation holding delegated authority may ‘establish within it a professional league for the representation, management and coordination of the professional sporting activities of its affiliated associations and sports companies’. This is the case with the FFF and the LFP. Consequently, the decision taken by the League’s Disciplinary Committee is also a unilateral administrative act and therefore falls within public law. Disciplinary proceedings, which fall within public law, and criminal proceedings, which fall within private law, are wholly independent The principle of non bis in idem [3] prevents a person from being prosecuted twice for the same facts under French law. However, this principle, applicable in criminal matters, does not prohibit concurrent criminal and administrative proceedings and sanctions [4], or, as in the present case, criminal and disciplinary sanctions [5]. Despite this general principle of law [6], both public- and private-law case law consider that concurrent disciplinary and criminal proceedings concerning the same facts are not only entirely possible, but also wholly independent [7]. The nature of these two forms of proceedings differs: One, disciplinary proceedings, concerns ‘alleged breaches of sporting ethics and morals’, punishable by one or more of the sanctions set out in Article 2 of Annex 2 to the FFF General Regulations [8], ranging from a reprimand to temporary ineligibility for governing bodies. The other, criminal proceedings, concerns alleged acts either of passive corruption [9] – allowing oneself to be ‘bought’ through offers, promises, gifts, presents or any advantage in order to perform or refrain from performing an act within one’s duties [10] – or of active corruption [11] – where an individual uses the same means to pay for a professional’s willingness to oblige [12]. These acts are punishable by up to ten years’ imprisonment and a fine of one million euros, which may be increased to twice the proceeds of the offence. What interactions are possible between disciplinary and criminal proceedings? Effect of a prior decision in criminal proceedings on disciplinary proceedings still in progress: Where a criminal court has examined the factual existence of conduct also subject to a disciplinary sanction, its findings of fact bind the federation’s disciplinary authority if it has not yet delivered its decision (CE, 25 May 1998, no. 170752) [13]. This in no way means that the decision in the criminal proceedings applies to the disciplinary proceedings, but only that the disciplinary proceedings cannot disregard the facts previously established by the criminal court. Thus, if the criminal court considers that the alleged acts of the licence holder did not occur, the disciplinary body, bound by that finding, cannot sanction the licence holder. Conversely, the disciplinary body may be entitled to sanction the licence holder where the criminal court dismisses proceedings or acquits on the benefit of the doubt, if the factual existence of the conduct is not expressly ‘negated’. It should be noted that in this case the findings of fact will bind the disciplinary authority only when the decision has acquired the authority of res judicata (CE, 18 May 2005, no. 270569) [14]. Effect of a prior decision in disciplinary proceedings on criminal proceedings still in progress: In practice, given the time taken by investigations, particularly in the case of the LFP Disciplinary Committee, which must decide within three months of the commencement of disciplinary proceedings [15], the disciplinary decision is usually delivered without waiting for the criminal court’s legal characterisation of the facts. Case law considers that conduct potentially constituting a criminal offence does not prevent a disciplinary board from first imposing a sanction of exclusion on its perpetrator (CAA Bordeaux, 19 June 2007, no. 05BX00650) [16]. The absence of a sanction imposed by a disciplinary body, as in the case of Stade Malherbe de Caen and its president, will have no influence on the ongoing criminal proceedings, which are autonomous and independent of the disciplinary proceedings. Moreover, if a conviction were delivered in the criminal proceedings against persons not sanctioned by the disciplinary body, there would be no disciplinary consequence beyond the decision already delivered. Conversely, a licence holder sanctioned by a disciplinary body for acts subsequently found not to have occurred by a criminal court may seek to establish the liability of the federation overseeing that disciplinary body, in this case the FFF. -------------------------------------------------------------------- [1] LFP statement, 13/03/2015. [2] CE, 22 November 1974, no. 89828: ‘(…) where these federations take decisions pursuant to the delegated authority thus granted which are binding on the persons concerned and constitute their exercise of the public-authority prerogatives conferred upon them, those decisions have the character of administrative acts (…)’. [3] International sources: - Article 4 of Protocol no. 7 to the European Convention on Human Rights, entitled ‘Right not to be tried or punished twice’. - Article 14(7) of the International Covenant on Civil and Political Rights of 16 December 1966. - Article 50 of the Charter of Fundamental Rights of the European Union, entitled ‘Right not to be tried or punished twice in criminal proceedings for the same criminal offence’. Domestic sources: - The Code of Criminal Procedure, in particular Articles 6, paragraph 1, and 368. [4] CE, 9 March 1951, Sieur Hay, no. 3851: ‘Considering that the disciplinary measures which a doctor may face from a professional council in connection with acts performed in the exercise of his profession are independent of the judicial proceedings to which the same acts may give rise’. [5] Cass. Crim., 27 March 1997, no. 96.82669: ‘the non bis in idem rule (…) does not prohibit the imposition of disciplinary sanctions alongside sanctions imposed by the criminal court’. [6] CE, 23 April 1958, Commune du