Yearbook of International Sports Arbitration 2018–2020 9462655103, 9789462655102

Table of contents :
Preface
Contents
Part I General Articles
44 Football’s Bad Governance in the Dock: The Court of Arbitration for Sport and FIFA’s Policing of Football Officials
Abstract
1 The Beautiful Game and the Ugly Organization
2 The Evolution of FIFA’s Policing of Football Officials
2.1 The ISL Scandal and the Birth of FIFA’s Code of Ethics
2.2 The Birth of the FIFA Ethics Committee: The 2006 Reform
2.3 The Transformation of the FIFA Ethics Committee Since 2012
2.4 The Growing Impact of the FIFA Ethics Committee in Numbers
3 The Court of Arbitration for Sport and FIFA’s Governance Clean-Up
3.1 Shoring Up the Investigatory Power of the Ethics Committee: The CAS’s Interpretation of the Duty to Cooperate
3.1.1 The CAS’s Endorsement of the Need for a Duty to Cooperate
3.1.2 The CAS and the Content of the Duty to Cooperate
3.2 The CAS and the FCE as Applicable Law
3.2.1 Ensuring the Prevalence of FIFA’s FCE Over Swiss (Mandatory) Law
3.2.2 The CAS and the Difficult Clarification of the Temporal Application of the FCE
3.3 The CAS and FIFA’s Evidentiary Burden Under the FCE
3.3.1 The CAS and the Burden of Proof in FCE Cases
3.3.2 The CAS and the Standard of Proof in FCE Cases
3.3.3 The CAS and the Admissibility of Evidence in FCE Cases
3.4 The CAS’s Interpretation of the Substantive Provisions of the FCE
3.4.1 The CAS and the General Duties of FIFA Officials
The Conformity of Article 3 FCE 2009 with the Nulla Poena Sine Lege Principle
What Type of Behaviour Has Been Recognized by the CAS as a Breach of the General Duties or Duty of Loyalty of a FIFA Official?
When Are Officials Performing Their Duties?
3.4.2 The CAS and the Policing of Football’s Gift Economy Under Article 20 FCE
The CAS and the Acceptance of Gifts by Officials
The CAS and the Offering of Gifts by Officials
3.4.3 The CAS and the Policing of Bribery and Corruption under the FCE
The CAS and the Enforcement of Article 11 FCE 2009: The Adamu and Fusimalohi Cases
The Offering, Promising or Sending of a Gift or Advantage to an Official
The Incitement to Breach a Duty or Behave Dishonestly for the Benefit of a Third Party
The Obligation to Refuse an Improper Offer
The Application of Article 27 FCE: The Texeira Case
3.4.4 The CAS and Conflicts of Interests under the FCE
Conflicts of Interest and the Blatter/Platini Saga
The Valcke Case
The Mayne-Nicholls Case
3.4.5 The CAS and the Misappropriation of Funds
3.5 The CAS and the Determination of Sanctions Under the FCE
3.5.1 Discretion of CAS Panels to Review the Sanctions Imposed by FIFA
3.5.2 How the CAS Assesses the Proportionality of the Sanction
The CAS and Aggravating Circumstances
CAS Jurisprudence and Mitigating Circumstances
3.5.3 The CAS and the Role of Precedents in the Evaluation of the Proportionality of Sanctions Under the FCE
3.5.4 The CAS and the Evaluation of Fines Under the FCE
4 Conclusion
Acknowledgment
References
41 The Surrogate Regulatory Role of CAS Panels: Financial Fair Play at the Court of Arbitration for Sport
1 Introduction
2 AC Milan v. UEFA (CAS 2018/A/5808)
2.1 Background and the Parties’ Submissions
2.2 The Panel’s Findings
2.3 Subsequent Consent Awards of CAS 2019/A/6083 AC Milan v. UEFA and CAS 2019/A/6261 AC Milan v. UEFA
3 Galatasaray v. UEFA (CAS 2018/A/5957)
3.1 Background and the Parties’ Submissions
4 PSG v. UEFA (CAS 2018/A/5937)
4.1 Background and the Parties’ Submissions
4.2 The Panel’s Findings
5 Rubin Kazan v. UEFA (CAS 2018/A/5977)
5.1 Background and the Parties’ Submissions
5.2 The Panel’s Findings
6 Manchester City v. UEFA (CAS 2020/A/6785)
6.1 Background to the Case
6.2 Manchester City v. UEFA (CAS 2019/A/6298)
6.3 Manchester City v. UEFA (CAS 2020/A/6785)—The Adjudicatory Chamber’s Findings and Issues of Evidence
6.4 Manchester City v. UEFA (CAS 2020/A/6785)—The Panel’s Findings
6.4.1 CFCB Due Process Obligations
6.4.2 The 2014 Settlement Agreement
6.4.3 Time Bar
6.4.4 Standard of Proof
6.4.5 Assessment of Facts
6.4.6 Manchester City’s Co-operation with the Investigation
6.4.7 Sanction
7 Conclusions and the Future of FFP
References
Part II Commentaries of CAS Awards
38 CAS 2017/O/5025, International Federation of American Football (IFAF), USA Football, Football Canada, Japanese American Football Association (JAFA), Panamanian Federation of American Football and Richard MacLean v. Tommy Wiking, Award of 1 March 2018
Abstract
1 Introduction
2 Summary of Facts and Procedure
2.1 Facts
2.2 Procedure
2.2.1 The Proceedings in France
2.2.2 The CAS Proceedings
Initiation of the Proceedings
Position of the Parties
Submission of Additional Evidence
Hearing; Post-hearing Briefs; and Partial Operative Part of the Award
3 Comment
3.1 Did Mr. Wiking Validly Resign from His Position as IFAF President in Early 2015? In the Affirmative, What Were the Legal Consequences of His Resignation?
3.2 Was Mr. Noronen Validly Elected as IFAF Ad Interim President on 17 July 2015?
3.3 Who Is the Current President of IFAF?
3.4 Does IFAF Have Standing in the CAS Proceedings?
4 Conclusion
Conflict of Interest
Reference
43 CAS 2017/A/5166 and 5405 Palestine Football Association v. Fédération Internationale de Football Association (FIFA), Award of 9 July 2018
Abstract
1 Facts and Procedure of the Case
1.1 Framing the Problem: The Legality of Israeli Football Activity in the Occupied Palestinian Territory
1.2 The 67th FIFA Congress and the PFA Motion
1.3 The FIFA Council Decision of October 2017
2 The Decision
2.1 The Legality of FIFA’s Motion at the 67th FIFA Congress
2.1.1 Preliminary Matters
2.1.2 The Compatibility of the Motion with FIFA’s Procedural Rules
2.1.3 The Compatibility of the Motion with the PFA’s Rights as a FIFA Member
2.2 The Legality of the FIFA Council Decision
3 Conclusion: Of Missed Opportunities and Democratic Backsliding
References
36 CAS 2018/A/5546, José Paolo Guerrero v. Fédération Internationale de Football Association (FIFA), CAS 2018/A/5571, World Anti-doping Agency (WADA) v. FIFA & José Paolo Guerrero, Award of 30 July 2018 (Operative Part of 14 May 2018)
Abstract
1 Facts and Procedure
2 The CAS Holding and Analysis
3 The Costa Opinion
3.1 What Does the Costa Opinion Actually Say with Regard to Proportionality?
3.2 Was the Costa Opinion Intended to Preclude the Application of Proportionality in a Case like Guerrero’s?
4 Examination of Cases Where Proportionality Has Been Applied (Pre- and Post-2015 WADA Code)
4.1 Pre-WADC Cases Considering Proportionality in Assessing Sanction
4.1.1 Foschi v. FINA (CAS 1996/56)
4.1.2 B. v. FINA (CAS 2001/A/337)
4.2 Pre-2015 WADC Cases
4.2.1 FIFA & WADA (CAS 2005/C/976 & 986)
4.2.2 Squizzato v. FINA (CAS 2005/A/830)
4.2.3 Puerta v. International Tennis Federation (CAS 2006/A/1025)
4.2.4 FINA v. Mellouli (TAS 2007/A/1252)
4.2.5 Walilko v. Federation Internationale de l’Automobile (CAS 2010/A/2268)
4.2.6 Klein v. ASADA (CAS A4/2016)
4.3 Post-2015 WADC
4.3.1 WADA v. Russian Anti-doping Agency (CAS 2020/O/6689)
5 Conclusion
37 CAS 2018/A/5800 Samir Arab v. Union Européenne de Football Association (UEFA), Award of 14 November 2018
Abstract
1 Facts and Procedure of the Case
2 The CAS Panels’ Power to Review Match-Fixing Sanctions
3 Proportionality of Sanctions, Notably of Bans
4 Mitigating Circumstances in Match-Fixing Cases
4.1 The Concept of “Substantial Assistance” as a Mitigating Factor
4.2 Improper Education Tools; Absence of Reliable Reporting Mechanisms
4.3 Fear of Repercussions as a Mitigating Factor?
5 Aggravating Circumstances—Age, Experience and Multiple Approaches to Fix a Match
5.1 Player’s Age and Experience
5.2 Multiple Unreported Approaches to Fix a Match
6 Non Ultra Petita, Non Reformation in Peius, and Res Iudicata
6.1 Procedural Aspects and Parties’ Arguments
6.2 No Violations of Non Ultra Petita and of Non Reformatio in Peius Principles
6.3 Violation of Res Iudicata
7 Analysis, Remarks and Conclusion
References
42 CAS 2019/A/6181, Fédération Royale Belge de Gymnastique (FRBG) v. Fédération Internationale de Gymnastique (FIG) and Japan Gymnastics Association (JGA), Award of 24 September 2019 (Operative Part of 25 April 2019)
Abstract
1 Facts and Procedure
1.1 Factual Background
1.2 Proceedings Before the CAS and Positions of the Parties
2 Considerations of the CAS
2.1 Standing to Sue
2.2 Interpretation of the Term “Mid-December”
2.3 Conclusion
3 Final Remarks
References
32 CAS 2019/A/6367, Paris Saint-Germain and Neymar Da Silva Santos Junior v. Union des Associations Européennes de Football (UEFA), Award of 17 February 2020 (Operative Part of Award of 17 September 2019)
Abstract
1 Facts and Procedure
1.1 Facts
1.2 Procedure
2 Submissions of the Parties
2.1 PSG and Neymar (“The Appellants”)
2.2 UEFA
3 The Decision
3.1 Correct Translation of the Statements
3.2 Scope of Application of Article 11 and Article 15 DR
3.3 Were the Statements Directed at “Match Officials”?
3.4 Was the Content of the Statements “Abusive” or “Insulting”?
3.5 Were There Any Mitigating or Aggravating Circumstances?
4 Observations
4.1 Application of Article 15 DR
4.1.1 Scope of Article 15 DR
4.1.2 Breach of Article 15 DR
4.2 The Relevance of the Publicity of the Offence
5 Conclusion
40 CAS 2019/A/6148, World Anti-doping Agency v. Sun Yang and Fédération Internationale de Natation, Award of 28 February 2020
Abstract
1 Facts and Procedure of the Case
2 The Award
2.1 The CAS Panel’s Findings on the Admissibility of the Appeal
2.2 The CAS Panel’s Findings on Liability
2.2.1 Did the IDTM Team Validly Notify the Athlete Under the ISTI?
Was There a Requirement for a “Specific and Individual” Authorization Letter?
Did the DCO, DCA and BCA Individually Require a (Specific and Individual) Authorisation Letter Mentioning Their Names?
Did the DCO, DCA and BCA Identify Themselves to the Athlete in Accordance with the ISTI and Did They Have the Required Training?
2.2.2 Was There a Valid Justification for the Athlete’s Failure to Comply with the Sample Collection Process?
The Taking of Pictures by the DCA
The DCO’s Failure to Warn the Athlete of the Consequences of His Failure to Comply with the Process
The Alleged Decision of the DCO to Terminate the Sample Collection Session and Her Alleged Suggestion to Take and Destroy the Blood Samples
2.3 The Athlete’s Intent to Violate Article 2.5 FINA DCR
2.4 The CAS Panel’s Findings on the Appropriate Disciplinary Sanction
2.4.1 The Effect of the Athlete’s Previous Doping Violation
2.4.2 Consequences Besides the Imposition of a Period of Ineligibility
3 Conclusion
Reference
34 CAS 2018/O/5830, International Surfing Association v. International Canoe Federation, Award of 5 August 2020
Abstract
1 Introduction
2 Facts and Procedure
2.1 Facts
3 Reasoning of the CAS
3.1 Validity and Scope of the Arbitration Agreement
3.1.1 What Constitutes a Valid Arbitration Agreement?
3.1.2 Scope of the Arbitration Agreement
3.2 Settling the Dispute: Which Rules Apply?
3.2.1 No Exclusivity at the World Level
3.2.2 Application of the IOC Regulations to Determine Exclusivity at the Olympic Level
4 Conclusion
References
45 CAS 2020/A/6807, Blake Leeper v. IAAF, Award of 23 October 2020
Abstract
1 Introduction
2 Facts and Procedure
2.1 Background: From Pistorius to Leeper
2.2 Preamble to the CAS Proceedings
2.3 CAS Proceedings
2.4 Proceedings Before the Swiss Federal Tribunal
2.5 Second CAS Proceedings
2.6 Revision of World Athletics Rules
3 Reasoning of the CAS Award
3.1 Jurisdiction and Applicable Law
3.2 Merits
4 Commentary
4.1 Interpreting the ‘Overall Advantage’ Test
4.2 Burden of Proof as a Policy Issue
4.3 Burden of Proof Versus Evidentiary Duties
4.4 A Jurisprudence Rooted in Inclusion
4.5 Impact of the Award Beyond Mechanical Aids?
5 Conclusion
References
Part III Sports Arbitration in National and International Courts
33 Landgericht Frankfurt, Az. 2-06 O 457/19, Behrens and Tillmann v. Deutscher Volleyball-Verband e.V. (DVV), 7 October 2020
Abstract
1 Facts of the Case
2 Findings of the LG Frankfurt
3 Commentary
3.1 The Issue of Arbitration Agreements in Organised Sport
3.2 Putting Behrens and Tillmann v. DVV in Perspective
3.2.1 Invalidity of the Arbitration Clause
3.2.2 Balancing Process Required
Independence and Impartiality
Finding an Adequate Balance Between the Interests at Stake
4 Conclusion
References
35 Swiss Federal Tribunal, 4A_486/2019 (SFT 146 III 358), Trabzonspor Sportif A.S. et al. v. Turkish Football Federation, Fenerbahçe Futbol A.S. and Fédération Internationale de Football Association, 17 August 2020
Abstract
1 Introduction
2 Factual and Procedural History
2.1 Facts
2.2 Proceedings Before the Turkish Criminal Courts and the TFF Instances
2.3 Proceedings Before UEFA
2.4 Proceedings Before FIFA
2.5 Appeal to the CAS, Request for a Public Hearing and Bifurcation of the Proceedings
2.6 The Appeal to the Swiss Federal Tribunal
2.7 Departure from the Facts as They Are Established in the CAS Award
2.8 Violation of Public Policy
2.8.1 Definition and Notion of Public Policy According to the SFT
Violation of Public Policy as a Result of the Panel’s Refusal to Hold a Public Hearing?
2.8.2 Violation of Public Policy and the Principle of Good Faith
The Panel’s Findings on Trabzonspor’s Standing to Appeal the FIFA Decision
Principle of Good Faith
2.8.3 Violation of Public Policy and Promises of Bribes
2.8.4 Violation of the Right to Be Heard
Definition and Notion of the Right to Be Heard in Federal Proceedings
Bifurcation of the Proceedings and Right to Be Heard
Interpretation of the Applicable Rules, Violation of the Right to Be Heard and/or Violation of Procedural Public Policy
2.9 Concluding Remarks
Reference
39 European Court of Human Rights, Mutu and Pechstein v. Switzerland, Judgment of 2 October 2018
Abstract
1 Facts and Procedures of the Two Cases
1.1 Facts and Proceedings Leading to Claudia Pechstein’s Application to the ECtHR (No. 67474/10)
1.1.1 Pechstein’s Referral to the CAS and the SFT
1.1.2 Pechstein’s Referral to the German Courts
1.2 Facts and Proceedings Leading to Adrian Mutu’s Application to the ECtHR (No. 40575/10)
2 Decision
2.1 Applicability of Article 6(1) ECHR Before CAS Panels
2.2 Independence and Impartiality of CAS
2.2.1 Does the CAS Present an Appearance of Independence and Impartiality?
2.2.2 “Certain Link” Between the ICAS and SGBs
2.2.3 Closed List of CAS Arbitrators
Necessity of a Closed List of CAS Arbitrators?
Real Influence of the SGBs on the Appointment of CAS Arbitrators
2.3 Public Hearing
3 Conclusion
References
46 Sports Arbitration Cases Before the Swiss Federal Tribunal in 2018–2020—A Digest
Abstract
1 Introduction
2 Summaries of the SFT’s Decisions Rendered Between 1 January 2018 and 31 December 2020
2.1 Article 190(2)(a) PILA—Irregular Constitution of the Arbitral Tribunal
2.1.1 SFT 4A_260/2017 (ATF 144 III 120), Decision of 20 February 2018
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.1.2 SFT 4A_318/2018, Decision of 4 March 2019
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.1.3 SFT 4A_287/2019, Decision of 6 January 2020
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.1.4 SFT 4A_248/2019 and 4A_398/2019 (ATF 147 III 49), Decisions of 25 August 2020
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.1.5 SFT 4A_318/2020 (ATF 147 III 65), Decision of 22 December 2020
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.2 Article 190(2)(b) PILA—Incorrect Decision on Jurisdiction
2.2.1 SFT 4A_432/2017, Decision of 22 January 2018
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.2.2 SFT 4A_490/2017, Decision of 2 February 2018
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.2.3 SFT 4A_170/2017 and 4A_194/2017, Decisions of 22 May 2018
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.2.4 SFT 4A_314/2017, Decision of 28 May 2018
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.2.5 SFT 4A_272/2019, Decision of 4 September 2019
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.2.6 SFT 4A_268/2019, Decision of 17 October 2019
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.2.7 SFT 4A_413/2019, Decision of 28 October 2019
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.2.8 SFT 4A_287/2019, Decision of 6 January 2020
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.2.9 SFT 4A_618/2019, Decision of 17 September 2020
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.3 Article 190(2)(c) PILA—Award Ultra, Extra or Infra Petita
2.3.1 SFT 4A_508/2017, Decision of 29 January 2018
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.3.2 SFT 4A_170/2017 and 4A_194/2017, Decisions of 22 May 2018
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.3.3 SFT 4A_314/2017, Decision of 28 May 2018
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.3.4 SFT 4A_284/2018, Decision of 17 October 2018
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.3.5 SFT 4A_198/2020, Decision of 1 December 2020
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.4 Article 190(2)(d) PILA—Violation of the Parties’ Right to Be Heard and Equal Treatment
2.4.1 SFT 4A_260/2017 (ATF 144 III 120), Decision of 20 February 2018
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.4.2 SFT 4A_478/2017, Decision of 2 May 2018
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.4.3 SFT 4A_170/2017 and 4A_194/2017, Decisions of 22 May 2018
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.4.4 SFT 4A_502/2017, Decision of 25 June 2018
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.4.5 SFT 4A_578/2017, Decision of 20 July 2018
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.4.6 SFT 4A_114/2018, Decision of 14 August 2018
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.4.7 SFT 4A_238/2018, Decision of 12 September 2018
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.4.8 SFT 4A_284/2018, Decision of 17 October 2018
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.4.9 SFT 4A_382/2018, Decision of 15 January 2019
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.4.10 SFT 4A_424/2018, Decision of 29 January 2019
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.4.11 SFT 4A_318/2018, Decision of 4 March 2019
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.4.12 SFT 4A_556/2018, Decision of 5 March 2019
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.4.13 SFT 4A_54/2019, Decision of 11 April 2019
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.4.14 SFT 4A_540/2018 (ATF 145 III 266), Decision of 7 May 2019
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.4.15 SFT 4A_494/2018, Decision of 25 June 2019
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.4.16 SFT 4A_268/2019, Decision of 17 October 2019
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.4.17 SFT 4A_536/2018, Decision of 16 March 2020
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.4.18 SFT 4A_422/2019, Decision of 21 April 2020
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.4.19 SFT 4A_548/2019 and 4A_550/2019, Decisions of 29 April 2020
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.4.20 SFT 4A_462/2019, Decision of 29 July 2020
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.4.21 SFT 4A_486/2019 (ATF 146 III 358), Decision of 17 August 2020
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.4.22 SFT 4A_248/2019 and 4A_398/2019 (ATF 147 III 49), Decisions of 25 August 2020
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.4.23 SFT 4A_62/2020, Decision of 30 September 2020
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.4.24 SFT 4A_198/2020, Decision of 1 December 2020
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.4.25 SFT 4A_384/2020, Decision of 10 December 2020
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.4.26 SFT 4A_478/2020, Decision of 29 December 2020
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.5 Article 190(2)(e) PILA—Award Contravening Public Policy
2.5.1 SFT 4A_508/2017, Decision of 29 January 2018
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.5.2 SFT 4A_260/2017 (ATF 144 III 120), Decision of 20 February 2018
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.5.3 SFT 4A_170/2017 and 4A_194/2017, Decisions of 22 May 2018
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.5.4 SFT 4A_502/2017, Decision of 25 June 2018
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.5.5 SFT 4A_238/2018, Decision of 12 September 2018
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.5.6 SFT 4A_474/2018, Decision of 27 November 2018
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.5.7 SFT 4A_98/2018, Decision of 17 January 2019
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.5.8 SFT 4A_318/2018, Decision of 4 March 2019
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.5.9 SFT 4A_556/2018, Decision of 5 March 2019
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.5.10 SFT 4A_54/2019, Decision of 11 April 2019
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.5.11 SFT 4A_540/2018 (ATF 145 III 266), Decision of 7 May 2019
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.5.12 SFT 4A_494/2018, Decision of 25 June 2019
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.5.13 SFT 4A_536/2018, Decision of 16 March 2020
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.5.14 SFT 4A_548/2019 and 4A_550/2019, Decisions of 29 April 2020
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.5.15 SFT 4A_70/2020, Decision of 18 June 2020
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.5.16 SFT 4A_462/2019, Decision of 29 July 2020
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.5.17 SFT 4A_486/2019 (ATF 146 III 358), Decision of 17 August 2020
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.5.18 SFT 4A_248/2019 and 4A_398/2019 (ATF 147 III 49), Decisions of 25 August 2020
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.5.19 SFT 4A_618/2019, Decision of 17 September 2020
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.5.20 SFT 4A_416/2020, Decision of 4 November 2020
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.6 Article 76 SCA—Locus Standi
2.6.1 SFT 4A_426/2017, Decision of 17 April 2018
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.6.2 SFT 4A_560/2018, Decision of 16 November 2018
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.6.3 SFT 4A_56/2018, Decision of 30 January 2019
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.7 Article 77 SCA—Challengeable Decisions
2.7.1 SFT 4A_146/2019, Decision of 6 June 2019
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
2.8 Article 121(a) SCA (By Analogy)—Revision on the Ground of Irregular Composition of the Tribunal or Lack of Impartiality and Independence
2.8.1 SFT 4A_318/2020 (ATF 147 III 65), Decision of 22 December 2020
Underlying Facts, Proceedings and Decision(s)
Application for Revision and SFT Decision
2.9 Article 123(2)(a) SCA—Revision—Discovery of New Facts or Evidence
2.9.1 SFT 4A_662/2018, Decision of 14 May 2019
Underlying Facts, Proceedings and Decision(s)
Application for Revision and SFT Decision
2.9.2 SFT 4A_597/2019, Decision of 17 March 2020
Underlying Facts, Proceedings and Decision(s)
Application for Revision and SFT Decision
2.10 Article 338 CCP—Request for Enforcement
2.10.1 SFT 4A_543/2019, Decision of 30 April 2020
Underlying Facts, Proceedings and Decision(s)
Annulment Action and SFT Decision
Disclaimer
References

Citation preview

Yearbook of International Sports Arbitration 2018–2020

Antoine Duval Antonio Rigozzi Editors

Yearbook of International Sports Arbitration

The Yearbook of International Sports Arbitration is the first academic publication aiming to offer comprehensive coverage, on a yearly basis, of the most recent and salient developments regarding international sports arbitration, through a combination of general articles and case notes. It is a must-have for sports lawyers and arbitrators, as well as researchers engaged in this field. It provides in-depth articles on burning issues raised by international sports arbitration, and independent commentaries by esteemed academics and seasoned practitioners on the most important decisions of the CAS and national courts.

Antoine Duval Antonio Rigozzi •

Editors

Yearbook of International Sports Arbitration 2018–2020

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Editors Antoine Duval ASSER International Sports Law Centre T.M.C. Asser Instituut The Hague, The Netherlands

Antonio Rigozzi Faculté de droit Université de Neuchâtel Neuchâtel, Switzerland

ISSN 2522-8501 ISSN 2522-851X (electronic) Yearbook of International Sports Arbitration ISBN 978-94-6265-510-2 ISBN 978-94-6265-511-9 (eBook) https://doi.org/10.1007/978-94-6265-511-9 Published by T.M.C. ASSER PRESS, The Hague, The Netherlands www.asserpress.nl Produced and distributed for T.M.C. ASSER PRESS by Springer-Verlag Berlin Heidelberg © T.M.C. ASSER PRESS and the authors 2024 No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher, with the exception of any material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. This T.M.C. ASSER PRESS imprint is published by the registered company Springer-Verlag GmbH, DE, part of Springer Nature. The registered company address is: Heidelberger Platz 3, 14197 Berlin, Germany

Preface

This fourth volume in the Yearbook of International Sports Arbitration (YISA) series covers the period 2018–2020, an eventful triennium in the world of sports law and arbitration, marked as it was, in its first year, by the ECtHR’s much-awaited decision in the Pechstein case.1 Although Pechstein may have at that time felt as somewhat of a ‘dodged bullet’ for the CAS system,2 its reverberations are still perceptible today, within that system and beyond. In the aftermath of the Pechstein decision, the CAS Code was amended to include a new provision on the right for parties in disciplinary cases to request a public hearing;3 the ICAS’s composition, reviewed at the end of 2018, showed that more attention was being given to bolstering its independence, with the inclusion of new members having no obvious ties to the sports movement, and in significant part hailing from the international or domestic judiciary;4 the Swiss Supreme Court (SFT), in its capacity as the court of supervisory jurisdiction over CAS, has seen an increase in references 1

Mutu & Pechstein v. Switzerland (Applications nos. 40575/10 and 67474/10), Judgment of 2 October 2018, https://hudoc.echr.coe.int/eng/?i=001-186828. 2 See Rigozzi, A. (2020). Sports Arbitration and the European Convention of Human Rights-Pechstein and Beyond. In Müller, Ch., Besson, S., Rigozzi, A. (eds), New Developments in International Commercial Arbitration 2020. Stämpfli, Bern, 77–130, at p. 95, available at https://lk-k.com/wp-content/uploads/2020/12/RIGOZZI-in-M%C3%9CLLER-et-al.Eds-New-Developments-in-Intl-Comm.-Arb.-2020-2020-Sports-Arb.-ECHR-Pechstein-beyondpp.-77-130-1.pdf. Accessed 22 November 2022; Rigozzi, A. (2022). Claudia Pechstein v. Court of Arbitration for Sport: Advantage CAS? Football Legal n. 17, Special Report, June 2022, https://lkk.com/wp-content/uploads/2022/07/RIGOZZI-Claudia-Pechstein-v.-Court-of-Arbitration-forSport-Football-Legal-17-2022-pp.-108-119.pdf. Accessed 22 November 2022. 3 Amended Article R57(2) CAS Code, introduced in January 2019; see Duval, A. (2019). Time to Go Public? The Need for Transparency at the Court of Arbitration for Sport. In: Duval, A., Rigozzi, A. (eds) Yearbook of International Sports Arbitration 2017. Yearbook of International Sports Arbitration. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/15757_2019_29. 4 CAS Media Release of 28 December 2018, Composition of the International Council of Arbitration for Sport (ICAS) for the Period 1 January 2019–31 December 2022, available at https://www.tas-cas.org/fileadmin/user_upload/ICAS_media_release_-_ICAS_2019-2022.pdf. Accessed 22 November 2022.

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to Article 6(1) ECHR in the applications for annulment brought before it since the issuance of the Pechstein ruling;5 and the German courts, it turns out, are not done grappling with that same case, since the Bundesverfassungsgericht’s reversal, in June 2022, of the German Supreme Court’s decision that had previously upheld the validity of CAS arbitration—meaning that the Oberlandesgericht München will now rehear part of the case.6 The ECtHR itself has, since Pechstein, received more applications against Switzerland arising from CAS arbitrations.7 In parallel to the (still) unfolding effects of the Pechstein saga, the CAS’s docket has continued to grow, as is shown most recently in the ICAS Annual Report and Financial Statements 2021,8 with football disputes consistently representing a large share of incoming cases. The importance of football and its law is reflected in this volume’s table of contents. Part I features a thorough review, by Antoine Duval, of the CAS’s jurisprudence on the various iterations of the FIFA Code of Ethics, examining the cases that resulted, inter alia, in the downfall of the highest executives in the sport, from Sepp Blatter to Michel Platini, Jerôme Valcke to Ricardo Terra Texeira, and Ahmad Ahmad and several others. The second chapter in Part I is Christopher Flanagan’s extensive study of UEFA’s Financial Fair Play Rules and the role played by CAS jurisprudence in their development. Part II then opens with a contribution relating to the ‘other’ (i.e., American) football, namely Yann Hafner’s commentary of the CAS award that put an end to a tumultuous contest for the IFAF Presidency in the Tommy Wiking case. Co-authors Antoine Duval and Pedro José Mercado Jaén then critically examine the sensitive Palestine Football Federation v. FIFA award, relating to FIFA’s handling of the PFA’s ill-fated application for member status in 2017. In the following chapter, Howard Jacobs, Katlin Freeman and Aaron Mojarras discuss the controversial case of José Paolo Guerrero v. FIFA and WADA v. Guerrero & FIFA, which cast a stark light on the lack of room, under CAS case law, for proportionality considerations in the application of the 2015 WADA Code. Yet another football dispute is covered in Madalina Diaconu’s chapter on the Samir Arab v. UEFA award, dealing with the case of an U21 player entangled in a notorious match-fixing network. And staying in the football context, Carol Etter analyzes the CAS’s decision in the Paris Saint-Germain and Neymar v. UEFA case, which dealt with the determination of the appropriate sanction for the use of abusive language by a player on social media, in the context of a match. In Part III, which 5

Cf., in the period under review, SFT decisions 4A_438/2018 of 17 January 2019, 4A_54/2019 of 11 April 2019, 4A_248/2019 & 4A_398/2019 of 25 August 2020 [Semenya], 4A_268/2019 of 17 October 2019, 4A_486/2019 of 17 August 2020 [Trabzonspor]. 6 BVerfG, Order of the Second Chamber of the First Senate of 3 June 2022-1 BvR 2103/16, https:// www.bundesverfassungsgericht.de/e/rk20220603_1bvr210316en.html. Accessed 22 November 2022. 7 Cf., e.g., Valcke v. Switzerland, Application no. 57476/19; Semenya v. Switzerland, Application no. 10954/21. 8 https://www.tas-cas.org/fileadmin/user_upload/ICAS_Annual_Report___Financial_Statements_ 2021.pdf, pp. 16–17. Accessed 22 November 2022.

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covers the decisions rendered by domestic courts in various jurisdictions, Despina Mavromati discusses the SFT’s decision in Trabzonspor et al. v. Turkish Football Federation, Fenerbahçe & FIFA, a matter resulting from the well-known and much-litigated 2010–2011 match-fixing scandal in Turkey, which also provided an illustration of the ripple effects of the ECtHR’s Pechstein ruling in CAS arbitration, given that one of the grounds relied upon by Trabzonspor for challenging the award was the denial by CAS of its request for a public hearing. Finally, football cases (including Trabzonspor and the SFT limbs of the Guerrero saga) also represent the lion’s share of the more than 50 decisions summarized in Yann Hafner, Riccardo Coppa and Erika Hasler’s digest of the SFT’s case law for the period 2018–2020. Other salient topics in international sports law and arbitration were at stake in the remainder of the CAS awards covered in Part II. The Fédération Royale Belge de Gymnastique v. FIG & Japan Gymnastics Association award, commented by Jan Kleiner, decided a dispute in connection with the Belgian and Japanese gymnastics federations’ competing bids to host the 2023 World Championships of Artistic Gymnastics. Giulio Palermo and Panagiotis Kyriakou then discuss the first CAS award in the famous WADA v. Sun Yang & FINA dispute, a case that featured the first CAS public hearing post-Pechstein and raised numerous procedural challenges, including the handling of protected witnesses. In the following commentary, Rosmarijn van Kleef considers the interesting dispute in the matter of International Surfing Association (ISA) v. International Canoe Federation (ICF), where the CAS was asked to determine which federation should be the international governing and administering body for the sport of stand-up paddle. Marjolaine Viret’s chapter on the 2020 Blake Leeper v. IAAF award examines the thorny issues arising in cases involving the use of prosthetic aids by disabled athletes. Finally, in addition to the Mutu & Pechstein v. Switzerland ECtHR decision, which is discussed in this volume by Richard Lungstras, Part III features Björn Hessert’s study on the Behrens and Tillmann v. Deutscher Volleyball-Verband case—yet another German domestic ruling dealing with the issue of athletes’ forced consent to sports arbitration, and again one arising in the wake of the ECtHR’s Pechstein decision. This overview confirms that the law and practice of sports arbitration remains a vibrant, evolving field and a fascinating subject to study. It also highlights, once more, the pivotal role played by the CAS in this field, as the supreme adjudicator and interpreter of the applicable laws and regulations, but also the responsibilities weighing on CAS arbitrators, the CAS itself, and Switzerland, as the juridical seat of CAS arbitrations, in cases where so much can be at stake—in commercial, societal, ethical, and political terms, as well as for the livelihood, health, dignity, and human rights of the individuals concerned. Neuchâtel, Switzerland November 2022

Antonio Rigozzi

Contents

Part I

General Articles

Football’s Bad Governance in the Dock: The Court of Arbitration for Sport and FIFA’s Policing of Football Officials . . . . . . . . . . . . . . . . Antoine Duval

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The Surrogate Regulatory Role of CAS Panels: Financial Fair Play at the Court of Arbitration for Sport . . . . . . . . . . . . . . . . . . . . . . . . . . . Christopher A. Flanagan

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Part II

Commentaries of CAS Awards

CAS 2017/O/5025, International Federation of American Football (IFAF), USA Football, Football Canada, Japanese American Football Association (JAFA), Panamanian Federation of American Football and Richard MacLean v. Tommy Wiking, Award of 1 March 2018 . . . . . 115 Yann Hafner CAS 2017/A/5166 and 5405 Palestine Football Association v. Fédération Internationale de Football Association (FIFA), Award of 9 July 2018 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129 Antoine Duval and Pedro José Mercado Jaén CAS 2018/A/5546, José Paolo Guerrero v. Fédération Internationale de Football Association (FIFA), CAS 2018/A/5571, World Anti-doping Agency (WADA) v. FIFA & José Paolo Guerrero, Award of 30 July 2018 (Operative Part of 14 May 2018) . . . . . . . . . . . . . . . . . 143 Howard L. Jacobs, Katlin N. Freeman and Aaron M. Mojarras CAS 2018/A/5800 Samir Arab v. Union Européenne de Football Association (UEFA), Award of 14 November 2018 . . . . . . . . . . . . . . . . . 159 Madalina Diaconu

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CAS 2019/A/6181, Fédération Royale Belge de Gymnastique (FRBG) v. Fédération Internationale de Gymnastique (FIG) and Japan Gymnastics Association (JGA), Award of 24 September 2019 (Operative Part of 25 April 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175 Jan Kleiner CAS 2019/A/6367, Paris Saint-Germain and Neymar Da Silva Santos Junior v. Union des Associations Européennes de Football (UEFA), Award of 17 February 2020 (Operative Part of Award of 17 September 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187 Carol Etter CAS 2019/A/6148, World Anti-doping Agency v. Sun Yang and Fédération Internationale de Natation, Award of 28 February 2020 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203 Giulio Palermo and Panagiotis A. Kyriakou CAS 2018/O/5830, International Surfing Association v. International Canoe Federation, Award of 5 August 2020 . . . . . . . . . . . . . . . . . . . . . . 221 Rosmarijn van Kleef CAS 2020/A/6807, Blake Leeper v. IAAF, Award of 23 October 2020 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235 Marjolaine Viret Part III

Sports Arbitration in National and International Courts

Landgericht Frankfurt, Az. 2-06 O 457/19, Behrens and Tillmann v. Deutscher Volleyball-Verband e.V. (DVV), 7 October 2020 . . . . . . . . . . . 265 Björn Hessert Swiss Federal Tribunal, 4A_486/2019 (SFT 146 III 358), Trabzonspor Sportif A.S. et al. v. Turkish Football Federation, Fenerbahçe Futbol A.S. and Fédération Internationale de Football Association, 17 August 2020 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277 Despina Mavromati European Court of Human Rights, Mutu and Pechstein v. Switzerland, Judgment of 2 October 2018 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291 Richard Lungstras Sports Arbitration Cases Before the Swiss Federal Tribunal in 2018–2020—A Digest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 309 Yann Hafner, Riccardo Coppa and Erika Hasler

Part I

General Articles

Football’s Bad Governance in the Dock: The Court of Arbitration for Sport and FIFA’s Policing of Football Officials Antoine Duval

Contents 1 2

The The 2.1 2.2 2.3 2.4 The 3.1

Beautiful Game and the Ugly Organization................................................................ Evolution of FIFA’s Policing of Football Officials..................................................... The ISL Scandal and the Birth of FIFA’s Code of Ethics........................................ The Birth of the FIFA Ethics Committee: The 2006 Reform .................................. The Transformation of the FIFA Ethics Committee Since 2012.............................. The Growing Impact of the FIFA Ethics Committee in Numbers ........................... 3 Court of Arbitration for Sport and FIFA’s Governance Clean-Up............................. Shoring Up the Investigatory Power of the Ethics Committee: The CAS’s Interpretation of the Duty to Cooperate..................................................................... 3.2 The CAS and the FCE as Applicable Law ............................................................... 3.3 The CAS and FIFA’s Evidentiary Burden Under the FCE....................................... 3.4 The CAS’s Interpretation of the Substantive Provisions of the FCE ....................... 3.5 The CAS and the Determination of Sanctions Under the FCE ................................ 4 Conclusion ........................................................................................................................... References ..................................................................................................................................

4 6 7 8 10 11 14 14 17 20 25 49 58 60

Abstract The Fédération Internationale de Football Association, better known as FIFA, has been through turbulent times in recent years. The infamous pictures of early morning arrests in a luxurious Zurich Hotel in May 2015 are still in people’s mind and Sepp Blatter’s tenure at the helm of the organization is forever tainted by the decimation of FIFA’s Executive Committee (reborn since then as FIFA Council) by the United States Department of Justice. This chapter aims to take a look at how the CAS has dealt with FIFA’s attempts at policing the misbehaviour of its administrators and those of its affiliates. Since 2010, we have witnessed a growing wave of inquiries being launched and sanctions being issued by FIFA against A. Duval (&) T.M.C. Asser Instituut, The Hague, The Netherlands e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2022 A. Duval and A. Rigozzi (Eds.), Yearbook of International Sports Arbitration 2018–2020 https://doi.org/10.1007/15757_2022_44

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football administrators for failing to comply with its FIFA Code of Ethics (FCE). In turn, this activation of FIFA’s internal policing capacity led almost mechanically to an increasing number of challenges at the CAS, which is the sole competent judicial authority to review FIFA’s decisions. The holdings of the CAS in these cases have a crucial impact on the scope and modalities of FIFA’s investigations and disciplinary processes by defining their procedural and substantial boundaries. This chapter aims to provide a first overview of the (publicly available) CAS awards involving the review of FIFA decisions grounded in the FCE and focused on governance matters. Keywords FIFA


Corruption
Good Governance
Bribery
Code of Ethics

1 The Beautiful Game and the Ugly Organization1 The Fédération Internationale de Football Association, better known as FIFA, has been through turbulent times recently.2 In the words of an experienced academic observer of FIFA, the critique of “FIFA’s flawed governance procedures has escalated in recent years, undermining its public image and its claims to be acting for the global public good”.3 The infamous pictures of early morning arrests in a luxurious Zurich Hotel in May 2015 are still in people’s minds and Sepp Blatter’s tenure at the helm of the organization is forever tainted by the decimation of FIFA’s Executive Committee (reborn since then as the FIFA Council) by the United States Department of Justice.4 It was certainly not the first time that FIFA was linked to accusations of corruption. The late Andrew Jennings, a British journalist, had in 2006 already exposed the misuse of FIFA’s resources for the personal profit of a number of its executives.5 As emphasized by Hough and Heaston, “impropriety in FIFA’s upper echelons has been an ongoing issue for many decades”, which is “indicative of a systemic form of corruption”.6 The roots of this ‘culture of corruption’7 have been 1

A title borrowed from an editorial of the European Journal of International Law, see EJIL (2019), pp. 1039–1040. 2 For a journalistic account, see Conn (2017), Blake and Calvert (2015). For an academic account, see Sugden and Tomlinson (2017); and for a recent review of a range of books covering these turbulences, see Gill et al. (2019). 3 Tomlinson (2014), p. 1155. 4 See Michael S. Schmidt and Sam Borden, In a Five-Star Setting, FIFA Officials Are Arrested, the Swiss Way, New York Times, 27 May 2015, https://www.nytimes.com/2015/05/28/sports/ soccer/in-a-five-star-setting-fifa-officials-are-arrested-the-swiss-way.html. Accessed 1 July 2022. And U.S. Department of Justice, Nine FIFA Officials and Five Corporate Executives Indicted for Racketeering Conspiracy and Corruption, 27 May 2015, https://www.justice.gov/opa/pr/nine-fifaofficials-and-five-corporate-executives-indicted-racketeering-conspiracy-and. Accessed 1 July 2022. 5 Jennings (2006, 2016). 6 Hough and Heaston (2018), p. 332. 7 Gill et al. (2019), p. 1046.

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traced back to a complex set of causes, including FIFA’s “shift from the public to the private, from the mission to market, from the civil society to commerce”8 and its “lack of governance”.9 FIFA’s corruption issues have been portrayed as “fundamentally a problem of transnational organizational governance”.10 The crowning scandal of 2015, the so-called #FIFAGate,11 led to the fall of Blatter and to the introduction of a number of institutional reforms aimed at cleaning up FIFA’s governance.12 Whether these reforms were effective or not is not the subject of this piece, but would probably deserve a thorough critical assessment.13 Instead, this chapter aims to take a look at how the CAS has dealt with FIFA’s attempts in the aftermath of the scandal at policing its administrators and those of its affiliates. While external pressures and interventions (in particular by the U.S. authorities) played a key role in the downfall of Blatter,14 FIFA used FIFA-Gate as a “springboard”15 to push forward an internal response to the scandal by activating and strengthening its capacity to investigate and sanction breaches by football officials of its ethical rules. In effect, prior to 2010, instances of disciplinary processes against FIFA administrators on the basis of ethics violations were extremely rare. We have seen since then a growing wave of inquiries being launched and sanctions being issued by FIFA against football administrators for failing to comply with its FIFA Code of Ethics (FCE).16 In turn, this activation of FIFA’s internal policing capacity led almost mechanically to an increasing number of challenges before the CAS, which is the sole competent judicial authority to review

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See Tomlinson (2014), p. 1159. Similarly, Hough and Heaston (2018), p. 332. Pieth (2018), p. 172. 10 Heaston et al. (2020), p. 404. 11 For a sociological reconstruction of the scandalization process that led to FIFA’s crisis in 2015, see Bayle and Rayner (2018), pp. 593–611. 12 Hough and Heaston (2018). 13 For a very critical perspective by former insiders, see Navi Pillay, Miguel Poiares Maduro and Joseph Weiler, ‘Our Sin? We Appeared to Take Our Task at FIFA Too Seriously’, 21 December 2017, available at www.theguardian.com/football/2017/dec/21/our-sin-take-task-fifa-seriously. Accessed 1 July 2022. For other sceptical assessments of the reforms, see Bean (2017), Hough and Heaston (2018), p. 339 [‘FIFA’s reform process is better understood as a series of false dawns, in which high expectations have not been met and promising developments have ultimately petered out.’]. 14 See Bayle and Rayner (2018), p. 607 [‘The ultimate lesson to be learnt from FIFAgate is that the involvement of one or more powerful institutions (in this case, the US DoJ and FBI) is a necessary but insufficient condition for a scandal to occur […]’]. 15 As identified by Emmanuel Bayle, the scandal was indeed to be used as a “springboard” for change, but instead of reforms this change consisted mainly in activating a more or less sleeping institution, the Ethics Committee. See Bayle (2020), p. 623. 16 For a quantification of this trend, see below Sect. 2.4. 9

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FIFA’s decisions.17 The holdings of the CAS in these cases have a crucial impact on the scope and modalities of FIFA’s internal policing and define its procedural and substantial boundaries. Nevertheless, few authors have engaged systematically with these cases and attempted to understand how they frame FIFA’s policing of the behaviour of football’s politicians. Accordingly, this chapter aims to provide a first overview of the (publicly available) awards of the CAS involving the review of FIFA decisions grounded in the FCE and focused on governance matters.18 In order to situate these cases in their political and legal context, Sect. 2 will outline the evolution of FIFA’s Code of Ethics and its implementation since 2004. Thereafter, Sect. 3 will analyse the main contributions of the CAS awards to FIFA’s policing of governance practices in the world of football.

