Islj 2009 3-4 - TMC Asser Instituut

elevant associations, as well as public law provisions governing job
placement and other laws applicable in the territory of the association,
as well as international law and applicable treaties.
The parties agree to submit any claim to the jurisdiction of the association
or FIFA. Recourse to ordinary courts is prohibited unless specifically
provided for in the FIFA regulations.
6) FINAL NOTES
This contract has been signed in fourfold and the copies have been distributed
as follows:
1. Association with which the players’ agent is registered:
....................................................................................
(exact name)
2. Association with which the client is registered:
....................................................................................
(exact name)
3. Players’ agent
4. Client
Place and date: ...............................................................
Players’ agent: Client:
.......................................................
..........................................................
(signature) (signature)
Confirmation of receipt of contract:
Place and date: ...............................................................
The players’ agent’s association: The client’s association:
.......................................................
...............................................
(stamp and signature) (stamp and signature)
❖
Betting in Sports Events: Gambling
in Italy
by Felice Antignani, Michele Colucci and Felix Majani*
1. Introduction
The purpose of this study is to conduct an analysis on the betting
games’ sector. To begin with, this article shall underline the dominant
role of the Italian State in the past years and how the state is slowly
losing its grip and role in relation to gambling in sports as a result of
the increasing flexibilities of internet. We shall thereafter highlight the
key economic consequences produced by betting on all the parties
involved in these activities.
How can we define betting in sporting events? How can we distinguish
legal betting from illegal gambling? How can we combine the
needs of the State with its desire to exercise and manage the betting
system with the globalisation of the market?
We shall try to give some answers to these questions through conducting
a study on the Italian “grants system”, and how this system
has been modified over the years, from 1948 up to December 2008.
The definition of “gambling” has been modified too; a strict definition
of gambling can be found from the Italian Criminal Code and in
a particular Act (L. n.401/1989) which is directed at preserving the
State’s control and monopoly over gambling laws despite rulings from
the European Court of Justice to the effect that the Italian national
laws are contrary to the European principles on freedom of establishment
and freedom of providing services.
The second part of our study shall focus on the AAMS, its structure,
its functions, the evolution of its role and its aims for the future.
At the same time, we shall distinguish between sporting and non
sporting related betting events 1 .
2. The Definition of gambling as a criminal offence
The definition of gambling can be found in the “Study of Gambling
Services in the Internal Market of the European Union” of 2006,
wherein gambling has been defined as “ any service, including any
* Respectively, attorney at law, Rome,
LLM in International Sports Law, ISDE
Madrid; Professor of International and
European Sports Law, Tilburg
University, ISDE - IEB Madrid and
Lawyer and an LLM in International
Sports Law, ISDE Madrid.
1 All the relevant information has been
taken from the Italian AAMS’ annuary
(website www.aams.it/news/
site.php?page=2006011215265996 )
2 The above described definition has been
taken from F. FILPO, Il gioco d’azzardo
tra la direttiva dei servizi e la sentenza
Placanica, in Contratto e Impresa
Europa, 2007, II, 1016.
3 See U. PIOLETTI, Il gioco nel diritto
penale, Milano, 1970, 30.
4 See V. Manzini, Trattato di diritto
penale, Torino, 1948, X, 868.
5 See S. Beltrani, La disciplina penale dei
giochi e delle scommesse, Milano, 1999,
140.
information society service, which involves wagering a stake with a
monetary value in games of chance, including lotteries and betting
transactions” 2 .
This definition has more or less been adopted in the same breath
in Article 721 of the Italian Criminal Code, which aims to punish
gambling activities which are conducted in a public area and/or private
clubs. Art. 721 states that: “Gambling is playing games for a personal
profit when the results are completely based on uncertain
events”.
Over the previous years, Italian doctrine 3 has been established and
evolved for purposes of distinguishing gambling from simple betting
games. The above mentioned list is based on the two criteria described
under Article 721, these criteria being i) the personal profit and ii) the
results coming from uncertain events. On this basis, gambling
includes:
Bingo, black jack, lottery, roulette, slot machines, video poker,
Simple betting includes: betting on sports events, betting on horse
races, poker, bridge, and flipper. It is important to underline that the
players’ personal abilities to contribute in the game being played fall
under the second group 4 .
2.1. Legal Gambling
As earlier highlighted, Article.718 of the Italian criminal code punishes
gambling activities which take place in public and/or private clubs.
However it is important to note that gambling can sometimes be
legal, and especially in situations where there is public authorisation.
Public authorisations serve various purposes; for instance, through the
grant coming from the State, the possibility of injecting revenues is
made higher. We shall revisit this discussion during our study on the
evolution of the “grant system” in Italy.
3. Act No. 401/1989 and the European reaction in the “Gambelli” and
“Placanica” cases
As earlier seen, betting on sports events does not amount to illegal
gambling. However, Italian judges have on some occasions tried to
subject such types of betting to the rules of Article 718. A classic example
involves “Tontero”, which is an unauthorised betting activity in
Italy, whose authors faced criminal consequences The decision of the
Italian judges to the “Tonrero” case however did not root out the
problems related to betting and gaming,. This prompted the Italian
law makers to deliver a new Act addressing the issue of illegal exercise
of betting activities in sports events 5 .
A RT I C L E S
2009/3-4 93