Lessons from Paquetá: What a 314-page decision tells us about evidence and inference in fraud cases

1. Circumstantial evidence – strands that never combined

The FA's case was circumstantial. Betting clusters in Brazil on Paquetá to be shown yellow cards were said to support an “irresistible inference” of fixing. The Commission took a different view.

Drawing on authorities including Ablyazov v BTA Bank, it emphasised the importance of considering individual strands of evidence both in isolation and together: do weak strands gain strength when woven into a whole? Here, they did not. The weaknesses of the individual elements meant the FA could not meet its burden even when the evidence was aggregated.

A central difficulty was the FA's own presentation. Its betting integrity investigator, Tom Astley, described the betting as “hugely orchestrated”. Yet the FA's counsel expressly disavowed that description, without explanation. The Commission noted the “clear appearance” that the FA was “not altogether certain” what case it was presenting. In a circumstantial case, where coherence is critical, that lack of clarity was fatal.

The Commission's handling of the allegations and the way the evidence was presented brings important lessons for all fraud practitioners. Allegations of fraud, bribery or corruption are often inference-heavy: unusual payments, trading patterns or clusters of red flags. Tribunals will not simply accept that these add up to misconduct. If each strand is weak, they do not automatically strengthen each other. And if an investigator pulls back from their own case theory, without a consistent explanation, the tribunal is unlikely to be satisfied.

2. Expert evidence – the “obvious flaw”

On the most important element of its case – the betting data – the FA did not call independent expert evidence. Instead, it relied solely on Astley, its own betting integrity investigator. The Commission described this as an “obvious flaw”. An independent expert would have helped the panel to understand and interpret the data; without one, the evidence lacked objectivity.

By contrast, Paquetá did call independent expert evidence, which the Commission preferred. The absence of neutrality in the FA's case significantly weakened its probative value.

In Civil Litigation, under CPR Part 35, experts owe an overriding duty to the court, not the party instructing them. Independence, impartiality and objectivity are central. The Paquetá decision illustrates why: when a tribunal perceives that an “expert” is not independent, their evidence is less valuable.

For corporates, the takeaway is clear. Where technical conclusions matter – whether on accounting irregularities, financial models, or data anomalies – instructing a truly independent expert is vital. Internal analysts have a role, but will rarely be enough to satisfy a tribunal that expects impartiality.

3. Missing data – not necessarily a smoking gun

One of the FA's stronger-looking points was data deletion. Paquetá had used multi-deletion settings on his phone, and some deletions continued even after he had been told to preserve data. On its face, this could have been damaging.

But forensic review recovered over 300 deleted messages. None made any reference to betting or to the matches in question. The Commission described this as a “significant point” in favour of the defence: the very material that might have been expected to show gambling links showed the opposite. Paquetá's explanation – that he had deleted some messages to avoid upsetting family members – was accepted as credible.

Tribunals will only draw adverse inferences when the circumstances point clearly to concealment or wrongdoing. In Vardy v Rooney, the High Court found that a phone lost to the North Sea would likely have contained WhatsApp messages damaging to Vardy's case. Similarly, in the ENRC v Dechert case, a recovered text message cut directly across witness testimony given just days before. Those are “smoking gun” moments.

But, first, missing data is not a slam dunk: unless supported by corroboration, gaps can be explained away and may even rebound against the accuser. Secondly, lawyers need to do their job properly on preservation. Clients must be tested on what data exists, why gaps appear, and explanations must be documented contemporaneously. Where that is done, tribunals are far less likely to draw adverse inferences.

4. Motive, rationality and the fraud triangle

Perhaps the most telling part of the decision lay in the Commission's assessment of motive. In its opening paragraphs, it noted that Paquetá and his wife are religious people; that neither had any interest in betting; that he had declined a sponsorship opportunity with a betting company; and that he was generous in supporting family and charities. Good character evidence was given weight.

In its conclusions, the Commission pointed to the “inherent improbability” of the alleged conduct. Paquetá was wealthy, comfortable, and had no gambling habit. The risk to his career was immense – not least because discussions with Manchester City about a high-profile transfer were at an advanced stage. Indeed, he had asked his manager to excuse him from playing in one of the matches where he was shown a yellow card. Against that backdrop, why would he deliberately seek bookings?

For white-collar practitioners, this analysis is striking. It mirrors the Fraud Triangle – opportunity, motive and rationalisation – which features heavily in the UK government's guidance on the new “failure to prevent fraud” offence.

Opportunity was plainly present: as a player, Paquetá could create situations leading to yellow cards.

But motive was absent: he was financially secure, charitable, not a gambler, and a major transfer was at stake.

Rationalisation was also lacking: there was no evidence of a mindset that could justify such conduct.

Where two sides of the triangle are missing, the Commission was right to question whether the alleged misconduct was inherently plausible. For corporates, the message is to factor motive and rationality into investigations. Allegations that make little economic sense will struggle to meet the standard of proof, especially where good character evidence points in the opposite direction.

Conclusion – coherence and credibility

The Paquetá decision turned not on a single point, but on the overall coherence of the case. The FA's failure to call an independent expert, its disavowal of its own investigator's language and the absence of any rational motive left the Commission unconvinced. The decision's reminder that circumstantial evidence must be weighed strand by strand, and then as a whole, is of wider application in the context of disputes and investigations.

This unusually lengthy decision is not just of interest to sports lawyers. It raises evidential points that are directly applicable to commercial litigation and white-collar investigations, and it is worth close reading by anyone dealing with complex allegations of fraud or misconduct. 

Authored by Liam Naidoo, Reuben Vandercruyssen, and John Morse.