2 The Evolution of FIFA’s Policing of Football Officials FIFA’s public entanglement with corruption scandals and instances of abuse of power involving football’s administrators has been a reality for the past 20 years. It has also been the driver of a dynamic agenda of internal governance reforms leading to the adoption of new rules and institutional mechanisms—“bureaucratic

17 CAS 2016/A/4501 Joseph S. Blatter v. FIFA, Award of 5 December 2016; CAS 2017/A/5086 Mong Joon Chung v. FIFA, Award of 9 February 2018; CAS 2019/A/6219 Sidio José Mugadza v. FIFA, Award of 27 March 2020; CAS 2018/A/6072 Kwesi Nyantakyi v. FIFA, Award of 9 April 2020; CAS 2019/A/6220 Boniface Mwamelo v. FIFA, Award of 7 July 2020; CAS 2019/A/6388 Karim Keramuddin v. FIFA, Award of 14 July 2020; CAS 2019/A/6677 Markus Kattner v. FIFA, Award of 13 July 2020; CAS 2019/A/6326 Chabour Goc Alei v. FIFA, Award of 16 July 2020; TAS 2020/A/7371 Yves Jean-Bart c. FIFA, Award of 19 November 2020; TAS 2020/A/6709 Ariel Alberto Alvarado Carrasco c. FIFA, Award of 29 January 2021; CAS 2019/A/6489 Juan Angel Napout v. FIFA, Award of 2 June 2021; CAS 2019/A/6439 Samson Siasia v. FIFA, Award of 21 June 2021; CAS 2019/A/6344 Marco Polo Del Nero v. FIFA, Award of 31 August 2021, TAS 2020/A/7592 Ahmad Ahmad c. FIFA, Award of 5 October 2021; CAS 2020/A/7388 Manuel Irenio Lopes Nascimento v. FIFA, Award of 29 October 2021; CAS 2021/A/8256 Issa Hayatou v. FIFA, Award of 4 February 2022; CAS 2020/A/6617 Manuel Burga Seoane v. FIFA, Award of 5 April 2022; CAS 2019/A/6669 Sayed Ali Reza Aghazada v. FIFA, Award of 28 April 2022. 18 I have looked only at the awards publicly available before 1 July 2021. Accordingly, the following recent decisions have not been considered in the analysis: CAS 2019/A/6489 Juan Angel Napout v. FIFA, Award of 2 June 2021; CAS 2019/A/6344 Marco Polo Del Nero v. FIFA, Award of 31 August 2021; TAS 2020/A/7592 Ahmad Ahmad c. FIFA, Award of 5 October 2021; CAS 2020/A/7388 Manuel Irenio Lopes Nascimento v. FIFA, Award of 29 October 2021; CAS 2021/A/8256 Issa Hayatou v. FIFA, Award of 4 February 2022; CAS 2020/A/6617 Manuel Burga Seoane v. FIFA, Award of 5 April 2022. I have also excluded from the scope of this article cases related to match-fixing (CAS 2019/A/6219 Sidio José Mugadza v. FIFA, Award of 27 March 2020; CAS/2019/ A/6439 Samson Siasia v. FIFA, Award of 21 June 2021; CAS 2019/A/6220 Boniface Mwamelo v. FIFA, Award of 7 July 2020) and to sexual abuses (CAS 2019/A/6388 Karim Keramuddin v. FIFA, Award of 14 July 2020; TAS 2020/A/7371 Yves Jean-Bart c. FIFA, Award of 19 November 2020; CAS 2019/A/6669 Sayed Ali Reza Aghazada v. FIFA, Award of 28 April 2022).

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corruption controls”19—aimed at policing the behaviour of FIFA officials and other members of the football family. This section proposes to retrace this institutional and normative evolution, as well as to highlight the recent growth in activity at the Ethics Committee.

2.1

The ISL Scandal and the Birth of FIFA’s Code of Ethics

FIFA’s remarkable development as a sizeable transnational organization came only with the advent of broadcasting rights in football and the growth of sponsorship opportunities during the long tenure of Joao Havelange as FIFA President.20 At the end of the nineties, FIFA was still a relatively amateurish organization with mostly informal processes of governance and administration in place. This informal world, where apparently the personal and professional interests of FIFA administrators regularly blurred, was first put under the spotlight in the early 2000s by a scandal named after FIFA’s then key business partner, the media rights company International Sport and Leisure (ISL).21 From thereon, FIFA, not unlike the IOC after the Salt Lake City scandal,22 became conscious of the need to at least being seen as tackling the issue of corruption in football and went “on the offensive with regards to governance and transparency”.23 This is the context in which the first FCE came to be adopted in October 2004.24 This FCE was three pages long and included only 10 articles. Its purpose was “to safeguard FIFA’s image and pursuit of objectives against the unethical actions of Officials […] and to ensure Officials’ integrity in the discharge of their duties” (Preamble) and its scope of application extended to officials of FIFA, Confederations, Associations and clubs (Article 1). It provided for the following obligations: • Duty to act in an apolitical manner and in accordance with the objectives of FIFA (Article 2) • Duty not to abuse their position to obtain personal benefits (Article 2) 19

Heaston et al. (2020), p. 417. For a historical analysis of FIFA’s evolution under Havelange’s tenure, see Eisenberg (2006), pp. 55–68. 21 For more details on the scandal, see Andrew Jennings, Bribes, ethics and the end of an era at FIFA, 7 November 2007, https://www.sportsjournalists.co.uk/journalism-news/isl-ethics-and-theend-of-an-era-at-fifa/. Accessed 1 July 2022; BBC, Panorama: Three Fifa World Cup officials took bribes, 29 November 2010, https://www.bbc.com/news/uk-11841783. Accessed 1 July 2022. 22 On the IOC’s governance reforms following the Salt Lake City corruption scandal, see Skinner (2008), p. 421, and Chappelet (2011), p. 319. 23 Jakob Staun, FIFA’s transparency offensive, 2 June 2006, https://www.playthegame.org/news/ news-articles/2006/fifas-transparency-offensive/. Accessed 1 July 2022. 24 FCE 2004, available at https://digitalhub.fifa.com/m/3cc86ac62e2bb0e/original/uarys8yetmq pnwpogme7-pdf.pdf. Accessed 1 July 2022. 20

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• • • • • • • • • • •

Eligibility conditions for office (Article 3) Duty to disclose conflict of interests (Article 3) Duty to act with integrity (Article 4) Duty of loyalty and confidentiality (Article 5) Strict conditions for the acceptance of gifts (Article 6) Ban on monetary gifts (Article 6) Conditions for the participation of family members in official events (Article 6) Ban on receiving, offering and encouraging bribes (Article 7) Strict conditions on accepting payment for mediation (Article 8) Duty to act with impartiality and to report any conflict of interests (Article 9) Duty to report unethical incidents involving people bound by the Code (Article 10).

The FCE foresaw that in case of breach the newly created FIFA Committee for Ethics and Fair Play should submit a (confidential) report to the FIFA Executive Committee (FIFA ExCo) including a recommendation for a sanction to be imposed. The FIFA ExCo had then the power to issue a provisional suspension and to transfer the case file to the FIFA Disciplinary Committee for additional disciplinary measures. Consequently, the final say on each case was still institutionally in the hands of those who were supposed to be checked by the Committee for Ethics and Fair Play—the members of the FIFA ExCo. Unsurprisingly, there is no public record of any official having been ever sanctioned by FIFA on the basis of this procedure and no publicly available CAS award relates to its implementation at the time.25

2.2

The Birth of the FIFA Ethics Committee: The 2006 Reform

FIFA’s institutional apparatus to govern the behaviour of football officials changed quite fundamentally in September 2006 when the FIFA ExCo adopted a new FCE and, especially, introduced the FIFA Ethics Committee to implement it. For some, this reform was meant as a retaliation against the FIFA Committee for Ethics and Fair Play for having bothered Jack Warner.26 Others argued that it was a further 25 The infamous FIFA ExCo member, Jack Warner, was reportedly found to have breached the FCE by the FIFA Committee for Ethics and Fair Play; however, he mysteriously evaded a sanction. See Nick Harris, Warner guilty of Fifa ethics breach, The Independent, 17 February 2006, https://www.independent.co.uk/sport/football/news/warner-guilty-of-fifa-ethics-breach6108857.html. Accessed 1 July 2022, and Andrew Jennings, Bribes, ethics and the end of an era at Fifa, 7 November 2007, https://www.sportsjournalists.co.uk/journalism-news/isl-ethics-andthe-end-of-an-era-at-fifa/. Accessed 1 July 2022. 26 Andrew Jennings, Bribes, ethics and the end of an era at FIFA, 7 November 2007, https://www. sportsjournalists.co.uk/journalism-news/isl-ethics-and-the-end-of-an-era-at-fifa/. Accessed 1 July 2022.

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ripple effect of the ISL scandal and of the emergence of strong internal criticisms of Blatter’s leadership.27 Notably, the scope of application of the new FCE was widened to include, for some of its provisions, the players and players’ agents (Article 1). In terms of specific obligations, the 2006 version overlapped quite substantially with the 2004 FCE. In addition, it included a ban on discrimination applicable to officials, players and players’ agents (Article 6), a ban on officials accepting a commission or promises of commission for negotiating deals while performing their duties (Article 13) and a ban on betting, gambling, lotteries connected with football matches and on having stakes in betting companies broadly speaking (Article 15). The most consequential change introduced by the 2006 reform is connected to the creation of the Ethics Committee, which was now tasked with the responsibility to “judge cases that come under the jurisdiction of FIFA”,28 as defined in Article 3 of the FCE—Procedural Regulations 2006. The decisions of the Ethics Committee were subject to appeal before the FIFA Appeal Committee, whose decisions could in turn be challenged at the CAS.29 The procedural rules of the FIFA Disciplinary Code, in particular regarding the composition of the Committee and procedural rights, applied by analogy.30 This reform marks the emergence of the FIFA Ethics Committee as one of FIFA’s ‘Judicial Bodies’,31 a fundamental institutional innovation. From then on, a separate internal administrative and adjudicative body was tasked with the responsibility to police globally the behaviour of football politicians and more broadly football citizens (license-holders). At first, it seems that its activity was rather limited,32 and very few meetings of the Committee were recorded in FIFA’s annual activity reports in the first years after its installation.33 However, already in 2011, with the emergence of new corruption scandals,34 the Committee was meeting six times a year.35 These scandals and the meetings would prepare the ground for a new transformative wave of reforms of the FCE and Ethics Committee after 2012.

27

Tomlinson (2014), p. 1161. Article 5 FIFA Code of Ethics—Procedural Regulations 2006. 29 See Footnote 28. 30 Article 7 FIFA Code of Ethics—Procedural Regulations 2006. 31 Article 56 of the FIFA Statutes 2006. 32 Its first decision was apparently passed in 2007 and related to irregularities in the selection of Kenyan referees and assistant referees for the 2007 FIFA List of International Referees, see FIFA Activity Report 2008, p.17. 33 None in 2007/2008 and only one in 2009, see FIFA Activity Report 2008, p. 110 and FIFA Activity Report 2009, p. 109. 34 Especially around the attribution of the 2022 World Cup, see Blake and Calvert (2015). For the news coverage at the time, see Rob Hughes, Votes Up for Bid, and FIFA’s on the Clock, New York Times, 19 October 2010, https://www.nytimes.com/2010/10/20/sports/soccer/20onsoccer. html. Accessed 1 July 2022. 35 FIFA Activity Report 2011, p. 119. 28

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The Transformation of the FIFA Ethics Committee Since 2012

The strong public criticisms faced by FIFA in 2010/2011, an “annus horribilis”, led to a new wave of organizational reforms,36 and, in particular, the adoption of a new FCE by the FIFA ExCo at its meeting on 17 July 2012.37 The three-page long FCE of 2004, introduced just eight years before, had now reached 60 pages covering both substantial and procedural aspects. Many of these reforms were cherry-picked from the recommendations made by the Independent Governance Committee put in place at the end of 2011 by FIFA under the leadership of Prof. Mark Pieth.38 Beyond substantial changes in the wording of the provisions and structure of the FCE, the 2012 reform imposed a deep change in the institutional set-up and mode of operation of the Ethics Committee. The Committee would be from now on divided into two chambers: the investigatory chamber and the adjudicatory chamber. Additionally, the independence of the chairpersons and deputy chairpersons was enshrined in the FCE. The investigatory chamber is competent to receive complaints alleging breaches of the FCE and may decide to initiate investigations if it determines that there is a prima facie case. At the end of each investigation, the chamber prepares a final report including all the facts and evidence gathered which is transferred to the adjudicatory chamber. The latter is the body that adjudicates the cases and issues sanctions against wrongdoers. The Chairperson of the adjudicatory chamber evaluates first the final report submitted by the investigatory chamber and decides whether to open adjudicatory proceedings or to close the case. Simultaneously, the body of norms of the FCE was expanded to include specific procedural rules designed exclusively for FCE proceedings. This change introduced a clearer procedural divide between disciplinary and ethics processes. Additionally, the substantial part of the Code of Ethics was restructured around five sections: the basis for sanctions, the disciplinary measures, the determination of the sanction, the limitation period and the rules of conduct. The content of the provisions was also reviewed and updated. Since 2012, the FCE has been amended already three times without altering radically the overall structure of this system. In 2015, FIFA relaxed its rules on confidentiality in order to allow for public communication on pending cases or final decisions.39 The 2018 set of reforms was more consequential.40 In particular, it

36

Heaston et al. (2020), p. 409. FIFA Circular no. 1314. 38 For an overview of the work done by the Independent Governance committee and of its influence on these reforms, see the Final Report by the Independent Governance Committee to the Executive Committee of FIFA, 22 April 2014, available at https://baselgovernance.org/sites/ default/files/2019-01/final_report_by_igc_to_fifa_exco_en.pdf. Accessed 1 July 2022. For a critical assessment of the reforms, see Pielke (2014). 39 FIFA Circular no. 1507. 40 FIFA Circular no. 1645. 37

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imposed that the member associations and confederations of FIFA integrate the Rules of Conduct of the FCE into their applicable regulations. Furthermore, it introduced new criteria to divide competences between the FIFA Ethics Committees and the ethics committees of confederations and member associations. Other notable changes included the introduction of minimum and maximum sanctions, the shortening of the existing limitation period from 10 to 5 years and the introduction of a 10-year limitation period where there was none, the introduction of a plea bargain procedure, the systematic publication of final decisions, and the possibility to appeal most decisions of the Ethics Committee directly at the CAS. Finally, the latest changes in 2019 introduced severe sanctions for sexual harassment, abuse and exploitation, the possibility of holding public hearings at the request of the accused parties and the creation of a legal aid system provided by FIFA.41 In the past 20 years, FIFA has been marred by corruption scandals, which led to the introduction and development of a new internal rulebook and institutional framework to police the behaviour of those at the heart of the governance of football. Progressively, the FCE has grown into a more sophisticated normative construct flanked by a complex and increasingly well-resourced institutional machinery, which FIFA sees as “leading the way”.42 Furthermore, as we will see in the next section, the Ethics Committee is not a paper tiger (anymore), as reflected in the number of cases it has handled in the past five years.

2.4

The Growing Impact of the FIFA Ethics Committee in Numbers

FIFA, like many SGBs, is not particularly transparent about its operations and the functioning of its bodies. Yet, it is notable that in recent years it has started to publish more detailed information on the workings of the Ethics Committee in the guise of Disciplinary & Ethics Reports.43 Hence, we have a relatively good understanding of the operation of the Ethics Committee for the period from September 2016 to June 2021. In the past five seasons (from 2016/2017 to 2020/2021), the Investigatory Chamber dealt with over 100 cases, with a peak in 2020/2021, when it received 174 cases.44 This is a substantial increase from the 31 proceedings opened 10 years prior in 2011 (one of the few years for which this data could be retrieved from FIFA’s publicly available documents).45 See Fig. 1. 41 42 43 44 45

FIFA FIFA FIFA FIFA FIFA

Circular no. 1683. Governance Report 2016, p. 21. Disciplinary and Ethics Report 2020/2021. Disciplinary and Ethics Report 2020/2021, p. 12. Activity Report 2011, p. 16.

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Fig. 1 Cases received by the investigatory chamber. Source FIFA Disciplinary and Ethics Report 2020/2021, p. 12. Available at https://digitalhub.fifa.com/m/72a5d5ebc8d54713/original/FIFADisciplinary-and-Ethics-2020-2021-Report.pdf

FIFA also published some information on the sources of the complaints received. The overwhelming majority of these complaints were raised in 2020/2021 by claimants (a category that is not further explained) and whistle-blowers, respectively 75 and 43 out of the 174 cases received.46 Compared to 2019/2020, the number of claimant-based complaints increased dramatically from 33 to 75, while the number of cases triggered by whistle-blowers remained roughly the same (decrease from 49 to 43). In general, the media and NGOs have also triggered a small number of cases (16 in 2020/2021), and so did the member associations, confederations and clubs (20 in 2020/2021). Thus, it is notable that most of the activity of the Investigation Chamber is triggered externally by third-parties rather than by internal investigations or referrals by FIFA bodies or employees. Very few of the cases received led, however, to a final report (4 out of 138 final decisions in 2020/202147 and 3 in 2019/2020), the overwhelming majority are closed because the Investigation Chamber does not conclude to a violation of the FCE (51 in 2020/2021 and 28 in 2019/2020), lacks the competence to deal with the case (59 in 2020/2021 and 39 in 2019/2020) or there is insufficient evidence to pursue the case (24 in 2020/2021 and 31 in 2019/2020). Hence, ultimately, an extremely small number of the cases submitted to the Investigatory Chamber reach the Adjudicatory Chamber for a final decision and a potential sanction. Turning to the Adjudicatory Chamber, its caseload has varied over the recent years. In 2020/2021, it issued only 13 decisions (compared to 31 in 2018/2019). 46 47

FIFA Disciplinary and Ethics Report 2020/2021, p.13. Ibid., p. 13.

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Out of these 13 decisions, 10 resulted in sanctions being imposed against the individuals concerned. Five of these individuals were affiliated to the CAF (Confederation of African Football) and three to the CONCACAF (Confederation of North, Central America and Caribbean Association Football), while two others had no affiliation to a particular confederation.48 In 2020/2021, there was a clear focus of the FIFA Ethics Committee on administrators coming primarily from the Global South and from the poorest member associations. Overall, from 1 July 2017 to 30 June 2020, the Adjudicatory Chamber rendered 59 decisions, issuing sanctions in 95% of them (56 decisions).49 These sanctions usually included a ban and a fine (in 53 decisions out of 56). The Chamber imposed the maximum fine of CHF 1 million in 16 cases and a life ban in 28 of its decisions. The sanctioned individuals were mostly affiliated to CAF (in 18 cases), CONCACAF (in 14 cases) and CONMEBOL (in 12 cases), while UEFA affiliates were involved in only 2 cases. Most of these individuals were football officials, 25 had an official role at FIFA (including 17 Committee Members and 6 Executive Committee/FIFA Council members), 18 had an official role at the confederation level and 48 in an association. Most of the decisions concerned instances of corruption (39 decisions), misappropriation and misuse of funds (18 decisions), the offering and acceptance of gifts (11 decisions) and conflicts of interests (10 decisions). Overall, these numbers provide an interesting picture of the type of issues decided by the Adjudicatory Chamber, which are related primarily to different forms of financial mismanagement by football officials often based in Africa or Central/South-America. In 2020/2021, the Ethics Committee also started to put an emphasis on the protection of physical and mental integrity (with 4 out of 13 decisions grounded in this provision, i.e. as many as were rendered on that basis in the entire prior period, from 2017 to 2020). Finally, it might be interesting to note that the Ethics Committee is the most expensive judicial body of FIFA. In 2016, in the wake of the FIFA corruption scandal triggered by the U.S. Department of Justice, the yearly cost of the work of investigatory and adjudicatory chambers reached more than USD 3,2 million, to be compared with the USD 101,000 and USD 623,000 spent respectively on FIFA’s Appeal Committee and Disciplinary Committee.50 Although this was undoubtedly an especially busy year for the Ethics Committee, it remained the costliest judicial body in the years thereafter for which the data is available.51 While the intensity of scrutiny of FIFA and its executives by national prosecutors has progressively receded and the slow pace of criminal justice follows its course in the U.S. and Switzerland, the Ethics Committee has become a much more active institution inside FIFA. This is not to say that it is effective in rooting out

48

Ibid., p. 17. FIFA Disciplinary and Ethics Report 2019/2020. 50 FIFA Governance Report 2016. 51 Costing USD 2,2 Million in 2016 and USD 1,43 Million in 2017, see FIFA Governance Report 2017, p. 52 and FIFA Governance Report 2018, p. 62. 49

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corruption or abuses of power by football officials. One could for example wonder about the very low percentages of cases that move from the investigatory stage to the adjudicatory one, but, in any event, it is a fact that it has become a much more active (and costly) institution inside the global governance system of football. It is a body to which a wide range of stakeholders turn in order to complain against the behaviour of FIFA officials and which is regularly issuing sanctions against football officials on the basis of the FCE. In other words, compared to 15 years ago, it is not relegated to the bench anymore, but a real player in the field of football governance. Accordingly, we have also started to see decisions grounded in the FCE being challenged at the CAS, leading to an emergent jurisprudence, which will frame the activity of the Ethics Committee in the future.

3 The Court of Arbitration for Sport and FIFA’s Governance Clean-Up As any FIFA judicial or administrative body issuing final decisions, the Ethics Committee is subjected to the de novo review of its decisions by the CAS.52 We are dealing with a stable institutional and hierarchical relationship, which deserves a particular scrutiny as the CAS shapes and will continue to shape (through its positive or negative review) the way in which FIFA polices football’s governance. In recent years, the CAS has experienced a fast-growing caseload involving appeals against decisions issued by the Ethics Committee.53 This section will take stock of this development by reviewing the jurisprudence of the CAS in cases involving the application of the FCE to football officials. Its primary aim will be to highlight and analyse the ways in which the CAS has interpreted a number of important provisions of the FCE and, in doing so, strengthened or limited the powers of the FIFA Ethics Committee.

3.1

Shoring Up the Investigatory Power of the Ethics Committee: The CAS’s Interpretation of the Duty to Cooperate

This first subsection looks at the role played by the CAS jurisprudence in shoring up the investigative power of the Ethics Committee by entrenching a duty to cooperate with the latter. While this is a matter which could have been dealt with later in the analysis dedicated to the substantial provisions of the FCE, it makes sense to start with it, as it is an essential precondition to the investigative capacity of 52 53

Article 57 FIFA Statute 2022. See the cases listed in Footnote 17.

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the Ethics Committee. Indeed, this issue is of particular importance because, unlike national police authorities, FIFA cannot enter into private homes or check private phones in the framework of its investigations. To remedy this issue, and guarantee the effectiveness of its investigations, FIFA introduced for the persons bound by the FCE: • A duty to report (Article 17 FCE) • A duty to cooperate (Article 18 FCE and Article 39 FCE).

3.1.1

The CAS’s Endorsement of the Need for a Duty to Cooperate

The legality of the duty to cooperate was challenged before the CAS for being contrary to the privilege against self-incrimination. Already in one of the first cases involving the FCE submitted to the CAS, the Panel recognized that the “general duty of co-operation is important in disciplinary systems, particularly since sporting authorities find means of proof of offences difficult to come by” and acknowledged “that sporting bodies can properly put rules and provisions into place for failure to cooperate”.54 Similar arguments can be found in later awards.55 For example in Chung, where the arbitrators emphasized “the importance that sports governing bodies establish rules in their respective ethical and disciplinary codes requiring witnesses and parties to cooperate in investigations and proceedings and subjecting them to sanctions for failing to do so”, as they “have extremely limited investigative powers and must rely on such cooperation rules for fact-finding and to expose parties that are violating the ethical standards of said bodies”.56 In sum, the CAS has shown its willingness to embrace a duty to cooperate as a necessity to ensure the effectiveness of FIFA’s system of policing. 3.1.2

The CAS and the Content of the Duty to Cooperate

The natural follow-up question relates to the content of such a duty. In other words, what type of behaviour does a duty of cooperation require. The CAS elaborated on the scope of the duty to cooperate in the Valcke award. In that case, FIFA had issued a Document Preservation Notice to Valcke, who was FIFA Secretary General at the time, under which he was required to “preserve and refrain from altering or destroying “all information and documents” starting from 1 January 2002”.57 Nevertheless, Valcke went on to delete numerous emails and files from his work computer. The Panel refused to consider that a “broad interpretation of the

54 55 56 57

CAS CAS CAS CAS

2014/A/3537 2017/A/5003 2017/A/5086 2017/A/5003

Vernon Manilal Fernando v. FIFA, Award of 30 March 2015, para 87. Jérôme Valcke v. FIFA, Award of 27 July 2018, para 265. Mong Joon Chung v. FIFA, Award of 9 February 2018, para 189. Jérôme Valcke v. FIFA, Award of 27 July 2018, para 253.

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Document Preservation Notice is illegal under Swiss employment, personal rights and data protection laws, since the Appellant voluntarily uploaded and saved the files and documents in question onto a work laptop owned by FIFA”. Furthermore, the panel stressed that “the deletion of even one email is sufficient to constitute a breach of the Document Preservation Notice and, in turn, of the duty under the FCE to cooperate”.58 Additionally, Valcke also declined to sit down for an interview with the Investigatory Chamber invoking the privilege against self-incrimination. The CAS reminded that “the means of a sports organisation to detect wrong doings of an individual that has—voluntarily—submitted to these standards are limited” and, therefore, SGBs must “be permitted to establish rules in their ethical and disciplinary regulations that oblige those that are subject to those regulations— either witnesses or parties—to cooperate in investigations and proceedings and that provide sanctions for those who fail to do so”.59 Yet, the Panel did also recognize that some “duties of cooperation (body search, disclosure of financial information, disclosure of private correspondence, etc.) may be excessive”.60 In Valcke’s case, the Panel found “no contradiction in the FCE placing the burden of proving an infringement on FIFA, while imposing on parties an obligation to cooperate in fact-finding”.61 In their award, the arbitrators even insisted that in their view “the duty to cooperate by interviewing with the Investigatory Chamber is unconditional”.62 Nevertheless, as illustrated by the Chung case, this duty to co-operate is not necessarily violated by being unable to attend an in-person interview due to external factors or by having a small delay in returning a written questionnaire to the investigators of the Ethics Committee.63 In such circumstances, the Panel acknowledged that Chung “had an extremely busy and demanding schedule in the early months of 2014, as proven by the record, which made it difficult to arrange such a meeting.”64 Moreover, his “negligible delay” in responding to the written questions of the investigators was put in perspective with “FIFA’s own delay in conducting the proceeding”: as the Panel put it, “the pot cannot fairly call the kettle black, especially when it itself is blacker”.65 The Chung Panel stressed that the duty to cooperate also covers the obligation to tell the absolute and whole truth.66 Therefore, the “ambiguous, inconsistent and insufficient”67 explanations provided by Chung amounted to a violation of his duty of cooperation. Furthermore, the fact

58 59 60 61 62 63 64 65 66 67

Ibid., para 254. Ibid., para 265. Ibid. Ibid. Ibid., para 269. CAS 2017/A/5086 Mong Joon Chung v. FIFA, Award of 9 February 2018, paras 196–199. Ibid., para 196. Ibid., para 197. Ibid., paras 200–205. Ibid., para 203.

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that Chung changed his testimony between his appearance before the FIFA Appeal Committee and the CAS hearing was also deemed to constitute a breach of this duty.68 Finally, the duty of cooperation extends to a requirement of timely collaboration with the Investigatory Chamber, as highlighted in the Makudi case, in which the Panel concluded that a FIFA official violated the duty by failing to immediately forward a judicial decision to the Ethics Committee.69 In conclusion, the CAS has proven to be a staunch ally of the Ethics Committee insofar as it attempted to shore up its investigatory powers vis-à-vis the accused. This translated in the CAS jurisprudence by a broad interpretation of the need for and scope of a duty to cooperate, which is ultimately justified by the private nature of FIFA as an organization and its non-existing police powers. While this jurisprudence might be necessary for the Ethics Committee to operate effectively, it in turn will raise questions in terms of the legitimacy of such an approach. In general, states have police powers because they are recognized as legitimate sovereigns acting in the public interest. Often this legitimacy is supported by a democratic political system supervising administrative authorities, such as the police. In the context of FIFA, all football citizens are subjected to the Ethics Committee’s broad powers of investigation, yet the accountability of the Ethics Committee to a democratically legitimate political body might be seen as lacking.

3.2

The CAS and the FCE as Applicable Law

In their substantive analysis, CAS panels must first determine the law applicable to a particular case. In this regard, two types of questions have been raised in the context of the enforcement of the FCE, namely, whether the FCE is at all applicable to the dispute, and, if so, which version of the FCE might be applicable. 3.2.1

Ensuring the Prevalence of FIFA’s FCE Over Swiss (Mandatory) Law

The applicability of the FCE is very rarely contested by the Appellant, but in the Valcke case, the Panel discussed at relative length whether Swiss law should take precedence over the FCE. It considered, referring to the constant jurisprudence of CAS on the application of FIFA’s regulations, that “it is obvious that Article 58 para 2 of the FIFA Statutes, by using the terms “primarily” and “additionally”, provides for a hierarchical relationship between the “FIFA regulations”—including of

68

Ibid., para 204. CAS 2018/A/5769 Worawi Makudi v. FIFA, Award of 11 February 2019, paras 129–136. See also CAS 2017/A/5086 Mong Joon Chung v. FIFA, Award of 9 February 2018, paras 193–195. 69

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course in such category the FIFA Statutes and all other FIFA rules—and “Swiss law””.70 Furthermore, it added that this “hierarchical relationship has been understood in constant CAS jurisprudence as implying that the “additionally” applicable Swiss law is merely intended to clarify that the FIFA regulations are based on a normatively shaped basis, deriving from Swiss law, and that any matter that is not covered by FIFA regulations must be decided in accordance with Swiss law”.71 This restatement of the existing CAS case law regarding the relationship between ‘FIFA law’ and Swiss law was strengthened by the Panel’s insistence that Article 58(2) FIFA Statutes “cannot be construed as meaning that wherever the FIFA regulations and Swiss law are in contradiction, Swiss law takes precedence”, nor can it “be construed to mean that FIFA regulations only take precedence insofar as this is compatible with Swiss mandatory law”.72 Hence, “FIFA’s authority to impose disciplinary sanctions cannot be limited by mandatory Swiss law”.73 The practical implication is that the Ethics Committee can ground its decisions in the FCE without much regard for Swiss law (even mandatory rules), as the CAS will systematically give precedence to the former and knowing that any later review of the award by the Swiss Federal Tribunal will be extremely limited. 3.2.2

The CAS and the Difficult Clarification of the Temporal Application of the FCE

As we have discussed in the first section of this chapter, the FCE changed quite regularly since its first adoption in 2004. Consequently, the question of which edition of the Code is applicable to a specific case is often disputed, as different editions might impose different sets of sanctions or include different substantive provisions.74 In the first awards concerning the FCE, CAS panels endorsed the general principle of non-retroactivity of disciplinary rules.75 In other words, for issues going to the merits, the applicable FCE is in theory the one in force when the facts underlying the case arise. The only exception to this principle was grounded in the lex mitior principle, which allows for the posterior rule to apply if it is more

70

CAS 2017/A/5003 70 Jérôme Valcke v. FIFA, Award of 27 July 2018, para 147. Ibid., para 147. 72 Ibid., para 148. 73 Ibid., para 150. 74 TAS 2016/A/4474 Michel Platini c. FIFA, paras 148–178; CAS 2016/A/4501 Joseph S. Blatter v. FIFA, Award of 5 December 2016, paras 91–96; CAS 2017/A/5006 Harold Mayne-Nicholls v. FIFA, Award of 14 July 2017, paras 181–196; CAS 2018/A/6038 Osiris Guzmán v. FIFA, Award of 23 September 2019, paras 65–75; CAS 2019/A/6326 Chabour Goc Alei v. FIFA, Award of 16 July 2020, paras 161–172. 75 CAS 2011/A/2426 Amos Adamu v. FIFA, Award of 24 February 2012, para 60. It is still recognized in recent awards, see CAS 2018/A/6072 Kwesi Nyantakyi v. FIFA, Award of 9 April 2020, para 49. 71

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favourable to the accused.76 The principle does not extend, however, to procedural matters, which the CAS regularly holds to be “governed by the regulations in force at the time the appeal was lodged”.77 However, in 2012, a new Article 3 was introduced (and kept since), which provides that: This Code applies to conduct whenever it occurred, including before the enactment of this Code. An individual may be sanctioned for a breach of this Code only if the relevant conduct contravened the Code applicable at the time it occurred. The sanction may not exceed the maximum sanction available under the then-applicable Code.

This article modifies the operationalization of these principles as it provides for the systematic retroactive application of the latest version of the FCE if the wrongdoing was already sanctioned in the FCE applicable at the time of the incriminated conduct and if the sanction issued does not exceed the maximum sanction foreseen in the then-applicable version of the Code. The application of Article 3 FCE can be complex in practice and the CAS has grappled with this issue in a number of cases,78 as put (mildly) by the Panel in the Mayne-Nicholls case, Article 3 is “not a model of clarity”.79 In almost all of the cases, the CAS concluded that the provisions of previous versions of the FCE were equivalent to the most recent version. For example, in Platini, the Panel held that the general duties (Article 13), the duty of loyalty (Article 15), the conflicts of interest provision (Article 19) and the rule on offering and accepting gifts (Article 20) included in the FCE 2012 were already covered in the FCE 2009 (and for Article 20 in the FCE 2006).80 In the Valcke case, the CAS had to determine whether Article 10 of the FCE 2009 was more favourable to Valcke than the later adopted Article 20 FCE 2012. These provisions differ slightly in the language used with regard to giving or offering gifts. Nevertheless, the Panel was unconvinced by “the Appellant’s contention that the new rule expands rather than merely emphasizes what is inherent in the old rule or that the latter is, on its true construction, more favourable to him than the former”, as “both the offering and the giving of gifts (other than of a kind specifically permitted) are proscribed under both sets of rules as being objectionable”.81 In other words, “[b]oth rules embrace acts which are the mirror image of each other vis-a-vis gifts, i.e. giving or accepting, and the Panel considers that a purposive construction in this disciplinary (not criminal) context eliminates any

76

CAS 2014/A/3537 Vernon Manilal Fernando v. FIFA, Award of 30 March 2015, para 77. CAS 2018/A/6072 Kwesi Nyantakyi v. FIFA, Award of 9 April 2020, para 49. 78 TAS 2016/A/4474 Michel Platini c. FIFA, paras 148–178; CAS 2016/A/4501 Joseph S. Blatter v. FIFA, Award of 5 December 2016, paras 91–96; CAS 2017/A/5006 Harold Mayne-Nicholls v. FIFA, Award of 14 July 2017, paras 181–196; CAS 2018/A/6038 Osiris Guzmán v. FIFA, Award of 23 September 2019, paras 65–75; Chabour Goc Alei v. FIFA, Award of 16 July 2020, paras 161–172. 79 CAS 2017/A/5006 Harold Mayne-Nicholls v. FIFA, Award of 14 July 2017, para 181–192. 80 TAS 2016/A/4474 Michel Platini c. FIFA, paras 151–170. 81 CAS 2017/A/5003 Jérôme Valcke v. FIFA, Award of 27 July 2018, para 142. 77

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material distinction between them”.82 Regarding bribery, the Panel in the Guzman case concluded that the wording of both the 2012 and 2018 versions of the FCE provisions “refer to the same kind of conduct”.83 In this regard, even the introduction of a minimum sanction in the FCE 2018 was not considered to violate the lex mitior principle as “[the Panel] will have, in certain circumstances, the possibility to go below the minimum established sanction”.84 The only exception to this readiness of the CAS to accept the application of the latest version of the FCE concerns the Mayne-Nicholls case, where the Panel recognized that unlike the FCE 2012, the FCE 2009 (applicable at the time of the alleged wrongdoings) did not prohibit attempts to accept prohibited benefits.85 After the introduction of Article 3 in the FCE 2012 regulating the temporal application of the different versions of the FCE, the CAS has frequently interpreted differently worded provisions as equivalent in aim and effect, thus allowing the Ethics Committee to rely safely on the most recent iteration of the FCE. This interpretive approach, which disregards the considerable variability in the wording of the provisions concerned, greatly simplifies the work of FIFA in prosecuting those cases.

3.3

The CAS and FIFA’s Evidentiary Burden Under the FCE

For the Ethics Committee, one of the most important practical questions relates to the process of proving that an individual failed to comply with the FCE. This demonstration is dependent on three issues, which the CAS has had to engage with in its jurisprudence: the burden of proof, the applicable standard of proof, and the admissibility of evidence. 3.3.1

The CAS and the Burden of Proof in FCE Cases

The first key practical question for FIFA is who bears the burden of proving what in FCE cases? In other words, what must the Ethics Committee prove in order to convict someone on the basis of the FCE. Before the adoption of the 2012 FCE, no burden of proof was clearly allocated in the FCE. Therefore, in the Bin Hammam case, the CAS Panel referred to then

82

Ibid., para 142. CAS 2018/A/6038 Osiris Guzmán v. FIFA, Award of 23 September 2019, para 71. For similar interpretation of the equivalence between bribery provisions in the FCEs, see CAS 2019/A/6665 Ricardo Terra Teixeira v. FIFA, para 69. 84 CAS 2018/A/6038 Osiris Guzmán v. FIFA, Award of 23 September 2019, para 74. 85 CAS 2017/A/5006 Harold Mayne-Nicholls v. FIFA, Award of 14 July 2017, para 193. 83

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Article 99 FIFA DC to conclude that “FIFA has the burden of proving […] to the “comfortable satisfaction” of the Panel that the evidence establishes that the facts it alleges have been met”.86 In 2012, this position was enshrined in the FCE at Article 52 (now Article 49 FCE 2019), which states that “[t]he burden of proof regarding breaches of provisions of the Code rests on the Ethics Committee”. Nevertheless, the CAS has also recognized that in certain circumstances the burden of proof can shift to the accused. For example, in the Platini case, it concluded that Platini had to prove the existence of an alleged oral agreement between him and FIFA.87 To justify this allocation of the burden of proof, the Panel relied on the Latin maxim “actor incumbit probatio, reus in excipiendo fit actor”.88 In other words, while FIFA usually bears the burden of proving the constitutive facts of an offense, the accused will bear the burden of proving any exonerating circumstances that he or she invokes. As put by the Texeira award, “each party shall bear the burden of proving the specific facts and allegations on which it relies”.89 Importantly, in the latter case the CAS stressed with reference to the case law of the Swiss Federal Tribunal that this sharing of the burden of proof is “even more relevant in cases where difficulties of proving arise”.90 This was meant to hint at the CAS Panel’s willingness to accept a more symmetrical burden of proof in cases involving circumstances in which the accusing/prosecuting party (FIFA) has no way to easily access direct evidence. In sum, while in theory the burden of proof lies primarily with FIFA, in practice, the CAS has allowed a shifting of this burden on a number of issues and shown a disposition to take into account the investigatory difficulties faced by FIFA. 3.3.2

The CAS and the Standard of Proof in FCE Cases

The standard of proof applicable to ethics proceedings was not expressly defined in the FCE before 2012. As seen for the burden of proof, at first, CAS Panels referred to article 97(3) FIFA DC to determine the standard of proof. Based on that provision, the Panel in the Adamu case concluded that it “ha[d] a wide margin of appreciation and [could] freely form its opinion after examining all the available evidence”.91 In other words, the “applicable standard of proof is the “personal conviction” of the Panel”,92 which “coincides with the “comfortable satisfaction”

86

CAS 2011/A/2625 Mohamed Bin Hammam v. FIFA, Award of 19 July 2012, para 39 and CAS 2016/A/4501 Joseph S. Blatter v. FIFA, Award of 5 December 2016, para 113. 87 TAS 2016/A/4474 Michel Platini c. FIFA, para 211. 88 Ibid., para 214. 89 CAS 2019/A/6665 Ricardo Terra Teixeira v. FIFA, para 83. Similarly, CAS 2017/A/5003 Jérôme Valcke v. FIFA, Award of 27 July 2018, para 174. 90 Ibid. 91 CAS 2011/A/2426 Amos Adamu v. FIFA, Award of 24 February 2012, para 87. 92 Ibid.

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standard widely applied by CAS panels in disciplinary proceedings”.93 Accordingly, “the sanctioning authority must establish the disciplinary violation to the comfortable satisfaction of the judging body bearing in mind the seriousness of the allegation”.94 This well-known standard “is higher than the civil standard of “balance of probability” but lower than the criminal standard of “proof beyond a reasonable doubt””.95 This approach to the standard of proof was also followed in the Bin Hammam case.96 This case law was then codified by FIFA in article 51 FCE 2012, which provided that “[t]he members of the Ethics Committee shall judge and decide on the basis of their personal convictions”. Nevertheless, in the Manilal Fernando case, the Panel, while remaining quite ambiguous, seemed to endorse the balance of probability standard in finding that when “there is no direct evidence available to the parties to proof the (in-)existence of a specific fact” then “the enforcement of the law shall not be frustrated by difficulties of gathering of evidence”.97 Instead, “the Panel needs to consider all elements submitted by the parties and adduced at the hearing and to assess and weigh the totality of the evidence, having in mind the particularities of the case”.98 This case remained an outlier as most other CAS awards touching on the issue have interpreted this standard as one of comfortable satisfaction.99 The Valcke award went so far as to state that this standard of proof “may be recognized, more than two decades after its adoption in CAS jurisprudence, as part of lex sportiva”.100 In order to definitely clarify this issue, FIFA amended again the FCE, which now states in its Article 48 (FCE 2019) that: “[t]he members of the Ethics Committee shall judge and decide on the basis of their comfortable satisfaction”. The CAS has, thus, transposed its existing approach to the standard of proof in other disciplinary contexts, such as anti-doping, to crystallize the intermediary standard of “comfortable satisfaction”, which stands between “balance of probability” and “proof beyond a reasonable doubt” as the standard of proof applicable in FIFA’s ethics proceedings. Hence, it positioned FIFA’s policing beyond the realm of a traditional civil dispute, but below the level of criminal proceedings, in an intermediary space, which reflects both the governance power of FIFA and its limited investigative capacity and legitimacy.

