Fixing Matches & Breaking Laws: Jontay Porter From a Criminal Perspective

Warning: shameless self-promotion incoming….

 

In case you missed it, a few weeks ago I had the pleasure of appearing on CBC radio’s Metro Morning with David Common to talk about the recent gambling scandals in the MLB and NBA. Separated by just a few days, MLB MVP Shohei Ohtani and (now former) Toronto Raptor Jontay Porter were both implicated in illicit gambling activity. In Ohtani’s case, there was speculation that he was involved in placing bets with an illegal bookie as an investigation revealed that had paid off the gambling debts ($4.5 million USD) of his long-time interpreter Ippei Mizuhara.1 In Porter’s case, he was accused of betting on himself to underperform and faking injuries in order for him and known NBA bettors to make a profit. 

 

Now that time has passed, Ohtani has been cleared of any wrongdoing as investigators discovered that Mizuhara was stealing funds from Ohtani’s bank account to gamble without Ohtani’s knowledge. On the opposite end of the sanctions spectrum, last week the NBA banned Porter for life for betting on NBA games. 

 

One question that I received on Metro Morning that I’ve continued to hear being asked is about the criminal implications related to Porter. Criminal offences such as cheating at play and fraud exist in Canada, so can these offences apply to Porter? This blog will take a look at these offences, explain why they may or may not hold up in charging Porter with criminal offences in Canada, and also look at the implications of Porter’s conduct if he was placing bets or involved in a broader scheme in the U.S. 

 

Cheating At Play

 

The offence in the Criminal Code of Canada2 (the “Code”) that seems like it could be the most relevant to match-fixing in Canada is “cheating at play”. Section 209 of the Code states:3

“Every person who, with intent to defraud any person, cheats while playing a game or in holding the stakes for a game or in betting is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than two years; or

(b) an offence punishable on summary conviction.”

Now, on its face, it appears that this could apply to Porter. However, I think it’s unlikely to apply for a few reasons: 

 

1. Porter wasn’t playing a “game” as defined in the Code.  

 

A “game” is defined in the Code to mean “a game of chance or a game of mixed chance and skill,”4 which includes games such as poker, blackjack, or roulette. In order for a game to be considered a “game” as defined in the Code, it must contain chance, consideration, and prize. 

 

Basketball is a game of skill, and Section 209 does not contemplate offences in relation to games of skill, so this is one reason that cheating at play would not apply to Porter. 

 

2. Porter did not “cheat” while he was playing basketball (which wouldn’t be considered a “game” by the Code anyway as mentioned above). 

 

“Cheating” is not defined in the Code, however, a recent Supreme Court of Canada case, Riesberry5, contemplated charges of cheating at play. In Reisberry, a horse trainer injected racehorses with performance-enhancing drugs (“PEDs”) to affect the outcome of the races where the public placed bets.6 In its analysis of cheating at play, the court discussed that the defendant intended to create (1) an unfair advantage for horses in their races (ie, in the game), and (2) that his dishonest conduct put bettors at risk of deprivation.   

 

Porter did not do anything while he was playing basketball in order to create an unfair advantage for himself or the team he was playing for/against. Based on some of the allegations against Porter, he bet on himself to underperform, and then purposely removed himself from games in order to win his bets. In my opinion, Porter did not “cheat” by attempting to create an unfair advantage, so this is another reason why I don’t think his conduct would meet the test for cheating at play. 

 

Fraud

 

Another offence that may be alleged against Porter is fraud. Fraud is interesting because I anticipate that arguments may be made that in games where Porter purposely underperformed, he defrauded (or attempted to defraud) (i) the sportsbooks where he placed wagers, and/or (ii) the general public who also placed bets. 

 

The Code makes it an offence for any person who:

 

“By deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service.”7   

 

In addition to cheating at play, the court in Resiberry also considered whether the defendant was guilty of fraud. The court made a number of points in its discussion of fraud that could be relevant to Porter’s case: 

 

1. To prove fraud, there must be a sufficient causal connection between the fraudulent act and the victim’s risk of deprivation;8 and,

2. Fraud requires proof of deceit, falsehood, or other fraudulent means, which can encompass “all other means which can be stigmatized as being dishonest.”9

 

When Resiberry was at the Court of Appeal, on the discussion about “deprivation”, the court noted that due to the defendant’s conduct, bettors were deprived of information about the race that they were entitled to know and were also deprived of an honest race.10 The Supreme Court concluded there was a direct causal relationship between the defendant’s dishonest acts of using PEDs on horses and deprivation to the betting public.11

 

Based on Reisberry, it appears that an argument could be made that Porter defrauded the betting public and/or the sportsbooks. Would faking an injury and betting the under on his performance stand up as “a means that can be stigmatized as dishonest”? And would this deprive bettors of an honest basketball game in the games this occurred? Maybe, maybe not. Unfortunately, for now it’s not entirely clear if his conduct can attract criminal liability for fraud in Canada. 

