Sports Betting Fraud and Match-Fixing (Art. 286 bis CP)

Fraud linked to sports betting has become one of the most active focuses of criminal investigation in the sports field. The combination of online betting markets, high economic flows and the possibility of manipulating the development or result of a match creates fertile ground for conduct that the law sanctions through two routes that frequently overlap: sports corruption under article 286 bis of the Criminal Code and the fraud of articles 248 and 249 CP.

The offense of sports corruption (Art. 286 bis CP)

Article 286 bis CP punishes anyone who, directly or through an intermediary, promises, offers or grants to directors, managers, employees or collaborators of a commercial company or business, or to athletes, referees or judges, an unjustified benefit or advantage of any nature so that they unduly favor them over others in the acquisition or sale of goods, in the contracting of services or in commercial relations. The provision applies specifically to sport: the section devoted to sports corruption reaches the director, manager, athlete, referee or judge who, directly or through an intermediary, receives, requests or accepts an unjustified benefit or advantage with the purpose of deliberately and fraudulently predetermining or altering the result of a test, match or sports competition of special economic or sporting significance.

The conduct covers both the active side (whoever offers or delivers the benefit, usually from outside the sports environment and in many cases linked to betting networks) and the passive side (the athlete, referee or director who receives or accepts it). The penalty is imprisonment of six months to four years, special disqualification from the exercise of industry or commerce of one to six years and a fine of one to three times the value of the benefit or advantage. Courts may also impose the penalty one degree lower in view of the amount of the benefit or the significance of the offender's functions.

Relationship with betting fraud (Arts. 248-249 CP)

When the fixing is not an end in itself but rather the instrument to profit in the betting market, fraud comes into play. Article 248 CP defines fraud as the use of sufficient deceit to produce error in another, inducing them to carry out an act of disposition of property to their own or another's detriment with intent to profit. Whoever bets on a result they know to be predetermined places the betting operator in a situation of error as to the real randomness of the event, and obtains an unjust economic benefit at its expense. Article 249 CP sets for fraud a penalty of imprisonment of six months to three years, taking into account, when fixing it, the amount defrauded, the economic damage caused, the relations between the defrauder and the victim and the means used; when the amount does not exceed 400 euros, the conduct is punished as a minor offense with a fine of one to three months.

If the circumstances of article 250 CP apply -special seriousness due to the value of the fraud, multiplicity of victims, abuse of personal relations or professional credibility, among others- the penalty rises to imprisonment of one to six years and a fine of six to twelve months. The relationship between sports corruption and fraud is resolved under the rules of concurrence of offenses, assessing whether the facts protect distinct legal interests (the integrity of the competition and the operator's assets) or whether there is a means-to-end relationship.

Penalties, aggravators and legal entity

Article 286 quater CP provides for the penalties to be imposed in their upper half when the benefit or advantage has an especially high value, the perpetrator holds a leadership position within a legal entity, the object of the transaction concerns strategic goods or services or those of primary necessity, or when special significance is present. The concerted action of several people with a vocation of permanence may lead to a finding of a criminal organization (Art. 570 bis CP) -imprisonment that may reach several years depending on the role played- or a criminal group (Art. 570 ter CP). Under article 288 CP, the legal entity may be criminally liable for these offenses with penalties of a fine and, where applicable, the measures of article 33.7 CP, with a serious sporting and economic impact on clubs and operators.

An effective defense requires technical-sporting knowledge, mastery of the concurrent administrative regulation of gaming and betting, and a rigorous reading of the circumstantial evidence -anomalous betting patterns, communications, economic flows- that frequently underpins this type of imputation.