93

Ibid., para 88. Ibid. 95 Ibid., with reference to CAS 2010/A/2172, para 53; CAS 2009/A/1920, para 85. 96 CAS 2011/A/2625 Mohamed Bin Hammam v. FIFA Award of 19 July 2012, paras 35–38. 97 CAS 2014/A/3537 Vernon Manilal Fernando v. FIFA, Award of 30 March 2015, para 81. 98 Ibid., para 82. 99 CAS 2016/A/4501 Joseph S. Blatter v. FIFA, Award of 5 December 2016, para 122; TAS 2016/A/4474 Michel Platini c. FIFA, paras 219–220; CAS 2019/A/6665 Ricardo Terra Teixeira v. FIFA, para 88. 100 CAS 2017/A/5003 70 Jérôme Valcke v. FIFA, Award of 27 July 2018, para 175. 94

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The CAS and the Admissibility of Evidence in FCE Cases

The question of the type of evidence admissible in FIFA ethics cases was disputed since the first cases submitted to the CAS.101 In the Adamu case, the CAS Panel outlined for the first time a set of fundamental principles applying to the evidentiary practice of FIFA in implementing the FCE. In particular, it stressed that the SFT had recognized that “only civil law standards are relevant to the disciplinary sanctions imposed by sport associations” and “that criminal law principles may not be applied when dealing with evidentiary issues in disciplinary cases”.102 The Panel also rejected the direct application of the standards enshrined in the ECHR, as it considered the Convention as “inapplicable per se in disciplinary matters carried out by sports governing bodies, which are legally characterized as purely private entities”.103 Nevertheless, the Panel claimed to be “mindful that some guarantees afforded in relation to civil law proceedings by article 6.1 of the ECHR are indirectly applicable even before an arbitral tribunal”.104 Hence, ultimately it asserted that it “will not be guided by criminal law standards, and will not resort to rules of criminal procedure in order to assess the admissibility or inadmissibility of the [disputed recordings] as evidence in this arbitration”, but “will endeavour to comply with all facets of Swiss procedural public policy”.105 In the Adamu case (as well as the Fusimalohi case), most of the evidence used was derived from the reporting of undercover journalists from the Sunday Times, who had secretly recorded the Appellant. The key question was whether this type of illegally obtained evidence could be admissible. Importantly, the Panel concluded that “the mere circumstance that some evidence has been illegally obtained does not necessarily preclude an international arbitral tribunal sitting in Switzerland to admit it into the proceedings and to take it into account for its award”.106 Furthermore, the Panel stressed that the then applicable Article 96 para 1 FDC excluded only “evidentiary process proofs obtained as a result of, or connected with, acts of physical or psychological violence, brutality or any other forms of inhuman or degrading treatment”.107 Additionally, it determined that “the facts of this case do not allow to conclude that the taking of the Recordings violated human dignity”, as “the Appellant was not subject to any threat or violence, his meetings with the journalists were freely agreed upon and were comfortably held in hotel lobbies, and his video images do not show him in any degrading situation”.108 Finally, the Adamu

101

See CAS 2011/A/2426 Amos Adamu v. FIFA, Award of 24 February 2012, para 61 and CAS 2011/A/2425 Ahongalu Fusimalohi v. FIFA, Award of 8 March 2012, paras 16–64. 102 See CAS 2011/A/2426 Amos Adamu v. FIFA, Award of 24 February 2012, para 64. 103 Ibid., para 65. 104 Ibid., para 66. 105 Ibid., para 68. 106 Ibid., para 75. 107 Ibid., para 91. 108 Ibid.

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award discussed whether the evidence was compatible with the protection of the Appellant’s personality rights under Article 28 of the Swiss Civil Code.109 In this regard, the Panel held that “the case falls on the evaluation whether there is an “overriding private or public interest” that might justify the use of the Recordings as evidence in these proceedings”.110 On the one hand, the Panel recognized that Dr Adamu retained, despite the prior publication of a press article in the Sunday Times, a “concrete interest to impede the full disclosure of his conversations with the journalists and, to that end, to block the use of the Recordings as evidence in this proceedings”.111 Yet, on the other hand, it acknowledged that Dr Adamu’s interest was contradicted by “the interest of FIFA and of other private and public stakeholders in disclosing the full content of the Recordings and in using them for disciplinary purposes”.112 In particular, it recognized that: − There certainly exists a general public interest in the exposure of illegal or unethical conduct, such as corruption or other forms of dishonesty in relation to the awarding of the organization of a renowned sporting event; − There certainly is a private interest of FIFA to verify the accuracy and veracity of the information included in the Sunday Times article and, if necessary, to restore the truth and its image, given that the article described the whole FIFA organization as prone to corruption and questioned the impartiality and transparency of the bidding process for the organization of the World Cup; − FIFA, like any other private association, has also a vested interest in identifying and sanctioning any wrongdoing among its officials and its members so as to dissuade similar conducts in the future; − There is also a private interest of all the national football associations which were or will be candidates to host the FIFA World Cup in being fully informed and possibly reassured about the efficacy, transparency and correctness of the bidding process; − Given the amount of public money notoriously spent by governments and public organisations to support the bids presented by their football federations and the wellknown impact of the FIFA World Cup on a country’s economy, there clearly is a public interest of each government pledging to support a bid (as well as of its taxpayers) to know whether the awarding of the FIFA World Cup is conditioned or altered by corrupt practices of FIFA officials; − Finally, there is an interest of the general public, and especially of the football fans and of the peoples of the unsuccessful candidate countries, in being comforted about the fact that the FIFA 2018 and 2022 World Cups were awarded in a fair, impartial and objective manner.113

The Panel concluded that it had “no difficulty in finding that the balance of interests definitely tilts in favour of the disclosure and utilization as evidence in these proceedings of the evidentiary material collected by the Sunday Times”, as

109 110 111 112 113

Ibid., Ibid., Ibid., Ibid., Ibid.,

paras 94–107. para 98. para 100. para 101. para 101.

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“the infringement of the Appellant’s personality rights is justified by overriding public and private interest”.114 In part, the Panel’s approach was later codified in Article 46 FCE, which provides that “[p]roof that has been obtained by means or ways involving violations of human dignity or that obviously does not serve to establish relevant facts shall be rejected.” Yet, this did not end debates on the admissibility of evidence, as illustrated by the Texeira case, in which the Panel had to decide whether Article 46 FCE precludes the admissibility of testimonies submitted during a criminal trial, especially when those testifying are no longer available for a cross-examination by the Appellant. The arbitrators argued that “according to CAS practice, a panel is not prevented from considering transcripts of examination of witnesses in a criminal proceeding abroad, even if the individuals concerned are not witnesses in the CAS proceedings”.115 The Appellant also challenged the use of a specific note, which he claimed was obtained illegally by the Brazilian authorities. Nevertheless, the Panel stressed that even if it were to accept that the note was illicit evidence, “a decision by an arbitral tribunal regarding the admissibility or non-admissibility of illicit evidence must be the result of a balancing of various juridical interests”.116 Furthermore, due to “the difficulty in adducing evidence in the [matter] and the interest in discerning the truth and the fact that the document at stake was admitted as evidence at the Trial, the Panel [found] that the [note] at stake […] [would] be considered as admissible in the [proceedings]”.117 In the cases in which the admissibility of evidence was raised, the CAS panels have systematically shown leniency in the name of effectiveness and the need to take into account the limited powers of the SGBs. In practice, this means that the Ethics Committee will be able to rely in its decisions on almost any type of evidence, as long as it is not collected in manner that violates human dignity. This strengthens the role and influence of media investigations as potential sources of evidence for FIFA investigations.

3.4

The CAS’s Interpretation of the Substantive Provisions of the FCE

This section is dedicated to the way in which the CAS has interpreted and applied the substantial provisions of the FCE. Starting with the general duties of FIFA

114

Ibid., para 102. See as well CAS 2011/A/2425 Ahongalu Fusimalohi v. FIFA, Award of 8 March 2012, para 58. 115 CAS 2019/A/6665 Ricardo Terra Teixeira v. FIFA, Award of 14 September 2021, para 92. Referring to CAS 2010/A/2266N. & V. v. UEFA, Award of 5 May 2011 and CAS 2016/A/4501 Joseph S. Blatter v. FIFA, Award of 5 December 2016. 116 CAS 2019/A/6665 Ricardo Terra Teixeira v. FIFA, Award of 14 September 2021, para 95. 117 Ibid.

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officials and their duty of loyalty, before turning to the approach of CAS to gifts, corruption or bribery, conflicts of interest, and misappropriation of funds. 3.4.1

The CAS and the General Duties of FIFA Officials

The first section is dedicated to how the CAS approaches Articles 13118 and 15119 FCE, which define respectively general duties and a duty of loyalty and apply to all those subjected to the FCE. These provisions are discussed together because they often are considered jointly by the CAS and the Ethics Committee and constitute relatively wide catch-all provisions. In prior editions of the FCE, functionally equivalent provisions were already included, such as Article 3 and Article 9(1) FCE 2009.

The Conformity of Article 3 FCE 2009 with the Nulla Poena Sine Lege Principle A fundamental question which was raised in the Chung case was whether Article 3 FCE 2009 ran contrary to the nulla poena sine lege principle due to the relatively general and vague nature of this provision.120 However, the Panel stressed “that a rule that is broadly drawn, such as Article 3 FCE (2009 edition), does not necessarily lack sufficient legal basis because of that characteristic” and that “the fact that Article 3 FCE (2009 edition) is capable of catching a multitude of acts as unethical or lacking credibility and integrity does not mean that it lacks sufficient legal

118

Article 13 provides: 1. Persons bound by this Code shall be aware of the importance of their duties and concomitant obligations and responsibilities. In particular, persons bound by this Code shall fulfil and exercise their duties and responsibilities diligently, especially with regard to finance-related matters. 2. Persons bound by this Code shall respect FIFA’s regulatory framework to the extent applicable to them. 3. Persons bound by this Code shall appreciate the impact their conduct may have on FIFA’s reputation, and shall therefore behave in a dignified and ethical manner and act with complete credibility and integrity at all times. 4. Persons bound by this Code must refrain from any activity or behaviour or any attempted activity or behaviour that might give rise to the appearance or suspicion of improper conduct as described in the sections that follow. 5.Violation of this article shall be sanctioned with an appropriate fine of at least CHF 10,000 as well as a ban on taking part in any football-related activity for a maximum of two years. 119 Article 15 provides: 1. Persons bound by this Code shall have a fiduciary duty to FIFA, the confederations, associations, leagues and clubs. 2. Violation of this article shall be sanctioned with an appropriate fine of at least CHF 10,000 as well as a ban on taking part in any football-related activity for a maximum of two years. 120 CAS 2017/A/5086 Mong Joon Chung v. FIFA, Award of 9 February 2018, para 148.

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basis”.121 Furthermore, regarding the predictability of the provisions, the arbitrators considered it “unnecessary and impractical for the FCE to list all acts that would fall under the offense described in Article 3, para 2 FCE (2009 edition), as an official, in reading the rule, could clearly make the distinction between what is an ethical attitude and what is not, what is acting with complete credibility and integrity and what is not”.122 The Panel also held that the “inherent vagueness of concepts such as ethics and integrity does not preclude them to be used by sports legislators as a basis to impose disciplinary sanctions on officials that do not conform their behaviour to those standards”.123 In support of this statement, it invoked the established case law of the SFT regarding the fact that sporting disciplinary sanctions are to conform with civil law standards and not criminal law ones, the former being “often inherently vague and reveal[ing] their full meaning on the basis of judicial application”.124 Ultimately, the Panel concluded that “it is legitimate and even desirable that sports federation include in their ethical codes a general rule residually forbidding any unethical conduct of officials in order to cover all unacceptable situations that would not be caught by more specific provisions”.125 This is a crucial finding as it condones the use by FIFA of a provision whose scope is potentially extremely large in order to police football’s officials (and others).

What Type of Behaviour Has Been Recognized by the CAS as a Breach of the General Duties or Duty of Loyalty of a FIFA Official? The first type of situations that have been considered to fall within the scope of Article 3 and 9 FCE 2009 (read in conjunction with each other) relates to the failure of officials to report an unethical offer to FIFA, as illustrated by the Adamu and Fusimalohi cases.126 In the former case, the Panel stressed that “officials must fully and immediately report to FIFA, if an inappropriate approach is made and/or if they are considering to accept an arrangement, which might raise any question of appropriateness, objectively speaking”.127 In the latter, which involved the same undercover journalistic operation, the Panel also relied on Article 3 and 9 FCE 2009.128 The Appellant’s claim that he was not aware of the appropriate standards of conduct due to the absence of clear ethical guidelines from FIFA was also rejected as he could have reached out to FIFA to check whether the job offer and his

121 122 123 124 125 126 127 128

Ibid., para 151. Ibid., para 152. Ibid., para 153. Ibid. Ibid., para 154. CAS 2011/A/2425 Ahongalu Fusimalohi v. FIFA, Award of 8 March 2012, paras 104–113. CAS 2011/A/2426 Amos Adamu v. FIFA, Award of 24 February 2012, para 144. CAS 2011/A/2425 Ahongalu Fusimalohi v. FIFA, Award of 8 March 2012, paras 104–113.

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official duties were compatible.129 In both cases, the CAS Panels concluded that the officials failed to comply with Article 3 and 9 FCE 2009, yet the legal analysis applied remained rather vague and unstructured. In the Chung case, a former FIFA ExCo member and vice-president who was informally involved in Korea’s bid to host the 2022 FIFA World Cup sent a letter to many of his fellow FIFA ExCo members informing them about the plan of Korea’s 2022 bid to create a Global Football Fund (GFF) in order to finance football development projects, while hinting at the fact that the confederations and the FIFA ExCo members would have a say in the distribution of funds. The Panel held that by sending such a letter “the Appellant engaged in conduct that reached the standard of unethical conduct, lacking complete credibility and integrity in violation of Article 3, para 2 FCE (2009 edition)”.130 Moreover, “the Appellant was in an exposed, prominent and sensitive position and thus he knew, or should have known, that sending communications related to KOBID’s bid in a selective fashion, with previously undivulged features of the GFF contained therein, tailored to each recipient to earn a vote, and without the approval or knowledge of KOBID, would face high scrutiny and could fall foul of Article 3, para 2 FCE (2009 edition)”.131 Ultimately, the problem was not “his attempt to convince his fellow Executive Committee members to vote for KOBID’s bid, but rather the way in which he attempted to convince them, which he knew or, as any reasonable person, should have known was inappropriate under Article 3, para 2 FCE (2009 edition)”.132 However, unlike the FIFA bodies, the CAS refused to consider that letters sent later on by Chung to Blatter in order to complain about the proceedings constituted a violation of Article 13 FCE 2012.133 While it recognized “that it is impermissible for a party under investigation or in a legal proceeding to interfere therewith by, for instance, attempting to influence a member of the investigatory or adjudicatory body through external means, and that such an act would indeed violate Article 13, para 3 FCE (2012 edition)”,134 the Panel was not convinced that this was the intention of the Appellant when sending his letters to Blatter. Finally, the CAS also applied Article 13 FCE 2012 in the Mayne-Nicholls case. In particular, the Panel held that the Appellant should have known “that attempting to solicit any form of private advantage from a person whom he encountered during the course of his official role as Chair of the Bid Evaluation Group—and whom he knew to be affiliated to the official bid committee of a particular bidding nation— would be likely to imperil his credibility and integrity.”135 Hence, it “constituted a serious and inexcusable breach of the Appellant’s ethical obligations under Article

129 130 131 132 133 134 135

Ibid., para 111. CAS 2017/A/5086 Mong Joon Chung v. FIFA, Award of 9 February 2018, para 169. Ibid., para 171. Ibid., para 172. Ibid., para 182–188. Ibid., para 186. CAS 2017/A/5006 Harold Mayne-Nicholls v. FIFA, Award of 14 July 2017, para 207.

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13 of the FCE 2012”.136 Regarding Mayne-Nicholls’ duty of loyalty under Article 15 FCE 2012, the Panel concluded that “the Appellant’s conduct in soliciting (and thereafter pursuing) the provision of private benefits for his close family members from an individual and organisation affiliated with the Qatar Bid Committee was incompatible with his fiduciary duty to FIFA”.137 In doing so, “the Appellant sought to advance his own personal interests in a manner that was plainly inconsistent with FIFA’s interests and failed to demonstrate the unqualified loyalty required by Article 15”.138 In this regard, the Panel considers it irrelevant whether there was a quid pro quo. Finding, instead, that “it is sufficient for FIFA to show that the Appellant took improper advantage of his position as Chairman of the Bid Evaluation Group and engaged in behaviour that was contrary to his duty to promote and protect FIFA’s legitimate interests without regard to his own personal interests”.139 As these examples showcase, Article 3 and 9 FCE 2009 and Article 13 and 15 FCE 2012 were used to tackle very different types of situations. In all cases studied, these were the only provisions under which the FIFA officials were sanctioned, emphasizing the fall-back nature of these rules. In fact, the CAS panels in Blatter and Platini emphasized that these articles do not come into play when more specific provisions capture the factual circumstances triggering the violations of the FCE.140

When Are Officials Performing Their Duties? As provided under Article 3 FCE 2009, to be contrary to the FCE, ethical breaches committed by officials must occur while performing their duties. In the Fusilamohi case, the Appellant challenged that he was “performing his duties” when meeting with the journalists, who were offering him a job against insider information and support for a (fictitious) bid to organize the World Cup. The Panel responded by holding that “an official is “performing his duties” whenever he/she is involved in something (a conversation, an activity, etc.) that is related to or connected with his position(s) in football.”141 In other words, “the intent of articles 9 para 1 and 3 para 2 of the FCE should not be interpreted the way the appellant submits, that a violation may occur only during official meetings, because if that were to be so, then the rule would specifically state that officials perform their duties 136

Ibid. Ibid., para 203. 138 Ibid. 139 Ibid., para 204. 140 For Articles 3 and 9 FCE (edition 2009), see CAS 2016/A/4501 Joseph S. Blatter v. FIFA, Award of 5 December 2016, paras 304–306. For Article 13 and 15 FCE (edition 2012), see TAS 2016/A/4474 Michel Platini c. FIFA, paras 321–341 and CAS 2017/A/5003 Jérôme Valcke v. FIFA, Award of 27 July 2018, paras 195–202. 141 CAS 2011/A/2425 Ahongalu Fusimalohi v. FIFA, Award of 8 March 2012, para 108 and CAS 2017/A/5086 Mong Joon Chung v. FIFA, Award of 9 February 2018, para 179. 137

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only during official meetings”.142 In Chung, the arbitrators clarified that “it is obvious that the phrase refers to his duties as an “official”.”143 In particular, they held that Chung “engaged in activity related to or connected with his positions in football because he sent the GFF Letters to fellow Executive Committee members involved in the bidding process for the 2022 FIFA World Cup bid, wrote about that very same bidding process on FIFA letterhead, and signed as a vice-president of FIFA”.144 Moreover, even “if the Appellant had presented himself in the letter as a mere private supporter of the Korean bid, the content of the letter alone would qualify it as related to or connected to his positions in football.”145Overall, it is clear that the CAS refuted a formalistic and narrow reading of this criterion in the context of the implementation of Article 3 FCE 2009. 3.4.2

The CAS and the Policing of Football’s Gift Economy Under Article 20 FCE

Gifts have long been studied as a means of exchanging resources and creating social ties and reciprocal obligations within human society. The proliferation of practices of gift-giving and -receiving in football is well documented,146 it is also the reason why the practice of receiving and offering gifts has been strictly regulated by FIFA since the first edition of the FCE.147 In the current edition of the FCE, this issue is dealt with in Article 20.148 Accordingly, the CAS has also had to deal with a 142

CAS 2011/A/2425 Ahongalu Fusimalohi v. FIFA, Award of 8 March 2012, para 108. CAS 2017/A/5086 Mong Joon Chung v. FIFA, Award of 9 February 2018, para 178. 144 Ibid., para 179. 145 Ibid. 146 The episode of the expensive watches offered by FIFA in the context of the 2014 World Cup in Brazil is probably the most famous, see Rebecca R. Ruiz, FIFA, Recovering 48 Luxury Watches, Seeks to Cast Off Links to Giveaway, New York Times, 26 November 2015, https://www.nytimes. com/2015/11/27/sports/soccer/fifa-watches-parmigiani-fleurier.html. Accessed 1 July 2022. 147 Article 6 FCE 2004 provided: “Gifts, particularly gifts in kind and any other benefits, may be accepted only if they are of token value in accordance with the relevant local and cultural customs. Any gifts or benefits that are not of token value shall be submitted to the presiding body for approval. Any gifts not approved shall be handed over to and retained by the relevant organisation. In the absence of a presiding body, the body of which the individual in question is a member shall adjudicate. It is forbidden to accept any gifts of money. Persons bound by this Code shall not be accompanied to official events by family members or any other persons at the expense of FIFA, the Associations or any other organisation, unless the relevant organisation has approved such an arrangement in advance.” 148 Article 20 provides: 1. Persons bound by this Code may only offer or accept gifts or other benefits to and from persons within or outside FIFA, or in conjunction with intermediaries or related parties as defined in this Code, where such gifts or benefits: (a) have symbolic or trivial value; (b) are not offered or accepted as a way of influencing persons bound by this Code to execute or omit an act that is related to their official activities or falls within their discretion; 143

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number of cases involving the acceptance or offering by football officials of undue gifts.149 In reviewing these cases, it is sensible to distinguish between situations in which FIFA officials accept gifts and those in which they offer them.

The CAS and the Acceptance of Gifts by Officials The Platini case is the first, and probably most famous, case to have reached the CAS concerning the interpretation of Article 20 FCE. This case, which at the time of writing is still at the centre of public attention,150 involved primarily Platini’s receipt of a CHF 2,000,000 payment from FIFA. The main substantial question raised by the case was whether this payment was an undue gift or, as alleged by Platini, was grounded in a valid oral contract between FIFA (represented by its President Joseph Blatter) and himself. The Panel considered that Platini failed to prove the existence of this oral agreement and therefore the legitimate basis of the gift.151 Furthermore, the Panel also had to decide whether Platini had violated Article 20 FCE by benefitting, for the period from 1998 to mid-2002, from the coverage of the FIFA retirement plan for former members of the FIFA ExCo. In this regard, Platini claimed that a benefit that was not yet effectively received, could not

(c) are not offered or accepted in contravention of the duties of persons bound by this Code; (d) do not create any undue pecuniary or other advantage; and (e) do not create a conflict of interest. Any gifts or other benefits not meeting all of these criteria are prohibited. 2. If in doubt, gifts or other benefits shall not be accepted, given, offered, promised, received, requested or solicited. In all cases, persons bound by this Code shall not accept, give, offer, promise, receive, request or solicit from anyone within or outside FIFA, or in conjunction with intermediaries or related parties as defined in this Code, cash in any amount or form. If declining the gift or benefit would offend the giver on the grounds of cultural norms, persons bound by this Code may accept the gift or benefit on behalf of their respective organisation and shall report it and hand it over, where applicable, immediately thereafter to the competent body. 3. Violation of this article shall be sanctioned with an appropriate fine of at least CHF 10,000 as well as a ban on taking part in any football-related activity for a maximum of two years. Any amount unduly received shall be included in the calculation of the fine. In addition to the fine, the gift or benefit unduly received should be returned, if applicable. In serious cases and/or in the case of repetition, a ban on taking part in any football-related activity may be pronounced for a maximum of five years. 149 TAS 2016/A/4474 Michel Platini c. FIFA, paras 233–284; CAS 2017/A/5006 Harold Mayne-Nicholls v. FIFA, Award of 14 July 2017, para 189; CAS 2016/A/4501 Joseph S. Blatter v. FIFA, Award of 5 December 2016, paras 285–287; CAS 2017/A/5003 Jerome Valcke v. FIFA, Award of 27 July 2018, para 242; CAS 2019/A/6326 Chabour Goc Alei v. FIFA, Award of 16 July 2020, paras 181–195. 150 John Revill, Blatter and Platini face Swiss corruption trial, Reuters, 8 June 2022, https://www. reuters.com/lifestyle/sports/blatter-platini-face-swiss-corruption-trial-2022-06-07/. Accessed 1 July 2022. 151 TAS 2016/A/4474 Michel Platini c. FIFA, paras 233–284.

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constitute an undue benefit, but just a future possibility of benefit.152 The Panel considered that Platini was undoubtedly not a member of the ExCo at the time and could, therefore, not benefit from this retirement scheme.153 Furthermore, the fact that the benefit had not yet materialized was deemed irrelevant, as he received an equally illegal “undue expectation”.154 Even if this advantage was granted by Blatter acting as FIFA’s President, he overstepped his powers of representation in doing so by disregarding the internal regulations of FIFA and the core purpose of the association.155 Moreover, Platini was fully aware of the applicable rules and, therefore, could not claim to have acted in good faith.156 Finally, the fact that FIFA employees had condoned this extension would not affect this conclusion, as both Blatter and Platini were at the apex of FIFA’s hierarchy, and employees could not have been expected to oppose Blatter’s decisions in light of his management style.157 The Platini case is important as it establishes that gifts don’t need to have materialized yet to fall under Article 20 FCE’s prohibition, and that a gift received from the FIFA President is undue when it does not conform to FIFA’s regulations and fundamental purpose. The other case that involved a potential receipt of a gift by a FIFA official was the Mayne-Nicholls appeal. In that instance, however, the CAS Panel rejected FIFA’s view that Article 10 FCE 2009 was applicable as Mayne-Nicholls had requested an advantage but did not receive it.158 The arbitrators stressed in particular that “there is an important difference between inviting a person to provide a gift/benefit and actually receiving such a gift/benefit”.159 In other words, “there is a qualitative distinction between accepting a benefit (which entails actual provision and receipt of the benefit) and merely requesting a benefit (which entails a desire to receive a benefit—and an attempt to procure it—but no actual receipt)”.160 Furthermore, “there is nothing in the language of Article10 of the FCE 2009 or Article 20(1) of the FCE 2012 to suggest that the legislator intended the word “accepts” to include both the actual receipt of a benefit and a mere request for a benefit without any actual corresponding receipt”.161 Otherwise, FIFA’s claim “would have the paradoxical consequence that a person who requested a benefit would be deemed to have “accepted” the benefit even in circumstances where (i) the request is emphatically rejected by the addressee; and/or (ii) it would be physically impossible for the addressee to provide the benefit requested (for example, because

152 153 154 155 156 157 158 159 160 161

Ibid., para 287. Ibid., paras 292–293. Ibid., para 295. Ibid., para 296. Ibid. Ibid. CAS 2017/A/5006 Harold Mayne-Nicholls v. FIFA, Award of 14 July 2017, para 189. Ibid., para 190. Ibid. Ibid., para 191.

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the request relates to a physical object that does not exist)”.162 While it might be arguable that this behaviour could qualify as an attempt under Article 20 read in conjunction with Article 5(2) of the FCE 2012, such attempts were in any event not sanctioned under the 2009 version of the FCE.163

The CAS and the Offering of Gifts by Officials Football officials are not only in a position to receive that might affect their independence or be aimed at obtaining their favours; they may also have power and access that enable them to distribute gifts and favours, potentially to shore up their standing inside the political system of football. The other side of the Platini case is the Blatter case. In the latter, Blatter was accused of having unlawfully awarded the already discussed benefits to Platini in contradiction with Article 20 FCE. Accordingly, the findings of the CAS award mirror those of the Platini case. Concerning Platini’s integration into the retirement scheme of the ExCo, the Panel concluded that the “credit awarded [under FIFA’s ExCo retirement scheme] to Mr. Platini therefore certainly amounted to a gift as he was not entitled to such credit”.164 In this regard, while “Mr. Blatter had single-signing authority at the time”, he was also “subject to the rules and the rules are clear in stating that the retirement scheme was only for FIFA Executive Committee members”.165 In other words, “Mr. Blatter’s single-signing authority is no justification to act contrary to the rules set up by the FIFA Executive Committee”.166 Hence, the Panel concluded that Blatter had “unlawfully awarded contributions to Mr. Platini under FIFA’s ExCo retirement scheme and that this amounted to an undue gift”.167 Similarly, the Panel also came to the conclusion that FIFA’s payment of CHF 2 million to Platini amounted to an undue gift from Blatter. Indeed, despite believing Blatter when he claimed “that he thought it was a debt that needed to be paid”, the CAS Panel concluded that since “there was no obligation for FIFA to pay this amount to Mr. Platini, […] the payment cannot be denominated otherwise than a gift, regardless of why Mr. Blatter considered he had a debt to Mr. Platini.”168 Additionally, the Panel concluded that such undue gifts were also covered by Article 11 FCE 2006 and Article 10 FCE 2009 and that both provisions also extended to gifts between FIFA officials despite the reference in their wording to third parties.169 The latter

162 163 164 165 166 167 168 169

Ibid., para 192. Ibid., paras 193–194. CAS 2016/A/4501 Joseph S. Blatter v. FIFA, Award of 5 December 2016, para 216. Ibid., para 217. Ibid. Ibid., para 218. Ibid., para 268. Ibid., para 285–287.

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interpretation was an essential interpretive conclusion in allowing for gifts between FIFA officials to fall within the scope of the FCE. The Valcke case is another prominent case in which the application of Article 20 FCE 2012 was discussed in the context of offering gifts. The Panel had to deal with a situation in which the former Secretary General of FIFA was accused of offering to sell, at a discounted price, the Caribbean media rights for the 2018 and 2022 FIFA World Cups to the Caribbean Football Union (CFU), headed by the notorious former FIFA executive Jack Warner, likely in order to secure Warner’s support in upcoming FIFA elections. The key legal question raised by the case was “whether the [Valcke] with [his] email to Mr. Warner actually “offered” or “attempted to offer” the CFU an undue benefit or only “expressed his intent” to take the matter to the Marketing and TV Board Committee”.170 Ultimately, CFU did not obtain the TV rights in question, which were sold to another company. Yet, the Panel was convinced that Valcke’s email “constituted an offer of an undue benefit”.171 In coming to this conclusion, it highlighted the context of the approaching FIFA election, Valcke’s willingness to “let politics play a role in deciding to whom to sell media rights” and his understanding that “his position as FIFA Secretary General was dependent on Mr. Blatter retaining the FIFA presidency”.172 Furthermore, the Panel emphasized the content of the email, which made an explicit reference to a gift, and found it irrelevant that Valcke purportedly “did so merely to “silence” Mr. Warner from being “pushy” and pressuring FIFA”, or that he “neither intended to nor did take the offer to the FIFA Marketing and TV Board Committee meeting”.173 Indeed, for the Panel “this does not change the fact that the Appellant promised Mr. Warner a gift in the email, being well aware of his obvious influence—as Secretary General and former Director of Marketing and TV—on the FIFA Marketing and TV Board Committee”.174 These decisions illustrate the CAS’s willingness to accept the application of the FCE’s provision on the offering of gifts when such gifts are offered by FIFA officials to other FIFA officials. Furthermore, as exemplified by the Valcke decision, this provision extends to offers that have not ultimately materialized. In short, any offer of a gift, which cannot be justified on the basis of a legitimate contract or FIFA procedure, falls within the scope of this provision. 3.4.3

The CAS and the Policing of Bribery and Corruption under the FCE

In addition to the gift culture discussed in the previous section, the widespread culture of bribery and corruption of football officials is widely seen as a

170 171 172 173 174

CAS 2017/A/5003 Jérôme Valcke v. FIFA, Award of 27 July 2018, para 242. Ibid., para 244. Ibid. Ibid. Ibid.

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fundamental issue for international football. Journalists have worked hard to unmask those who are receiving bribes in return of commercial opportunities or other favours, be it in the context of bidding processes for the organization of the World Cup or the allocation of broadcasting rights (or other commercial rights). Since football became a global business with considerable amounts of economic interests involved, the decisions of FIFA officials have also a much greater financial clout and, therefore, attract much more attention from those wanting to benefit economically or reputationally from them. Hence, it is not surprising to see CAS awards dealing with the implementation of the FCE considering the application of the provision dedicated to bribery and corruption. This section covers the CAS’s implementation of the different generations of the provisions of the FCE dedicated to bribery and/or corruption.

The CAS and the Enforcement of Article 11 FCE 2009: The Adamu and Fusimalohi Cases The first time the CAS had to deal with allegations of bribery was in the Adamu and Fusimalohi cases. In doing so, it was assessing FIFA’s implementation of Article 11 FCE 2009.175 The CAS panels discussed, first, whether a gift or advantage was offered, promised or sent to an official. They then identified whether the official was incited to breach a duty or behave dishonestly for the benefit of a third party. In a third step, the panels ascertained if the official had refused the gift/advantage.

The Offering, Promising or Sending of a Gift or Advantage to an Official The panels in the Adamu and Fusimalohi cases refined the definition of an advantage/gift under Article 11 FCE 2009. They stressed that “the type or form of the advantage is of no relevance; it can be money or any other benefit, even not economically quantifiable (for instance, a career advancement)”.176 In Fusimalohi, the Panel stressed that Article 11 FCE 2009 “does not require that a gift or other

175

Article 11 FCE 2009 provides: 1. Officials may not accept bribes; in other words, any gifts or other advantages that are offered, promised or sent to them to incite breach of duty or dishonest conduct for the benefit of a third party shall be refused. 2. Officials are forbidden from bribing third parties or from urging or inciting others to do so in order to gain an advantage for themselves or third parties. 176 CAS 2011/A/2426 Amos Adamu v. FIFA, Award of 24 February 2012, para 118. See as well, CAS 2011/A/2425 Ahongalu Fusimalohi v. FIFA, Award of 8 March 2012, para 75 and CAS 2019/A/6665 Ricardo Terra Teixeira v. FIFA, Award of 14 September 2021, para 107.

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advantage is actually agreed upon or received by the official”.177 Furthermore, in Adamu the arbitrators held that “the advantage can well be for a third person or for an organization indicated by or close to the official”.178 In his challenge to the FIFA decision, Dr Adamu claimed that “he was trying to direct resources towards his country for the benefit of Nigerian football”.179 In response, the Panel emphasized that “an official is not prevented from working for the good of football in his country but he must do so in a virtuous and transparent manner”.180 In this regard, the private support by the alleged consortium of American companies to the Appellant’s “pet project” cannot be compared to “transparent commitments” based on public pledges to raise and donate multi-million dollar funding for football and social development in less developed countries.181 In a more recent award, the Guzman case, the CAS dealt with a similar line of defence by another football official who claimed to have used the funds received to develop football in the Dominican Republic and not for his own profit.182 The Panel rejected this claim because the evidence did not show any documented financial link between the funds received and the funds allegedly expended to develop football in the Dominican Republic, nor was there any concrete description or evidence provided of the existence of the alleged project funded.183 The Fusimalohi case involved a different situation, as the incriminated FIFA official was not offered a sum in cash money but instead a position in a fictitious company, which was well paid and clearly conditional on the Appellant engaging in lobbying activities with his fellow FIFA ExCo members in favour of the United States bid.184 In this regard, the Panel did not believe the Appellant’s claim that this was a legitimate job interview and insisted that “the Appellant realized that he was offered some significant money in exchange for an improper and shady lobbying activity” and that the “attitude of the Appellant […] clearly establishe[d] that his collaboration with the alleged lobbyists was linked to the personal profit he could make”.185

177 178 179 180 181 182 183 184 185

CAS 2011/A/2425 CAS 2011/A/2426 Ibid., para 120. Ibid. Ibid. CAS 2018/A/6038 Ibid., para 88. CAS 2011/A/2425 Ibid., para 82.

Ahongalu Fusimalohi v. FIFA, Award of 8 March 2012, para 74. Amos Adamu v. FIFA, Award of 24 February 2012, para 119.

Osiris Guzmán v. FIFA, Award of 23 September 2019, para 84. Ahongalu Fusimalohi v. FIFA, Award of 8 March 2012, para 76.

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The Incitement to Breach a Duty or Behave Dishonestly for the Benefit of a Third Party The second step of the assessment of the breach of Article 11 FCE 2009 “relates to the purpose for which the advantage is offered and focuses on the offeror’s intent, not the offeree’s.”186 The former “must aim at inciting football officials to breach their duties or to engage in dishonest conduct which would—if it eventually occurs —benefit a third party”.187 Additionally, “the offeror is not necessarily the beneficiary of the offence and […] there is no need for an actual breach of duty or dishonest conduct to occur, as it is enough for the offeror to “incite” (i.e. to encourage, foment, instigate or provoke) such behaviour.”188 However, “the official must realize that the offer of an advantage is linked to some breach of duty or dishonest conduct that the offeror requires from him”.189 In Adamu, the Panel considered that “the evidence clearly show[ed] that the offer made by the journalists was to incite the Appellant to breach his duty or to act dishonestly for the benefit of a third party”, as they “expressly mentioned the link between the provision of the funding and the way the Appellant was required to vote”.190 The Appellant’s understanding that he was being incited to behave dishonestly for the benefit of a third party (the fake American companies) was further supported by a number of statements he made and actions he took.191 Similarly, in Fusimalohi, the Panel considered that the evidence clearly pointed to the fact that the reporter was inciting the FIFA official to breach his duty or to act dishonestly for the benefit of a third party.192 In particular, the arbitrators noted that the journalist had insisted in numerous instances on “the link between the advantage offered and the way the Appellant was required to act”.193 The Panel also concluded that the Appellant understood the intention and purpose of the offer made, as he repeatedly showed a willingness to start working on his assignment and provided advice to the journalists on how to influence his fellow members of the FIFA ExCo.194 In the transcripts of his exchanges with the reporter, he also showed an awareness of the

186

CAS 2011/A/2426 Amos Adamu v. FIFA, Award of 24 February 2012, para 123 and CAS 2011/A/2425 Ahongalu Fusimalohi v. FIFA, Award of 8 March 2012, para 84. 187 Ibid. 188 Ibid. 189 CAS 2011/A/2425 Ahongalu Fusimalohi v. FIFA, Award of 8 March 2012, para 85. 190 CAS 2011/A/2426 Amos Adamu v. FIFA, Award of 24 February 2012, para 125. 191 See the list provide at CAS 2011/A/2426 Amos Adamu v. FIFA, Award of 24 February 2012, para 126. 192 CAS 2011/A/2425 Ahongalu Fusimalohi v. FIFA, Award of 8 March 2012, para 86. 193 Ibid. 194 Ibid., para 87.

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unethical nature of his actions by insisting on the confidential nature of the information he was communicating and by expressly recognizing that the activities of the journalist were not to be disclosed and if revealed would lead to problems with FIFA.195

The Obligation to Refuse an Improper Offer The third constitutive element of bribery under Article 11 para 1 FCE 2009 entails “the obligation for an official who receives an improper offer to positively refuse such offer upon its making rather than to merely omit to act upon it”.196 Consequently, “an official cannot escape liability by remaining inactive or silent in response to an attempt to corrupt him”.197 This is because “if no obligation were provided to actively refuse an improper offer, bribery could only be found once the bribe was actually accepted and collected, which would be most of the times impossible to prove for a private association with no investigative powers comparable to those of a state authority”.198 In addition, “there cannot be any ambiguity or uncertainty on the part of officials in refusing any improper offer”.199 In particular, CAS panels have stressed that “officials as highly ranked as the Appellant [Adamu was a FIFA ExCo member and Fusimalohi had been from 2002 to 2007] must under any circumstance appear as completely honest and beyond any suspicion”.200 Otherwise, “there would be serious doubts in the mind of the football stakeholders and of the public at large as to the rectitude and integrity of football organizations as a whole”, as the “public distrust would rapidly extend to the general perception of the authenticity of the sporting results and would destroy the essence of the sport”.201 Hence, it “is of crucial importance that top football officials

195

Ibid. CAS 2011/A/2426 Amos Adamu v. FIFA, Award of 24 February 2012, para 128 and CAS 2011/A/2425 Ahongalu Fusimalohi v. FIFA, Award of 8 March 2012, para 89. 197 Ibid. 198 Ibid. 199 CAS 2011/A/2426 Amos Adamu v. FIFA, Award of 24 February 2012, para 129 and CAS 2011/A/2425 Ahongalu Fusimalohi v. FIFA, Award of 8 March 2012, para 90. 200 Ibid. 201 CAS 2011/A/2426 Amos Adamu v. FIFA, Award of 24 February 2012, para 129. Similarly, CAS 2011/A/2425 Ahongalu Fusimalohi v. FIFA, Award of 8 March 2012, para 90 [‘In the absence of such flawless, impeccable and transparent behaviour by top football officials, the public at large and football stakeholders will seriously doubt the rectitude and integrity of football organizations as a whole. This public distrust may eventually extend to the authenticity of sporting results and can destroy the essence of the sport.’]. 196

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should not only be honest, but should evidently and undoubtedly be seen to be honest.”202 Accordingly, “the required standard of behaviour for top football officials is very high, as nothing is to be done which creates even a suspicion that the exercise of their duties (and voting to award the World Cup is possibly one of their most important duties) could be influenced by an improper interference”.203 Instead, “their conduct both on and off the field, must be impeccable”.204 Hence, CAS Panels dealing with situations in which gifts were offered to incite a breach of duty by a high-ranking FIFA official must determine “whether he was so obvious and unambiguous in rejecting the offered bribe that the offeror (as well as any bystander) would necessarily conclude that the attempted corruption failed”.205 In the Adamu case, the arbitrators highlighted the Appellant’s ambiguity in his reply to the journalists and his lack of convincing explanation for not leaving a meeting with them and/or clearly refusing their offers to bribe him.206 Similarly, in the Fusimalohi case, they stressed that the official had shown willingness to take the (fake) job offered and eagerness to start working on influencing the decision of the FIFA ExCo.207 The Appellant argued that he had declined the offer in a separate phone call, whose transcript was not part of the evidence submitted before the Panel. Yet, the arbitrators considered this argument irrelevant because “even if he had in fact rejected the offer at that stage, it would have been too late” as such an “obviously dishonest, shady and illegal offer” should have been rejected “on the spot”.208 These two awards operate as important precedent for bribery cases, specifically with regard to their endorsement of a very wide definition of the concept of gift or advantage. Nevertheless, the relevant FCE provision was changed quite substantially in 2012 and in 2018, and, as a result, the CAS’s approach to it as well, which can be illustrated by a brief review of the Texeira case.

202

CAS 2011/A/2426 Amos Adamu v. FIFA, Award of 24 February 2012, para 130 and CAS 2011/A/2425 Ahongalu Fusimalohi v. FIFA, Award of 8 March 2012, para 91. 203 CAS 2011/A/2426 Amos Adamu v. FIFA, Award of 24 February 2012, para 130. 204 CAS 2011/A/2425 Ahongalu Fusimalohi v. FIFA, Award of 8 March 2012, para 91. 205 CAS 2011/A/2426 Amos Adamu v. FIFA, Award of 24 February 2012, para 131. Similarly, CAS 2011/A/2425 Ahongalu Fusimalohi v. FIFA, Award of 8 March 2012, para 92 [‘Therefore, the question is whether the Appellant’s conduct was such that it was unambiguously a rejection of the offered bribe and that the offeror (as well as any bystander) would imply and conclude that the attempted corruption failed’]. 206 CAS 2011/A/2426 Amos Adamu v. FIFA, Award of 24 February 2012, para 132–133. 207 CAS 2011/A/2425 Ahongalu Fusimalohi v. FIFA, Award of 8 March 2012, para 93. 208 CAS 2011/A/2425 Ahongalu Fusimalohi v. FIFA, Award of 8 March 2012, para 94.

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The Application of Article 27 FCE: The Texeira Case In the Texeira case, the Panel established an equivalence between Article FCE209 and prior provisions of the FCE aimed at combatting bribery.210 Yet, structure of the analysis conducted by the Texeira Panel is quite different from one applied in the Adamu and Fusimalohi cases, as it focused on determining following three constitutive elements of the violation:

27 the the the

• Whether Texeira had accepted, given, offered, promised, received, requested or solicited an advantage; • Whether the advantage received was personal or undue; • Whether there was a quid pro quo or ratio of equivalence between the undue advantage and the specific action by the official obtaining it. Regarding the first element, the Panel relied on (abundant) evidence stemming mainly from testimonies of witnesses delivered during the Jury Trial in the United States District Court of the Eastern District of New York against a number of FIFA officials, and concluded that Texeira had received considerable sums of money in the context of the sale of the broadcasting rights for the CONMEBOL Copa Libertadores,211 for the CONMEBOL Copa America,212 and for the CBF Copa do Brasil.213 In this regard, one of the noticeable findings of the Panel, beyond the admissibility of evidence obtained at a public trial, was that “the fact that the amount of USD 1 million was eventually paid to another person on the Appellant’s behalf is not relevant to determine whether or not an offence based on Article 27 of the FCE occurred”.214 Instead, as the Appellant “did not argue nor brought forward

209

Article 27 FCE provides: 1. Persons bound by this Code shall not accept, give, offer, promise, receive, request or solicit any personal or undue pecuniary or other advantage in order to obtain or retain business or any other improper advantage to or from anyone within or outside FIFA. Such acts are prohibited regardless of whether carried out directly or indirectly through, or in conjunction with, third parties. In particular, persons bound by this Code shall not accept, give, offer, promise, receive, request or solicit any personal or undue pecuniary or other advantage for the execution or omission of an act that is related to their official activities and is contrary to their duties or falls within their discretion. 2. Persons bound by this Code shall refrain from any activity or behaviour that might give rise to the appearance or suspicion of a breach of this article. 3. Violation of this article shall be sanctioned with an appropriate fine of at least CHF 100,000 as well as a ban on taking part in any football-related activity for a minimum of five years. Any amount unduly received shall be included in the calculation of the fine. The sanction shall be increased accordingly where the person holds a high position in football, as well as in relation to the relevance and amount of the advantage received. 210 CAS 2019/A/6665 Ricardo Terra Teixeira v. FIFA, Award of 14 September 2021, para 69. 211 Ibid., paras 109–116. 212 Ibid., paras 117–131. 213 Ibid., paras 131–145. 214 CAS 2019/A/6665 Ricardo Terra Teixeira v. FIFA, Award of 14 September 2021, para 131.