Petit Quevilly, no. 97326. [7] CE, 9 March 1951, Sieur Hay, cited above. [8] Article 420 of the LFP Administrative Regulations. [9] Article 432-11 of the Criminal Code: ‘The act of a person vested with public authority, entrusted with a public-service mission or holding public elected office soliciting or accepting, without entitlement, at any time, directly or indirectly, offers, promises, gifts, presents or advantages of any kind for themselves or another person is punishable by ten years’ imprisonment and a fine of one million euros, which may be increased to twice the proceeds of the offence: 1° Either to perform or for having performed, to refrain or for having refrained from performing an act within their duties, mission or office, or facilitated by those duties, mission or office; 2° Or to abuse or for having abused their actual or supposed influence with a view to obtaining distinctions, employment, contracts or any other favourable decision from a public authority or public administration.’ [10] Vocabulaire juridique, Gérard Cornu, Association Henri Capitant. [11] Article 433-1 of the Criminal Code: ‘The act of any person offering, without entitlement, at any time, directly or indirectly, offers, promises, gifts, presents or advantages of any kind to a person vested with public authority, entrusted with a public-service mission or holding public elected office, for themselves or another person, is punishable by ten years’ imprisonment and a fine of €1,000,000, which may be increased to twice the proceeds of the offence: 1° Either so that they perform or refrain from performing, or because they have performed or refrained from performing, an act within their duties, mission or office, or facilitated by those duties, mission or office; 2° Or so that they abuse, or because they have abused, their actual or supposed influence with a view to obtaining distinctions, employment, contracts or any other favourable decision from a public authority or public administration. The same penalties apply to the act of yielding to a person vested with public authority, entrusted with a public-service mission or holding public elected office who solicits, without entitlement, at any time, directly or indirectly, offers, promises, gifts, presents or advantages of any kind, for themselves or another person, in order to perform or for having performed, to refrain or for having refrained from performing an act mentioned in 1°, or to abuse or for having abused their influence under the conditions mentioned in 2°.’ [12] Vocabulaire juridique, cited above. [13] CE, 25 May 1998, no. 170752: ‘Considering that the authority of res judicata in criminal matters binds administrative authorities and courts only in respect of the findings of fact accepted by the criminal judges and on which their decisions are based; Considering that, in finding that Ms Y’s statements about the conduct of Mr X, the federation’s technical director, did not justify her exclusion from the national team, the administrative court did not disregard any of the findings of fact on which the Nanterre Tribunal de grande instance based its judgment of 31/03/1994 on Mr X’s defamation complaint’. [14] CE, 18 May 2005, no. 270569: ‘Considering that the contested decision acknowledges the authority of res judicata attaching both to the factual existence of the conduct and to its legal characterisation (…) established by a judgment (…) which has become final (…); that it notes that the seriousness of the acts established against Mr X also justifies imposing on him a two-year ban on participating in competitions and sporting events organised or authorised by the French Cycling Federation; that this decision therefore contains sufficient reasons’. [15] Article 417 of the LFP Administrative Regulations. [16] CAA Bordeaux, 19 June 2007, no. 05BX00650: ‘This conduct was such as to justify a sanction, without it being necessary, beforehand and even if [the acts] are punishable under criminal law, for the judicial authority to have characterised them as an offence’. Joëlle Monlouis Date of birth: 14/01/1980 - MBA, IAE, Université Paris I Panthéon-Sorbonne - DEA (M2) in Market Law, Université de Montpellier - Maîtrise (M1) in Business Law, Université Paris I Panthéon-Sorbonne --- - Business Law/Sports Law – Listed on the Register of Lawyers Acting as Sports Representatives - Member of the Statutes and Regulations Committee of the Paris Île-de-France Football League - Lecturer in Sports Law at Université Paris I Panthéon-Sorbonne --- Cabinet Joëlle Monlouis 11, boulevard de Sébastopol 75001 Paris Tel.: 06 10 60 42 95 Fax: 01 70 24 77 75 www.monlouis-avocat.fr Career | From | To Cabinet Joëlle Monlouis – Founding partner | 2013 | Present Paris Bar – Lawyer | 2007 | Present View the profile on the website Profile no. 5975, created on 15/09/14 at 16:07 – Updated on 08/03/15 at 20:28 Also read - SM Caen cleared: ‘It is a relief; this time, justice has been done’ (Xavier Gravelaine) - Nîmes relegated: ‘I blame Mr Thiriez because we did not let anything spiral out of control’ (Rani Assaf) - Ligue 2 match-fixing: Nîmes Olympique ‘relegated by one division’ at the end of the season - What FIFA’s new regulations on ‘intermediaries’ will change on 01/04/2015 (Joëlle Monlouis, lawyer) - Suspected match-fixing: ‘agreement’ before the SM Caen–Nîmes Olympique match, the report says - Ambush marketing: defining it precisely, protecting against it effectively (Lucas Leroux, lawyer) - Padovani case: use of fixed-term contracts in sport could be called into question (Charles Amson, lawyer) - Suspected Ligue 2 match-fixing: Jean-Marc Conrad, president of Nîmes Olympique, resigns - Suspected match-fixing: six people placed under formal investigation; the LFP takes up the case - Suspected match-fixing: full statement by Frédéric Thiriez (LFP), delivered on 18/11/2014 Send to a friend Contact the editorial team about this article Contacts Editorial team Send us your news, photographs and initiatives. 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