 

 

Match-Fixing Offences in the U.S.

 

Another wrinkle with Porter’s situation is that if there is evidence that he was engaged in his gambling scheme while he was in the U.S. (for example, while he was playing games in the U.S. or placing bets himself or with other people in the U.S.) there could be the possibility that he gets charged criminally under U.S. law. There are two offences in particular that I think could apply in Porter’s situation.

 

1. Transmitting Betting Information Through Interstate Commerce 

 

The U.S. Interstate Wire Act12 states: 

 

“Whoever being engaged in the business of betting or wagering knowingly uses a wire communication facility for the transmission in interstate or foreign commerce of bets or wagers or information assisting in the placing of bets or wagers on any sporting event or contest, or for the transmission of a wire communication which entitles the recipient to receive money or credit as a result of bets or wagers, or for information assisting in the placing of bets or wagers, shall be fined under this title or imprisoned not more than two years, or both.” 

 

Based on the reading of the above, since an allegation against Porter is that he provided information to other bettors regarding his health status (presumably over wire communications such as text messages, phone calls, or other telecommunications), it seems like Porter could be caught under this provision if it is held to apply in the circumstances. This was one of the offences that former NBA referee Tim Donaghy pleaded guilty to at the time of his gambling scandal when he accepted bribe money in exchange for tips on games.13 Donaghy ended up serving 15 months in prison. 

 

2. Conspiracy to Commit Sports Bribery

 

Another offence that has been brought against participants in match-fixing scandals in the U.S. is conspiracy to commit sports bribery.14 In particular, title 18 of the United States Code states:   

 

“Whoever carries into effect, attempts to carry into effect, or conspires with any other person to carry into effect any scheme in commerce to influence, in any way, by bribery any sporting contest, with knowledge that the purpose of such scheme is to influence by bribery that contest, shall be fined under this title, or imprisoned not more than 5 years, or both.”

 

This offence was imposed on NCAA basketball players in a few instances, such as University of San Diego’s Brandon Johnson15, and Arizona State’s Steve Smith.16 Both players received bribe money in exchange for fixing games they were playing in, and both players ended up serving jail time for their roles in their respective schemes.

 

It has already been revealed that Porter disclosed information to known sports bettors.17 However, to determine if Porter could be charged with the offence of conspiracy to commit sports bribery, the investigation will need to reveal whether he received bribe money (or perhaps another form of compensation) from third parties in addition to any winnings that he would make on a sportsbook. If the scheme was merely just to place bets at sportsbooks without a third-party bribe/benefit, it may be more difficult to find Porter guilty of this offence. 

 

Conclusion

 

The outcome of Porter’s situation will be interesting for a number of reasons. Firstly, it will be the first time a major North American athlete has been banned from a league for sports gambling/match-fixing after the introduction of the regulated sports gambling market in both the U.S. and Canada. Secondly, since he was based in Canada (and Ontario more particularly), any criminal charges or additional measures taken by regulators like the Alcohol Gaming Commission of Ontario and iGaming Ontario will likely set a precedent as to how they approach such situations in the future. Thirdly, we will be able to see if/how criminal charges can be laid against players who engaged in match-fixing offences in both the U.S. and Canada.  

 

One of David Common’s main concerns when I was on his show was whether situations like Porter’s would happen more often now that the regulation of sports gambling has become more prevalent in North America. My answer to him, and my answer about this question in general, is that for as long as there has been sports gambling, there have been instances of people trying to fix games/gamble on games they were playing. To name just a few, it happened with the Chicago White Sox in the 1919 World Series, Pete Rose in the 1980s, Steve Smith and Arizona State basketball players in the 1990s, and Tim Donaghy in the mid-2000s. I would argue that it’s not that match-fixing is going to be more prevalent but, as a result of regulation, there are more measures in place to detect such activity when it does happen. This means we are going to hear about any transgressions more often and more quickly after they occur.

 

As noted earlier, in Canada no law explicitly targets match-fixing. Do you think that Jontay Porter should be charged with a criminal offence? Is combatting match-fixing an appropriate use of criminal law power?

 

If you have any questions about the Jontay Porter situation or the sports gambling laws in your jurisdiction, please don’t hesitate to reach out to GME Law.