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any legal or contractual basis for the above-mentioned payments, and offers and promises of payments”,215 they were deemed undue by the arbitrators. The remaining fundamental question was whether these payments could be qualified as a quid pro quo. In this regard, the Panel outlined four cumulative requirements that needed to be met:216 1. the payment involves an act which is related to official activities of the recipient or offeree; 2. the act of the official is contrary to his duties as official or based on illegitimate motives or flawed conduct on his part; 3. the undue advantage must be given in exchange for the execution or omission of the act; and 4. the undue advantage must be given in order to obtain or retain business or any other improper advantage. On the first point, the Panel noted simply that in his capacity as President of the CBF and member of the CONMEBOL Executive Committee, the Appellant was responsible for signing most of the broadcasting contracts connected to the three competitions involved.217 Therefore, these acts were related to his official activities.218 Regarding the second condition, the Panel “notes that it is widely recognised that in cases where payments are accepted by an official without a legitimate reason, no further proof is required with regards to the occurrence of an improper influence on the decision-shaping and making: any kind of reward renders the relevant advantage unlawful or improper”.219 In the absence of any evidence of an underlying legitimate ground for these payments, “the Appellant’s acts must be considered as being based on illegitimate motives and therefore contrary to his duties”.220 Turning to the third condition, the Panel emphasized the total absence of evidence “as to the existence of a clear and proper legal or contractual basis for the relevant payments”, which it deemed “odd when one considers the extraordinarily high amounts of the payments and promises at stake”.221 Furthermore, it noted that witnesses “consistently testified under oath that the payments made or offered to the Appellant were bribes in exchange of his support for the signature and/or renewal of specific broadcasting contracts”,222 and concluded that this condition was also fulfilled. Finally, on the last requirement, the Panel held “that “any other advantage” must be interpreted in broad sense, thus including any sort of betterment or

215 216 217 218 219 220 221 222

Ibid., Ibid., Ibid., Ibid. Ibid., Ibid. Ibid., Ibid.

para 148. para 149. para 150. para 151. para 152.

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advancement of economic, legal or personal, material or non-material nature”.223 In the concrete situation of the Texeira case, the arbitrators held that the signature or renewal of broadcasting rights contracts constituted such an advantage and, as it was granted in return of the illegitimate payments to the Appellant, constituted an improper advantage.224 Hence, the Panel concluded that there was a “clear connection” between the undue advantages received by the Appellant and his provision of an improper advantage to the various media rights companies.225 It is noticeable that the quite fundamental changes to the text of Article 27 FCE compared to Article 11 FCE 2009 have considerably affected the structure of the legal analysis conducted by the CAS Panel, with a greater emphasis being placed on demonstrating the quid pro quo nature of the advantage received by the official. Yet, overall, the CAS continues to interpret the provision rather broadly, and has even introduced a presumption that a payment accepted by an official without any legitimate reason constitutes an “improper influence on the decision-shaping and making”. 3.4.4

The CAS and Conflicts of Interests under the FCE

The outlawing of conflicts of interest is also a central plank in dealing with the bad governance of FIFA. It involves situations which are less clear cut, in which, for example, there is no obvious gift that is provided to an official or quid pro quo in return. Instead, the structural position of the officials involved is such that it is potentially impairing their capacity to be disinterested (or be perceived as disinterested) in taking a particular decision. In other words, an official is in such a position that he or she is unlikely to have the best interest of FIFA (or any other football organisation) in mind when acting on its behalf. These situations of conflicts of interest are currently regulated in Article 19 FCE.226

223

Ibid., para 153. Ibid. 225 Ibid., para 154. 226 Article 19 FCE provides: 1. Persons bound by this Code shall not perform their duties (in particular, preparing or participating in the taking of a decision) in situations in which an existing or potential conflict of interest might affect such performance. A conflict of interest arises if a person bound by this Code has, or appears to have, secondary interests that could influence his ability to perform his duties with integrity in an independent and purposeful manner. Secondary interests include, but are not limited to, gaining any possible advantage for the persons bound by this Code themselves or related parties as defined in this Code. 2. Before being elected, appointed or employed, persons bound by this Code shall disclose any relations and interests that could lead to situations of conflicts of interest in the context of their prospective activities. 3. Persons bound by this Code shall not perform their duties (in particular preparing, or participating in, the taking of a decision) in situations in which there is a danger that a conflict of interest might affect such performance. Any such conflict shall be immediately disclosed and notified to the organisation for which the person bound by this Code performs his duties. 224

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Conflicts of Interest and the Blatter/Platini Saga The question whether a FIFA official violated the FCE provision on conflicts of interests reached the CAS for the first time in the Platini and Blatter cases. In so far as Blatter was concerned, FIFA argued first that there was a conflict of interest “because the payment was made during his election campaign for the presidency of FIFA in 2011”.227 Yet, the Panel considered that such a conflict of interest “would constitute an offence of bribery, which charge was explicitly dismissed by the FIFA Ethics Committee and the FIFA Appeal Committee and was not challenged by FIFA”.228 Moreover, FIFA also advanced that “Mr. Blatter put himself in a situation of conflict of interest by not informing the members of the FIFA Finance Committee of the payment [to Platini], before and after the financial statements were approved”.229 On this point, the CAS Panel endorsed FIFA’s argument and held that by failing to inform the Committee, “Mr. Blatter created a conflict of interest between himself and FIFA as an organisation because he approved a payment on behalf of FIFA without any contractual basis”.230 In Platini’s case, FIFA had sanctioned him on the basis of Article 19 FCE because he signed a pledge supporting Blatter’s re-election on 6 May 2011 without disclosing the payment, as well as due to his failure to disclose the payment during a meeting of FIFA’s Finance Committee on 2 March 2011.231 Regarding the former, the Panel held that the payment received did put him in a situation of conflict of interest when pledging, on behalf of UEFA, support for Blatter’s reflection, as he had a personal interest in Blatter’s reconduction.232 However, the Panel considered that this conflict of interest was vis-à-vis UEFA and, therefore, fell outside of the scope of application of Article 19 FCE as Platini was not fulfilling FIFA duties when signing the pledge.233 Nevertheless, the Panel did consider that Platini’s failure to disclose the FIFA payment during the meeting of the Finance Committee constituted a conflict of interest.234 Indeed, the Panel noted that a payment to a member of the FIFA ExCo of CHF 2 million without a legitimate basis is an “important and extraordinary fact”, which is a sign of a very problematic management of FIFA’s finances, with a negative impact on its financial results for

4. Violation of this article shall be sanctioned with an appropriate fine of at least CHF 10,000 as well as a ban on taking part in any football-related activity for a maximum of two years. In serious cases and/or in the case of repetition, a ban on taking part in any football-related activity may be pronounced for a maximum of five years. 227 CAS 2016/A/4501 Joseph S. Blatter v. FIFA, Award of 5 December 2016, para 298. 228 Ibid., para 299. 229 Ibid. 230 Ibid. 231 TAS 2016/A/4474 Michel Platini c. FIFA, paras 300–302. 232 Ibid., para 303. 233 Ibid., para 304. 234 Ibid., paras 307–308.

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2010.235 It stressed that a diligent member of the Committee would have raised questions about this payment if informed about its existence, and wouldn’t have signed off on an annual report including such a payment.236 Hence, the Panel considered it “obvious” that Platini could not act with integrity, independence and determination as a member of the Finance Committee, as he had a personal interest in hiding the existence of the payment he had received in order for the accounts to be adopted without further discussion.237 The two awards can be read as vindicating the existence of a duty for FIFA officials to disclose any potential elements that might influence their decisions when conducting FIFA business.

The Valcke Case In the Valcke case, the CAS Panel reviewed the application by the FIFA disciplinary bodies of article 19 FCE to three different issues. First, Valcke was accused of being a party in a scheme aimed at reselling FIFA World Cup tickets, for which he received a considerable amount of money. In this regard, the arbitrators pointed out that they ought to assess:238 (i) whether the Appellant had or appeared to have any private or personal interests in JB [a company with a pre-existing agreement to sell FIFA tickets]’s resale of FIFA World Cup tickets, which includes the gaining any possible advantages for himself or acquaintances, and (ii) whether those interests detracted him from the ability to perform his duties with integrity in an independent and purposeful manner.

The Panel first determined whether Valcke’s business partner in this venture could be considered an acquaintance.239 In this regard, it referred to the Oxford Dictionary definition of acquaintance to conclude that the fact that Valcke and his business partner Mr. Alon “knew each other for some time […], interacted on a first-name basis, made personal references in their communications, and used private email accounts to communicate” was to be considered as clearly surpassing the “threshold of an acquaintance”.240 The Panel was also convinced that Mr. Alon gained “an advantage at the hands of the Appellant by profiting from the resale of the FIFA World Cup Tickets, which the Appellant authorized in violation of the JB Agreement”.241 It stressed that FIFA had “never explicitly nor implicitly granted JB

235 236 237 238 239 240 241

Ibid., para 310. Ibid. Ibid., para 311. CAS 2017/A/5003 70 Jérôme Valcke v. FIFA, Award of 27 July 2018, para 180. Ibid., para 181. Ibid. Ibid., para 182.

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the right to resell tickets on a stand-alone basis”242 and “that there [was] no evidence to support that FIFA knew that JB would be reselling the tickets on a stand-alone basis and that this was the true purpose behind the JB Agreement”.243 Instead, “notwithstanding the clear prohibition to resell tickets on a stand-alone basis in the JB Agreement, the Appellant authorized Mr. Alon and JB to do so”.244 Hence, the arbitrators concluded that Valcke “helped Mr. Alon and JB gain an advantage and thus had private and personal interests involved in the matter within the meaning of Article 19, para 2 FCE”.245 Furthermore, the Panel held that Valcke “also gained a personal advantage by accepting from JB a 50 percent kickback on the profit that JB would make on the tickets from the 12 games of the 2014 FIFA World Cup as reallocated by the Appellant”.246 This led the arbitrators to the conclusions that “the Appellant did not act in FIFA’s interests in dealing with Mr. Alon subsequent to the signing of the JB Agreement and before its restructuring, where […] he gave an advantage to Mr. Alon by authorizing JB to resell tickets on a stand-alone basis in contravention of the JB Agreement and unilaterally extending the terms and ticket inventory size of that agreement, and gave himself at the same time such an advantage by accepting a 50 percent kickback on sales of tickets awarded to JB”, this was deemed to amount to “a massive conflict of interest and, thus, very seriously violated Article 19, para 2”.247 Interestingly, the Panel also stressed that it “consider[ed] it irrelevant whether others at FIFA were aware and/or participated in the Appellant’s ethical misconduct”, as it could not “exonerate the Appellant from his responsibilities”.248 As the second highest FIFA official and the chief executive of FIFA’s administration, he “must be held responsible and accountable when involved in an unethical act, irrespective of whether others may have had knowledge thereof or participated therein”.249 In any event, “[a]wareness and/or participation by others would have simply inculpated those other FIFA officials but not exculpated the Appellant”.250 Additionally, the Panel held that Valcke’s failure to disclose his personal interests in the resale of FIFA World Cup tickets violated Articles 19(1) and (3) FCE as well. The Panel also confirmed FIFA’s conclusion that Valcke had breached Article 19 FCE with regard to his son’s involvement in a commercial deal between FIFA and a company called EON. In particular, it held that “the Appellant had a private and personal interest in the EON-FIFA transaction, as his son sought to and did obtain a material benefit (in the form of compensation) which directly resulted from FIFA

242 243 244 245 246 247 248 249 250

Ibid., para 183. Ibid., para 184. Ibid., para 185. Ibid., para 188. Ibid., para 189. Ibid., para 191. Ibid., para 192. CAS 2017/A/5003 70 Jérôme Valcke v. FIFA, Award of 27 July 2018, para 192. Ibid.

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signing a services agreement with EON and making a down payment pursuant to that agreement of $709,000 USD to EON”.251 Indeed, “[b]y involving himself in the transaction, the Appellant detracted from his ability to perform his duties with integrity in an independent and purposeful manner”.252 Furthermore, “[e]ven if one were to assume that the Appellant did not actually have private or personal interests in the FIFA-EON transaction, at minimum he appeared […] to have such interests”,253 and such an appearance of conflict would suffice to constitute a violation of Article 19(2) FCE. The Panel stressed that as Secretary General, Valcke “had the duty under Article 19, para 2 FCE to refrain from personally involving himself, or appearing to involve himself, in the FIFA-EON commercial affair given his son’s involvement therein”.254 Instead, he “influenced, or appeared to influence, the transaction”255 by participating in the initial meeting with EON. In fact, “[i]t would be naive to believe that Mr. Sebastian Valcke’s involvement in the deal was not linked to his father being the Secretary General of the international federation EON wished to conduct business with”.256 Accordingly, the Panel confirmed FIFA’s assessment and concluded that the Appellant violated Article 19(1) and (3) FCE by failing to disclose the conflict of interest and continuing to perform his duties in the face of said conflict. The Valcke award provides examples of relatively trivial instances of self-interest and nepotism which constitute obvious conflicts of interest. It is remarkable that such banal conflicts could flourish for a while at the highest administrative levels of FIFA without attracting any suspicions.

The Mayne-Nicholls Case The final CAS award that deals with the application of Article 19 FCE concerns the former FIFA official Mayne-Nicholls, who was at the time the Chairman of the Bid Evaluation Group for the 2022 World Cup.257 In the aftermath of a visit of the Group to Qatar to evaluate the country’s bid to host the 2022 World Cup, Mayne-Nicholls reached out to a member of the Qatari Bid Committee to request (relatively minor) favours for the benefit of some of his family members. In this case, the Panel conducted a much shorter assessment than in the Valcke case. It first stressed that “it was essential for the Appellant to maintain a position of scrupulous independence and impartiality throughout the entire period when the Bid

251 252 253 254 255 256 257

Ibid., para 223. Ibid., para 224. Ibid., para 225. Ibid., para 226. Ibid. Ibid. CAS 2017/A/5006 Harold Mayne-Nicholls v. FIFA, Award of 14 July 2017, paras 199–200.

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Evaluation Group was conducting its appraisal of the various World Cup bids”.258 The Panel then emphasized that “the Appellant had a clear obligation to ensure that he did not engage in any conduct that could lead an impartial observer to conclude that there was a real possibility that his execution of those responsibilities could potentially be influenced by a desire to obtain a particular private benefit or advantage”.259 Instead, by initiating contact with a member of the Qatari Bid Committee and by requesting that he “provide specific benefits to three specifically identified members of the Appellant’s close family”,260 Mayne-Nicholls “created a significant conflict between his duty to conduct a neutral and objective evaluation of Qatar’s World Cup bid and his personal interest in securing a desired benefit for his son, nephew and brother-in-law”.261 Finally, “the Appellant thereafter did nothing to dispel the appearance of an irreconcilable conflict of interest” and “continued to pursue the requested benefits over a period of several weeks, during which time the Bid Evaluation Report for Qatar was being finalised by the Bid Evaluation Group”.262 Hence, the Panel concluded that Mayne-Nicholls violated Article 19(2) FCE by “failing to avoid a situation that could lead to a conflict of interest”, Article 19(3) FCE by “continuing to perform his duties as Chairman of the Bid Evaluation Group despite the existence of that serious and ongoing conflict of interest”, and Article 19(4) FCE by “failing to immediately report the existence of the conflict of interest once it had arisen”.263 The Mayne-Nicholls case concerns a typical situation, the evaluation of a bid for the organization of the FIFA World Cup, in which FIFA administrators have faced allegations of conflicts of interest (or bribery) in the past. Those involved in the process of evaluation of bids to organize mega-sporting events are always exposed to external pressure and influence, but also at risk of being tempted to use the personal connections they make in this context for private purposes (be they commercial or not). This award stresses the responsibility of officials to resist engaging in any type of (undisclosed) private arrangements with individuals and organizations involved in a bidding process, even for minor benefits/favours. 3.4.5

The CAS and the Misappropriation of Funds

The governance of football is increasingly synonymous with the management of considerable financial flows. FIFA itself disposes of comfortable revenues, of which it redistributes an important share to its member associations through a variety of development funds. These financial resources are evidently at risk of being diverted

258 259 260 261 262 263

Ibid., para 199. Ibid. Ibid. Ibid. Ibid. Ibid., para 200.

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by officials for their own benefit, which is the type of situation that Article 28 FCE264 is meant to tackle. This provision was introduced in the FCE in 2019 and was discussed at the CAS for the first time in the recent Goc Alei case.265 The case concerned the misuse by the former President of the South Sudan Football Association (SSFA) of the funds received by the SSFA through FIFA’s Financial Assistance Programme (FAP) and GOAL Programme. The Appellant was shown to have used a variety of strategies to appropriate the funds for his own benefit.266 In particular, he had ordered bank transfers to external bank accounts, without being able to provide documents or explanations to justify these transfers. In this regard, the Panel stressed that “the accounts do not necessarily have to be owned or linked to him”.267 The SSFA also withdrew parts of the funds through a company owned by him, which applied extremely unfavourable exchange rates,268 and made numerous payments to entities and persons connected to him without the approval of the SSFA Executive Committee.269 Furthermore, the Appellant also benefitted from unspecified loans, which were not approved by SSFA Executive Committee.270 Finally, the GOAL Project funded by FIFA was “devised to direct payments from the SSFA to a private company which the Appellant owned in partnership with his brother”.271 The wealth of evidence presented by FIFA to the CAS Panel and the absence of “corroborative evidence” supporting the denegation of the Appellant led the Panel to conclude to the violation of Article 28 FCE 2018. This award contributes to reinforcing the capacity of FIFA to sanction the misuse of its funds throughout the football pyramid. In practice, it endorses an obligation of diligent management of FIFA funds for officials of national associations.

264

Article 28 FCE provides: 1. Persons bound by this Code shall not misappropriate or misuse funds of FIFA, the confederations, associations, leagues or clubs, whether directly or indirectly through, or in conjunction with, third parties. 2. Persons bound by this Code shall refrain from any activity or behaviour that might give rise to the appearance or suspicion of a breach of this article. 3. Violation of this article shall be sanctioned with an appropriate fine of at least CHF 100,000 as well as a ban on taking part in any football-related activity for a minimum of five years. The amount of misappropriated funds shall be included in the calculation of the fine. The sanction shall be increased accordingly where the person holds a high position in football, as well as in relation to the relevance and amount of the funds concerned or of the advantage received. 265 CAS 2019/A/6326 Chabour Goc Alei v. FIFA, Award of 16 July 2020, paras 196–222. 266 Ibid., paras 200–202. 267 Ibid., para 202. 268 Ibid., para 204. 269 Ibid., paras 205–210. 270 Ibid., paras 211–213. 271 Ibid., para 215.

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The CAS and the Determination of Sanctions Under the FCE

The final dimension of the CAS jurisprudence on the FCE deserving of close scrutiny concerns the determination of sanctions under the FCE. The most potent sanction that FIFA (and consequently the CAS) can impose onto individuals in breach of the FCE is a football ban. Such a sanction can be portrayed as the functional equivalent of a prison sentence in criminal law, as its aim is to exclude an individual from the social space of organized football. While it does not entail a physical isolation in a specific institution, it implies that the individual will be excluded from engaging (professionally or not) in football-related activities affiliated to FIFA and its members. Determining the length of such a ban has, thus, considerable effects on the individuals involved and their personal and professional well-being. Accordingly, the CAS has in its jurisprudence on FCE cases started to develop specific arguments in order to determine when a ban is proportionate or not. In particular, the CAS has had to determine what level of scrutiny it would exercise over these sanctions, the aggravating and mitigating circumstances that ought to be taken into account in assessing the proportionality of these sanctions, and the length of the bans and amounts of the fine to be imposed. 3.5.1

Discretion of CAS Panels to Review the Sanctions Imposed by FIFA

The first preliminary issue to be decided by CAS panels was related to the extent of the scrutiny exercised by the CAS over the sanctions issued by FIFA bodies on the basis of the FCE. In this regard, the CAS panel in the Blatter case referred to the constant jurisprudence of CAS recognizing “a limited discretion for CAS panels to review sanctions imposed by disciplinary bodies of federations when such panels make similar findings as in the decision appealed against”.272 Accordingly, it considered that the CAS should exercise this discretion only “when the sanction is evidently and grossly disproportionate to the offence”.273 In practice, this means that a CAS Panel must check whether FIFA bodies “took into account all relevant circumstances”, and if they did, it shall “demonstrate a certain degree of deference to the decision- making bodies of FIFA in imposing an appropriate sanction”.274

272

CAS 2016/A/4501 Joseph S. Blatter v. FIFA, Award of 5 December 2016, para 313. Ibid., citing CAS 2009/A/1817 WADA & FIFA v. CFA, C. Marques et al. and CAS 2009/A/ 1844 FIFA v. CFA & E. Eranosian, Award of 26 October 2010, para 174. For a similar view, see CAS 2017/A/5003 70 Jérôme Valcke v. FIFA, Award of 27 July 2018, para 274, CAS 2017/A/ 5086 Mong Joon Chung v. FIFA, Award of 9 February 2018, para 206 and CAS 2019/A/6665 Ricardo Terra Teixeira v. FIFA, para 157. 274 CAS 2016/A/4501 Joseph S. Blatter v. FIFA, Award of 5 December 2016, para 314. 273

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This view, however, is not universally shared. For example, in the Platini case, the CAS Panel acknowledged the existence of the CAS jurisprudence restricting the review of sanctions to instances in which they are evidently and grossly disproportionate, but at the same time stressed that other awards recognized that CAS Panels can review de novo not only the facts and the law, but also determine independently the sanction.275 In Nyantakyi, the Panel insisted that a “self-imposed restriction” of CAS’s power to review de novo the sanction imposed would “contradict the clear language of Article 57 of the CAS Code and arguably weaken the curative power of CAS decisions in regard to any procedural inadequacies”.276 In sum, the CAS panels seem to reject both a systematic interventionism as well as an absolute deference to FIFA. In practice, as we will see, it is not unusual for CAS panels to engage in a detailed review of the proportionality of the sanctions imposed. 3.5.2

How the CAS Assesses the Proportionality of the Sanction

In assessing whether sanctions are proportionate, CAS arbitrators have mostly looked at the existence of aggravating and mitigating circumstances, thus developing an interesting case law identifying specific types of situations corresponding to each of these.

The CAS and Aggravating Circumstances The Nature of the Wrongful Behaviour In the Adamu and Fusimalohi cases, both CAS Panels stressed that certain kinds of behaviour such as match-fixing, money-laundering, kickbacks, extortion, bribery are a “growing concern in many major sports” and that the “conduct of economic and business affairs related to sporting events requires the observance of certain “rules of the game” for the related activities to proceed in an orderly fashion”.277 The Panel considered, therefore, “essential for sporting regulators to demonstrate no tolerance against all kinds of corruption and to impose sanctions sufficient to serve as an effective deterrent to people who might otherwise be tempted, because of their

275 TAS 2016/A/4474 Michel Platini c. FIFA, para 357, referring to CAS 2013/A/3256 Fenerbahçe Sport Kulübü v. UEFA, Award of 11 April 2014, para 573. 276 CAS 2018/A/6072 Kwesi Nyantakyi v. FIFA, Award of 9 April 2020, para 56. 277 CAS 2011/A/2426 Amos Adamu v. FIFA, Award of 24 February 2012, para 152 and CAS 2011/A/2425 Ahongalu Fusimalohi v. FIFA, Award of 8 March 2012, para 117.

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greed, to consider adopting improper conducts for their personal or political gain”.278 Hence in both cases, the Panel concluded that the sanctions imposed were not disproportionate, but “might even be deemed a relatively mild sanction given the seriousness of the offence”.279 This focus on the nature and the intensity of the violation is also present in the more recent Texeira award, where the arbitrators emphasized “the extraordinarily high amounts of the bribes at stake”280 to confirm the lifelong ban of the Appellant, as well as in the Manilal Fernando case in which the arbitrators stated that “a finding of bribery presumptively attracts the maximum sanction”, as “if one is involved in bribery then one may expect to exile from the sport”.281 The Enhanced Responsibility of High-ranking Officials The CAS has also regularly emphasized the heightened responsibility of high-ranked FIFA officials. This has been a recurring theme of CAS panels since the first awards dealing with the FCE.282 For example, in the Adamu case, the arbitrators stressed that the Appellant’s “behaviour is particularly reprehensible given his position as a member of the FIFA Executive Committee, the President of the West African Football Union, and even the Chairman of the CAF Ethics Committee”.283 Especially, because in this capacity, he “could not ignore the unethical and unlawful nature of the journalists’ approach”.284 Moreover, “he had a special responsibility to comply with ethical standards and to serve as a role model, both at Confederation and at FIFA level”.285 In the Blatter case, the Panel underlined that “Mr. Blatter as FIFA President was the top person in the world of football” and, therefore, that the “standard of ethical conduct required under the

278

Ibid. Ibid. 280 CAS 2019/A/6665 Ricardo Terra Teixeira v. FIFA, para 158. 281 CAS 2014/A/3537 Vernon Manilal Fernando v. FIFA, Award of 30 March 2015, para 104. 282 CAS 2011/A/2426 Amos Adamu v. FIFA, Award of 24 February 2012, para 157; CAS 2016/ A/4501 Joseph S. Blatter v. FIFA, Award of 5 December 2016, para 316; TAS 2016/A/4474 Michel Platini c. FIFA, para 359; CAS 2017/A/5086 Mong Joon Chung v. FIFA, Award of 9 February 2018, para 219; CAS 2017/A/5006 Harold Mayne-Nicholls v. FIFA, Award of 14 July 2017, para 213; CAS 2019/A/6665 Ricardo Terra Teixeira v. FIFA, para 158. 283 CAS 2011/A/2426 Amos Adamu v. FIFA, Award of 24 February 2012, para 157. See as well in CAS 2011/A/2425 Ahongalu Fusimalohi v. FIFA, Award of 8 March 2012, para 121 [‘The Appellant’s behaviour is particularly reprehensible given his position as a member of the OFC Executive Committee and of the FIFA Olympic Tournaments Committee, and even as a public figure politically involved at national level. Whilst holding those positions and necessarily being familiar with the FCE, the Appellant could not have ignored the unethical and unlawful nature of the Franklin Jones lobbyists’ approach. In fact, in light of his responsibilities within FIFA and OFC, he had an ethical duty to act responsibly, to comply with ethical standards and to be a role model.’]. 284 CAS 2011/A/2426 Amos Adamu v. FIFA, Award of 24 February 2012, para 157. 285 Ibid. 279

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FCE should be and should be seen to be applied to the FIFA President as rigorously as if not more [sic] rigorously than that applied to anyone else bound by the FCE”.286 In other words, the FIFA President bears a “special responsibility”, which “must be taken into account when the FIFA President himself violates the FCE”.287 Similarly, in the Platini case, the Panel considered it an aggravating factor that the Appellant had occupied a very high rank at FIFA and UEFA and that he, therefore, had an enhanced duty to respect the internal rules of both organisations.288 Likewise, in the Mayne-Nicholls case, the Panel pointed out that the Appellant “held one of the most significant positions in the FIFA hierarchy” and, therefore, “was responsible for carrying out important and sensitive functions on behalf of FIFA”.289 Consequently, “any failure by the Appellant to comply with the ethical standards contained in the FCE was likely to have a significant adverse impact on FIFA’s reputation, standing and interests”.290 In sum, FIFA top officials have a “responsibility to serve as role model”.291 If they fail to abide by this responsibility, such failure constitutes an aggravating circumstance to be taken into account in the determination of the sanction. The Repeated Nature of the Wrongful Behaviour Another type of situation which ought to lead to a harsher sanction in the eyes of CAS panels is that of a recidivist or repeat offender. For example, in Mayne-Nicholls the Panel stressed that the violations “were not committed on a one-off or inadvertent basis”.292 Instead, Mayne-Nicholls “deliberately pursued a course of conduct over several weeks without regard to his important ethical obligations under the FCE”.293 Furthermore, he “persisted in his attempts to secure private benefits from Aspire [the Qatari training centre] and only ceased doing so when Mr. Bleicher [his contact inside the Qatari bidding team] asked to defer further discussion of the Appellant’s requests until a later date in order to avoid “incorrect interpretations”.294 The Panel in the Makudi case also singled out a previous warning by the FIFA Investigatory Chambers as an aggravating circumstance.295

286

CAS 2016/A/4501 Joseph S. Blatter v. FIFA, Award of 5 December 2016, para 316. Ibid. 288 TAS 2016/A/4474 Michel Platini c. FIFA, para 359 [‘En revanche, la Formation considère comme facteurs aggravants le fait que M. Platini a exercé des fonctions très élevées tant à la FIFA qu’à l’UEFA et qu’il avait donc un devoir accru de respecter les règles internes de ces organisations.’]. 289 CAS 2017/A/5006 Harold Mayne-Nicholls v. FIFA, Award of 14 July 2017, para 213. 290 Ibid. 291 CAS 2019/A/6665 Ricardo Terra Teixeira v. FIFA, para 158. 292 CAS 2017/A/5006 Harold Mayne-Nicholls v. FIFA, Award of 14 July 2017, para 213. 293 Ibid. 294 Ibid. 295 CAS 2018/A/5769 Worawi Makudi v. FIFA, Award of 11 February 2019, para 146. 287

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The Context of the Wrongful Behaviour CAS panels have also considered the context of the violation committed as an aggravating circumstance. Arbitrators have, for example, stressed the importance of the FIFA World Cup and held that “the highest standards of behaviour must be demanded of all the people involved, in particular of members of the FIFA Executive Committee, whose role includes deciding the place and dates of the final competition of FIFA”.296 This was so in particular because “the allegation related to the manipulation of the voting process regarding the FIFA World Cup selection tarnished the reputation of the entire FIFA organization”.297 Analogously, in the Mayne-Nicholls case, the Panel stressed that the Appellant “made improper requests to obtain a private benefit at a particularly sensitive stage of the World Cup bidding process”.298 In Chung, the Panel noted the “sensitive situation”299 in which the Appellant was both a member of the body selecting the 2022 FIFA World Cup host and the honorary president of an association bidding for that same World Cup. The Damage Caused to FIFA Finally, Panels have also taken into account the intensity of the harm caused to FIFA in the evaluation of the proportionality of the sanction. The gravity of the violations increases when they “were liable to cause severe harm to FIFA and had the potential to jeopardise the fairness, transparency and probity of the entire World Cup bidding process”,300 or when they are deemed to damage the image of the FIFA World Cup and of the sport of football in general.301 In conclusion, the case law of the CAS on the implementation of the FCE demarcates a set of circumstances amounting to aggravating factors. The examples discussed here are certainly not an exclusive or definitive list. Instead, CAS panels seem to regularly discover such circumstances on case-by-case basis.

CAS Jurisprudence and Mitigating Circumstances The Prior Record of the Official and His Reputation The first, recurrent, circumstance that is invoked as a mitigating factor in favour of the accused is their own record as football officials. Paradigmatically, in the Platini case the Panel emphasized as mitigating circumstances that Platini had no prior

296

CAS 2011/A/2426 Amos Adamu v. FIFA, Award of 24 February 2012, para 158 and CAS 2011/A/2425 Ahongalu Fusimalohi v. FIFA, Award of 8 March 2012, para 122. 297 Ibid. 298 CAS 2017/A/5006 Harold Mayne-Nicholls v. FIFA, Award of 14 July 2017, para 213. 299 CAS 2017/A/5086 Mong Joon Chung v. FIFA, Award of 9 February 2018, para 219. 300 CAS 2017/A/5006 Harold Mayne-Nicholls v. FIFA, Award of 14 July 2017, para 213. 301 CAS 2017/A/5086 Mong Joon Chung v. FIFA, Award of 9 February 2018, para 219.

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antecedents and had rendered considerable services to FIFA along the years.302 Analogically, in the Mayne-Nicholls case, the Panel considered that the Appellant “had a long and distinguished career in the sport of football” and that he “contributed significantly to the development and promotion of the sport around the world”, stressing that it was “the first occasion during the course of that career that here [sic] the Appellant has been convicted of any ethical violation”.303 In the Guzman case, the Panel took into account “that the Appellant has a 20-year trajectory, showing interest and actions to improve football in his Country”.304 Beyond the service of an official to the football community, the CAS Panel in Chung also considered the Appellant’s “high standing in his national community”305 as a mitigating factor. Nevertheless, as highlighted by the Adamu and Valcke case, the severity of the misconducts might outweigh any consideration of commendable services to football delivered by the FIFA official and a clean record is not a trump card to obtain a reduction of the sanction issued by the Ethics Committee.306 Confession and Contrition The second type of mitigating circumstances concerns the repentance shown by the accused and his public acknowledgment of the wrongdoing.307 However, such a mitigating circumstance is not fulfilled when the individual, such as in the Adamu case, expresses “regrets for the bad publicity and damage caused to FIFA’s image by the coverage of his meeting with the journalists”, but “constantly denied any wrongdoing, let alone the violation of any provision of the FCE”.308 In Nyantakyi, the Panel considered that the Appellant’s admission of guilt came too late in the day, as the “late admission, made at the last moment possible, saved little by the way of time and costs in this case, other than by reducing the length of the hearing and the time spent by the Panel in drafting the Award, based on the fact that the sole remaining issue to be decided was the Proportionality Issue”.309 The Panel emphasized in particular that the Appellant had “had ample opportunity to admit the offences and accept responsibility for his actions” and instead “created an elaborate

302

TAS 2016/A/4474 Michel Platini c. FIFA, para 358 [‘Comme l’a retenu la Décision entreprise, en l’espèce, les circonstances atténuantes sont le fait que M. Platini n’avait aucun antécédant, qu’il avait rendu des services considérables à la FIFA, à l’UEFA et au football durant de nombreuses années […]’]. 303 CAS 2017/A/5006 Harold Mayne-Nicholls v. FIFA, Award of 14 July 2017, para 214. 304 CAS 2018/A/6038 Osiris Guzmán v. FIFA, Award of 23 September 2019, para 130. 305 CAS 2017/A/5086 Mong Joon Chung v. FIFA, Award of 9 February 2018, para 220. 306 CAS 2011/A/2426 Amos Adamu v. FIFA, Award of 24 February 2012, paras 162–163 and CAS 2017/A/5003 Jérôme Valcke v. FIFA, Award of 27 July 2018, para 286. 307 When no regrets are shown, it is expressly mentioned as a sign of the absence of mitigating factors, see CAS 2011/A/2425 Ahongalu Fusimalohi v. FIFA, Award of 8 March 2012, para 126 and TAS 2016/A/4474 Michel Platini c. FIFA, para 358. 308 CAS 2011/A/2426 Amos Adamu v. FIFA, Award of 24 February 2012, para 162. 309 CAS 2018/A/6072 Kwesi Nyantakyi v. FIFA, Award of 9 April 2020, para 73.

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story involving his email account being hacked denying his interest in the company which was to act as agent in the proposed scheme and claiming that the money which he did receive in the form of a bribe was intended instead as repayment of travel expenses”.310 Hence, contrition must not only be real, it must also be timely. Contrariwise, the Panel of the Mayne-Nicholls case considered that the “Appellant [felt] sincere remorse for his serious errors of professional judgement”, because he “acknowledged that he had made a major mistake by communicating with Mr. Bleicher in the way that he did” and “expressed genuine contrition and regret in respect of his actions”.311 Cooperation with FIFA and the CAS Another mitigating factor recognized by CAS panels concerns the good faith cooperation of the accused with the FIFA bodies and the CAS. Thus, the arbitrators in the Platini case acknowledged that he cooperated during the procedure by spontaneously producing evidence and witnesses, as well as by providing detailed explanations.312 Analogically, in the Mayne-Nicholls case, the Panel was “satisfied that the Appellant has provided an honest account of events since the inception of the Ethics Committee’s investigation and has cooperated in a prompt and proper manner throughout the investigation and subsequent disciplinary proceedings”.313 In Makudi, the Panel stressed that the Appellant had “collaborated and corresponded with the Investigatory Chamber in a timely fashion” and “generally timely complied with […] short time limits”.314 Contrariwise, in Goc Alei the CAS held that the Appellant’s claim of having cooperated is “undermined by the cavalier attitude of the Appellant during the previous and the present proceeding, notably, as to the latter, that he never received his visas in time due to his own fault and that his assistance at the hearing was nugatory”.315 The overall aim of this focus on collaboration is anew to incentivize parties to engage in good faith with FIFA’s investigation, and as such it is an embodiment of the specificity of disciplinary procedures in the sporting context, given that this criterion veers away from criminal law’s recognition of the fundamental right of the accused to stay silent. The Lack of Administrative Diligence of FIFA The last mitigating factor highlighted in the CAS jurisprudence concerns the diligence of FIFA bodies in conducting the investigatory and adjudicatory proceedings

310 311 312 313 314 315

CAS 2018/A/6072 Kwesi Nyantakyi v. FIFA, Award of 9 April 2020, para 73. CAS 2017/A/5006 Harold Mayne-Nicholls v. FIFA, Award of 14 July 2017, para 214. TAS 2016/A/4474 Michel Platini c. FIFA, para 358. CAS 2017/A/5006 Harold Mayne-Nicholls v. FIFA, Award of 14 July 2017, para 214. CAS 2018/A/5769 Worawi Makudi v. FIFA, Award of 11 February 2019, para 141. CAS 2019/A/6326 Chabour Goc Alei v. FIFA, Award of 16 July 2020, para 250.

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that led to the sanction. In Platini, the Panel referred to the belatedness of the investigation (which started in 2015 even though FIFA had been made aware of the payment in 2011), as a mitigating circumstance.316 Analogously, in the Makudi case, the arbitrators emphasised that “the FIFA Ethics Committee itself can also not be said to have acted expeditiously with Mr. Makudi’s case”.317 Indeed, FIFA’s release of the grounds for the decision of the Adjudicatory Chamber almost 10 months after it was issued was said to have put “Mr. Makudi’s delay [in providing requested information to FIFA] of 26 days in perspective”.318 3.5.3

The CAS and the Role of Precedents in the Evaluation of the Proportionality of Sanctions Under the FCE

CAS Panels are often reminding that the CAS does not operate with a doctrine of precedent or stare decisis and that “since no one case is the same as the other, a read across from one sanction to another is not possible”.319 Yet, in a slightly inconsistent argumentative step, they also regularly compare the case at hand with prior cases in order to evaluate the proportionality of the sanction. Quite logically, with a growing set of past decisions on the implementation of the FCE available to them, CAS panels are increasingly tempted to engage at length in such a comparative exercise aimed at distinguishing and analogizing between cases. In the words of the Nyantakyi award, CAS panels are taking “note of the decisions in previous cases which involved broadly similar circumstances, in order to aid [them] in determining whether the sanction in the Appealed Decision is proportionate in all the circumstances”.320 Such a comparative exercise was used for the first time in the Mayne-Nicholls award, where the Panel did not consider that the breaches committed by the accused were “of the same magnitude as the ethical violations that have led to the imposition of bans of three or four years’ duration in other recent cases concerning senior FIFA officials” and, therefore, that the three-year ban imposed by FIFA was disproportionate.321 Similarly, in Chung the CAS considered that “the imposed sanction of a five-year ban and CHF 50,000 is grossly and evidently disproportionate”,322 mainly because it compared unfavourably with the precedents of the CAS.323 As the Panel put it, the “Appellant’s acts of misconduct, while requiring some sanction, certainly constitute as a whole a lesser offense in comparison to the infringements committed

316 317 318 319 320 321 322 323

TAS 2016/A/4474 Michel Platini c. FIFA, para 358. CAS 2018/A/5769 Worawi Makudi v. FIFA, Award of 11 February 2019, para 143. Ibid., para 141. CAS 2019/A/6326 Chabour Goc Alei v. FIFA, Award of 16 July 2020, para 249. CAS 2018/A/6072 Kwesi Nyantakyi v. FIFA, Award of 9 April 2020, para 60. CAS 2017/A/5006 Harold Mayne-Nicholls v. FIFA, Award of 14 July 2017, para 215. CAS 2017/A/5086 Mong Joon Chung v. FIFA, Award of 9 February 2018, para 211. Ibid., paras 213–218.

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by Messrs. Blatter, Platini, Adamu, Fusimalohi, Diakite and Temarii and, accordingly, [are] deserving of a lesser sanction than the ban ranging from two (considered by the relevant CAS panels as “mild”) to six years imposed on them”.324 In Nyantakyi, the CAS Panel considered it “striking that the bans in both these above-cited cases [Adamu and Fusimalohi] are significantly shorter than the one contained in the Appealed Decision, despite some overarching similarities”.325 The Panel then held that this fact “len[t] considerable weight to the Appellant’s argument that the sanction in the present case is disproportionate”.326 Finally, in Goc Alei, the arbitrators argued at length about the differences and similarities of the case with prior decisions.327 3.5.4

The CAS and the Evaluation of Fines Under the FCE

Finally, the FCE also provides for the issuance of fines, which are quite evidently relevant in the context of officials having received considerable financial benefits from their wrongful behaviour. The appropriateness of a fine in this context has been linked in the Valcke award to the underlying “financial motives”328 of the wrongdoer. Yet, even though the financial motives of particular violations were undeniable, CAS panels have at times been rather reluctant to impose substantial fines onto the accused. In the Platini case, for example, the arbitrators emphasized the fact that Platini was economically substantially affected by the ban on football-related activities to justify reducing his fine to (only) CHF 60,000, while he had benefitted from an undue gift of CHF 2 million.329 In the more recent Goc Alei case, however, the CAS Panel stated that the fine’s purpose was “to reclaim the benefit which was obtained by the Appellant through his behaviour and as a deterrent to other individuals against this form of misconduct”.330 Similarly in Nyantakyi, the CAS held that the “sanction imposed should not only recoup the amount acquired by the Appellant through his illicit conduct, but also set a deterrent to such conduct through inclusion of a further pecuniary sanction”.331 In the latter case, the Panel therefore decided to reduce the fine because “it bears no perceptible relation to the figure of USD 65,000 which was the 324

Ibid., para 221. CAS 2018/A/6072 Kwesi Nyantakyi v. FIFA, Award of 9 April 2020, para 66. 326 Ibid. 327 The case was extensively compared to CAS 2011/A/2426 Amos Adamu v. FIFA, Award of 24 February 2012; TAS 2011/A/2433 Amadou Diakite c. FIFA, Award of 8 March 2012; TAS 2016/ A/4474 Michel Platini c. FIFA; CAS 2016/A/4501 Joseph S. Blatter v. FIFA, Award of 5 December 2016, and CAS 2017/A/5003 Jérôme Valcke v. FIFA, Award of 27 July 2018, see CAS 2019/A/6326 Chabour Goc Alei v. FIFA, Award of 16 July 2020, paras 229–241. 328 CAS 2017/A/5003 Jérôme Valcke v. FIFA, Award of 27 July 2018, para 287. 329 TAS 2016/A/4474 Michel Platini c. FIFA, para 368. 330 CAS 2019/A/6326 Chabour Goc Alei v. FIFA, Award of 16 July 2020, para 262. 331 CAS 2018/A/6072 Kwesi Nyantakyi v. FIFA, Award of 9 April 2020, para 90. 325

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amount established on the facts to have been obtained by the Appellant through his participation in the scheme”.332 Thus, it seems that the CAS is increasingly recognizing the need for a fine to be commensurate to the benefit received. Finally, a CAS Panel was willing to annul a fine on the basis “that delays of the magnitude displayed by FIFA in dealing with this sensitive case are not acceptable”.333 Especially because “FIFA’s delays caused the Appellant to have to serve a longer suspension than was ultimately imposed”, thus it would be “unconscionable that FIFA itself should gain any amount of money as a result of this case”.334

4 Conclusion This chapter has discussed the growing jurisprudence of the CAS in cases related to FIFA’s enforcement of the FCE against football officials. Since its first (publicly available) award on the subject in 2012, the CAS has increasingly been involved in reviewing the decisions taken by FIFA bodies in this context. CAS panels have shown a willingness to facilitate, through a variety of fundamental interpretative decisions, the operation of FIFA’s Ethics Committee, in particular in its investigative functions. The approaches taken in CAS awards to the duty of cooperation of officials, to the question of the applicable law or to evidentiary matters are all reflective of the CAS panels’ shared inclination to facilitate the work of the Ethics Committee. By doing so, arbitrators are going against fundamental principles of criminal law protecting the rights of defence of the accused, which is explicitly justified by reference to the limited capacity that FIFA would otherwise have to police its officials. In other words, while functionally FIFA might be engaged in the equivalent of a criminal prosecution, it does not dispose of the public authority necessary to effectively pursue its investigations without the forced cooperation of the accused and must, therefore, not be held to legal standards applicable in the context of criminal processes. In fact, many of the cases discussed have come to light thanks to the media or public prosecutions by national authorities and, ultimately, FIFA has had to rely on the evidence gathered by them to complete its disciplinary processes. In sum, the CAS has played an important role in anchoring FIFA’s implementation of the FCE in a grey zone between criminal and civil process. This chapter also reviews the emerging jurisprudence of the CAS with regard to the interpretation of a variety of substantive provisions of the FCE. It highlights the lack of a stable, coherent and systematic approach to similar violations, with Panels emphasizing different tests or conditions in assessing whether different versions or

332 333 334

Ibid., para 91. CAS 2017/A/5086 Mong Joon Chung v. FIFA, Award of 9 February 2018, para 224. Ibid.

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iterations of a particular provision were violated. Nevertheless, the existing case law will provide interesting insights on the types of behaviour that fall under the respective provisions of the FCE. Remarkably, there are very few instances in which CAS panels have overturned FIFA decisions concluding to the existence of a violation. Yet, with regard to the proportionality of sanctions, CAS panels have been more willing to review the length of bans and the amounts of the fines imposed. More specifically, this article has shown that CAS panels have progressively identified sets of mitigating and aggravating circumstances, which are evolving on a case-by-case basis. Moreover, in recent awards, CAS panels have increasingly based their assessment of the proportionality of a sanction on comparisons with previous awards rendered by the CAS. Finally, the fast-growing caseload of the CAS involving the enforcement of the FCE does not necessarily imply that FIFA is impartially and effectively enforcing its ethical rules.335 In fact, it has been argued that the FCE is being weaponized for political purposes by the current FIFA leadership.336 The FIFA Ethics Committee still works like a black box and it is difficult to understand why certain investigations are pursued and others abandoned.337 Coupled with the doubtful independence of the Ethics Committee, exemplified by FIFA’s recent purging of some of its members,338 it nuances the hopes that might have been placed in FIFA being able to rein by itself the turpitudes of football officials. Instead, it will likely take time, fresh scandals and further institutional innovations to ensure that the Ethics Committee becomes a true counter-power inside FIFA,339 with the capacity to initiate and conduct independent investigations against FIFA power-holders, and not just be the incarnation of a “Potemkin style, “good-looking corporate governance””.340 Acknowledgment I would like to thank my intern Pedro Mercado for the invaluable help in editing this chapter.

335

For a more optimistic reading of these developments, see Casini (2021). Paul Nicholson, Bility lays bare FIFA’s ‘weaponized’ and politicised Ethics process in open letter to Council, Inside World Football, 14 June 2022, https://www.insideworldfootball.com/ 2019/07/31/bility-lays-bare-fifas-weaponized-politicised-ethics-process-open-letter-council/. Accessed 1 July 2022. 337 For example, it remains unclear why investigations against the FIFA President, Gianni Infantino, were discontinued, see Tariq Panja, FIFA President Gianni Infantino Faces New Ethics Complaint, New York Times, 13 September 2017. https://www.nytimes.com/2017/09/13/sports/ soccer/fifa-gianni-infantino-ethics-complaint.html. Accessed 1 July 2022. 338 For a critical ‘view from the trenches’, see Maduro and Weiler (2021), pp. 129–136. 339 For concrete reform proposals, see Pielke (2014), Pieth (2011). 340 Bean (2017). 336

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References Bayle E (2020) “FIFA-gate”: an opportunity to clean up international sports governance. Soccer & Society, 21:622–623. Bayle E, Rayner H (2018) Sociology of a scandal: the emergence of ‘FIFAgate’. Soccer & Society, 19:593–611. Bean BW (2017) The Perfect Crime? FIFA and the Absence of Accountability in Switzerland. Maryland Journal of International Law 32:68–133. Blake H, Calvert J (2015) The Ugly Game: The Corruption of FIFA and the Qatari Plot to Buy the World Cup. Scribner, New York. Casini L (2021) Ethics in International Sporting Institutions. In: Vasconcelos Vilaça G, Varaki M (eds) Ethical Leadership in International Organizations: Concepts, Narratives, Judgment, and Assessment. Cambridge University Press, pp. 160–175. Chappelet JL (2011) Towards better Olympic accountability. Sport in Society: Cultures, Commerce, Media, Politics 14:319–331. Conn D (2017) The Fall of the House of FIFA: The Multimillion-Dollar Corruption at the Heart of Global Soccer. Bold Type Books. Eisenberg C (2006) FIFA 1975-2000: the Business of a Football Development Organisation. Historical Social Research 31:55–68. EJIL (2019) Editorial: FIFA—The Beautiful Game—The Ugly Organization. European Journal of International Law 30 (Issue 3). Gill S, Adelus E, de Abreu Duarte F (2019) Whose Game? FIFA, Corruption and the Challenge of Global Governance. EJIL 30:1041–1066. Heaston WR, Mitchell MC, Kappen JA (2020) Institutional Reflections on Organizational Corruption Control: The Case of FIFA. Global Governance 26:403–427. Hough D, Heaston W R (2018) The Art of Missing the Point: FIFA and the Control of Corruption. In: Kubbe I, Engelbert A (eds) Corruption and Norms. Political Corruption and Governance, pp. 329–347. Jennings A (2006) Foul!: The Secret World of FIFA: Bribes, Vote Rigging and Ticket Scandals. HarperSport. Jennings A (2016) The Dirty Game: Uncovering the Scandal at FIFA. Century, London Maduro M, Weiler JHH (2021) ‘Integrity’, ‘independence’ and the internal reform of FIFA: A view from the trenches. In: Geeraert A, van Eekeren F (eds) Good governance in sport: critical reflections. Routledge, London, pp. 129–136. Mark P (2018) Sports Governing Bodies. In: Heimann F, Pieth M (eds) Confronting corruption: past concerns, present challenges, and future strategies. Oxford University Press. Pielke R (2014) An Evaluation of the FIFA Governance Reform Process of 2011–2013. In: Frawley S, Adair D (eds) Managing the Football World Cup. Palgrave Macmillan, London, pp. 197–221. Pieth P (2011) Reforming FIFA; Transparency International, Safe Hands: Building Integrity and Transparency at FIFA. TI, Berlin. Sugden J, Tomlinson A (2017) Football, Corruption and Lies: Revisiting ‘Badfellas’, the Book FIFA Tried to Ban. Routledge, New York. Tomlinson A (2014) The supreme leader sails on: leadership, ethics and governance in FIFA. Sport in Society: Cultures, Commerce, Media, Politics, 17:1155–1169. Zakus DH, Skinner J (2008) Modelling Organizational Change in the International Olympic Committee. European Sport Management 8:421–442.

The Surrogate Regulatory Role of CAS Panels: Financial Fair Play at the Court of Arbitration for Sport Christopher A. Flanagan

Contents 1 2

Introduction.......................................................................................................................... 62 AC Milan v. UEFA (CAS 2018/A/5808)............................................................................ 66 2.1 Background and the Parties’ Submissions................................................................. 66 2.2 The Panel’s Findings.................................................................................................. 71 2.3 Subsequent Consent Awards of CAS 2019/A/6083 AC Milan v. UEFA and CAS 2019/A/6261 AC Milan v. UEFA .............................................................................. 75 3 Galatasaray v. UEFA (CAS 2018/A/5957)........................................................................ 75 3.1 Background and the Parties’ Submissions................................................................. 75 4 PSG v. UEFA (CAS 2018/A/5937) .................................................................................... 79 4.1 Background and the Parties’ Submissions................................................................. 79 4.2 The Panel’s Findings.................................................................................................. 81 5 Rubin Kazan v. UEFA (CAS 2018/A/5977)....................................................................... 82 5.1 Background and the Parties’ Submissions................................................................. 82 5.2 The Panel’s Findings.................................................................................................. 87 6 Manchester City v. UEFA (CAS 2020/A/6785) ................................................................. 91 6.1 Background to the Case ............................................................................................. 91 6.2 Manchester City v. UEFA (CAS 2019/A/6298) ........................................................ 92 6.3 Manchester City v. UEFA (CAS 2020/A/6785)—The Adjudicatory Chamber’s Findings and Issues of Evidence................................................................................ 95 6.4 Manchester City v. UEFA (CAS 2020/A/6785)—The Panel’s Findings.................. 97 7 Conclusions and the Future of FFP .................................................................................... 106 References .................................................................................................................................. 110

C. A. Flanagan (&) Solicitor (England & Wales), Bath, UK e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2022 A. Duval and A. Rigozzi (Eds.), Yearbook of International Sports Arbitration 2018–2020 https://doi.org/10.1007/15757_2022_41

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1 Introduction If financial regulation should be boring,1 the implementation of a system of financial regulation into European football has been anything but. In commentary and in practice, UEFA’s Financial Fair Play initiative (‘FFP’) has polarised responses from the outset. Perhaps this is a result of what Weatherill describes as “the compatibility of FFP with EU law [being] on a knife-edge”.2 FFP was introduced into European football by way of amendment to UEFA’s Club Licensing Regulations (the ‘Regulations’).3 As Lindholm states, the rules “can only properly be understood in that context”.4 UEFA acts as competition organiser, commercial rights holder, and regulator, of elite level international club football in Europe, principally for the purposes of FFP through its senior men’s competitions, the Champions League, the Europa League, and the Europa Conference League (launched in the 2021/2022 season5). In order to compete in a UEFA competition, a club must satisfy UEFA’s licensing criteria. Club licensing is “primarily administered by the governing bodies in each UEFA national association”,6 although, as described in greater detail later in this chapter, responsibility for the monitoring of FFP compliance is devolved to a two chamber administrative and adjudicatory organ, the Club Financial Control Body (‘CFCB’). The overt objective of the Regulations is to improve the economic and financial capability of clubs, protect creditors, introduce discipline and rationality into football finance, encourage financial independence, encourage responsible spending, and protect the long-term viability and sustainability of the game (Article 2(2) of the Regulations). The central premise of FFP is comparatively simple: generally speaking, clubs must pay their creditors when their obligations fall due (the ‘overdue payables 1 Mervyn King, Governor of the Bank of England from 2003 to 2013, famously advocated for a ‘boring’ approach to monetary policy: “A transparent monetary policy reaction function means that the news should be in developments of the economy not in the announcements of decisions by the central bank […]. Hence a successful central bank should be boring—rather like a referee whose success is judged by how little his or her decisions intrude into the game itself.” Monetary Policy: Theory in Practice, address Given by Mervyn King, Deputy Governor, Bank of England, 7 January 2000. https://www.bankofengland.co.uk/-/media/boe/files/speech/2000/monetary-policytheory-in-practice.pdf. Accessed 21 May 2021. 2 Weatherill 2017, p. 278. 3 UEFA, Club Licensing and Financial Fair Play Regulations, 2018. https://documents.uefa.com/ v/u/MFxeqLNKelkYyh5JSafuhg. Accessed 21 May 2021. This contribution was written before the entry into force of the UEFA Club Licensing and Financial Sustainability Regulation, 2022 Edition, in which the Regulations were substantially amended. 4 Lindholm 2010, p. 192. 5 UEFA, UEFA Europa Conference: All you need to know, https://www.uefa.com/ uefaeuropaconferenceleague/news/0264-10fe90612aa3-37b2bc77f89e-1000–europa-conferenceleague-explained/. Accessed 1 March 2021. 6 UEFA, Financial Fair Play https://www.uefa.com/insideuefa/protecting-the-game/financial-fairplay/. Accessed 1 March 2021.

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requirement’) and they must not spend more than they earn over a rolling multi-year assessment period (the ‘break even requirement’). However, where the essential nature of the FFP rules may seem straight forward, “[t]heir detailed application is forbiddingly difficult”.7 Annex VII of the Regulations articulates in greater detail the notion of overdue payables, and Annex X contains the detailed application of the break-even requirement. Annex X of the Regulations includes detailed formulations on what is allowable as ‘relevant income’ and ‘relevant expenses’ for break-even FFP compliance purposes—including detail on the treatment of sponsorship and related party transactions.8 The overdue payables and break even requirements have been a critical pillar of the FFP regime throughout its existence. However, the Regulations and the administrative processes supporting the Regulations have undergone an iterative evolution during their time in force, “[i]n deference to the legal, economic, and political landscape”9 to which FFP is subject. That evolution has been important, with the escalation in complexity in financial regulation being mirrored by an increased sophistication in administrative and regulatory processes. However, as illuminated by the cases described below, the escalation in complexity of administrative and regulatory FFP processes has catalysed disputes. The first important development to the FFP regulatory framework came in the 2012 version of the Regulations, which saw the creation of the CFCB as a functionally independent10 UEFA Organ for the Administration of Justice, with the role of overseeing and enforcing FFP compliance. For the period covered by the cases described in this contribution, the two chambers of the CFCB were the Investigatory Chamber, led by the CFCB Chief Investigator, which was responsible for fact and evidence gathering in order to assess FFP compliance; and the Adjudicatory Chamber, which conducted enforcement proceedings and made sanctioning decisions in respect of the cases referred to it by the Investigatory Chamber. Article 53(1) of the Regulations stipulates that the CFCB shall carry out its duties in accordance with the Regulations, and in accordance with a supplemental set of rules, the Procedural Rules Governing the UEFA Club Financial Control Body (the ‘Procedural Rules’).11 Like the Regulations, the Procedural Rules have been amended iteratively during the lifetime of FFP as a regulatory initiative; however, the most recent version, the 2021 edition, brought about “the most

7

Weatherill 2017, p. 271. For an analysis, see Flanagan 2013. 9 Flanagan 2018a, p. 145. 10 Per Articles 6 and 7 of the Procedural Rules, the members of the CFCB are independent, and may not belong to any other UEFA organ, body, or committee; nor to any organ, body, committee or administrative division of a member association or affiliated league. 11 UEFA, Procedural Rules Governing the UEFA Club Financial Control Body, 2019. https:// documents.uefa.com/v/u/tiwZWPkjhpinhlndT5sc9A. Accessed 21 May 2021. 8

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significant update to the rules governing the CFCB since its inception”,12 which included renaming and redefining the responsibilities of the two CFCB chambers,13 as well as changing a number of other aspects of the FFP regulatory procedure in ways that address some of the challenges identified in the cases described in this chapter.14 The regulatory changes brought about through earlier changes to the Regulations and the Procedural Rules include crucial elements in the administration of FFP compliance: the introduction of ‘Settlement Agreements’ and ‘Voluntary Agreements’, each a form of negotiated path to compliance entered into between UEFA and a club, applying on an ex post and ex ante basis respectively. Voluntary Agreements allow clubs (in certain defined circumstances) to “deviate from the regulated break even obligations”15 provided that: they pro-actively engage the CFCB Investigatory Chamber; they can show in advance a path to compliance; and that a club owner or related party makes an ‘irrevocable commitment’ to cover projected losses. The rules and processes governing Voluntary Agreements are covered in a discrete section of the Regulations at Annex XIII. Settlement Agreements by contrast aim to bring clubs into FFP compliance in a consensual manner after an alleged breach. UEFA describes the “main objective of Settlement Agreements [as being] to ensure that clubs in breach of the break even requirement become break-even compliant within a certain time frame”.16 This can be conceptualised as “[r]edolent of the settlement procedures in many competition law or white collar crime regimes”.17 UEFA depicts this process as “designed to be

12 Christopher Flanagan, How Changes To UEFA’S 2021 Procedural Rules Fundamentally Affect Financial Fair Play, LawInSport, 28 September 2021. https://www.lawinsport.com/topics/item/ how-changes-to-uefa-s-2021-procedural-rules-fundamentally-affect-financial-fair-play. Accessed 5 March 2022. 13 The two chambers becoming the ‘First Chamber’ and the ‘Appeals Chamber’ respectively, with the First Chamber given a clearer adjudicative function than had the erstwhile Investigatory Chamber, in addition to its investigatory function (see Christopher Flanagan, LawInSport, 28 September 2021. https://www.lawinsport.com/topics/item/how-changes-to-uefa-s-2021procedural-rules-fundamentally-affect-financial-fair-play. Accessed 5 March 2022). 14 By codifying the working processes around the entry into ‘Voluntary Agreements’ and ‘Settlement Agreements’; amending the rules concerning information gathering and evidence; amending the applicable statute of limitations; and so on. For detailed analysis, see Flanagan, LawInSport, 28 September 2021. https://www.lawinsport.com/topics/item/how-changes-to-uefa-s2021-procedural-rules-fundamentally-affect-financial-fair-play. Accessed 5 March 2022. See also Dunbar and Middleton 2022. 15 Flanagan 2018a, p. 146. 16 UEFA Club Licensing and Financial Fair Play Bulletin 2019: Compliance and Investigation Activity Report 2017–19. https://www.uefa.com/MultimediaFiles/Download/uefaorg/ Clublicensing/02/63/75/26/2637526_DOWNLOAD.pdf, p. 44. Accessed 2 March 2021. 17 Christopher Flanagan, The Evolution of UEFA’s Financial Fair Play Rules—Part 3: Past Reforms and Uncertain Future, 4 October 2017. https://www.asser.nl/SportsLaw/Blog/post/theevolution-of-uefa-s-financial-fair-play-rules-part-3-past-reforms-and-uncertain-future-bychristopher-flanagan. Accessed 2 March 2021.

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effective, equitable, and dissuasive”.18 Settlement Agreements are integrated into the Regulations at Article 68, with their detailed procedural requirements set out in the Procedural Rules. These developments to the FFP regime—predominantly administrative and procedural in nature—are important for present purposes. Much of the discourse around FFP focused on the compatibility of the restrictions imposed by the break-even requirement with EU competition law, and to a lesser but nevertheless appreciable extent, EU law more generally.19 However, as early challenges to the legality per se of the FFP break even requirement failed,20 so the battle ground at the Court of Arbitration for Sport (‘CAS’) switched to the compliance by UEFA with its own complex procedural rules. This line of argumentation has proven more fruitful for clubs. Whereas a de novo review by a CAS Panel can cure procedural defects in more straightforward FFP cases,21 this exercise becomes more difficult in the more complicated cases described in this chapter, with the CAS panels required to act as a surrogate for complex regulator-regulated relationships. The cases described in this chapter form part of an extensive body of FFP cases appealed to the CAS covering both alleged breaches of the overdue payables requirements22 and of the break-even requirement.23 Some of these cases are important touchpoints for the story of FFP as a regulatory initiative—Málaga (CAS 2013/A/3067)24 as an early statement of UEFA’s enforcement intent, Galatasaray (CAS 2016/A/4692)25 as a failed attempt to establish the incompatibility of FFP with EU law (albeit only on the particular evidence brought). It is, however, likely to be the cases described in this chapter, demonstrating the friction between UEFA as regulator on one hand, and some of the most successful and commercially attractive clubs competing in the competitions it regulates on the other, for which FFP as a regulatory initiative may be remembered. As well as 18 UEFA, Club Licensing: 10 Years On…, 2015. https://www.uefa.com/uefaeuropaconference league/news/0264-10fe90612aa3-37b2bc77f89e-1000–europa-conference-league-explained/, p. 36. Accessed 2 March 2021. As given force by Articles 14(1)(b) and 15(1) of the Procedural Rules. 19 See Lindholm 2010; Flanagan 2013, 2018a; Bastianon 2015; Geey 2016; Serby 2016; Weatherill 2017. 20 For analysis as to the reasons why this may be, see Flanagan 2018b. 21 See for example CAS 2012/A/2821, Bursaspor Kulübü Dernegi v. UEFA, Award of 11 June 2015, a case relating to overdue payables. 22 See CAS 2012/A/2702, Györi ETO FC v. UEFA, Award of 8 May 2012; CAS 2012/A/2821, Bursaspor Kulübü Dernegi v. UEFA, Award of 10 July 2012; CAS 2012/A/2824, Beşiktaş JK v. UEFA, Award of 31 October 2012; CAS 2013/A/3067, Málaga CF SAD v. UEFA, Award of 8 October 2013; CAS 2013/A/3233, PAE Giannina 1966 v. UEFA, Award of 9 December 2013; CAS 2013/A/3453, FC Petrolul Ploiesti v. UEFA, Award of 20 February 2014; and CAS 2014/A/ 3533, Football Club Metallurg v. UEFA, Award of 9 September 2014. 23 See CAS 2016/A/4492, Galatasaray v. UEFA, Award of 3 October 2016; CAS 2016/A/4692, Kardemir Karabükspor Kulübü Dernegi v. UEFA, Award of 26 January 2017. 24 CAS 2013/A/3067, Málaga CF SAD v. UEFA, Award of 8 October 2013. 25 CAS 2016/A/4492, Galatasaray v. UEFA, Award of 3 October 2016.

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highlighting that abrasion, these cases also act as a window into the working mechanics of the regulatory processes employed by the CFCB, and into the complexity of the financial, commercial, and corporate arrangements of the modern superclub; demonstrating the challenges of enforcing broad regulatory objectives on the basis of finite substantive and procedural rules, and the role of the CAS in interpreting and shaping FFP accordingly.

2 AC Milan v. UEFA (CAS 2018/A/5808) 2.1

Background and the Parties’ Submissions

The case of AC Milan v. UEFA (2018)26 concerns one of Europe’s most storied and successful clubs27 and its exclusion from UEFA club competitions as a result of an alleged breach of the FFP break even requirement. This sanction came amidst a change of control of the club, as it passed ostensible ultimate beneficial ownership from former Italian Prime Minister Silvio Berlusconi, via Chinese investor Li Yonghong, and ultimately to the American fund manager, Elliot Management Corporation, under the auspices of various holding companies.28 On 1 December 2016, Milan applied for a Voluntary Agreement, the eligibility criteria for which were governed by Annex XII(A)(2) of the Regulations. The application was made under subparagraph (i) of that part of the Regulations, which accommodates Voluntary Agreements where a club: “i) has been granted a valid licence to enter the UEFA club competitions by its national licensor but has not qualified for a UEFA club competition in the season that precedes the entry into force of the voluntary agreement”.

As a part of this application, Milan provided information to the CFCB in respect of the change of ownership of the club from Fininvest S.p.A. to Rossoneri Sport Investment Lux (“HoldCo”),29 which was at the material time controlled by Mr Li.30 As part of its application, Milan provided the CFCB with documentary information including a business plan,31 and met with the CFCB Investigatory Chamber.32

26

CAS 2018/A/5808, AC Milan v. UEFA, Award of 1 October 2018. Ibid., para. 4: “AC Milan has an impressive track record of European Club Championships, including 7 UEFA Champions League trophies, 5 UEFA Super Cup trophies and 2 UEFA Cup Winner’s Cups”. 28 Ibid., paras 6–10. 29 Ibid., para 20. 30 Ibid., para 8. 31 Ibid., para 20. 32 Ibid., para 21. 27

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Milan subsequently withdrew this application, replacing it with a revised application, this time under subparagraph (ii) of Annex XII(A)(2) of the Regulations, which allows for Voluntary Agreements for a club that: “has been subject to a significant change in ownership and/or control within the 12 months preceding the application deadline”.

Milan stated that this request “was made in order to allow AC Milan to present an updated business plan”.33 Milan provided updated financial information, which showed a break even deficit of almost EUR 146 million for the period covering the prior 30 months.34 The CFCB Investigatory Chamber heard Milan again on 9 November 2017, and Milan presented a revised business plan, showing forecasts revised EUR 100 million downwards.35 On 17 November 2017, the CFCB requested—critically—information in support of the requirement in Annex XII(B) (2)(c), pursuant to which an owner or related party must: “submit an irrevocable [sic] commitment(s) […] to make contributions for an amount at least equal to the aggregate future break even deficits for all the reporting periods covered by the voluntary agreement… evidenced by way of a legally binding agreement between the licensee and the equity participant and/or related party”.

This information was not provided, and the CFCB Investigatory Chamber refused Milan’s applications for a Voluntary Agreement, citing also concerns about Milan’s “[a]bilities to continue as a going concern”.36 In January 2018, with the CFCB Investigatory Chamber conducting its regular monitoring process for the 2017/18 season, the CFCB Chief Investigator invited Milan to a further meeting to discuss its break even information.37 Milan provided further information, together with an independent auditors’ report, before attending a hearing with the CFCB Investigatory Chamber on 20 April 2018 at which a third business plan was presented (with projections again revised downwards).38 On 27 April, the CFCB Investigatory Chamber informed Milan that it had “serious concerns”39 about its financing arrangement with Project Redblack S.à.r.l. (‘Redblack’), which entity, advised by Elliot Advisors (UK) Limited, provided the acquisition finance for HoldCo and was at the material time the sole subscriber to bonds issued by Milan.40 The CFCB Investigatory Chamber highlighted its concerns, including “existing default risk and the resulting enforced change of ownership”,41 and requested the provision of further information, which Milan duly provided. 33 34 35 36 37 38 39 40 41

Ibid., Ibid., Ibid., Ibid., Ibid., Ibid., Ibid., Ibid., Ibid.,

para 22. para 24. para 26. para 29. paras 30–32. para 35. para 36. paras 8–9. para 36.

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On assessment, the CFCB Investigatory Chamber decided not to offer a Settlement Agreement to Milan, referring the matter to the CFCB Adjudicatory Chamber (the ‘Referral Decision’). The Referral Decision contains detailed information on the basis of the CFCB Investigatory Chamber’s rationale (excerpted in part at paragraph 39 of the Award). A hearing subsequently took place before the CFCB Adjudicatory Chamber,42 after which the Adjudicatory Chamber handed down its decision (the ‘Final Decision’),43 in which it found Milan to have breached the break-even requirement. By way of sanction, Milan was to be excluded from the next UEFA competition for which it qualified in the following two seasons. Milan appealed the Final Decision to the CAS on 4 July 2018.44 Milan’s Statement of Appeal noted ACF Fiorentina S.p.A. and Atalanta Bergamasca Calcio as potential interested parties.45 Fiorentina submitted a request to join the proceedings, but this was ultimately refused by CAS for procedural reasons (late filing and incorrect form of its submission).46 Whilst this request was ultimately rejected, it does serve to contextualise the case, which, despite being argued by UEFA and Milan as respondent and appellant respectively, is not a merely bilateral issue between parties who find disagreement on the interpretation of a rule; but forms a part of a broader multilateral regulatory ecosystem, in which disciplinary decisions affecting one participant can have profound sporting and economic consequences on another.47 Indeed, the dynamics between club, regulator and competitor club(s) can be seen throughout the FFP cases at the CAS. In the matter at hand, Milan requested copies of the Settlement Agreements entered into between UEFA and Internazionale Milano (‘Inter’), Paris Saint-Germain (‘PSG’), and Manchester City,48 and the Panel obliged by ordering the production of certain unredacted documents49 and a summary of the processes the CFCB undertook in relation to those clubs. This is a problematic position for UEFA, given that Article 53 of the Regulations obliges the CFCB to “[guarantee] full confidentiality of all information provided” in the licensing process—an obligation that exists in parallel with the CFCB’s obligation to offer “equal treatment” to licensees found in the same Article 53, which is in principle difficult to satisfy without an understanding of the treatment of all licensees. In the circumstances, the Panel ordered the production of the relevant documents under a reminder of Milan’s duties of confidentiality, and a restriction on use

42

The hearing took place on 19 June 2018, with the decision notified to Milan on 27 June 2018 (ibid., paras 40–42). 43 Referred to simply as ‘the Decision’ in the award, amended here for the sake of clarity. 44 CAS 2018/A/5808, AC Milan v. UEFA, Award of 1 October 2018, para 42. 45 Ibid., para 43. 46 Ibid., paras 102–106. 47 See Keidel and Fischer 2018, on the standing of third parties at the CAS generally. 48 CAS 2018/A/5808, AC Milan v. UEFA, Award of 1 October 2018, para 55. 49 Ibid., para. 61.

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outside the present arbitration proceedings. In doing so, the Panel relied upon Article 9(3) of the IBA Rules on the Taking of Evidence in International Arbitration (2010). The disclosure in this case evidently impinges on the rights of those third parties (unrepresented in the matter); however, the Panel took comfort in the fact “some of the information in the unredacted settlement agreements may be publicly available via the commercial register in the countries were the respective clubs are domiciled”,50 although the substantiation or basis of this point is not clear. Nevertheless, the Panel was put in an invidious position by the conflicting duties of equal treatment and confidentiality, it “could not exclude that the unredacted settlement may become relevant in the context of these proceedings”,51 and rejected Milan’s disclosure requests concerning “very sensitive commercial information of [Milan’s] immediate competitors”,52 demonstrating a reasonable and balanced approach, even if that approach may have an impact on the regulatory dynamic between UEFA and all the other clubs subject to the jurisdiction of the CFCB from time to time. Milan’s argument was that the basis of the Investigatory Chamber’s decisions as to whether or not to enter into a Settlement Agreement was incompatible with EU competition law; that clubs with worse break-even results were permitted entry into Settlement Agreements in contravention of the CFCB’s duty of equal treatment in Article 53(2) of the Regulations; that the CFCB’s compliance with Article 15(1) of the Procedural Rules should precipitate the offering of a Settlement Agreement to Milan; that the decision breached mandatory Swiss law; and that the CFCB had failed to properly assess the evidence.53 In particular, Milan posited that “[s]ince the introduction of [the Regulations] all clubs found in breach of such requirements (27 clubs) have been offered a Settlement Agreement, with the only exception of Dynamo Moscow”.54 In UEFA’s submissions, it suggested that Milan’s appeal was inadmissible as it was “directed against the Referral Decision, i.e. the decision of the CFCB Investigatory Chamber not to conclude a settlement agreement with AC Milan and to refer the case to the CFCB Adjudicatory Chamber. Such decision was rendered on 22 May 2018 and is final and binding. There are no internal appeal remedies against the Referral Decision.”55 This submission is interesting insofar as it contradicts the position taken by UEFA in the later case of Manchester City FC v. UEFA (CAS 2019/A/6298),56 although UEFA’s position in that latter case was perhaps informed by the outcome of the Milan case, in demonstration of the CAS’s

50

Ibid., para. 114. Ibid. 52 Ibid., para. 115. 53 See the detailed summary of the submissions: ibid., para 77. 54 Ibid., para 77(k). 55 Ibid., para 79. 56 CAS 2019/A/6298, Manchester City FC v. UEFA (2019), Award of 15 November 2019. See infra, Sect. 6.1. 51

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influence in shaping UEFA’s approach to its appreciation of its own rules. The subsequent reformulation of the chambers of the CFCB as a result of the Procedural Rules 2021 edition altogether closes off this previous uncertainty, making clear that final decisions of each of the two (newly redefined) chambers are appealable to the CAS.57 In this case, UEFA argued further that the Adjudicatory Chamber had no competence to review the decision of the Investigatory Chamber of the CFCB not to conclude a Settlement Agreement; that Settlement Agreements exist not as a right, but as a “mere possibility”.58 UEFA posited that a Settlement Agreement must be “effective, equitable, and dissuasive” in order to conform to the requirements of Article 15(1) of the Procedural Rules, providing the following parameters for those terms: • effective—meaning “compliance… will contribute to the club being break-even compliant in the near future”; • equitable—meaning “it puts the club concerned at a disadvantage vis-à-vis the clubs that participate…in line with the break-even requirement”; and • dissuasive—meaning “it requires the club concerned to adapt its behaviour in a significant and meaningful way and it deters [breach]”.59 UEFA argued that “clubs are perfectly aware of the above system”, relying on its own Club Licensing and Financial Fair Play Bulletins, which “report on the activities of the CFCB and the case law of the Investigatory Chamber”, and are circulated by the national federations.60 UEFA suggested that the Manchester City, PSG, and Inter cases were “simply not comparable” either on factual or procedural grounds.61 Among its other submissions, UEFA submitted that “CAS jurisprudence has confirmed that [the Regulations] are compatible with EU competition law”,62 although the veracity of this submission is debatable. Whilst it is true that there have been CAS awards with favourable outcomes for UEFA on the substantive legality of FFP, such as Galatasaray (2016),63 those cases have been decided on the particular evidence submitted (which, in the case of Galatasaray (2016) appears to have been limited on the reading of the award in question), and of course fundamentally the CAS Panels do not operate in a binding system of precedent, even if “in the interests of comity and legal certainty they are usually prepared to do so”.64

57 58 59 60 61 62 63 64

Article 34, Procedural Rules 2021 Edition. CAS 2018/A/5808, AC Milan v. UEFA, Award of 1 October 2018, para 79(d). Ibid., para 79(e). Ibid., para 79(f). Ibid., para 79(g), (h). Ibid., para 79(h). CAS 2016/A/4492, Galatasaray v. UEFA, Award of 3 October 2016. Blackshaw 2003, and as to the impact of which, see Flanagan 2018b.

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The Panel’s Findings

The Panel considered whether Milan’s appeal was submitted in time in accordance with UEFA’s rules. In doing so, it considered which decision was being appealed— the Referral Decision or the Final decision, finding that the “applicable rules do not provide for a separate appeal against the Referral Decision”,65 noting the lack of clarity in the prevailing wording of Article 34 of the Procedural Rules in force at the time, which referred to a “final decision of the CFCB” without distinguishing between the Investigatory and Adjudicatory Chambers, being qualified by its location in Chapter 2 of the Procedural Rules “i.e. in the chapter covering the Adjudicatory Chamber”.66 The Panel found that the Referral Decision was not a decision appealable to the CAS, nor did there need to be a separately appealable decision manifested in the referral in order to protect Milan’s interests, since “the refusal of the CFCB Chief Investigator to enter into a settlement agreement does not affect AC Milan’s legal position in any material way”.67 The Panel addressed a number of procedural issues concerning the admissibility of evidence,68 before going on to consider its mandate in the case in respect of its accounting and financing information assessment, on both a temporal basis and in terms of the depth of scrutiny it should apply. Essentially, there was debate as to whether, given the de novo review that must be applied by the CAS,69 it should retro-fit the accounting and financial information as occurred up to and beyond the Referral Decision, or whether it should apply the facts only as they were at the material time. This is a point of friction for an ongoing regulatory process such as FFP, which relies on defined point in time assessments. The Panel noted the tension of a de novo hearing yielding “a moving target and that the insecurity that comes with it may be troubling…”.70 The Panel noted that the reference date could be frozen for the good administration of justice, but that the Procedural Rules did not accommodate for this.71 This was potentially problematic for the CFCB, as it undermined its regulatory process somewhat, given the inherently changing nature of clubs’ finances and financial projections from time to time. Indeed, changes to the Procedural Rules in the 2021 edition make clear that this was a point of concern. A new provision at Article 18(3) states that “Substantial new facts or evidence

65

CAS 2018/A/5808, AC Milan v. UEFA, Award of 1 October 2018, para 97. Ibid. 67 Ibid., para 100. 68 Finding, among other things, that an audio file of a CFCB Adjudicatory Chamber hearing could be submitted as this was a ‘document’ within the meaning R44.3 of the CAS Code (Ibid., paras 107–108); and the submission of a new document—an updated profit and loss comparison forecast —by Milan at the hearing was permissible “because it could not have been produced at an earlier stage of the proceedings” in light of the expedited process (ibid., para. 117). 69 As provided by R57 of the CAS Code. 70 CAS 2018/A/5808, AC Milan v. UEFA, Award of 1 October 2018, para 132. 71 Ibid. 66

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submitted by an appellant before the [second chamber of the CFCB] may be excluded by the latter, at its discretion, if they were available to or could reasonably have been discovered by the appellant and were not adduced by the latter before the appealed decision was passed.” More directly to the point, Article 34(2) now defines the “relevant reference date for the assessment of financial and economic data, facts and evidence submitted by the parties in proceedings before the CAS” as being “no later than the date of the final decision being appealed against before the CAS”. Article 34(3) goes on to state that “the CAS shall not take into consideration any substantial new facts or evidence that were available to or could reasonably have been discovered by the appellant and were not adduced by the latter before the CFCB”.72 Regarding the depth of scrutiny it should apply, which Mavromati describes as “the most important issue of the case”,73 the Panel noted that while the CAS’s power of review is subject to certain limitations (such as those relating to on field decisions74), those limitations did not apply in this case, subject to the CAS jurisprudence75 pursuant to which it should “not easily ‘tinker’ with a well-reasoned sanction”.76 The consequence of the Panel’s finding that it must perform a holistic review of the evidence before and after the relevant decision referred (in this case the Final Decision) in the discharge of its performance of a de novo review is that the relevant CAS Panel became, in effect, a surrogate regulator; a regulator of appeal, rather than merely an arbiter of decisions. In a complex regulatory ecosystem such as that instituted by UEFA in the case of FFP, this is potentially a significant administrative burden for CAS Panels. It is perhaps unsurprising that UEFA in its later update to the Procedural Rules sought to limit the scope of evidence amenable to review in FFP CAS proceedings. On the merits, the Panel considered: A. Whether the CFCB Investigatory Chamber should have offered a Settlement Agreement to Milan. The Panel did not agree with Milan’s suggestion that the failure to offer a Settlement Agreement breached the principle of legality, given that Settlement Agreements serve the same essential function as a disciplinary sanction, and thus “whether to regulate a matter via a disciplinary sanction or 72

This change should also be read in light of the CAS 2020/A/6785, Manchester City FC v. UEFA, Award of 13 July 2020 (see discussion infra). 73 Despina Mavromati, A Review Of The CAS Panel’s Decision In AC Milan v. UEFA—The Devil Is In The (Procedural) Detail, LawInSport, 21 November 2018. https://www.lawinsport.com/ topics/item/a-review-of-the-cas-panel-s-decision-in-ac-milan-v-uefa-the-devil-is-in-theprocedural-detail. Accessed 29 June 2021. 74 CAS 2018/A/5808, AC Milan v. UEFA, Award of 1 October 2018, para 133. 75 CAS 2013/A/3139, Fenerbahce SK v. UEFA, Award of 5 December 2013, para 114; CAS 2012/A/2762, Bayer 04 Leverkusen v UEFA, Award of 15 March 2013, para 122; CAS 2011/A/ 2645, UCI v. Alexander Kolobnev and Russian Cycling Federation, Award of 29 February 2012, para 44. 76 CAS 2018/A/5808, AC Milan v. UEFA, Award of 1 October 2018, para 135.

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a settlement agreement is by itself neutral”.77 The Panel did not go on to assess whether disciplinary sanctions themselves offended the principle of legality, but it can reasonably be assumed that they do not.78 B. Whether in failing to offer a Settlement Agreement UEFA was in breach of UEFA rules or applicable statutory law. The Panel found there to be no absolute obligation in UEFA’s rules to offer a Settlement Agreement, finding also there to be no disproportionate treatment as regards the cases of Inter, PSG, or Manchester City, whose cases were subject to their own idiosyncratic facts. However, as UEFA did not fully comply with a Procedural Order of 13 July 2018 relating to the summary of Settlement Agreement process in relation to those other clubs, it could not be ruled out that further evidence would indicate unequal treatment. Notwithstanding this, the Panel found that even if there had been unequal treatment, this would in itself be neutral as the effect of a Settlement Agreement is the same as a sanction.79 However, while the Panel’s conclusions here is undoubtedly notionally true, it is somewhat unsatisfactory in that if there were truly no distinction between a Settlement Agreement and a disciplinary sanction, Settlement Agreements would serve no real purpose. The Panel found that “[t]he Appellant… failed to substantiate why the mere choice between two equivalent legal instruments—completely independent of their contents—infringes upon the Appellant’s rights”,80 but those instruments only exist in the abstract until there is a decision in respect of one or the other to appeal. Perhaps systematic evidence showing a delta in treatment between clubs who enter into Settlement Agreements and clubs who are referred for sanction by the Adjudicatory Chamber in the first instance may be persuasive on this point, although as Milan found, other cases tend to be fact specific in any event, so read across can be problematic. C. 81On the factual basis of the decision, the Panel reviewed Article 28 of the Procedural Rules, finding that that the type and extent of the disciplinary measures imposed shall be based on all the circumstances of the case.82 The Panel considered Milan’s business plans, its change of ownership, and its viability as a going concern, finding: a. In respect of the business plans submitted by Milan—that the CFCB Adjudicatory Chamber should not have disregarded Milan’s third business plan;83

77

Ibid., para 140. Indeed, expulsion from UEFA club competitions is not an unusually draconian measure, see for example CAS 2013/A/3067, Málaga CF SAD v. UEFA, Award of 8 October 2013. 79 Ibid., para 142. 80 Ibid. 81 Note that, in the award, “G. Did the CFCB Adjudicatory Chamber assess the facts correctly” follows “B. Breach of UEFA Provisions or Statutory Law”. This is presumably a formatting error in the award, so the author has followed B with C here. 82 CAS 2018/A/5808, AC Milan v. UEFA, Award of 1 October 2018, para 147. 83 Ibid., para 152. 78

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b. In respect of Milan’s change of ownership and the refinancing of its debt—that the Adjudicatory Chamber had based the Final Decision on a finding that there was a risk of a change of ownership of Milan. In testimony, it was explained that no information had been provided about the ultimate beneficial owner (Mr Li) and that he did not attend the hearing before the Investigatory Chamber.84 However, after the Referral Decision (around the time of the Final Decision in June 2018), HoldCo defaulted on an obligation to Milan, which obligation was paid instead by Redblack; HoldCo failed to repay Redblack the relevant sums within the agreed deadline; and so Redblack exercised its security, a pledge over HoldCo’s shares in Milan, becoming the new parent company of HoldCo and thus Milan. Ironically, this demonstrates the CFCB Investigatory Chamber’s “finding that there was an eminent risk of change of ownership”85 to have been correct—although clearly the situation at the time of the CAS hearing “was significantly different”,86 in effect giving Milan an additional opportunity for reassessment at a later date, at which its ownership situation was more stable. c. On Milan’s ability to continue as a going concern—the Adjudicatory Chamber found that there was a risk of Milan ceasing to continue as a going concern based on an independent auditor’s report. Milan argued that the report had been misinterpreted. The Panel accepted Milan’s submission on the basis that UEFA did not challenge it.87 On the basis of the foregoing, the Panel found that the Adjudicatory Chamber did not properly assess the facts, or that the facts had changed, save for the conclusion that Milan breached the break-even requirement.88 Given that the facts were wrong or had changed, the sanction applied by the Adjudicatory Chamber was not proportionate and ought to be partially annulled. However, the approach taken by the Panel as to the correct sanction to be applied is interesting, in that it referred the matter back to the Adjudicatory Chamber pursuant to R57(1) of the CAS Code, at Milan’s specific request,89 stating that it “respects the autonomy of the CFCB Adjudicatory Chamber to find a proportionate response”,90 finding that it was not itself “in a position to fully investigate and assess the factual basis of this case.”91

84 85 86 87 88 89 90 91

Ibid. Ibid. Ibid., para 153. Ibid., paras 154–156. Ibid., paras 157–159. Ibid., para 158. Ibid. In light of the expedited nature of the case, see ibid., para 158.

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Subsequent Consent Awards of CAS 2019/A/6083 AC Milan v. UEFA and CAS 2019/A/6261 AC Milan v. UEFA

The conclusion of Milan (2018)92 did not, however, conclude the FFP compliance dispute between Milan and the CFCB. After the matter was remitted back to the Adjudicatory Chamber by the CAS, the Adjudicatory Chamber reassessed the evidence and in light of Milan’s failure to comply with the break-even obligation, on 20 November 2018 sanctioned Milan by way of exclusion from participating in the next UEFA club competition for which it qualified within the next two seasons unless it was break even compliant by 30 June 2021.93 Subsequently, Milan was again referred by the Investigatory Chamber to the Adjudicatory Chamber without offering a Settlement Agreement. Milan appealed both decisions to the CAS. However, the parties entered into a consent award, ratified by the Sole Arbitrator in Milan (2019),94 under which Milan were excluded from participating in UEFA club competitions for the season 2019/2020, for which Milan had qualified for the UEFA Europa League. Taken overall, the cases of Milan (2018) and Milan (2019) should be considered in light of the purpose of the Regulations, which include an objective to “improve the economic and financial capability of clubs, increasing their transparency and credibility” (Article 2(2), the Regulations). There is however a tension that exists in punishing incoming owners for the break-even deficits that occurred under outgoing owners, balanced against the iniquity in allowing clubs, as a several legal entity from their owners, to be punished for actual or potential advantages gained by breaching the rules.

3 Galatasaray v. UEFA (CAS 2018/A/5957) 3.1

Background and the Parties’ Submissions

Galatasaray was found to have breached the break-even requirement and in doing so also triggered the so called ‘Indicator 3’ (found in Article 62(3)(iii) of the Regulations)95 by doing so in multiple reporting periods over the relevant 92

CAS 2018/A/5808, AC Milan v. UEFA. CAS 2019/A/6083 and 6261, AC Milan S.p.A v. UEFA, Award of 28 June 2019, para 6. 94 CAS 2019/A/6083 AC Milan v. UEFA and CAS 2019/A/6261 AC Milan v. UEFA of 28 June 2019. 95 The concept of financial wellbeing ‘indicators’ is used throughout FFP, with different consequences dependent on the context in which the indicator is to be assessed. Breaches of the indicators stipulated in Article 62(3) of the Regulations generally necessitate additional reporting requirements (see Article 59(3), Article 63(1) of the Regulations). 93

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assessment period.96 The Investigatory Chamber Chief Investigator, in consultation with the other members of the Investigatory Chamber, decided to enter into a Settlement Agreement with Galatasaray, agreed on 14 June 2018, in accordance with Articles 14(3) and 15 of the Procedural Rules. That decision was examined by the CFCB Chairman, who found that it should be reviewed by the Adjudicatory Chamber pursuant to Article 16(1) of the Procedural Rules. On 11 July 2018, the CFCB Chairman informed Galatasaray of the “opening of the judgement stage” (presumably a reference to a referral to the Adjudicatory Chamber).97 Galatasaray began competing in the 2018/2019 UEFA Champions League with a reduced squad, in accordance with one of the provisions of the Settlement Agreement.98 On 5 October, the Adjudicatory Chamber notified Galatasaray of its conclusion that a Settlement Agreement was inappropriate to achieve the objectives of the Regulations in the particular circumstances, and that the matter should be referred back to the Investigatory Chamber for further investigations.99 Galatasaray appealed that decision to the CAS on 15 October 2018 (the ‘Appealed Decision’).100 In the proceedings before the CAS, Galatasaray requested disclosure of certain documents, which request was rejected by UEFA on the basis of their confidentiality.101 UEFA suggested that the appellant seek the consent of the third party clubs involved if it wished to see certain decisions.102 Galatasaray objected to the timeliness of the Appealed Decision in light of the requirements of Article 16(1) of the Procedural Rules, and asked the Sole Arbitrator to bifurcate proceedings in order to decide on the preliminary issue of the timeliness of the Appealed Decision before dealing with the substance of the dispute (asking, in essence, for the proceedings to be held in abeyance pending a decision on the bifurcation request).103 UEFA agreed to this request, and on 26 November 2018, the Sole Arbitrator agreed to bifurcate the proceedings.104 The case thereafter proceeded on the bifurcated issues alone. Galatasaray argued that the Appealed Decision was not rendered in time in accordance with the correct interpretation of Article 16(1) of the Procedural Rules; that the Appealed Decision was manifestly (and significantly) later than the 10 day limit for which the applicable rule provided,105 pointing to various rules of

96

CAS 2018/A/5957, Galatasaray v. UEFA, Award of 15 February 2019, para 5. Ibid., para 12. 98 Ibid., para 16. 99 Ibid., para 17. 100 Ibid., para 18. 101 Ibid., para 20. 102 Cf. the approach in CAS 2018/A/5808, AC Milan v. UEFA, Award of 1 October 2018, above, in which the consent of the clubs would have further legitimised the disclosures. 103 CAS 2018/A/5957, Galatasaray v. UEFA, Award of 15 February 2019, para 24. 104 Ibid., para 30. 105 Ibid., para 42. 97

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interpretation under which the reading of the rule would fall in its favour.106 Galatasaray suggested also that its interpretation was corroborated by the principle of contra proferentem, “leading to a strict interpretation in the favour of the weaker party which had no influence on the draft of the rule, compared to the law maker”.107 Conversely, UEFA argued that the purpose of Article 16(1) was for the Adjudicatory Chamber to review a decision of the Investigatory Chamber “in the rather unlikely situation that there is a manifest error of assessment, excluded any chance to submit the relevant decision to a full appeal”.108 UEFA agreed with Galatasaray’s submission that “actual review by the Adjudicatory Chamber shall take place within a 10-day time limit”.109 In the case at hand, the Adjudicatory Chamber did not complete the review within 10 days, so the Appealed Decision was, UEFA agreed, belated and should therefore be set aside, with the Settlement Agreement made final and binding.110 Thus the parties agreed that the Adjudicatory Chamber had 10 days to render a decision (notwithstanding the date at which the case was referred);111 and the parties further agreed that Article 16(1) should not be construed as giving 10 days for the referral to the Adjudicatory Chamber, irrespective of the time taken for a subsequent decision.112 In their assessment of the correct interpretation of Article 16(1) of the Procedural Rules, the Sole Arbitrator noted the lack of guidance in the Procedural Rules, and consequently relied on the subsidiarily applicable Swiss law: Swiss law suggests that statutes and regulations of a sport association shall be interpreted and construed according to the principles applicable to the interpretation of law rather than those applicable to contracts (CAS 2016/A/4787; CAS 2017/A/5063; CAS 2017/A/4927; CAS 2003/A/461 & 471 & 473) and, in any case, both methods converge considering that the literal meaning of the provision is the starting point (CAS 2007/A/1377).113

In applying a literal interpretation of Article 16, the Sole Arbitrator drew upon the fact that the word “reviewed” is in the past tense, denoting that the review must be completed,114 although the Sole Arbitrator did not note that an alternative construction of this clause could consider “reviewed” to be in the modal passive voice, which would not necessarily lead to the same result. It would have been a reasonable alternative to have concluded that Article 16(1) refers to the review to be

106 Including a literal interpretation, a systematic interpretation, and a teleological interpretation, see ibid., para 45. 107 Ibid. 108 Ibid., para 53. 109 Ibid., para 55. 110 Ibid., para 56. 111 Ibid., para 78. 112 Ibid., para 76. 113 Ibid., para 81. 114 Ibid., para 84.

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referred by the Chief Investigator to the Adjudicatory Chamber within 10 days, with a review to be conducted within an unprescribed time thereafter. Nevertheless, and in light of the parties’ agreement, the Sole Arbitrator concluded that the entire review should have been completed in 10 days, and on that basis the Sole Arbitrator upheld Galatasaray’s appeal, and the Settlement Agreement became final and binding. Given the unclear drafting of the offending clause, this seems a just interpretation whatever the underlying intention of the rule, and the Sole Arbitrator stated that they would have reached the same conclusion under the other methods of statutory interpretation available (although this is only dealt with summarily in the award).115 Perhaps most compellingly, the Sole Arbitrator opined that: [This interpretation] is compliant with the principle of legal certainty, as emphasized by both the Appellant and the Respondent, which, in the present case relates to the chances that the Settlement Agreement be definitely implemented and enforced, limiting as much as possible the intermediate condition of uncertainty in expectation of the decision by the Adjudicatory Chamber.116

Finally, and as an important point in obiter, the Sole Arbitrator stated that they shared the view of the CAS Panel in Jersey Football Association v. UEFA (CAS 2016/A/4787): Statutes and Regulations of a sport association constitute legal provisions which are mandatory not only for its members, but also for the association itself which has drafted them, including its organs, and such regulations have priority over any possible deviating custom, as in the present case.117

This is an important point of reflection for governing bodies, in that notwithstanding the fact they are, generally speaking, the authors of the rules in question, they are not the sole authority on the interpretation of those rules, absent any binding guidance circulated to the subjects of those rules; clubs (in this case) should not be at a disadvantage in relation to unclear rules where some inaccessible practice or custom should prevail. As it happens, subsequent developments to the Procedural Rules suggest that either the Sole Arbitrator, Galatasaray, and indeed UEFA itself had misinterpreted Article 16(1), or that UEFA sought a change of direction after the decision in Galatasaray (2018), as the 2019 edition of the Procedural Rules added the clarificatory statement: “A decision of the adjudicatory chamber on the review is taken within thirty days from the date of communication of the decision (and all relevant evidence) to the CFCB chairman.” The 2021 edition went further, redefining the scope of the two chambers altogether and in doing so removing the basis of Article 16(1) as previously drawn.

115 116 117

92.

Ibid., para 87. Ibid., para 91. CAS 2016/A/4787, Jersey Football Association v. UEFA, Award of 28 September 2017, para

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This should also, perhaps, act as a reminder that it is the administration of UEFA, not the functionally independent CFCB, that prosecutes FFP cases at the CAS; whereas the working regulatory practice, and associated adjudicatory processes, are conducted by the CFCB, so views may diverge.

4 PSG v. UEFA (CAS 2018/A/5937) 4.1

Background and the Parties’ Submissions

PSG’s record-breaking spending on the transfers of Neymar, from Barcelona, and Kylian Mbappé, from Monaco, drew public attention and speculation as to PSG’s FFP compliance. Indeed, as Savva notes, “[i]f press reports are to be believed, La Liga had indicated that it might have sought to block the deal under FFP, however it does not have jurisdiction to do so.”118 As it transpired, the CAS outcome of the FFP CAS case between PSG and UEFA was not revolutionary, and the CAS Panel’s role was limited to taking a supervisory approach by ratifying the parties’ agreement to set aside a decision of the CFCB Chief Investigator to refer the matter to the Adjudicatory Chamber, once again pursuant to the ambiguously drafted Article 16 of the Procedural Rules. In February 2014, the Investigatory Chamber opened an investigation into PSG’s FFP compliance.119 In May 2014, PSG and UEFA entered into a Settlement Agreement, which allowed PSG to continue to participate in UEFA competitions at the material time. In July 2015, the Investigatory Chamber released PSG from “certain sporting restrictions as a result of PSG’s advanced compliance with… the Settlement Agreement”.120 That September, the Investigatory Chamber informed PSG that it had satisfied all the targets in the Settlement Agreement, and so the club was to be completely released from its remaining sporting restrictions for the 2015/ 2016 season.121 The Settlement Agreement otherwise remained in force, requiring PSG to break even or fall within the acceptable deviation for its duration. In April 2017, the Investigatory Chamber confirmed to PSG that it had fallen within the acceptable deviation for the period of the Settlement Agreement.122 On 15 June 2017, UEFA informed PSG that it met all the admission criteria for participation in the 2017/2018 UEFA Champions League.123

118 Michael Savva, An Update On Financial Fair Play—Case Study: The Neymar Transfer. LawInSport, 25 September 2017. https://www.lawinsport.com/topics/item/an-update-on-financialfair-play-case-study-the-neymar-transfer. Accessed 20 June 2021. 119 CAS 2018/A/5937, Paris Saint-Germain v. UEFA, Award of 19 March 2019, para 4. 120 Ibid., para 6. 121 Ibid., para 7. 122 Ibid., para 8. 123 Ibid., para 9.

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In 2017, PSG purchased the registrations of Neymar and Mbappé.124 On 1 September 2017, the CFCB Investigatory Chamber opened an investigation into PSG.125 On 13 June 2018, the Investigatory Chamber closed that investigation,126 stating, inter alia, that the accounting for the Neymar and Mbappé transfers appeared to be “in line with the [Regulations]”,127 noting that the Investigatory Chamber would continue to monitor PSG and in particular any changes to the accounting methods employed in respect of Neymar and Mbappé, and the club’s break-even results. On 22 June 2018, the Chairman of the CFCB contacted PSG to state that the decision to dismiss the case should be reviewed by the Adjudicatory Chamber,128 and on 6 July 2018, the CFCB informed PSG that the case was indeed to be so reviewed.129 The CFCB stated in its communication to PSG that there were a number of areas of the Chief Investigator’s decision that required review (the threshold in Article 16(3) of the Procedural Rules being “manifest error of assessment”). PSG denied the right of the Adjudicatory Chamber to review the decision and stated that the review should be discontinued.130 On 5 October 2018, the Adjudicatory Chamber found the Chief Investigator’s decision to contain manifest errors, and referred the matter back to the Investigatory Chamber. The Adjudicatory Chamber notified PSG that this decision was final and appealable to the CAS. On 3 October 2018,131 PSG so appealed.132 Similarly to the Galatasaray (2018) case, PSG sought bifurcated proceedings in which the time limit in Article 16(1) of the Procedural Rules was considered, and submitted that the Adjudicatory Chamber’s decision should be annulled and the Chief Investigator’s decision to close the investigation should be upheld.133 The Panel agreed to the bifurcation of proceedings. On 18 January 2019, UEFA filed its response to PSG’s submissions, agreeing that the Adjudicatory Chamber’s decision should be annulled and the Chief Investigator’s upheld.134 On 31 January 2019, UEFA requested a suspension of the case pending the outcome of the Galatasaray (2018) case discussed above. PSG agreed, but stated it

124

Ibid., para 10. Ibid., para 11. 126 Ibid., para 12. 127 Ibid. 128 Ibid., para 14. 129 Ibid., para 15. 130 Ibid., para 19. 131 The reference to “3 October 2018” may be a typographical error, and should perhaps have read “13 October 2018”, otherwise the appeal would have appeared to have come before the final decision. 132 CAS 2018/A/5937, Paris Saint-Germain v. UEFA, Award of 19 March 2019, para 25. 133 Ibid., paras 33–35. 134 Ibid., para 36. 125

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had no knowledge of those proceedings,135 which, despite PSG’s evident material wealth, shows its inherent disadvantage in conducting proceedings against a governing body; a manifestation in sport of Galanter’s (1973) classic paradigm of the imbalance between ‘one shotters’ and ‘repeat players’ in legal systems, compounded by the traditionally private nature of sports disciplinary arbitration. The Panel also agreed to the suspension requested. The Galatasaray (2018) award was shared, and the parties agreed to an Order of Procedure providing that there would be no in-person hearing in the matter.136 In its submissions, PSG argued that the Adjudicatory Chamber should have had 10 days to complete its review, partly because the error had to be ‘manifest’ meaning it should be “quickly and easily identifiable… so obvious that it is immediately apparent”.137 Even if the 10 day limit applied to the referral itself, PSG posited that the CFCB would have failed on that basis.138 UEFA made the reasonable point that Chief Investigator’s decisions come at the end of “a rather sophisticated, long and accurate procedure of review”,139 and submitted (contrary to the change to Article 16 of the Procedural Rules that was to follow in the 2019 iteration of the Procedural Rules), that its view was that the review should take place within 10 days. UEFA concluded that the Appealed Decision therefore could not be confirmed, meaning that the Chief Investigator’s Decision should be upheld.140

4.2

The Panel’s Findings

The Panel observed that given the nature of the parties’ agreement on the outcome, its only remaining role was to verify the bona fides of that position and to confirm that the agreement was not intended “to commit fraud and to confirm that their positions [were] not contrary to public policy principles or mandatory rules of the law applicable to the dispute”141 (and settle the matter as to costs). The Panel was satisfied as to the parties’ bona fides,142 expressly articulating its duty in doing so to affected third parties given the disciplinary nature of the dispute.143 The Panel went on to give its own interpretation of Article 16(1) of the Procedural Rules, finding that it referred to a review, “as opposed to the initiative to

135 136 137 138 139 140 141 142 143

Ibid., Ibid., Ibid., Ibid. Ibid., Ibid., Ibid., Ibid., Ibid.,

para 41. para 48. para 50. para 51. paras 50–51. para 65. para 66. para 67.

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review”. As noted at paragraph 72 of the award, this is consistent with the Galatasaray (2018) award discussed above. The Panel added that the “existence of a manifest error of assessment must be obvious, so that any such error should be quickly and easily identifiable”.144

5 Rubin Kazan v. UEFA (CAS 2018/A/5977) 5.1

Background and the Parties’ Submissions

Rubin Kazan v. UEFA (2019)145 is another dispute arising from the CFCB’s Settlement Agreement procedure, with its most interesting dynamics being around the assessment of what or who constitutes a ‘related party’ within the meaning of the Regulations.146 On 8 May 2014, Rubin Kazan and UEFA entered into a Settlement Agreement following the club’s breach of the break-even requirement (which was said to have exceeded by EUR 66 million the acceptable deviation).147 The terms of the Settlement Agreement, excerpted in part at paragraph 5 of the award, contain terms including: 1.2 The objective of this Agreement is to achieve that Rubin is Break-even compliant in the meaning of the UEFA CLFFPR at the latest in the monitoring period 2017/18; i.e. the aggregate Breakeven result for the reporting periods 2015, 2016 and 2017 must be a surplus or a deficit within the acceptable deviation in accordance with Art. 63 UEFA CLFFPR […] 3.1 Break-even result 2015: Rubin undertakes to reach a maximum Break-even deficit of EUR 30 million for the reporting period ending in 2015. 3.2 Break-even result 2016: Rubin undertakes to reach a minimum Break-even result of EUR 0 million for the reporting period ending in 2016.

The Settlement Agreement can be seen, therefore, to include undertakings as to future break even compliance. Rubin Kazan submitted break even information to the CFCB148 indicating a break even deficit of EUR 4 million for the monitoring period ending in 2015. Following receipt, the CFCB Investigatory Chamber determined that donations

144

Ibid., para 73. CAS 2018/A/5977, Rubin Kazan v. UEFA, Award of 29 May 2019. 146 For an overview on which, see Joseph Richmond, Financial Fair Play: How Clubs Justify Spending and Related Party Transactions. LawInSport, 17 November 2017. https://www. lawinsport.com/topics/item/financial-fair-play-how-clubs-justify-spending-related-partytransactions. Accessed 24 April 2021. 147 CAS 2018/A/5977, Rubin Kazan v. UEFA, Award of 29 May 2019, para 5. 148 Note that in the award, the information is said to have been submitted to “the UEFA Administration”, which is assumed to be the CFCB Investigatory Chamber given the standard FFP monitoring and compliance process. 145

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from Rubin Kazan’s main donator, the “Fund for the Promotion of Physical Culture and Sport” (‘NKO Fund’) must be treated as donations from related parties and therefore excluded from the break-even calculation in accordance with the Regulations. This had the effect of making the updated break even calculation a EUR 32 million deficit149—in excess of the obligation in Clause 3.1 of the Settlement Agreement set out above. However, the Investigatory Chamber took into account the mitigating factors defined in Annex XI of the Regulations, specifically in respect of Rubin Kazan “[o]perating in a structurally inefficient market”, and therefore “considered that the club was in line with the break-even target of a maximum deficit of EUR 30,000,000 for the reporting period ending in 2015 as set out in the Settlement Agreement”.150 The following year, on 15 March 2017, Rubin Kazan again submitted break even information for the reporting period ending in 2016 to the CFCB Investigatory Chamber. It did not disclose donations from the NKO Fund as being donations from a related party.151 It is the club’s position that the Settlement Agreement then ended on 21 May 2017, the last day of its 2016/17 season.152 On 23 May 2017, UEFA informed Rubin Kazan that the Investigatory Chamber could only finalise its compliance assessment with the undertaking of a fair market sponsorship evaluation performed by an independent third party in respect of sponsorship of the club by three entities in the TAIF Group, which were considered by the Investigatory Chamber to be related parties to Rubin Kazan. The total revenue from those entities amounted to EUR 44 million.153 Rubin Kazan (rather than the CFCB Investigatory Chamber itself) is said to have provided an independent third party evaluation report on the matter, which stated the maximum fair value of the sponsorships to be EUR 26 million.154 Based on this, the club was asked to amend its break even calculation and submit the sponsorship at fair value for its next calculation.155 The Investigatory Chamber also posited the need for a “comprehensive assessment procedure” concerning donations received from Rubin Kazan from NKO Fund and Tatenergo to verify whether they were related parties.156 The club commissioned a second valuation report from the same consultants.157 This was provided to the CFCB on 7 March 2018, and recalculated the fair value of the sponsorship at EUR 33 million.158 On 28 March, the CFCB sent another (third)

149 150 151 152 153 154 155 156 157 158

CAS 2018/A/5977, Rubin Kazan v. UEFA, Award of 29 May 2019, para 9. Ibid., para 10. Ibid., para 12. Ibid., para 13. Ibid., para 14. Ibid., para 18. Ibid. Ibid., para 15. Ibid., para 20. Ibid., para 22.

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report by the same consultants to Rubin Kazan, which included a maximum fair value discounting methodology for return on sponsorship investment, which would apply a discount of 40–66%.159 On 1 March 2018, the club transferred its football activities to a new legal entity,160 with the incoming legal entity taking on all the rights and obligations of the outgoing entity, including the Settlement Agreement obligations. To briefly contextualise the effect of this corporate restructuring, it is important to take into account, as Vandellos states, that the jurisprudence of the CAS: […] has consistently endorsed the understanding that ’a club is a sporting entity identifiable by itself that, as a general rule, transcends the legal entities which operate it’ and that therefore, the obligations assumed by it must respected regardless of the legal vehicle used to manage the club.161

This has generally been in the context of the FIFA Regulations on the Status and Transfer of Players,162 but given that the Regulations expressly deal with the prospect of changes to the legal form or group structure (at Articles 12 and 13), the principle should be read across. The legal entity transfer was approved by the Football Union of Russia Executive Committee on 16 March 2018.163 On 11 April 2018, Rubin Kazan submitted break even information including sponsorship income from TAIF Group, pursuant to which the Investigatory Chamber engaged independent auditors to confirm the completeness, validity and accuracy of the Club’s submission,164 which included an on-premises audit of the club.165 The auditors submitted a final report on 6 June 2018, concluding that: 1. The club had incorrectly accounted for player registration disposals, resulting in a break even overstatement of EUR 15 million; 2. The sum of EUR 3 million received from Kazan City Municipality for a property disposal could not be treated as relevant income for break-even accounting purposes; and

159

Ibid., para 23. Per ibid., para 21: “the football activities were transferred from the legal entity “Municipal Autonomous Institution FC Rubin Kazan” (“MAI Rubin”) to the new legal entity “Football Club Rubin Kazan Limited Liability Company” (“FC Rubin Kazan LLC”)”. 161 Josep F. Vandellos Alamilla, Who Is Competent To Decide Upon The “Sporting Successor” Of A Football Club? LawInSport, 19 January 2021. https://www.lawinsport.com/topics/item/whois-competent-to-decide-upon-the-sporting-successor-of-a-football-club#_ftn1. Accessed 19 June 2021. 162 See for example CAS 2018/A/5618, Shabab Al Ahli Dubai Club v. Shanghai SIPG Football Club, Award of 10 October 2018. 163 CAS 2018/A/5977, Rubin Kazan v. UEFA, Award of 29 May 2019, para 26. 164 Ibid., para 25. 165 Ibid., para 27. 160

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3. NKO Fund and Tatenergo were related parties and therefore the sponsorship income received from those parties should be adjusted for fair value.166 The club accepted the first and second findings, but disagreed with the third on the basis that NKO Fund and Tatenergo were not related parties. It submitted further that, in mitigation, Rubin Kazan would not be receiving the donations from those parties from the second quarter of the reporting period ending in 2017.167 The club declared a break even deficit of EUR 87.5 million for the reporting periods ending 2015–2017. The Investigatory Chamber concluded that Rubin Kazan had breached the terms of its Settlement Agreement, and referred its case to the Adjudicatory Chamber.168 The Investigatory Chamber recommended that the Adjudicatory Chamber impose a one season exclusion from UEFA club competitions. On 19 September 2018, the Adjudicatory Chamber issued its decision, concluding that Rubin Kazan had indeed breached the Settlement Agreement and should be excluded from UEFA cup competitions for one season.169 The Adjudicatory Chamber concurred with the Investigatory Chamber’s finding that NKO Fund and Taternergo were related parties to Rubin Kazan under the FFP regime.170 Rubin Kazan submitted that it (i) did not breach Clause 1.2 of Settlement Agreement because that clause “does not provide for any particular obligation”;171 because the Settlement Agreement did not include the reporting period ending 2017; and the club did not breach the break-even requirement for the period the clause was in force. Rubin Kazan argued that it did not breach Clause 3.2 of the Settlement Agreement because that clause did not include the reporting period ending in 2017; and on the basis that the NKO Fund and Tatenergo receipts should not have been excluded from the break-even calculations on the basis of neither being, in Rubin Kazan’s estimation, related parties; and that the decision under appeal was wrong ab initio as it relied upon Annex X(F)(3)(b) of the Regulations, which provision was not included in the 2012 edition on which the Settlement Agreement was based; and that the independent auditor’s report relied upon by the CFCB included information from the Rubin Kazan website, which should be disregarded.172

166

Ibid., para 29. Ibid., para 30. 168 The referral being in accordance with Article 8.1 of the Settlement Agreement and Article 15.5 of the Procedural Rules, which expressly accommodates a referral to the Adjudicatory Chamber in the case of breach of a Settlement Agreement. 169 Should it qualify within the two seasons following (CAS 2018/A/5977, Rubin Kazan v. UEFA, Award of 29 May 2019, para 35). Note also that Rubin Kazan applied for a stay of ban during the instant proceedings, which application was refused by the Panel (ibid., paras 38 and 47). 170 Ibid., para 36. 171 Ibid., para 59. 172 See the detailed submissions at ibid., para 59. 167

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Finally, the club argued that the sanctions applied by the Adjudicatory Chamber were “grossly disproportionate”173 and infringed the principle nulla poena sine culpa (no punishment without fault). UEFA argued that the Settlement Agreement contained both long term obligations (as in the case of Clause 1.2) and specific obligations (as in the case of Clause 3). One of the long term obligations was to become break even compliant by no later than the monitoring period 2017/2018.174 The club was “objectively wrong”175 to assert that it exited the Settlement Agreement with the last match played of the season 2016/2017, as Rubin Kazan’s breach of the Settlement Agreement meant fresh disciplinary proceedings had to be initiated. UEFA submitted that the club had breached both Clauses 1.2 and 3.2 of the Settlement Agreement, stating that it had undertaken an “extremely diligent” assessment as to whether NKO Fund and Taternergo were related parties within the meaning of the Regulations.176 UEFA highlighted the fact that, whilst the Annex X(F)(3)(b) contained the relevant rule on the facts at hand, the concept of ‘related parties’ has existed from the beginning of the FFP system;177 Annex X(F)(3)(b) was added merely to “clarify and codify existing practice”.178 UEFA suggested that the sanction imposed was proportionate as Rubin Kazan had already “been given a second chance” in the form of the Settlement Agreement, but had failed to take it.179 The principle of equal treatment of clubs, the necessary deterrent effect, and “very specific past case law” meant the sanction was, in UEFA’s estimation, proportionate.180 In respect of the applicable law to the dispute, the parties agreed that the UEFA Statutes, rules and regulations applied, specifically the Regulations and the Procedural Rules, with Swiss law applying subsidiarily. However, Rubin Kazan posited that the 2012 edition of the Regulations (only, as distinguished from any later iteration of the Regulations) should apply.181 UEFA argued that the regulations in force at the material time of the regulatory breach applied, because the matter is “not a contractual dispute”, although this submission is perhaps debatable, given the essentially contractual nature of the sports regulatory ecosystem and the lack of immanent rule making power of governing bodies generally and UEFA specifically in casu.182

173

Ibid. Ibid., para 61. 175 Ibid. 176 Ibid., para 61. 177 UEFA’s submission in this regard is undeniably correct. See for example Flanagan 2013, in which the position around related party income is considered in the early manifestations of the Regulations. 178 CAS 2018/A/5977, Rubin Kazan v. UEFA, Award of 29 May 2019, para 61. 179 Ibid. 180 Ibid. 181 Ibid., para 68. 182 For a more detailed consideration on this point, see Freeburn 2018. 174

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UEFA further submitted that Rubin Kazan did in fact benefit from the application of the newer version of the rules because of the 2015 edition’s “operating in a structurally inefficient market” mitigating factor.183

5.2

The Panel’s Findings

The Panel found that the Settlement Agreement was subject to the 2012 edition of the Regulations, but implied into the wording of the Settlement Agreement was an obligation to comply with future versions of the Regulations.184 It would be “unacceptable”185 if the 2012 edition applied to Rubin Kazan whereas later editions contemporaneously applied to other clubs. The Panel favoured the following analogy drawn by UEFA: when for instance an employment contract provides for termination in case of an anti-doping rule violation by the athlete there can be little doubt that this would include termination if the athlete is being found in the future guilty of using prohibited substances that were not yet prohibited at the time of conclusion of the employment contract, but that were only added to the prohibited list afterwards.186

In any event, if the 2012 edition of the Regulations applied, Rubin Kazan would “certainly” have breached the Settlement Agreement, as it would have been deprived of the “structurally inefficient market” mitigation, the use of which significantly improved Rubin Kazan’s break even calculation. In net, this would have improved the break-even calculation more than the absence of the Annex X(F)(3) (b) rule.187 On the principle lex mitior, the most favourable set of rules is applied; that does not allow Rubin Kazan “to pick and choose between the most favourable individual provisions from different sets of rules”,188 but applies as a whole. The Panel found the 2015 edition of the Regulations to be most favourable to Rubin Kazan. Having decided on the scope of the applicable law, the Panel considered the substance of the dispute. The Panel found that Clause 1.2 of the Settlement Agreement clearly imparted an obligation on the club to comply with the break-even requirement, stating as it did that “the aggregate Break-even result […] must be a surplus or a deficit within

183

See Annex XI, para. (g). CAS 2018/A/5977, Rubin Kazan v. UEFA, Award of 29 May 2019, para 74. 185 Ibid., para 75. 186 Ibid., para 75. By way of dissent to this analogy, one may of course suggest that a well-drafted employment contract of this nature might properly include a clause to the effect that ‘references applicable law, regulation, statute shall include the same as amended, updated, superseded, or replaced from time to time’ (subject to applicable local law requirements). 187 Which rule defines certain related party relationships. 188 CAS 2018/A/5977, Rubin Kazan v. UEFA, Award of 29 May 2019, para 78. 184

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the acceptable deviation”. The use of the word ‘must’ making it clear that this was an obligation.189 Further, the Panel found that the reporting period ending 2017 was included in the Settlement Agreement (“on the basis of the wording of Clause 1.2”,190 and the clarifications in Clauses 7.3 and 9.2191), despite the apparent inconsistencies in the wording of Clauses 1.1 and 1.2 of the Settlement Agreement.192 The Panel noted that the Settlement Agreement could have been discharged earlier should Rubin Kazan have complied with the break-even requirement in any of the seasons subject to the Settlement Agreement, but it did not do so.193 Turning to whether NKO Fund and Tatenergo were related parties, the Panel examined the definitions of ‘significant influence’ (on the basis that the Regulations construe a person to be a related party if they yield significant influence over the relevant licensee),194 in the 2012 and 2015 editions of the Regulations,195 finding the 2015 edition to be more favourable to Rubin Kazan in respect of the definition of ‘related parties’—as the definition of ‘related parties’ was dependent on a concept of ‘significant influence’, and the 2012 edition of the Procedural Rules contained a wider definition of that latter term.196 On the facts, the Panel found that the Board of Trustees of Rubin Kazan197 had the authority to take decisions for the club, and that in turn the Republic of Tatarstan had significant influence on the Board of Trustees.198 In its interpretation of the Regulations, the Panel found that in each of the 2012 and 2015 editions of the Regulations, a finding of ‘significant influence’ requires “some sort of direct influence”, the most obvious example being “the competence of taking decisions”.199 Assessing the evidence, the Panel found the Board of Trustees to have the authority to take decisions to determine Rubin Kazan club policy.200 The Panel

189

Ibid., para 84. Ibid., para 93. 191 Ibid., para 94. 192 Ibid., para 92. 193 Ibid., paras 95–96. 194 See Annex X (F)(2) and (3) of the Regulations. 195 There are differences between the editions in this regard, with the 2015 edition of the Regulations including a specific statement (in Article 3, Definitions of terms) to the effect that parties who contribute more than 30% of a licensee’s revenue in a reporting period being related parties on that basis; although UEFA submitted in the case at hand that these differences were “merely cosmetic” (see CAS 2018/A/5977, Rubin Kazan v. UEFA, Award of 29 May 2019, para 122). 196 Which position should be considered in light of the principle lex mitior as detailed above. 197 Whose existence “within the structure of its administration” Rubin Kazan had denied in its observations to the CFCB Adjudicator Chamber (see CAS 2018/A/5977, Rubin Kazan v. UEFA, Award of 29 May 2019, para 34). 198 CAS 2018/A/5977, Rubin Kazan v. UEFA, Award of 29 May 2019, para 129. 199 Ibid., para 135. 200 Ibid., para 140. 190

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further noted that the Board of Trustees’ ability to take decisions affecting the club is further corroborated by information on the club website.201 The Panel found this to show that “the Board of Trustees was not only an important organ in determining the policy of the Club, but that it was indeed competent to take important decisions”.202 The Panel accepted that club media releases “cannot simply be accepted as conclusive evidence”,203 and that the burden of proof lay with UEFA in proving the related party link, but concluded that UEFA had satisfied that burden.204 The Panel did not expound upon the standard of proof that it had applied.205 The Panel found its conclusion to be “fortified”206 by the President of Tatarstan’s role as Chairman of the Board of Trustees, and “other connections between the Club and the Republic of Tatarstan”.207 The Panel also noted that Rubin Kazan apparently accepted the Investigatory Chamber’s assessment of NKO Fund as a related party in 2016,208 and that notwithstanding the structural changes to the club, the Panel was “utterly unpersuaded how and why [Rubin Kazan] now contends that donations received from the same entity […] are no longer qualified as donations from a related party”.209 The Panel considered Rubin Kazan’s transition from a public–private entity towards a fully private model,210 and concluded that the impact of that change could indeed affect NKO Fund and Tatenergo’s status as related parties; however, that change “only occurred in March 2018” and therefore was not relevant to the reporting periods ending in 2016 and 2017.211 Consequently, NKO Fund and Tatenergo were related parties under the Regulations, and their donations should have been excluded from the break-even results for the reporting periods ending 2016 and 2017.212 The Panel found on the evidence that Rubin Kazan had breached Clause 3.2 of the Settlement Agreement, and, on the application of the findings concerning NKO Fund and Tatenergo’s status as related parties, Rubin Kazan breached Clause 1.2 of the Settlement Agreement.213

201 202 203 204 205 206 207 208 209 210 211 212 213

Ibid., para 141. Ibid., para 143. Ibid., para 149. Ibid. For an assessment of burdens of proof at the CAS generally, see Rigozzi and Quinn 2014. CAS 2018/A/5977, Rubin Kazan v. UEFA, Award of 29 May 2019, para 150. Ibid., para 150, with specification of those links listed at paras 151–153. Ibid., para 155. Ibid., para 156. Ibid., paras 160–161. Ibid. Ibid., para 163. Ibid., paras 164–172.

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Finally, the Panel considered the proportionality of the sanction applied by the Adjudicatory Chamber. In its assessment of the sanction, the Panel set out a principle under which it should have “regard to [the relevant] association’s expertise”,214 but without prejudice to its de novo review and power to apply the sanction it considers appropriate, citing favourably the similar position taken in Jérôme Valcke v. FIFA215 and CAS 2015/A/4338.216 Rubin Kazan cited their unfavourable treatment in comparison to Galatasaray (in CAS 2016/A/4492, Galatasaray v. UEFA) given Galatasaray’s more egregious breach of the break-even requirement. The Panel found217 that that while Galatasaray’s breach may have been more serious, Rubin Kazan nevertheless “also clearly violated the overall objective of the Settlement Agreement with a very considerable amount”.218 Relatedly, the Panel found it inappropriate to draw comparisons with the Milan case discussed above (CAS 2018/A/5808) on the basis “no breach of a Settlement Agreement was at stake in such proceedings”.219 Thus, the Panel concluded that the sanction applied by the Adjudicatory Chamber was proportionate: “[i]ndeed, the Settlement Agreement was concluded as a consequence of the fact the Club had already violated [FFP] before and was therefore offered a second chance by means of the Settlement Agreement”.220 On that basis, “a serious sanction is warranted”.221 This case may have focussed on Rubin Kazan’s breach of its Settlement Agreement, and illuminated elements of the regulatory processes performed by UEFA in that regard; however, its most interesting aspects relate to the CFCB’s requirement to disentangle Rubin Kazan’s network of related parties, illustrating the complicated financial, commercial, and geopolitical relationships that the CFCB must interrogate in order to assess and enforce FFP compliance—and the procedural tightrope it must walk in doing so. The last case in this chapter, Manchester City v. UEFA (CAS 2020/A/6785), equally exemplifies these issues.

214

Ibid., para 178. Specifically: CAS 2017/A/5003, Jérôme Valcke v. FIFA, Award of 27 July 2018, para 274. 216 Ibid., para. 178. Note that the parties to CAS Award CAS 2015/A/4338 are not stated where referred to in CAS 2018/A/5977, Rubin Kazan v. UEFA (Award of 29 May 2019). Other CAS awards, not mentioned by the Panel in this matter, have also invoked this doctrine—see for example CAS 2017/A/5155, Necmettin Erbakan Akyüz v. International Wushu Federation, Award of 21 September 2017, para. 67, and CAS 2016/A/4840, International Skating Union (ISU) v. Alexandra Malkova, Russian Skating Union (RSU) and Russian Anti-Doping Agency (RUSADA)), Award of 6 November 2017, para 45. 217 CAS 2017/A/5003, Jérôme Valcke v. FIFA, Award of 27 July 2018, paras 183–185. 218 Ibid., para 183. 219 Ibid., para 188. 220 Ibid., para 187. 221 Ibid. 215

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6 Manchester City v. UEFA (CAS 2020/A/6785) 6.1

Background to the Case

Manchester City is “one of the main protagonists of the FFP story”,222 and its two FFP cases at the CAS, CAS 2019/A/6298 and CAS 2020/A/6785, have precipitated considerable interest.223 The reality of those cases is perhaps more prosaic. In common with the other cases described in this chapter, they were decided on what was essentially procedural and evidential grounds, which do not directly affect or undermine the central legality of FFP. The cases do, however illustrate the complexity of the investigative processes involved in the operation of FFP. The legal entity name of the licensee club involved is Manchester City Football Club Limited (‘Manchester City’). Manchester City is a subsidiary of Manchester City Limited, which is a subsidiary of the City Football Group Limited, whose “principal activity…is the operation of football clubs around the world”.224 City Football Group Limited is in the majority ownership of Abu Dhabi United Group (‘ADUG’). The majority ultimate beneficial owner of Manchester City is His Highness Sheikh Mansour bin Zayed bin Sultan bin Zayed Al Nahyan (‘HHSM’), the Deputy Prime Minister of the United Arab Emirates, who became owner “in his personal capacity” in the 2008/2009 season.225 HHSM is the owner of Abu Dhabi United Group Investment and Development, which in turn owns Abu Dhabi United Group Investment and Development Limited, the two companies referred to together in the award as “ADUG”. ADUG is described as the “private investment vehicle” used by HHSM in the purchase of Manchester City.226 Since HHSM’s acquisition of the club, there have been some changes to the group structure in which Manchester City sits, and the sale of a minority stake in City Football Group Limited (totalling less than 14%) but for the entire material time Manchester City and its parent companies have been in the majority control of ADUG.227 Manchester City’s sponsorship relationships were of particular concern to the Investigatory Chamber in this matter. Emirates Telecommunications Corporation PJSC (‘Etisalat’) and Etihad Airways PJCS (‘Etihad’) had sponsorship arrangements with Manchester City commencing during the 2009/2010 football

222

Christopher Flanagan, Manchester City's Financial Fair Play ban: the legal questions and consequences, LawInSport, 20 February 2020. https://www.lawinsport.com/topics/disputeresolution/item/manchester-city-s-financial-fair-play-ban-the-legal-questions-and-consequences#_ ftn3. Accessed 23 April 2021. 223 See ibid. 224 CAS 2020/A/6785, Manchester City FC v. UEFA, Award of the 13 July 2020, para 7. 225 Ibid. 226 Ibid. 227 Ibid., paras 8–9.

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season. Those arrangements “evolved and have been renegotiated over the years”,228 and, conversely to the dispute in Rubin Kazan (2019), the fair value of those sponsorship agreements was not put in issue in these proceedings.229 In 2014, the CFCB Investigatory chamber opened an investigation into Manchester City in relation to “perceived breaches” of the Regulations.230 In May of that year, the parties entered into a Settlement Agreement, under which the CFCB asserted that Manchester City had breached the break-even requirement, and Manchester City “consider[ed]s that it [was] not in breach”.231 The Settlement Agreement included “a specific regime for determining compliance with the break even requirements” for the reporting periods from 2014 to 2016.232 In April 2017, the Investigatory Chamber confirmed that Manchester City had “complied with the final objective stated in the Settlement Agreement”, meaning it could exit from the obligations of the Settlement Agreement.233 The CFCB’s interest in Manchester City’s historic FFP compliance was reignited in late 2018, when “internal documents acquired… by an illegal hack” were published by a number of major media outlets (the ‘Leaked Emails’). Manchester City and the Investigatory Chamber subsequently exchanged correspondence in respect of the Leaked Emails, with hearings in March and April 2019.234 The basis of the investigation was an allegation, predicated on the Leaked Emails, that Manchester City “did not truthfully declare its sponsorship income, as payments purportedly made by sponsors were in reality payments from ADUG or [HHSM]”.235 On 15 May 2019, the Investigatory Chamber referred the case to the Adjudicatory Chamber.236

6.2

Manchester City v. UEFA (CAS 2019/A/6298)

On 24 May 2019, Manchester City appealed the ‘decision’ of the Investigatory Chamber to refer the case to the Adjudicatory Chamber (the ‘Referral Decision’) as well as the Investigatory Chamber’s refusal to suspend its investigation pending what Manchester City considered to have been “repeated leaking of confidential information about the investigation to the media” (the ‘Leaks Decision’).237

228 229 230 231 232 233 234 235 236 237

Ibid., para 10. Ibid. Ibid., para 14. Ibid. Ibid. Ibid., para 15. Ibid., paras 16–17. Ibid., para 29. CAS 2019/A/6298, Manchester City FC v. UEFA (2019), Award of 15 November 2019, para 15. Ibid., para 4.

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Manchester City’s submissions were premised (inter alia) on the notion that both the Referral Decision and the Leaks Decision were final decisions of the Investigatory Chamber and thus amenable to appeal to the CAS.238 UEFA denied that a referral from one chamber of the CFCB to the other was appealable, relying on the decision in AC Milan (2018). Ironically, Manchester City also sought to rely on UEFA’s submissions in the cases of AC Milan (2018) and AC Milan (2019) insofar as in those cases, UEFA’s policy appeared to be that ‘decisions’ of the Investigatory Chamber should be appealable. However, the distinction drawn in the present case was that it did not, unlike AC Milan (2018), relate to a ‘decision’ as to whether or not to conclude a Settlement Agreement.239 The Panel stated that “[a] similar issue apparently arose in [AC Milan v. UEFA 2019]”, while also noting that it lacked detailed knowledge of those proceedings, given the brevity of the published Consent Award.240 The Panel found that Article 34 of the Procedural Rules allows for the appeal of ‘final’ decisions to the CAS.241 In considering whether the Referral Decision was a ‘final’ decision, the Panel analysed Article 14(1) and Article 27 of the Procedural Rules, noting that “Article 27, associated with the functioning of the Adjudicatory Chamber, sets out a list of final decisions”.242 Nevertheless, this does not exclude the possibility of “exceptions to the rules” under which the Investigatory Chamber could issue final decisions;243 however, that would need assessment on a case-by-case basis, and in the instant proceedings, “[t]he bottom line as to the Referral Decision is that [it] does not bring an end to the matter in dispute wholly or partially”.244 The Panel therefore found in UEFA’s favour on the inadmissibility of the appeal against the Referral Decision: “generally, a club can in principle not lodge an appeal against a referral decision of the Investigatory Chamber […] to CAS directly.”245 However, the Panel also appeared critical of UEFA. In respect of the inconsistency in UEFA’s submissions in AC Milan (2019) in contrast to its submissions in the present case and the decision in AC Milan (2018), the Panel: finds that the fact that UEFA in CAS 2019/A/6261 – for reasons unknown – did not follow previous CAS jurisprudence has created legal uncertainty for clubs subjected to proceedings before the CFCB, as a consequence of which any club assisted by prudent counsel

238

Ibid., para. 49, sub-para. (a). For further analysis, see Christopher Flanagan, Manchester City’s Financial Fair Play ban: the legal questions and consequences, LawInSport, 20 February 2020. https://www.lawinsport.com/topics/dispute-resolution/item/manchester-city-s-financial-fair-playban-the-legal-questions-and-consequences#_ftn3. Accessed 23 April 2021. 239 CAS 2019/A/6298, Manchester City FC v. UEFA (2019), Award of 15 November 2019, paras 99–105. 240 Ibid., para 102. 241 Ibid., para 83. 242 Ibis., para 88. 243 Ibid., para 91. 244 Ibid., para 95. 245 Ibid., para 95.

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The Panel was also critical of the drafting of the Procedural Rules: “[o]ne could argue that the CFCB Procedural Rules could have been drafted more clearly in delineating between final decisions that can be appealed to CAS directly and decisions that are not final and cannot be appealed to CAS directly”.247 The Panel did acknowledge the difficulty of drafting such provisions ex ante,248 but given the issues presented by the lack of clarity in the Procedural Rules discussed in this chapter, and in particular in respect of Article 14, the Panel’s criticism is not unreasonable. As is noted in this contribution249 the 2021 edition of the Procedural Rules redefined the tasks of, and relationship between, the two chambers of the CFCB, making explicitly clear that its First Chamber can render decisions appealable directly to the CAS.250 The Panel also noted its concern about the “alleged leaking of information by members of the Investigatory Chamber or the UEFA administration about the proceedings”, describing the allegations as “worrisome”.251 The Panel stated that Manchester City’s “complaints about the leaks do not, on a prima facie basis, appear to be entirely without merit”,252 and that it was “puzzle[d]” as to how the CFCB Chief Investigator could be “so confident” in their dismissal of Manchester City’s allegations.253 Notwithstanding these concerns, the Panel found that even if there had been a breach of confidentiality (and an associated breach of Article 10 of the Procedural Rules), this “would not have an immediate impact on the individual’s impartiality”, and in any event “not necessarily demand that such breach be remedied with a direct appeal to the CAS”, with recusal of the relevant person being “the appropriate remedy”.254 The Panel found, given Manchester City’s right to bring the matter before the Adjudicatory Chamber, that “no irreparable harm” had been incurred by Manchester City.255 Fundamentally, the Leaks Decision was “not an actual decision, but merely a communication of information”, and was, accordingly, inadmissible for appeal directly to the CAS.256

246

Ibid., para 105. Ibid., para 93. 248 Ibid. 249 See Sects. 1, 2.1, 3.1, and 7. 250 Article 34, Procedural Rules 2021 Edition. 251 CAS 2019/A/6298, Manchester City FC v. UEFA (2019), Award of 15 November 2019, para 113. 252 Ibid. 253 Ibid., para 114. 254 Ibid., para 115. 255 Ibid., para 120. 256 Ibid., para 125. 247

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Manchester City v. UEFA (CAS 2020/A/6785)—The Adjudicatory Chamber’s Findings and Issues of Evidence

The matter was remitted to the Adjudicatory Chamber, with a final decision issued by that chamber on 14 February 2020 (the ‘Appealed Decision’). The Adjudicatory Chamber’s finding, which was “founded on the leaked emails”, was that sponsorship payments to Manchester City which had been attributed to Etisalat and Etihad “in reality provided disguised equity funding”, which is to say that ADUG was the ultimate source of a significant proportion of the monies paid by those two sponsors.257 Applying a ‘comfortable satisfaction’ burden of proof,258 the Panel heard that sponsorship payments of (a) Etisalat were “made or caused to be made by ADUG but attributed to the sponsorship obligations of Etisalat”, and of (b) Etihad “[for payment obligations] in excess of GBP 8 million per year259 were to be funded or procured to be funded by or on behalf of ADUG, but paid through Etihad”.260 The Adjudicatory Chamber found the “management” of Manchester City to be aware of this, and found Manchester City to have submitted audited accounts to the Football Association (as national licensing authority) which “overstated” the “true” sponsorship income.261 The Adjudicatory Chamber also found Manchester City to have breached its duty to co-operate with the CFCB, which arises under Article 56 of the Regulations. In a summary of the Appealed Decision found in the award, the Adjudicatory Chamber’s decision stated that: Article 56 is clear in requiring a club to respond properly and cooperatively to any reasonable requests for documents and information which the Investigatory Chamber considers relevant. Relevance and admissibility is for the CFCB to decide.262

Overall, the Adjudicatory Chamber found Manchester City to have breached multiple provisions of the Regulations: Articles 13, 43, 47, 51, 56, 58, and 62.263 By way of sanction, the Adjudicatory Chamber, in light of what the CFCB considered to be “intentional breaches… compounded by the failure to comply with the Investigatory Chamber”, excluded Manchester City from UEFA club

257

CAS 2020/A/6785, Manchester City FC v. UEFA, Award of the 13 July 2020, para 29. As is common in in sports arbitration and at the CAS specifically—see Rigozzi and Quinn 2014. 259 I.e. it was alleged that Etihad would pay (just) GBP 8 million per year of total sponsorship obligations. 260 CAS 2020/A/6785, Manchester City FC v. UEFA, Award of the 13 July 2020, para 29. 261 Ibid. 262 Ibid. 263 Ibid. 258

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competitions for the next two seasons, and fined the club EUR 30 million.264 The Adjudicatory Chamber considered Manchester City to have “circumvented the objective of the Regulations” in “by far the most serious breach of the Regulations to have been referred to the Adjudicatory Chamber”.265 Manchester City appealed to the CAS on 24 February 2020.266 On 9 March, nine Premier League clubs267 filed an application for intervention in the proceedings, pursuant to Articles R41.3 and R54 of the CAS Code; however, the application was for the “limited purpose of opposition to any possible application […] to request for a stay of execution of the Appealed Decision”, which was not ultimately sought and thus the CAS Court Office informed those nine clubs that their application was “moot”.268 In May 2020, with its response to Manchester City’s submissions, UEFA filed requests for evidence in respect of (i) certain Football Leaks documents; (ii) complete and unredacted runs of emails of which the Football Leaks documents formed a part; (iii) payment ledger information; and (iv) the identity of an unnamed person involved in the making of payments to Manchester City.269 It is noteworthy that in respect of the emails referred to in the second category of evidence ((ii) above), “[t]he CFCB IC had already asked for these documents and [Manchester City] refused to produce them”.270 Manchester City rejected this request again in the CAS proceedings; however, in view of the desire of the parties for the case to be concluded by July 2020, the club accepted the other three requests. For the same reason, UEFA acquiesced to Manchester City’s refusal.271 This dynamic is pertinent. As discussed infra (at Sect. 6.4), this case would turn, in significant part, on the evidence. As such the disclosure process was critical to its conclusion. Given the broad information gathering powers conferred on the CFCB by the Regulations (in particular Article 56), it may come as a surprise that the amenability of the relevant documents to disclosure was at issue at all, although, as acknowledged by UEFA,272 Manchester City had a right to defend its interests in that regard. Given the obligation of the CAS Panel to review the matter de novo, and the CAS Code’s own evidence rules,273 which are narrower in scope than the

264

Ibid. Ibid. 266 Ibid., para 30. 267 Which clubs, per ibid., para. 32, being Arsenal, Burnley, Chelsea, Leicester City, Liverpool, Manchester United, Newcastle, Tottenham Hotspur, and Wolverhampton Wanderers, and which clubs, broadly speaking, occupied the top half of the Premier League at the time and thus had a material interest in Manchester City’s inclusion of exclusion from UEFA club competitions. 268 Ibid., paras 32–36. 269 Ibid., para 40. 270 Ibid. 271 Ibid., para 43. 272 Ibid. 273 See Article R44.3 of the CAS Code, inter alia. 265

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Regulations and the Procedural Rules, there is the potential for friction;274 a consequence of the role the CAS assumes as a supervisory regulator was limited in this case by the evidence put in issue, and that evidence was limited by the mutual desire of the parties to resolve the matter by July 2020. A more coherent process would, perhaps, have seen the CAS given supervisory jurisdiction in the determination of the documents that are amenable to the Investigatory Chamber’s information gathering powers, as a discrete point to enable the Investigatory Chamber and subsequently the Adjudicatory Chamber to make decisions on an evidence base that it knows to be stable.275 This approach would also shift the role of the CAS towards deciding on points of law, rather than the more complicated process of determining the correct outcome of entire regulatory investigations.

6.4

Manchester City v. UEFA (CAS 2020/A/6785)—The Panel’s Findings

The Panel had the task of deciding a number of issues in the case: i. Whether the CFCB breached its own due process obligations; ii. Whether the 2014 Settlement Agreement prevented UEFA from charging Manchester City for the issues at hand; iii. Whether the charges were time barred; iv. The applicable standard of proof; v. Whether Manchester City ultimately did disguise equity funding in the form of sponsorship payments; vi. Whether Manchester City failed to comply with the CFCB’s investigation; and vii. If any breach of the Regulations was established, the appropriate sanction for such breach. Before assessing those issues, the Panel turned to the preliminary question of whether the Leaked Emails were authentic and admissible. In considering the authenticity of the Leaked Emails, the Panel found the matter to have been resolved by the disclosure by Manchester City of “unredacted, original versions” into evidence.276 The Panel did find the Leaked Emails to have been curated by way of the deletion and elision of sections, which had the consequence of giving “a somewhat distorted impression”, but ultimately that this “did 274

It is acknowledged, of course, that a CAS Panel can apply, as applicable law, the Regulations and Procedural Rules in respect of the boundaries of evidence taking, and indeed the Panel in this case did expressly consider the information gathering obligations in respect of the Leaked Emails; however, the delta between the CAS Code disclosure rules and the CFCB’s information gathering rights was not explored at length in the award, as perhaps would have been beneficial. 275 Indeed, this prospect is obliquely referred to in CAS 2020/A/6785, Manchester City FC v. UEFA, Award of the 13 July 2020, para 284. 276 Ibid., para 83.

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not affect the veracity of the Leaked Emails on which UEFA primarily based its case.”277 In any event, the Panel did “not rely on the Leaked Emails, but on the original versions”, which negated the question. As to whether the Leaked Emails and their original counterparts were admissible, the Panel considered Article 13(2) of the Procedural Rules, which permits “[a]ll means of evidence”, but does not “explicitly permit or prohibit the use of illegally obtained evidence”.278 Consequently, the Panel looked to Article 182(2) of the Swiss Private International Law Act “to fill this lacuna”, and to Article 152(2) of the Swiss Code of Civil Procedure, which “requires in the case of illegally obtained evidence a balancing of interests”, i.e. a determination as to whether Manchester City’s “personality rights” prevail over the pursuit of truth.279 In finding this to be the appropriate test, the Panel cited CAS precedent in which it had previously been applied.280 The Panel found “clearly” in favour of “discerning the truth at the expense of [Manchester City’s] personality rights”.281 The main reasons for this conclusion were twofold: firstly, UEFA was not involved in the procuration of the evidence in question, which had been widely publicised in various media outlets and was thus in the public domain.282 Secondly, the Regulations “do not only serve a private interest, but also a public interest”, citing the objectives of FFP.283 The Panel noted that the public interest “is enhanced by the European Parliament’s endorsement” of the Regulations284—although as Weatherill has previously explained,285 the various prognostications of the organs of the EU on the compatibility of FFP with EU law have not been binding, nor have they been detailed in their assessment of the compatibility of FFP with EU law, but as the positive reference in this case shows, such statements do hold soft, persuasive, influence. 6.4.1

CFCB Due Process Obligations

Turning to the merits of the case, and first to the due process of the CFCB, the two main issues for the CAS to address in that regard were the referral by the Investigatory Chamber to the Adjudicatory Chamber (which Manchester City 277

Ibid., para 84. Ibid., para 95. 279 Ibid., para 96. 280 CAS 2016/O/4504, International Association of Athletics Federations (IAAF) v. All Russia Athletics Federation (ARAF) and Vladimir Mokhnev, Award of 23 December 2016. 281 CAS 2020/A/6785, Manchester City FC v. UEFA, Award of the 13 July 2020, para 107. 282 Ibid., para 100–102. 283 Ibid., para 103. 284 The exact endorsement to which this refers is not cited—it is presumed to be a reference to the “Fisas Report”, i.e. the Report on the European Dimension in Sport (2011/2087(INI)), 18 November 2011. https://www.europarl.europa.eu/doceo/document/A-7-2011-0385_EN.html? redirect. Accessed 27 June 2021. 285 See Weatherill 2017. 278

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suggested to be “premature”, and founded on an incorrect understanding of the related party status of its sponsors), and the alleged breach by the CFCB of the duty of confidentiality and impartiality it owed to Manchester City. The Panel ultimately found the CFCB not to have breached its obligations of due process, and, in any event, that any such breach would have been cured by two sets of de novo review—by the Adjudicatory Chamber and then by the CAS.286 Expanding on the issue of the understanding of Manchester City’s, Etihad’s, and Etisalat’s relatedness, the Panel found further that even if Manchester City’s submissions were correct, the club could nevertheless have breached the Regulations in respect of its reporting obligations, and the relatedness or otherwise of the parties was not determinative of whether Manchester City had disguised equity funding.287 In common with the award in Manchester City (2019), the Panel called the allegations of leaked information by the CFCB “worrisome”. However, the Panel was unconvinced that the intent of the leak was to harm Manchester City, and, whilst the leak “should not have happened”, the Panel was “not convinced that it had any impact on the Referral Decision”. 6.4.2

The 2014 Settlement Agreement

Next the Panel considered whether, as submitted by Manchester City, the 2014 Settlement Agreement prohibited the CFCB’s later investigation and sanction. The Panel found this not to be the case, since the Settlement Agreement and the sanction to which the instant proceedings related were brought in respect of distinct breaches of the Regulations. The existence of the Settlement Agreement could not “immunise” Manchester City in respect of all possible breaches of FFP,288 and the CFCB’s confirmation of Manchester City’s exit from the Settlement Agreement “does not give rise to any reasonable or legitimate expectation that evidence of other breaches… would not be investigated”.289 It is, perhaps, a surprise that the CFCB did not also allege and prosecute a breach of the Settlement Agreement, given the impact that its allegations of disguised equity funding would have had on the break-even requirements and fair value of sponsorship matters put at issue in the Settlement Agreement.290 Perhaps the CFCB felt that it could not establish a breach on the particular terms of the Settlement Agreement, or that strategically the better approach was to pursue separate 286

CAS 2020/A/6785, Manchester City FC v. UEFA, Award of the 13 July 2020, para 148. Ibid., paras 124–135. See in particular the favourable CAS precedents cited in paragraph 145 (CAS 2008/A/1574, D’Arcy v. Australian Olympic Committee, Award of 7 July 2008; CAS 2018/ A/5929, Esteghlal Iran Culture and Sport Private Joint Stock Company v. Football Federation Islamic Republic of Iran, Iran Football League Organization and Persepolis FC, Award of 7 October 2019; CAS 2016/A/4648, Blaza Klemencic v. UCI, Award of 3 March 2017). 288 CAS 2020/A/6785, Manchester City FC v. UEFA, Award of the 13 July 2020, para 158. 289 Ibid., para 159. 290 For excerpts of which, see ibid., para 150. 287

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breaches; however, the impact is that no determination was made in the present case as to what would happen in the hypothetical event that breaches of the terms of a Settlement Agreement are established after the CFCB confirms the Settlement Agreement to have been exited. 6.4.3

Time Bar

Given the historic nature of the alleged breaches, notwithstanding the fact that they only came to light more recently, the Panel had to consider whether the case pursued by the CFCB ought properly to have been time barred. The limitation period in the Procedural Rules is found at Article 37, and states that “[p]rosecution is barred after five years for all breaches of [the Regulations]”. The Procedural Rules were silent on what it means to ‘prosecute’ in this sense, and Manchester City and UEFA disagreed as to the correct interpretation, with the club arguing that a ‘prosecution’ occurs on the date of the sanction,291 and UEFA arguing that it occurs when an investigation is opened.292 The Panel agreed with neither, finding that a ‘prosecution’ commences with the filing of charges, which, when applied to the processes of the CFCB, means the issuance of the Referral Decision.293 The basis of this conclusion has been described as “somewhat surprising”, as it relied upon a dictionary definition of ‘prosecute’ with “no real analysis of the prevailing applicable law in relation to what it means to commence a prosecution”.294 Indeed, this is not a trivial point, given that the case turned in part on issues of limitation. The word ‘prosecute’ was removed from the 2021 edition of the Procedural Rules, which now state that the “[o]pening of proceedings for any breaches of the UEFA Club Licensing and Financial Fair Play Regulations is barred after five years”.295 The Referral Decision was issued on 15 May 2019, which means the limitation period extended to 15 May 2014.296 Having established the period of limitation, the Panel still had the task of disentangling what this meant for the multi-year rolling assessment basis of the FFP regulatory process. The Panel found that there must be a “clear cut off date” and that as a consequence, breaches are only within the scope of the limitation period the first time they are submitted to UEFA. Submitting the same information as a part of the next year’s break even assessment would not ‘refresh’ the limitation period. The majority of the Panel pointed out that refreshing

291

Ibid., para 168. Ibid., para 169. 293 Ibid., para 171. 294 Christopher Flanagan, A Full Review Of Man City v. UEFA CAS Award—Why This Is Not The End Of FFP, LawInSport, 12 August 2020. https://www.lawinsport.com/topics/item/a-fullreview-of-man-city-v-uefa-cas-award-why-this-is-not-the-end-of-ffp. Accessed 23 April 2021. 295 Article 37, Statute of Limitations, Procedural Rules 2021 Edition. 296 CAS 2020/A/6785, Manchester City FC v. UEFA, Award of the 13 July 2020, para 174. 292

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the limitation period in this way would allow for an infinite regression, as in the submission for each year: “information concerning reporting period T-2… would in turn contain financial information of the reporting period T-2 in such year, i.e. T-4” and so on.297 The majority of the Panel conceded that this finding may be different in respect of breaches of the break-even requirement (Article 63) given its multi-year assessment basis, but “this is not an issue in the present proceedings”.298 As a result, information filed by Manchester City in the monitoring periods ending in 2014 and 2015 was admissible only insofar as it contained information submitted for the first time in those two years. This had the effect of excluding the Etisalat sponsorship, and the alleged disguised equity funding relating thereto, from prosecution within the applicable limitation period. The Etihad sponsorship remained in scope.299 The fact that it was unable to prosecute the alleged breaches relating to the Etisalat sponsorship should be a point of frustration for UEFA. Whilst it is just and equitable that parties should not be prosecuted for historic breaches of rules, the delay in this case was caused solely by the alleged failure of Manchester City to disclose information it ought properly to have disclosed (were the allegations true), and UEFA was simply unable to prosecute breaches of which it was not aware. This could have been avoided if the Procedural Rules had been drafted to cover such circumstances. For example, the relevant provision of the Limitation Act 1980 of England and Wales (Manchester City’s jurisdiction of domicile) has at Section 32 a provision which delays the commencement of the limitation period in cases of “fraud, concealment or mistake”. A similar provision in the Procedural Rules may have brought the Etisalat sponsorship within the scope of the limitation period, given the speed at which the CFCB brought its investigation and adjudication after the Football Leaks. Later changes to the Procedural Rules do not appear to have addressed this possibility. As has been highlighted, the changes that have been made since to the Procedural Rules, “[do] not overcome the problem that can arise if UEFA/CFCB does not become immediately aware of the breach”,300 as a result of which “UEFA needs to consider further reforming its limitation period so that time begins to run from when the CFCB knew or ought to have reasonably known of the breach”.301 Notwithstanding this point, it is argued that the Etisalat sponsorship could have been brought within the limitation period on a different construction of the facts: Counsel for MCFC indicates that ADUG did, as a matter of fact, make payments which were due to be paid by Etisalat, albeit that Etisalat, as the liable party under the sponsorship arrangement with MCFC, repaid ADUG on 18 March 2015… This raises questions as to the proper characterisation of those payments made by ADUG… An alternative characterisation would be to construe this payment as a related-party loan by ADUG to MCFC,

297 298 299 300 301

Ibid., para 189. Ibid., para 191. Ibid., paras 196–198. Dunbar and Middleton 2022. Ibid.

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later satisfied by the offsetting of the obligations of Etisalat to MCFC and MCFC to ADUG.302

This was not explored by the Panel, nor presumably averred by UEFA. However, this alternative construction, if made out, could have brought the Etisalat sponsorship within the limitation period. That is not to suggest that the finding of a breach necessarily would have followed: the evidence presented does suggest that whatever the treatment of these payments ought to have been, once the inter-partes liabilities were set-off by Etisalat, that the monies were not funded by ADUG. In effect ADUG was a creditor of Etisalat, not MCFC. That is to say that in the fullness of time, there was no equity provided by ADUG, because the payments were ultimately borne by Etisalat.303

It would, however, given the nature of the case, have been in the interests of justice, and of Manchester City’s competitors, for an appropriate, evidence-based decision to have been made on the matter, rather than this particular limb of UEFA’s case being defeated by the mere effluxion of time. 6.4.4

Standard of Proof

Turning to the standard of proof to be applied to the remaining issues at hand, the parties agreed that the appropriate standard was that of comfortable satisfaction.304 Manchester City suggested that the Adjudicatory Chamber failed to property apply this standard, and that it should it should be elevated, to “effectively beyond reasonable doubt” given the gravity of the allegations. Manchester City cited CAS 2017/A/5379305 in support of its suggestion that more serious allegations require more cogent evidence. The Panel found that the standard of proof was simply its comfortable satisfaction, and there was no secondary elevated standard because of the nature of the allegations. However, the Panel did endorse the reasoning in CAS 2017/A/5379 that the evidence must be particularly cogent. Conversely, the Panel cited favourably the case of CAS 2010/A/2172,306 and the mantra expressed therein that “corruption is, by nature, concealed”, finding that it applied to the concealment of equity funding. It can be inferred that the Panel understood the standard of proof to be comfortable satisfaction, satisfied by cogent, but perhaps limited, evidence.

302 Christopher Flanagan, A Full Review Of Man City v. UEFA CAS Award—Why This Is Not The End Of FFP, LawInSport, 12 August 2020. https://www.lawinsport.com/topics/item/a-fullreview-of-man-city-v-uefa-cas-award-why-this-is-not-the-end-of-ffp. Accessed 23 April 2021. 303 Ibid. 304 CAS 2020/A/6785, Manchester City FC v. UEFA, Award of the 13 July 2020, para. 200. 305 CAS 2017/A/5379, Alexander Legkov v. International Olympic Committee (IOC), award of 23 April 2018. 306 CAS 2010/A/2172 O. v. Union des Associations Européennes de Football (UEFA), award of 18 January 2011, para 21.

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Assessment of Facts

Next, the Panel considered the critical determination of the facts as to whether Manchester City disguised equity funding as sponsorship. The Panel found that “UEFA was basically left with no other option but to commence an investigation” in light of the Leaked Emails, and that those emails “provide prima facie evidence of potential rule breaches”.307 The detail of the evidence is discussed at length in the award, but the fundamental finding is that the evidence relied upon by UEFA was not cogent enough to support the gravity of the allegations;308 whereas the evidence and testimony presented by Manchester City was such that: a finding that Etihad’s sponsorship contributions were funded, or procured to be funded, by HHSM and/or ADUG would require a conclusion that the evidence of several high-ranking officials of large international commercial enterprises […] were false.309

Overall, the majority of the Panel found the accounting evidence, and in particular the witness evidence, presented by Manchester City to be comprehensive and persuasive. Changes to the Procedural Rules in the 2021 edition “[appear] to be in direct response to Manchester City’s introduction of new evidence to CAS” in this case”.310 No longer will clubs be permitted to introduce new evidence where that information was not made available to the CFCB.311 Irrespective of the majority of the Panel’s findings on the evidence in this case, the outcome may have been different had either that evidence been made available to the CFCB earlier, or indeed had it been excluded from consideration in the CAS proceedings. 6.4.6

Manchester City’s Co-operation with the Investigation

Some sympathy can, perhaps, be extended to UEFA in that the CFCB sought further evidence, but Manchester City did not wholly comply with its requests. The Panel considered whether adverse inferences should be drawn from Manchester City’s failure to cooperate with the CFCB’s investigation, given that “UEFA is largely dependent on the cooperation of football clubs in obtaining evidence for violations of the [Regulations]”.312 The Panel suggested that it may be difficult to compel third parties (specifically sponsors) to open themselves to audit and requests for information as they are “sometimes major publicly listed international enterprises that may justifiably not

307 308 309 310 311 312

CAS 2020/A/6785, Manchester City FC v. UEFA, Award of the 13 July 2020, para 213. Ibid., para 244. Ibid., para 254. Dunbar and Middleton 2022. See Articles 18 and 34, Procedural Rules 2021 edition. CAS 2020/A/6785, Manchester City FC v. UEFA, Award of the 13 July 2020, para 274.

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always be open to be involved in investigations by UEFA”, although such rights are not without precedent in regulated industries.313 However, the Regulations do not mandate such arrangements, and so it is reasonable that there should be limitations on the information available to a club under investigation. However, where there is no “satisfactory explanation” for a failure to provide evidence, the Panel found a “possibility to draw adverse inferences”. Notwithstanding this, the majority of the Panel excluded from the scope of such adverse inferences the requests for information made by the CFCB in its investigation, which were repeated by UEFA in the proceedings before the CAS, but ultimately dropped by UEFA for the sake of expedience. The majority of the Panel approached the procedural request for disclosure and the substantive duty to collaborate as mutually indistinct issues. Hessert is particularly critical of the majority of the Panel’s approach here: “[a]lthough both request a party to produce evidence that is not available to the other party, the legal nature of the two concepts is fundamentally different.”314 The majority of the Panel found that “insofar as it concerns evidence that has never been produced, UEFA had a duty to clearly identify in the present appeal arbitration proceedings which evidence it wanted to be produced… in order for [Manchester City] to be sanctioned for a failure to cooperate”.315 The majority of the Panel conflates here a breach of the Regulations with a breach of the CAS Code in relation to disclosure. A breach of the relevant obligation on Manchester City to disclose information should not be cured or waived by limitations on disclosure in a condensed arbitration process. Despite the narrowing of instances of non-cooperation afforded by the approach above, the majority of the Panel nevertheless found Manchester City to have failed to cooperate with the CFCB in declining to provide “all but one witness requested by the CFCB Chief Investigator” and “the complete runs of emails of which the Leaked Emails formed part”.316 Additionally, the Panel found the evidence produced by Manchester City for the first time in the proceedings at hand to evidence a failure to co-operate, since “this failure is not repaired by the de novo nature of the CAS proceedings, because allowing clubs to hold on the relevant evidence until the

313

See, for example, paragraph 13.3 of the European Banking Authority Final Report on EBA Guidelines on Outsourcing Arrangements, EBA/GL/2019/02, 25 February 2019. https://www.eba. europa.eu/sites/default/documents/files/documents/10180/2551996/38c80601-f5d7-4855-8ba3702423665479/EBA%20revised%20Guidelines%20on%20outsourcing%20arrangements.pdf? retry=1. Accessed 27 June 2021 (“Regardless of the criticality or importance of the outsourced function, the written outsourcing arrangements between institutions and service providers should refer to the information gathering and investigatory powers of competent authorities”). 314 Björn Hessert, The Duty To Cooperate—Questions Arising From The Man City v. UEFA Decision, LawInSport, 31 July 2020, https://www.lawinsport.com/topics/sports/football/item/theduty-to-cooperate-questions-arising-from-the-man-city-v-uefa-decision?category_id= 153#references. Accessed 23 April 2021. 315 CAS 2020/A/6785, Manchester City FC v. UEFA, Award of the 13 July 2020, para 309. 316 Ibid., paras 305–306.

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proceedings before the CAS would seriously risk turning the proceedings before the CFCB into a farce”.317 In summary, the majority of the Panel found Manchester City to have breached the Regulations, but only in relation to its duty to cooperate with the CFCB. The allegations in respect of “disguised equity funding” were dismissed—with respect to the Etisalat sponsorship, as “time-barred”, and, with respect to the Etihad sponsorship, as “partially time-barred and, in any event, not established to the comfortable satisfaction of the Panel”.318 6.4.7

Sanction

In light of the central allegations on which the CFCB’s case was based not being established, and given that the Adjudicatory Chamber did not apportion its sanction between breaches relating to “disguised equity funding on one hand and on MCFC’s failure to cooperate […] on the other hand”,319 the Panel did not find it appropriate to uphold the Adjudicatory Chamber’s exclusion of Manchester City from UEFA club competitions, and reduced the fine imposed on the club to EUR 10 million.320 This may seem a light sanction, given the finding that Manchester City committed a “severe breach and that MCFC is to be seriously reproached”,321 and given the optics and potential market impacts of a ‘good’ outcome for a club found to have been in breach for failing to cooperate with reasonable regulatory requests (i.e. that other clubs may decide to take their chances with a similar sanction rather than cooperate with the CFCB in future matters). After all, as de Marco, Richard and Wakefield state: “[i]t is vital that submissions by clubs are on time and accurate”.322 It is, however, within UEFA’s gift to amend the Regulations and/or the Procedural Rules to address any adverse consequences of the present award. For now: “the punishment of a fine is within the reasonable spectrum of punishments available to the CAS Panel; it is for UEFA to clarify its rules if it has a contrary intention for future cases.”323

317

Ibid., para 316. Ibid., para 324. 319 Ibid., para 33. 320 Ibid., paras 333–334. 321 Ibid., para 331. 322 De Marco 2018, para 16.38. 323 Christopher Flanagan, A Full Review Of Man City V UEFA CAS Award—Why This Is Not The End Of FFP, LawInSport, 12 August 2020. https://www.lawinsport.com/topics/item/a-fullreview-of-man-city-v-uefa-cas-award-why-this-is-not-the-end-of-ffp. Accessed 23 April 2021. 318

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7 Conclusions and the Future of FFP The FFP dispute between Manchester City and UEFA has been described as “undoubtedly one of the most important cases decided in recent years”.324 In terms of profile, this is evident. But in terms of legal ramifications, the singular impact of the Manchester City cases is less profound. However, taken in conjunction with the other FFP cases presented in this chapter, an important trend can be elicited: Clubs are less inclined to challenge the legality of FFP as a set of rules, and more inclined to challenge the procedure concerning FFP’s complex regulatory processes. This is for a number of reasons. Firstly, whilst FFP is not unassailable in terms of competition law compliance, various challenges to its legality have been brought and failed over the years.325 None of those failed challenges produced a determinative, binding result confirming the legality of FFP; but it seems likely, given the history of FFP to date, that the restrictions inherent to FFP may sit within the margin of appreciation within which UEFA can competently restrict competition (if indeed it is anti-competitive at all), or at the very least its structure is such that it will be difficult to strike down.326 Added to this is the procedural complexity of the regulatory processes enshrined in the Regulations, the Procedural Rules, and the customs and practices of the CFCB. In 2015, Pijetlovic identified in respect of the sort of clubs discussed in this chapter a “contemporary model […] based on professional management in the club administration, ownership by corporate giants […] [and] entry into capital markets”.327 That paradigm, now amplified, is writ large in the background facts of the awards described in this chapter. Clubs are well resourced, and have complicated financial, commercial, and corporate arrangements. This means that the work of the Investigatory Chamber of the CFCB in particular has some inherent challenges. The CFCB must unpick clubs’ financial ecosystems, and it must do so on the sole authority of UEFA’s own rules. The drafting of those rules—the Regulations and the Procedural Rules—has clearly, at times, not been sufficiently robust for the CFCB to pursue its intended course in all cases. In their submissions to the CAS, clubs have relied upon, and have been, in turn, the beneficiary or the victim of lacunae and ambiguities in the applicable law, which has had a deleterious effect on the overall regulatory process.

324 Björn Hessert, The Duty To Cooperate—Questions Arising From The Man City v. UEFA Decision, LawInSport, 31 July 2020, https://www.lawinsport.com/topics/sports/football/item/theduty-to-cooperate-questions-arising-from-the-man-city-v-uefa-decision?category_id= 153#references. Accessed 23 April 2021. 325 See Flanagan 2018a. 326 As to which see Flanagan 2018a and 2018b. As to whether the break-even requirement is indeed anti-competitive, see the conclusions in CAS 2016/A/4492, Galatasaray v. UEFA, Award of 3 October 2016—although with the caveat that it was a case decided on the particular evidence presented. 327 Pijetlovic 2015, p. 44.

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Some sympathy can be expressed for UEFA here. As alluded to in Manchester City (2019),328 the ex-ante drafting of rules—in that case a list of what constitutes an appealable final decision—can be difficult due to a “myriad of intricacies”;329 and indeed UEFA has amended its rules to make both clarificatory amendments from time to time, such as the amendments to the vexed Article 16 of the Procedural Rules, and the addition of a definition of ‘significant influence’; and to make more substantial changes in order to address some of the systematic issues presented in its prosecution of FFP cases at the CAS, such as its reimagining of the CFCB pursuant to the 2021 edition of the Procedural Rules.330 In that regard, while the outcome of the Manchester City (2020) case may have been seen as foreboding for UEFA when considered in isolation, it was open to UEFA to clarify the severity of, and punishment for, any failure to co-operate; or to amend its limitation provisions to clarify their extent in cases where hitherto unknown facts come to light. It did, in fact, make changes to the Procedural Rules in their 2021 edition to deal with both of those issues in part—including a right of the CFCB to draw adverse inferences in the event of non-cooperation331 and amendments to the evidential provisions332—although it has been suggested that changes to the cooperation requirements are “not sufficient […] not proactive in terms of securing compliance” whereas “[a] much stronger approach would be the introduction of an offence of obstructing the regulator”,333 and that changes to the nature of the statute of limitation provisions do not address the possibility of prosecuting latent breaches of the rules.334 That having been said, there are likely always to be limitations to any complex, invasive, longitudinal regulatory process of this nature where the regulator in question does not derive its investigatory or enforcement powers from statutory law or an international convention. The quasi-contractual nature of the sports regulatory ecosystem creates a tension between regulator and regulated, and, as the ultimately doomed Super League shows, clubs may attempt to break away from UEFA’s competitions if their interests are not served.335

328

CAS 2019/A/6298, Manchester City FC v. UEFA (2019), Award of 15 November 2019, para 93. Ibid. 330 For analysis of which see Christopher Flanagan, How Changes To UEFA’S 2021 Procedural Rules Fundamentally Affect Financial Fair Play, LawInSport, 28 September 2021. https://www. lawinsport.com/topics/item/how-changes-to-uefa-s-2021-procedural-rules-fundamentally-affectfinancial-fair-play. Accessed 5 March 2022. 331 Article 22(2), Procedural Rules 2021 edition. 332 Articles 18(3) and 34(3), Procedural Rules 2021 edition. 333 See supra, Sect. 6.4.3 and Dunbar and Middleton 2022. 334 Ibid. 335 For an overview on the legal issues presented by the Super League, see Chris Anderson, Tom Murray, Doomed To Fail? An Analysis Of European Super League And The Complex Web Of Football Governance, Regulations and Laws, LawInSport, 14 May 2021. https://www.lawinsport. com/topics/item/an-analysis-of-the-legal-and-regulatory-hurdles-facing-the-european-super-league . Accessed 20 June 2021. 329

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Having established that FFP as a regulatory initiative may fall within UEFA’s rule making margin of appreciation, the question turns to how that margin of appreciation should be applied to its enforcement of those rules—both in terms of interpretation and in terms of sanction. In Milan (2018), the Panel effectively corrected the CFCB Adjudicatory Chamber on its errors and handed the matter back for sanction in respect to the CFCB’s autonomy; conversely, in Manchester City (2020), the majority of the Panel made its own determination on the appropriate sanction, with the Adjudicatory Chamber having not apportioned the sanction among the various breaches it alleged. The Panel’s approach in Milan (2018) seems the more coherent.336 If the Adjudicatory Chamber has erred on the facts but there is nevertheless a breach, it makes sense for the Adjudicatory Chamber, as the independent regulator, to determine the sanction for the particular breach once corrected on whatever point is at hand by the CAS. Lindholm has described the CAS as performing the “same function as an apex administrative or constitutional court by checking how the institutions that possess regulatory and executive powers within sports […] exercise those powers”.337 In the case of FFP, however, the application of the de novo review enshrined in Article R57 of the CAS Code creates some friction in the case of FFP disputes. Mavromati, in her review of Milan (2018) rightly highlights that “Article R57 CAS Code gives vast power to the CAS Panel to decide on the length / scope of the review – and the CAS case law has shown different approaches, which, even though they do not favor legal certainty, fall within the broad discretion of the Panel according to the CAS Code.”338 The complex, longitudinal, regulatory procedures and information gathering powers of the CFCB, when appealed to the CAS and subject to de novo review, have conferred on the CAS a supervisory regulator status in which it not only decides points of law, but also on evidentiary issues, usurping the Investigatory Chamber from its dedicated function as an information gathering body. This can lead to perverse outcomes. Hovell describes the powers of de novo review as being “not without limits”, particularly from an evidentiary perspective,339 but in the case of FFP disputes, the issue has taken on new dimensions. Per Hessert: [i]nsum and in light of the CAS award in [Manchester City (2020)], non-compliance with the duty to cooperate under the respective sports rules and regulations may only lead to a disciplinary sanction if the investigating sports body constantly insists that the documents must be provided due to the importance to prove a specific case. In turn, once the sports organisation ceases to request the disclosure of information, the party in breach of the duty to cooperate can no longer be sanctioned for such misconduct.

336

Albeit that it was at the suggestion of the parties. Lindholm 2021, p. 2. 338 Despina Mavromati, A Review Of The CAS Panel’s Decision In AC Milan v. UEFA—The Devil Is In The (Procedural) Detail, LawInSport, 21 November 2018. https://www.lawinsport.com/ topics/item/a-review-of-the-cas-panel-s-decision-in-ac-milan-v-uefa-the-devil-is-in-theprocedural-detail. Accessed 29 June 2021. 339 In De Marco 2018, para 29.88. 337

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Conducting investigations is a legally complex activity for governing bodies.340 In order for UEFA to manage these complexities, it has conferred on itself broad information gathering powers; these powers cannot reasonably be matched and managed during CAS arbitration proceedings in which there are significant time pressures to resolve matters relating to sanctions; pressures which accrue not just to the horizontal relationship between the parties, but to the corresponding relationship between the club subject to the sanction and its competitor clubs. There is much focus within the cases presented on whether the acts or omissions of the CFCB are ‘decisions’ and thus appealable.341 The better approach have been for the CAS to act as a true ‘Supreme Court of Sport’ in determining the intra vires of the CFCB where points of contention arise with a view to empowering the CFCB to run its regulatory processes, rather than restricting the role of the CAS to the review of ‘decisions’ and consequently supplanting the role of the CFCB in doing so. This would, however, entail a substantial shift in approach from UEFA (insofar as the Regulations and Procedural Rules are geared towards the appeal of ‘decisions’) and indeed in the constitution of the CAS, which defines its mission primarily in relation to ‘decision’ of federations and associations.342 It would also deprive UEFA of the ‘curing’ effect of the de novo review on its procedural defects. However, such an alternative formulation would give clubs (and indeed the CFCB) a route to determination on points of law during the regulatory process without that process having to be first fully ventilated; and it would wrest control of the overall regulatory process back to UEFA without the lingering spectre of its entire, multi-year process having to be re-performed by a CAS Panel inside mere months. Whatever the approach, it now seems likely that, in the future, the CAS will be looking at FFP cases of a different nature. The coronavirus pandemic has had a significant impact on the ability of clubs to generate revenue;343 this has an obvious impact on FFP compliance in the immediate term, and will perhaps shift the policy direction in favour of encouraging direct exogenous financial input where previously there had been regulatory barriers. UEFA acted quickly in introducing temporary emergency measures for FFP by way of an addendum to the Regulations— relaxing the overdue payables requirement, rolling up the 2020 break even calculation into the following year, and expressly accommodating adjustments relating to the adverse financial impacts of Covid-19344—and it may be that these amendments

340

For a more detailed explanation, see Hessert 2020. This has coalesced in particular around Article 16 of the Procedural Rules. 342 See S12 of the CAS Code. 343 For a holistic assessment of the impact, see Michele Colucci, Alessandro Coni, Sean Cottrell, Rustam Sethna (2020) COVID-19 And Its Impact On Football—A Sports Law And Policy Centre And LawInSport Joint Survey—4th Edition, LawInSport, 15 December 2020. https://www. lawinsport.com/topics/covid19-impact/item/coronavirus-a-and-its-impact-on-football-a-sportslaw-and-policy-centre-and-lawinsport-joint-survey-2. Accessed 28 June 2021. 344 UEFA, Addendum to the UEFA Club Licensing and Financial Fair Play Regulations (Edition 2018), 18 June 2020. https://www.uefa.com/MultimediaFiles/Download/uefaorg/FinancialFair Play/02/64/22/29/2642229_DOWNLOAD.pdf. Accessed 27 June 2021. 341

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are themselves subject to future CAS cases. Thereafter, it remains (at the time of writing) to be seen how financial regulation in football will be reshaped; but as UEFA consults on its reformulation, the new financial environment may generate a new regulatory approach.345 So, while the Manchester City (2020) case is not the end of FFP, it will perhaps be the apotheosis of the FFP story in its current guise. Whatever the future holds for the financial regulation of football, the lessons taken from the cases presented in this chapter will be a cautionary tale for UEFA—or whichever governing body may set the relevant rules—in particular with regard to focusing on aspects of due process and the administration of justice, lest CAS panels remain the surrogate regulator of the entire FFP procedure; the de facto regulator of last resort.

References Bastianon S (2015) The Striani Challenge to UEFA Financial Fair-Play: A New Era after Bosman or Just a Washout? The Competition Law Review, 11:7-39. Blackshaw I (2003) The Court of Arbitration for Sport: An International Forum for Settling Disputes Effectively Within the Family of Sport. Entertainment and Sports Law Journal 2:61-83. De Marco N (2018) Football and the Law, 1st edn. Bloomsbury Professional Dunbar N, Middleton T (2022) UEFA’S financial fair play regulations: a good example of best practice governance by a sporting body? International Sports Law Journal Flanagan C A (2013) A Tricky European Fixture: An Assessment of UEFA’s Financial Fair Play Regulations and their Compatibility with EU Law. International Sports Law Journal 13:148-167 Flanagan C A (2018a) The Corridor of Uncertainty, Part One: Case Studies on the Legal Challenges to the Financial Regulation of Football. International Sports Law Journal 17:139-159 Flanagan C A (2018b) The Corridor of Uncertainty, Part Two: Why Attempts to Regulate the Financial Aspects of Football are met with Legal Challenges. International Sports Law Journal 18:29-38 Freeburn L (2018) Regulating International Sport Power, Authority and Legitimacy. Brill Nijhoff, The Hague. Galanter M (1974) Why the “Haves” Come out Ahead: Speculations on the Limits of Legal Change. Law & Society Review 9:95-160 Geey D (2016) The UEFA Financial Fair Play Rules: A Difficult Balancing Act. Entertainment and Sports Law Journal 9:5 Hessert B (2020) Cooperation and reporting obligations in sports investigations. International Sports Law Journal 20:145-156 Keidel C, Fischer P (2018) Standing to Appeal of Third Parties in Front of CAS. In: Duval A, Rigozzi A (eds) Yearbook of International Sports Arbitration 2016. T.M.C. Asser Press, The Hague, pp. 41-59

345

Paul MacInnes, Football’s Financial Fair Play Rules To Be Ripped Up After Covid Crisis, The Guardian, 25 March 2021. https://www.theguardian.com/football/2021/mar/25/football-financialfair-play-rules-to-be-ripped-up-after-covid-crisis. Accessed 29 June 2021.

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Lindholm J (2010) The Problem With Salary Caps Under European Union Law: The Case Against Financial Fair Play. Texas Review of Entertainment and Sports Law 12:189-213 Lindholm J (2021) A legit supreme court of world sports? The CAS(e) for reform. International Sports Law Journal 21:1-5 Pijetlovic K (2015) EU Sports Law and Breakaway Leagues in Football. T.M.C. Asser Press, The Hague Rigozzi A, Quinn B (2014) Evidentiary Issues Before CAS. In: Bernasconi E (ed) International Sports Law and Jurisprudence of the CAS - 4th Conference CAS & SAV/FSA Lausanne 2012. Weblaw, Berne, pp. 1–55 Serby T (2016) The State of EU Sports Law: Lessons from UEFA’s Financial Fair Play Regulations. International Sports Law Journal 16:37-51 Weatherill S (2017) Principles and Practice in EU Sports Law. OUP, Oxford

Part II

Commentaries of CAS Awards

CAS 2017/O/5025, International Federation of American Football (IFAF), USA Football, Football Canada, Japanese American Football Association (JAFA), Panamanian Federation of American Football and Richard MacLean v. Tommy Wiking, Award of 1 March 2018 Yann Hafner Contents 1 2

Introduction.......................................................................................................................... Summary of Facts and Procedure ....................................................................................... 2.1 Facts ............................................................................................................................ 2.2 Procedure .................................................................................................................... 3 Comment.............................................................................................................................. 3.1 Did Mr. Wiking Validly Resign from His Position as IFAF President in Early 2015? In the Affirmative, What Were the Legal Consequences of His Resignation? ........ 3.2 Was Mr. Noronen Validly Elected as IFAF Ad Interim President on 17 July 2015?........................................................................................................................... 3.3 Who Is the Current President of IFAF? .................................................................... 3.4 Does IFAF Have Standing in the CAS Proceedings?............................................... 4 Conclusion ........................................................................................................................... Reference....................................................................................................................................

116 116 116 120 123 124 125 126 127 128 128

Abstract In the CAS 2017/O/5025 matter, the Court of Arbitration for Sport (CAS) dealt with the legal consequences of a change of heart by a sport official who had resigned from his position, but then decided he wanted to resume office. The Panel had to review the exchanges of correspondence between the official and the Executive Board and to assess if these included a mere declaration of intent or an unequivocal declaration of resignation on the official’s part. In this regard, the The opinions expressed in this chapter are those of the author and do not necessarily reflect those of UEFA. Y. Hafner (&) Union des Associations Européennes de Football (UEFA), Nyon, Switzerland e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2022 A. Duval and A. Rigozzi (Eds.), Yearbook of International Sports Arbitration 2018–2020 https://doi.org/10.1007/15757_2022_38

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context in which the declaration was made, the sequence of events leading up to it and the official’s choice of words were all relevant to establishing the declaration’s true meaning and thus its legal consequences. The Award shows that, absent a formal letter, an array of converging documents can be sufficient to establish the existence of a declaration of resignation. The legal consequences of the declaration of resignation, including the possibility of a recall, are then to be assessed against the statutes of the relevant international governing body and the laws of the country in which it is incorporated.











Keywords American football Governance Admissibility of evidence Resignation Interpretation of a declaration Legal effects of a declaration French Civil Code







1 Introduction This is the chronicle of a two-year schism within the governing body for the sport of American football over the figure of its President. It involved the International Federation of American Football (IFAF), an association incorporated in France and headquartered in La Courneuve, a number of national governing bodies affiliated to IFAF, Mr. Richard MacLean, who was elected as President of IFAF at a Congress held in September 2016 in New York City, USA, and Mr. Tommy Wiking, the hitherto incumbent President of IFAF whose mandate was due to end in 2016 and who was re-elected for this position at a Congress also held in September 2016, in Paris, France (collectively the “Parties”). This commentary will discuss the legal proceedings surrounding these events, before the CAS and the French courts, starting with a summary of the facts and procedural steps (see Sect. 2), followed by an analysis of the CAS Panel’s findings and decision on the merits (see Sect. 3). The final episode of the IFAF et al. v. Tommy Wiking dispute (i.e. the annulment proceedings brought by Mr. Wiking against the CAS award) will be dealt with in the digest of SFT decisions on sports arbitration cases.1

2 Summary of Facts and Procedure 2.1

Facts

Mr. Tommy Wiking was at the helm of the Swedish American Football Federation (the “SAFF”) between 2004 and 2014. In parallel, he held the office of President of 1

See Hasler and Hafner (2022).

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IFAF since 2006, and was re-elected to that position in 2008 and 2012, each time for a four-year term. Accordingly, his last term as IFAF President was due to expire in 2016.2 Under Mr. Wiking’s leadership, IFAF granted the organisation of the 2015 IFAF World Championship to the SAFF. In December 2014, this decision was cancelled and the Championship re-attributed to the City of Canton, Ohio, USA. IFAF allegedly resolved to do so because of a series management issues, such as a leave of absence taken by Mr. Wiking from SAFF and IFAF due to health issues, and possibly his arrest by the Swedish authorities on suspicions of embezzlement, the cancellation of the hotel bookings for the championship, the absence of a stadium to host the competition or the money to organise it, and the involvement of a company whose ownership and scope of activity were of concern. It was also alleged that Mr. Wiking had explored the possibility of relocating the 2015 IFAF World Championship from Sweden to China, without reporting the existence of talks between the Chinese Rugby Football Association and himself to the IFAF Executive Board.3 Mr. Wiking denied all these allegations. Specifically, he contended that the Executive Board had been informed of his discussions with China from September 2014 onwards, that he had no interests in, nor had he been involved in the change of ownership of the company involved in the 2015 IFAF World Championship, and asserted that he had never been indicted nor convicted for any crime. Mr. Wiking explained that he had had to temporarily step down from his duties as IFAF President for medical reasons.4 In December 2014, IFAF informed the American football community of the following developments in the affairs of the association: (i) Mr. Wiking was on leave of absence until the end of January and was to be replaced in the meantime by Mr. Makoto Kaneuji, Senior Vice-President of IFAF, as head of the federation, and by Mr. Roope Noronen, Vice-President, as the main point of contact; and (ii) the Executive Board had decided to relocate the 2015 IFAF World Championship to Canton, Ohio, USA.5 In January 2015, the IFAF Executive Board met to discuss the above-mentioned events. Mr. Wiking was not in attendance. An exchange of emails ensued between the Executive Board and Mr. Wiking, from 30 January 2015 to 6 February 2015. In a nutshell, the Executive Board requested that Mr. Wiking’s leave of absence be extended for another two weeks, effective 1 February 2015, and asked for information on his actions as IFAF President with regard to the 2015 IFAF World Championship. In this context, the Parties also discussed and ultimately agreed on Mr. Wiking’s resignation, with effect on 30 April 2015, including additional terms (e.g. Mr. Wiking’s participation in the SportAccord Convention with other

2 3 4 5

CAS 2017/O/5025, IFAF et al. v. Tommy Wiking, Award of 1 March 2018, paras 7–8. Ibid., paras 9–12. Ibid., paras 14–15. Ibid., paras 16 and 18.

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representatives of IFAF). A specific communication plan was also considered in this regard.6 In April 2015, Mr. Wiking attended the SportAccord Convention on behalf of IFAF, together with two other members of the Executive Board. Following alleged discussions with senior sports officials (including from the International Olympic Committee), he later expressed doubts regarding his resignation, which he formally recalled in a statement to the Executive Board dated 30 April 2015.7 On 1 May 2015, Mr. Wiking informed the American football community of the above by way of a statement, including that he would remain on medical leave until the end of May 2015. The IFAF Executive Board immediately objected to the statement, both in writing to Mr. Wiking and by issuing its own media release. Additional communications were issued, both by the Executive Board and by Mr. Wiking, for the attention of IFAF’s member federations. In May 2015, Mr. Andrew Fuller, IFAF’s Managing Director, proceeded to inform all members of the latest preparations for the 2015 IFAF Congress, which was scheduled for 17 July 2015 in Canton, Ohio, USA. Specifically, Mr. Fuller communicated to all the national governing bodies the agenda for the Congress, which contemplated the “Election of the IFAF President (in accordance with Article 9) for the remainder of the current term until 2016”.8 On the date of the 2015 IFAF Congress, Mr. Wiking was prevented from accessing the podium reserved for members of the Executive Board. As a consequence, a schism occurred and two meetings were held in parallel, one chaired by Mr. Makoto Kaneuji and another by Mr. Wiking.9 The outcomes of the two meetings were mutually exclusive: (i) in the meeting chaired by Mr. Kaneuji, Mr. Roope Noronen was unanimously elected interim IFAF President until the 2016 IFAF Congress, following a nomination from the representative of the federation of Great Britain; whereas, (ii) in the meeting chaired by Mr. Wiking, the delegates expressed their confidence in Mr. Wiking and Mr. Kaneuji as IFAF President and Senior Vice-President of IFAF respectively. Additional members of the Executive Board were elected and proposals by several national governing bodies affiliated to IFAF were considered.10 The standing of certain countries and delegates who attended the 2015 IFAF Congress was later disputed.11 On 31 July 2015, Mr. Wiking sought to register himself as IFAF President with the Préfecture de la Seine-Saint-Denis, where IFAF is headquartered. On 15 August 2015, a similar application was made on behalf of Mr. Roope Noronen.12 This

6

Ibid., paras 19–24. Ibid., paras 25–28. 8 Ibid., paras 29–34. 9 Ibid., para 36. 10 Ibid., paras 37 and 40. 11 Ibid., paras 43–48. 12 Ibid., paras 49–50. 7

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application was challenged and ultimately legal proceedings were initiated in France at the beginning of 2016.13 On 19 March 2016, Mr. Wiking and his group held an Extraordinary Congress. The main topics on the agenda were an increase in membership (i.e. admission of new members to IFAF) and a vote of confidence in the Executive Board, including the election of new members.14 Mr. Kaneuji and several other officials did not attend the Extraordinary Congress. On 16 May 2016, Mr. Wiking and his group called for a Congress to be held on 16–17 September in Paris, France. The relevant agenda was released on 17 August 2016.15 On 14 July 2016, Mr. Roope Noronen announced that the 2016 IFAF Congress would be held in New York, USA on 17 September 2016. The invitation stated that the final agenda would be published 30 days before the Congress, candidates for a position on the Executive Board should file an application 60 days prior to the Congress, and any proposal for inclusion in the agenda should be forwarded to IFAF 60 days in advance as well. The national governing bodies of Spain, France and Germany challenged the validity of this latter suggested Congress by way of a letter to Mr. Noronen.16 On 8 September 2016, Mr. Wiking, on behalf of IFAF, and the Turkish American Football Federation filed a request for provisional measures with the CAS, which was dismissed on 14 September 2016. The applicants had requested that the CAS issue a decision ordering, inter alia, that Mr. Noronen cease and desist from acting and referring to himself as the President of IFAF and from organizing and promoting the 2016 IFAF Congress in New York.17 On 17 September 2016, two meetings were held in parallel, in Paris and New York City. Mr. Wiking chaired the meeting in Paris, where he was re-elected unanimously, following the adoption of amended statutes (allowing vote by proxy henceforth). In total, 34 representatives of member associations with the right to vote and 15 without attended the meeting. An additional 13 proxies were subsequently given to member associations in attendance upon the adoption of the new statutes. At the end of the meeting, Mr. Wiking immediately attempted to register himself as the new President of IFAF with the Préfecture de la Seine-Saint-Denis. Mr. Noronen chaired the meeting held in New York City, which was attended by 19 member federations. Participants at this meeting agreed to initiate CAS proceedings against Mr. Wiking, and elected Mr. Richard MacLean as the new President of IFAF, for a four-year term.18

13 14 15 16 17 18

See Sect. 2.2.1. Ibid., paras 64–68. Ibid., paras 70 and 74. Ibid., paras 73 and 75. Ibid., paras 76–77. Ibid., paras 79–85.

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Procedure The Proceedings in France

In February 2016, Mr. Wiking filed proceedings, including an application for provisional measures, before the Tribunal de Grande Instance of Bobigny, France. In his request for provisional measures, Mr. Wiking sought an order to prevent Mr. Noronen from registering himself as President of IFAF with the relevant administrative authorities. The Tribunal de Grande Instance granted the request. On the merits, Mr. Wiking sought to nullify the decisions taken by the 2015 IFAF Congress chaired by Mr. Kaneuji, Mr. Noronen’s election as President of IFAF on that occasion, and all subsequent actions taken by him or his group on behalf of IFAF.19 In May 2016, the Tribunal de Grande Instance declined jurisdiction and referred the parties to arbitration, by reference to the CAS clause contained in the IFAF Statutes.20

2.2.2

The CAS Proceedings

Initiation of the Proceedings On 7 March 2017, IFAF, together with the national governing bodies of the United States of America, Canada, Japan and Panama, and Mr. Richard MacLean (collectively the “Claimants”), initiated CAS arbitration proceedings based on Articles R38 et seq. of the CAS Code.21 Mr. Wiking (the “Respondent”) agreed for a three-member Panel to hear the case on 3 April 2017 and filed his Answer to the Request for arbitration on 12 April 2017.22

Position of the Parties The Claimants and the Respondent filed their Statement of claim and Statement of defence on 23 June 2017 and 27 July 2017 respectively.23 The Parties’ positions can be summarized as follows: a. The Claimants The Claimants argued that Mr. Wiking had resigned from his position as President of IFAF on 3 February 2015, with effect on 30 April 2015. They argued his 19 20 21 22 23

See Section “Position of the Parties”. CAS 2017/O/5025, IFAF et al. v. Tommy Wiking, Award of 1 March 2018, para 71. Ibid., para 86. Ibid., paras 88–89. Ibid., paras 93 and 99–100.

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decision was freely, thoroughly and unequivocally communicated to IFAF. In other words, the decision met the requirements of French law, the governing law of IFAF, and, as such, was binding on the Parties. All other related events were a mere consequence of the Respondent’s decision to resign, in particular the fact that Mr. Kaneuji chaired the 2015 IFAF Congress where Mr. Noronen was elected. The Claimants also challenged the power of representation of the delegates who participated in the Congress chaired by Mr. Wiking, and contended that they had elected the legitimate President of IFAF in the person of Mr. Noronen. As a result, only Mr. Noronen was entitled to call the 2016 IFAF Congress. Finally, the Claimants asserted that, even if there had been any procedural deficiency in relation with the calling of the 2016 IFAF Congress (quod non), it would have been cured by the opportunity for all national governing bodies to be present or represented at that Congress.24 b. The Respondent Mr. Wiking challenged the authority of IFAF to instruct the Claimants’ counsel and to file the request for arbitration. The Respondent contended that he never resigned from the position of IFAF President, that, in any event, any expression to that effect would have been invalid in the circumstances of his case and under French law, and that he was re-elected as President for an additional four-year term at the 2016 IFAF Extraordinary Congress in Paris. Mr. Wiking further contended that Mr. Noronen had not been validly elected as President of IFAF at the 2015 IFAF Congress for a number of reasons, including that the Congress had not been opened by the President of IFAF; Mr. Noronen could not have been elected to this position while Mr. Wiking was in office; Mr. Noronen had not been properly nominated for election; and the authority of certain delegates to represent their national governing body in the Congress chaired by Mr. Kaneuji was dubious. According to the Respondent, only the 2015 IFAF Congress chaired by him was valid and attended by duly authorised representatives for the national governing bodies. Mr. Wiking also argued that only the 2016 IFAF Extraordinary Congress and the 2016 IFAF Congress (held in Paris in March and September 2016), had been called in compliance with the IFAF Statutes. Finally, the Respondent raised that there had been a series of irregularities in relation with the 2016 IFAF Congress that took place in New York on 17 September 2016 (during which Mr. MacLean was elected IFAF President). Specifically, Mr. Wiking argued that the agenda for that Congress did not include the relevant documents and did not specify the name of the nominee for the position of IFAF President; the power of representation of some of the delegates was dubious; and the Congress had not been called or opened in compliance with the IFAF Statutes.25

24 25

Ibid., para 113. Ibid., para 115.

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Submission of Additional Evidence The Claimants filed additional evidence, together with an application for leave to introduce such evidence in the record on 28 August 2017, i.e. three days before the hearing. The new exhibits consisted in a series of screenshots of Facebook profiles and Twitter accounts, allegedly discovered after the submission of the Statement of defence by the Respondent. The Panel noted that approximately one month had elapsed between the filing of the Statement of defence and the application for leave to file the additional evidence. In this regard, the Panel emphasised that the Claimants did not establish the existence of any exceptional circumstances which would have warranted a departure from the general rule of Article R44.1 of the CAS Code (Edition 2017), which provided that “[t]ogether with their written submissions, the parties shall produce all written evidence upon which they intend to rely. After the exchange of the written submissions, the parties shall not be authorized to produce further written evidence, except by mutual agreement, or if the Panel so permits, on the basis of exceptional circumstances”. The Panel also stated that the materials were the result of a simple Google search and, as such, were readily available. Accordingly, the Panel denied the application for leave to file the additional evidence.26 The Parties did however agree to file some additional documents, namely a list of competitions organised under the authority of Mr. Noronen and Mr. MacLean following the schism within IFAF, and a series of emails to and from Mr. Wiking between 4 and 18 February 2015.27

Hearing; Post-hearing Briefs; and Partial Operative Part of the Award The Panel held a hearing on 31 August 2017. The following party-representative and witnesses called by the Respondent were heard on this occasion: Mr. Wiking himself, Mr. Robert Huber and Mrs. Elena Zehndorfer. The Panel and the Claimants had the opportunity to question and cross-examine them.28 For efficiency purposes and with the consent of the Parties, the Panel elected to replace oral closing arguments with post-hearing briefs, to be filed by no later than 8 September 2017. The Parties did so within the applicable deadline. The Panel also agreed for the Claimants to submit transcripts of the testimonies of the party-representative and witnesses, provided the Respondent had the opportunity to file his observations, which he did on 12 September 2017.29

26 27 28 29

Ibid., Ibid., Ibid., Ibid.,

paras 125–128. para 129. paras 102 and 105. paras 109, 111, 130–131.

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Following the hearing and receipt of the post-hearing briefs, the Panel issued part of the operative section of its Award on 22 September 2017, which read as follows: The Court of Arbitration for Sport rules that: 1. Mr Tommy Wiking resigned as President of IFAF on 3 February 2015 with effect on 30 April 2015, which was accepted by IFAF; 2. Any and all actions by Mr Tommy Wiking, either as IFAF President, or more generally on behalf of IFAF after 30 April 2015 are null and void; 3. Mr Tommy Wiking shall cease and desist from acting as and referring to himself as the President of IFAF; 4. All other decisions, including any decision as to costs, are reserved […].30

Ultimately, the partial operative section set out above was replaced by the CAS award issued on 1 March 2018, in which the Panel ruled in full as follows: The Court of Arbitration for Sport rules and declares that: 1. Mr Tommy Wiking resigned as President of IFAF on 3 February 2015 with effect on 30 April 2015, which was accepted by IFAF; 2. Any and all actions by Mr Tommy Wiking, either as IFAF President or more generally on behalf of IFAF after 30 April 2015 are null and void; 3. Mr Tommy Wiking shall cease and desist from acting as and referring to himself as the President of IFAF; 4. Mr Roope Noronen was elected ad interim President of IFAF on 17 July 2015; 5. Mr Richard MacLean was elected President of IFAF on 17 September 2016 and is IFAF’s current President; 6. (…); 7. (…); 8. All other claims or requests are dismissed.

3 Comment This commentary follows the structure of the Award, save for the question of IFAF’s standing, which will be addressed together with the Panel’s decision on the merits in Sect. 3.4.

30

Ibid., para 112.

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Did Mr. Wiking Validly Resign from His Position as IFAF President in Early 2015? In the Affirmative, What Were the Legal Consequences of His Resignation?

The first question before the Panel concerned Mr. Wiking’s status after the exchange of email correspondence that took place between him and the IFAF Executive Board in early 2015.31 In this context, the Panel paid specific attention to Mr. Wiking’s email of 3 February 2015, in which he indicated that he would “resign at April 30th [2015]”.32 The main issue was how to characterise this communication under the laws of France, namely whether it constituted a mere declaration of intent or an unequivocal declaration of resignation. The distinction is of course key from a legal perspective: the first type of declaration does not produce legal effects whereas the second does, pursuant to Article 1100-1 of the French Civil Code. The Parties agreed that “under French law, [a resignation] is a unilateral act that can occur any time by way of a free, thorough and unequivocal declaration of will”.33 However, Mr. Wiking argued that his 3 February 2015 email was a mere “expression of intent”, not a binding “declaration of will”. What is more, the email “was sent under duress, lacked the requisite form, was sent to the wrong addressee and was not confirmed by a formal letter”.34 The Panel took a holistic approach in making its determination, noting that the context in which the communication was made, the sequence of events leading up to it, as well as its wording and how it would be bona fide understood by the addressees, were all consequential in establishing the true nature of his declaration.35 In particular, the Panel considered and relied upon the exchanges on record and the specific practical arrangements requested by Mr. Wiking in connection with his departure, to conclude that Mr. Wiking’s communication was an unequivocal declaration of resignation.36 In response to Mr. Wiking’s argument that his resignation was not valid because his declaration should have been sent to the IFAF Congress and not the IFAF Executive Board, the Panel recalled that the Parties were in agreement that under French law, a resignation is a unilateral act, which may be subject to an acknowledgement of receipt, but does not require formal acceptance, so that “its validity cannot, by definition, depend on the capacity of the party to which it was communicated”.37

31 32 33 34 35 36 37

See Sect. 2.1. CAS 2017/O/5025, IFAF et al. v. Tommy Wiking, Award of 1 March 2018, paras 131–170. Ibid., para 138. Ibid., para 138. Ibid., paras 152–170. Ibid., para 170. Ibid., para 166.

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A holistic approach was also used to conclude to the absence of duress, excessive weakness, or submissiveness on the part of Mr. Wiking, and thus to hold that his resignation was valid.38 Accordingly, the Panel ruled that Mr. Wiking’s communication of 3 February 2015 constituted a valid, unequivocal resignation from his position as IFAF President, with effect from 30 April 2015.39 One takeaway from this decision is that, when dealing with a unilateral act such as a resignation, if the latter is not subject to special formalities but solely to receipt by the addressee, the real intent of the author will be determinative of the act’s legal effects. Intent can be established by various means of evidence, including several converging documents. Similarly, there is no need for a formal letter of confirmation if the resignation is first communicated by email, provided the real intent of the author unequivocally flows from that communication, and the latter reaches the recipient. In such case, the resignation is valid and binding upon its author, and thus cannot be recalled. By the same token, after the date on which the resignation has taken effect, actions taken by an officeholder who has validly resigned from his position will be null and void.

3.2

Was Mr. Noronen Validly Elected as IFAF Ad Interim President on 17 July 2015?

The second question before the Panel resulted from the fact that two parallel meetings (one chaired by Mr. Kaneuji, and the other chaired by Mr. Wiking) had been held at the 2015 IFAF Congress in Canton, Ohio.40 Notably, there was only one agenda for these meetings, and that agenda contemplated the election of the President of IFAF “for the remainder of the current term until 2016”, but not the passing of a vote of confidence. Having found that Mr. Wiking had validly resigned, the Panel came to the natural conclusion that he could not chair the 2015 IFAF Congress. Accordingly, the Panel held that the only legitimate meeting was the one chaired by Mr. Kaneuji, where Mr. Noronen was elected as IFAF President.41 The main issue then was whether the requirements were met for the election of Mr. Noronen to be considered valid. These requirements included establishing the list of IFAF members in good standing and their authorised representatives (i.e. the delegates attending the 2015 IFAF Congress), so that they could cast their vote; whether a specific quorum was to be met (e.g. at the opening of the Congress or when the delegates voted on a specific item, if needed); and the nomination process for a position on the IFAF Executive Board. The Panel held that Mr. Wiking had

38 39 40 41

Ibid., para 157. Ibid., para 169. See Sect. 2.1. CAS 2017/O/5025, IFAF et al. v. Tommy Wiking, Award of 1 March 2018, para 182.

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the onus of proving that the requirements were not met in the case at hand, and found that he had failed to do so.42 The first takeaway from the foregoing is that international governing bodies should establish and maintain an official list of their members (e.g. national governing bodies in the case of international federations) to mitigate the risk of disputes ahead of a future congress. For international sports governing bodies headquartered in Switzerland, this will be a legal requirement in the near future.43 Indeed, the Swiss Parliament has approved the introduction of Article 61a(1) in the Swiss Civil Code—a provision that requires associations with an entry in the commercial register to keep a list of their members, including company name and address for corporations.44 International sports governing bodies may wish to use this opportunity to expand their existing lists and include information as to the standing of their members and possibly the name of their duly authorised representatives. In practice, associations will have a period of 18 months from the entry into force of the new provision to comply with this requirement.45 The second takeaway is that international governing bodies should include clear rules in their statutes as to when the quorum is to be met, e.g. at the opening of the congress or when a specific item is to be voted on, to allow for the congress to proceed without impediment. The third takeaway is that statutes should contemplate a rule on late nomination, a safety mechanism which can come into play if no candidacy is presented within the applicable deadline for a position subject to election.

3.3

Who Is the Current President of IFAF?

The third question before the Panel derived from the election of Mr. Roope Noronen as President of IFAF “for the remainder of the current term until 2016”. As a consequence, the Panel had to identify the person currently (i.e. from 2016 onwards) holding the position of IFAF President. In this context, the Panel relied on the findings summarized in Sects. 3.1–3.2 to rule the 2016 IFAF Congress held in New York on 17 September 2016 and chaired by Mr. Noronen was the only legitimate elective congress. The main issue was to demonstrate adherence to all procedural requirements for the holding of the Congress and for the electoral process. In this regard, the Panel lauded the transparency of the Executive Board chaired by Mr. Noronen, especially for requiring that delegates ‘cure’ the late notice calling the Congress by confirming

42

Ibid., para 182. The Federal Council is yet to decide on the entry into force of this amendment to the Swiss Civil Code. 44 FF 2021 668(10). 45 Article 6bbis CC (final title). 43

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and ratifying that notice, which they did unanimously.46 The Panel also noted that the nomination of Mr. MacLean, even though it occurred after the relevant deadline had expired, was proposed and seconded by different national governing bodies. Similarly, two national governing bodies had proposed and seconded a motion for the 2016 IFAF Congress to accept the late nomination, which was accepted by the delegates.47 Last, the Panel noted that neither the late calling of the Congress nor Mr. MacLean’s late nomination were challenged.48 Thus, the Panel held that Mr. MacLean’s election as IFAF President for a four-year term starting in 2016 was valid.49 The takeaway from the above is that a federation’s Congress is sovereign and has the authority to cure any deviation from the applicable procedural requirements. In this regard, transparency is key to guaranteeing the proper and effective governance of an international federation. This approach allows for a procedural deviation to be identified and acknowledged. At the same time, it opens the possibility that the deviation may be challenged in the available fora, but it also gives a clear pathway to closure for this type of issue.

3.4

Does IFAF Have Standing in the CAS Proceedings?

The final question for the Panel was the standing of IFAF in the CAS proceedings. The answer derived directly from the decision on the identity of the person holding the office of President of IFAF. Under Swiss law, standing to sue or to be sued is an issue pertaining to the merits of a dispute.50 Accordingly, the Panel deferred its findings on the matter until completion of its review of the actions by the Respondent and their legal effects. In the end, the Panel dismissed the Respondent’s plea and confirmed that IFAF had standing, given that only Mr. MacLean, as the validly elected President, could instruct IFAF’s representatives to act on its behalf in the CAS proceedings.51

46 47 48 49 50 51

CAS 2017/O/5025, IFAF et al. v. Tommy Wiking, Award of 1 March 2018, paras 201–207. Ibid., paras 208–210. Ibid., para 211. Ibid., para 212. Ibid., para 182. Ibid., para 213.

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4 Conclusion This award provides a number of useful pointers on important issues which will be of particular interest to international sports governing bodies’ in-house counsel who are involved in governance matters, whether in the context of an electoral process or at board level. The award shows that the existence of a proper paper trail will be key to the assessment of the legal position of the parties involved. It also serves to demonstrate that although the intent to resign can be established by an array of converging evidence, a signed, unequivocal letter of resignation (or withdrawal of candidacy in the case of an election, for instance) is always to be preferred, to avoid lengthy disputes. The wording of the letter should clearly state that the resignation cannot be recalled in order to provide legal certainty in this respect. Similarly, the existence of a list of national governing bodies and their duly authorized representatives (i.e. the persons entitled to act as delegates at a congress), is also very important to ensure that only members in good standing cast their vote. This case is also a reminder that, in an international sports federation, congress is sovereign and can cure any procedural defects (e.g. a belated notice or nomination), with the agreement of the majority of the membership. Conflict of Interest The opinions expressed in this chapter are those of the author and do not necessarily reflect those of UEFA.

Reference Hasler E, Hafner Y (2022) Sports Arbitration Cases Before the Swiss Federal Tribunal in 2018– 2020—A Digest. In: Rigozzi A, Duval A (eds) Yearbook of International Sports Arbitration 2018–2020. T.M.C. Asser Press, The Hague

CAS 2017/A/5166 and 5405 Palestine Football Association v. Fédération Internationale de Football Association (FIFA), Award of 9 July 2018 Antoine Duval and Pedro José Mercado Jaén

Contents 1

Facts and Procedure of the Case......................................................................................... 1.1 Framing the Problem: The Legality of Israeli Football Activity in the Occupied Palestinian Territory ................................................................................................... 1.2 The 67th FIFA Congress and the PFA Motion......................................................... 1.3 The FIFA Council Decision of October 2017........................................................... 2 The Decision........................................................................................................................ 2.1 The Legality of FIFA’s Motion at the 67th FIFA Congress..................................... 2.2 The Legality of the FIFA Council Decision.............................................................. 3 Conclusion: Of Missed Opportunities and Democratic Backsliding ................................. References ..................................................................................................................................

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Abstract This article deals with a case stemming originally from a complaint lodged in 2015 by the Palestine Football Association (“PFA”) with FIFA regarding six teams affiliated to the Israeli Football Association (“IFA”), which are physically located in Israeli settlements in the Occupied Palestinian Territories (“OPT”). In particular, the PFA claimed that a group of IFA-affiliated clubs were violating FIFA rules by playing on the PFA’s territory. After a long and tortuous consultation process, which included the creation of a dedicated Monitoring Committee, the FIFA Council decided in October 2017 to maintain the status quo and declined to sanction the IFA or the clubs. Both this decision and a related motion adopted by the FIFA Congress were appealed by the PFA to the Court of Arbitration for Sport

A. Duval (&) T.M.C. Asser Instituut, The Hague, The Netherlands e-mail: [email protected] P. J. Mercado Jaén KU Leuven, Leuven, Belgium © T.M.C. ASSER PRESS and the authors 2022 A. Duval and A. Rigozzi (Eds.), Yearbook of International Sports Arbitration 2018–2020 https://doi.org/10.1007/15757_2022_43

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(CAS). This commentary reviews the ensuing CAS Award and concludes that it constituted a missed opportunity as it failed to tackle the main questions at the heart of the dispute.




Keywords FIFA Occupied Palestinian territories Sport Human rights Occupied territories








Court of Arbitration for

1 Facts and Procedure of the Case The Palestinian Football Association (“PFA”) has been a member of FIFA since 1998. For over twenty years, it has administered football in an area recognized as a sovereign state by a large majority of the international community, but not by Israel.1 This geopolitical situation led to the dispute between the Israel Football Association (“IFA”) and the PFA regarding the governance of football in the West Bank, which is at the heart of our commentary.

1.1

Framing the Problem: The Legality of Israeli Football Activity in the Occupied Palestinian Territory

Over the past fifty years, Israel has progressively occupied a large part of the West Bank known as the Occupied Palestinian Territory (“OPT”), where it has installed a dense network of settlements.2 Various UN resolutions,3 including UN Human Rights Council resolutions,4 and an Advisory Opinion of the International Court of Justice5 have addressed this occupation and requested that Israel cease all settlement activities in the OPT. To date, Israel has not complied with these requests and continues its settlement policy.6 In this context, scholars7 and civil society

1

At the time of writing the commentary, the State of Palestine currently enjoys recognition from 139 States. See https://palestineun.org/about-palestine/diplomatic-relations/ Accessed 21 May 2022. 2 Azarova 2017, p. 1. 3 See for example UN General Assembly Res 72/14 (30 November 2017) and Res 3236 (XXIX) (22 November 1974). 4 See for example UN Human Rights Council Resolution 31/36 (20 April 2016). 5 See International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory [2004] (Advisory Opinion) ICJ Rep 136, para 120. 6 United Nations, UN Envoy Condemns Latest Israeli Settlement Expansion Plan. UN News, 12 May 2022. https://news.un.org/en/story/2022/05/1118122. Accessed 3 June 2022. 7 Azarova 2017; Farah and Abdallah 2019; Van Ho 2020.

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organizations (“CSOs”)8 have debated the role and responsibilities of business activities in the Israeli settlements, often coming to the conclusion that economic activities in the OPT contribute to human rights abuses and should, therefore, be discontinued. This scrutiny extended to the world of football as well, with a 2016 report released by Human Rights Watch (“HRW”) and entitled “Israel/Palestine: FIFA Sponsoring Games on Seized Land”.9 The report documented the existence of six clubs, all of them members of IFA and geographically located in Israeli settlements in the OPT. The HRW report claimed that, by allowing this situation, “FIFA [was] sponsoring matches in Israeli settlements in the West Bank on land unlawfully taken from Palestinians”10 and, therefore, contributing to human rights violations. The report argued that the clubs provided leisure activities only for Israeli settlers and were providing direct and indirect economic support to the settlements. Consequently, HRW claimed that these clubs and IFA were contributing to increasing the socio-economic attractiveness of the settlements and prolonging the occupation. In this context, the FIFA member associations established the FIFA Monitoring Committee Israel-Palestine (“Monitoring Committee”) at the 65th FIFA Congress in May 2015, in order to monitor the situation and find a solution to certain issues between the IFA and the PFA. The main points that the Monitoring Committee had to address were: “(i) the “Territory Obstruction Issue”, i.e. the movement of Palestinian football players, officials and equipment within, into and out of territories defined by several United Nations resolutions as “Occupied Territories”, and (ii) the “Israeli Clubs Issue”, i.e. the jurisdiction over five (later six) Israeli amateur clubs located in Israeli settlements within the Occupied Territories and playing in IFA-sanctioned championships.”11 The establishment of the Monitoring Committee can be considered the first step taken by FIFA to attend to the problem of football governance in the West Bank.

8

Amnesty International, Destination Occupation: Digital Tourism and Israel’s Illegal Settlements in the Occupied Palestinian Territories, 2019, https://www.amnesty.org/en/latest/campaigns/2019/ 01/destination-occupation-digital-tourism-israel-illegal-settlements/ Accessed 3 June 2022; Amnesty International UK, Think Twice: Can companies do business with Israeli settlements in the Occupied Palestinian Territories while respecting human rights?, 19 March 2019, https://www. amnesty.org.uk/files/2019-03/Think%20Twice%20report.pdf?BrN9N0VX3RkzTJROuKYC46LE 43hCPtTu = Accessed 3 June 2022. 9 Human Rights Watch, Israel/Palestine: FIFA Sponsoring Games on Seized Land, 25 September 2016, http://www.hrw.org/news/2016/09/25/israel/palestine-fifa-sponsoring-games-seized-land. Accessed 3 June 2022. 10 Ibid. 11 CAS 2017/A/5166 & 5405 Palestine Football Association v. FIFA, Award of 9 July 2018, para. 6.

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The 67th FIFA Congress and the PFA Motion

Although the Committee’s mandate was extended at the 66th FIFA Congress, by 2017 it was clear that no significant developments had taken place. In March 2017, the PFA, given the limited progress made, decided to submit a motion to be voted on at the upcoming 67th FIFA Congress (the Motion). The PFA Motion proposed “to recognize the PFA’s entitlement to all its rights as described in Article 13 of the FIFA Statutes”12 and “to request the FIFA Council to propose and/or adopt disciplinary measures—as described in articles 16 and/or 17 of FIFA Statutes—against the Israeli Football Association for their responsibility with regards to the activities of at least 6 of its clubs in the internationally recognized territory of PFA”.13 The proposal was included by FIFA on the agenda of the Congress as item 14.3. The Monitoring Committee held two meetings prior to the 67th FIFA Congress. At the first meeting, held on 22 March 2017, the Chair of the Committee, Mr Tokyo Sexwale, presented his draft report and fixed a deadline for the PFA and the IFA to send their comments. At the second meeting, held on 9 May 2017, the IFA requested more time to review the draft, whereas the PFA provided its comments and urged Mr Sexwale to submit the report to the FIFA Council. However, Mr Sexwale reiterated that the report was only his draft and could still be amended. Prior to the FIFA Congress, the FIFA Council met with Mr. Sexwale, who indicated that “(i) the IFA and PFA had not yet reached a consensus on the draft report, (ii) the draft report was significant because it made concrete recommendations, (iii) he was surprised to find out that the PFA [had] submitted its proposal of 10 March 2017 without informing the Monitoring Committee or the IFA but that it was the PFA’s prerogative to do so, and (iv) he would continue to talk with both sides before the upcoming FIFA Congress to help them reach a consensus on the draft report.”14 During the 67th FIFA Congress in Bahrain, both parties involved intervened. First, the PFA President, Mr Jibril Rajoub, stated that the PFA was seeking the suspension of “all football and football-related activities run by IFA in Palestinian internationally recognized territories”,15 indicating that “this is not a political solution but a football one because politics should remain out of FIFA”.16 In order to support this demand, Rajoub alluded to the importance of human rights in the framework of football governance: “[f]ootball cannot be played without respecting human rights. All of us have an obligation to demonstrate that human rights is not an empty concept included in our Statutes for cosmetic reasons, but rather a solid value for all of us and the people we represent.”17 In response, the IFA President 12 13 14 15 16 17

Ibid. Ibid. Ibid., para. 13. Ibid., para. 16. Ibid. Ibid.

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criticized the PFA’s intervention for being political and highlighted that “the Congress of FIFA did not have the power to establish political borders.”18 Finally, in light of the pending report of the Monitoring Committee, the FIFA President stated that it was “premature” for the FIFA Congress to take any decision and therefore resolved to put a motion up for vote to the Congress (“the FIFA Council Motion” or “the Motion”). The grounds for the Motion were (i) that the decision was a Council competence, (ii) that a consolidated report of the Monitoring Committee was not ready and (iii) that more time was needed to evaluate the situation and make a decision. At the Congress, 73% of FIFA’s members endorsed the Motion and voted to give time to the FIFA Council to decide on the proposal before the end of March 2018. The PFA appealed this decision of the FIFA Congress to CAS on 30 May 2017. In this first appeal,19 the PFA requested CAS to declare the Congress’ decision not to vote on PFA’s proposal as null and void, and/or to annul it and/or declare it invalid. The PFA stated that, in light of Article 75 Swiss Civil Code, which grants every member of an association the right to challenge an association’s decision, they had a legitimate legal interest to act against the FIFA Congress decision. It further claimed that the proposal not to vote constituted a substantive change of FIFA’s Congress agenda and that the necessary procedure laid down in the FIFA Statutes had not been respected, amounting to a violation of Article 28 FIFA Statutes (“Ordinary Congress agenda”). The PFA also pointed to possible violations of Articles 5, 7, and 9 of the Standing Orders of the Congress; Articles 2, 3, 4, 5, 8, 10, 16, 13, 14, 24, 25, 28, 34 and 35 of the FIFA Statutes; and Articles 3, 8, 10 and 14 of the FIFA Governance Regulations.

1.3

The FIFA Council Decision of October 2017

After much criticism for its delayed issuance,20 the final report of the Monitoring Committee was communicated to the FIFA Council on 27 October 2017.21 The Chair of the Monitoring Committee, while pointing out that it is “misplaced to expect that FIFA, a football organization, should provide a solution where some of the best minds have failed”, suggested three forward-looking options:

18

Ibid., para 17. CAS 2017/A/5166 (“CAS 5166”). 20 Sari Bashi, Tokyo Sexwale Should Answer for Delays Blamed for More Soccer on Stolen Land (Daily Maverick, 23 May 2017) https://www.hrw.org/news/2017/05/23/tokyo-sexwale-shouldanswer-delays-blamedmore-soccer-stolen-land accessed 20 May 2022. 21 Full text of Tokyo Sexwale Chairman’s report to FIFA on Palestine-Israel (Medium, 28 October 2017) https://medium.com/@daoudkuttab/full-text-of-tokyo-sexwalechairmans-report-to-fifa-onpalestine-israel-53c27c909a5b accessed 20 May 2022. 19

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• “Option 1: Maintenance of the current Status Quo: The status quo remains in that the Israel Football Association continues to administer football in the territories under discussion (the settlements). Under this option, […] there should be no action by FIFA until the Oslo discussions—or similar negotiations— involving facilitated or direct talks between the parties have resolved the Israel-Palestine conflict. • Option 2: FIFA warns IFA—Yellow Card: In line with article 72.2 of the FIFA Statutes, which proclaim that member associations and their clubs may not play on the territory of another member association without the latter’s approval, the IFA is given a warning by FIFA (yellow card) to rectify this issue by desisting from administering football on the territories concerned within a minimum period of six months. Failure to find a resolution within this period shall mean that the matter will revert to the FIFA Council for final decision-making. • Option 3: Discussions should be encouraged between the IFA and the PFA: Continued discussions between the IFA and the PFA should be encouraged [sic] should be based purely on football issues aimed at finding accommodation on how to agree amongst themselves.”22 In his final remarks, Mr. Sexwale indicated that “FIFA [as a ‘citizen of the world’] must be aware of, and sensitive to, its obligations under international law”23 and insisted that “the FIFA leadership cannot any longer avoid taking a decision on this matter”.24 During the FIFA Council of 27 October 2017 in Calcutta, after consulting with a Swiss law firm, the FIFA Council released its decision on the matter. It resolved to “refrain from imposing any sanctions or other measures on either the Israel FA or the Palestinian FA, as well as from requesting any other FIFA body to do so”25 and declared the issue closed “until the legal and/or de facto framework has changed.”26 The Council acknowledged that the current situation in the West Bank territories is characterized by an “exceptional complexity and sensitivity”,27 but argued that it had little to do with football. Instead, it was the responsibility of the competent international authorities to resolve this territorial dispute, as FIFA ought to remain neutral with regard to political matters. Furthermore, the FIFA Council argued that any interference in the status quo of the organization of football in the West Bank territories without the consent of the parties concerned might aggravate the situation

22

Ibid., para. 5. Ibid., para. 6.4. 24 Ibid. 25 FIFA, FIFA Council Statement on the Final Report by the FIFA Monitoring Committee Israel-Palestine, 27 October 2017. https://www.fifa.com/about-fifa/organisation/fifa-council/ media-releases/fifa-council-statement-on-the-final-report-by-the-fifa-monitoring-comm-2917741. Accessed 13 May 2022. 26 Ibid., para. 5. 27 Ibid., para. 3. 23

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of football in the region. The PFA appealed the FIFA Council’s decision to CAS on 16 November 2017. In its appeal,28 the PFA petitioned CAS to declare the decision null and void or, alternatively, annulled ex tunc, on the grounds that: (i) “[t]he FIFA Council does not have the ‘competence’ or authority, under the FIFA Statutes and regulations or Swiss law, to instruct the FIFA Congress that a subject matter in dispute is closed and no longer subject to discussion, nor does it have the power to restrict any other FIFA body to refrain from imposing any sanctions or measures in relation to that matter”29 and (ii) it violates the PFA’s statutory right to draw up proposals for inclusion in the FIFA Congress. The CAS decided to join both of the PFA’s appeals into one procedure, which led ultimately to a single Award on 9 July 2018.

2 The Decision As the jurisdiction of the CAS and the admissibility of the appeals were not contested, the CAS Panel focused its analysis on the merits of both proceedings. The Panel was composed of three arbitrators: one of them (the co-arbitrator appointed by the PFA) is a well-known public international law scholar, Philippe Sands, whereas the two other tribunal members (Massimo Coccia, presiding, and José Juan Pintó, appointed by FIFA) are well-known for their sports law expertise, but less so with regard to matters of public international law. The merits of the Award can be divided into two separate parts, focusing on the respective decisions of the FIFA Congress (First Appealed Decision) and the FIFA Council (Second Appealed Decision).

2.1

The Legality of FIFA’s Motion at the 67th FIFA Congress

The CAS Panel started its assessment by addressing the merits of the case in CAS 2017/A/5166, which concerned the FIFA Congress’ decision not to vote on the PFA’s proposal, and its delegation to the FIFA Council of the competence to take a decision. In this commentary, we will separate the merits on the basis of the two main claims set out in the PFA’s submission. First, we address the claimed breach of FIFA’s procedural rules by the submission of the Motion not to vote on the PFA’s proposal, and second, the alleged violation of the PFA’s rights as a FIFA member.

28

CAS 2017/A/5405 (“CAS 5405”). CAS 2017/A/5166 & 5405 Palestine Football Association v. FIFA, Award of 9 July 2018, para. 50.

29

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Preliminary Matters

As a first step, the CAS Panel clarified the scope of the PFA’s appeal and, in particular, came to the conclusion that the PFA had made it “absolutely clear, in its written and oral submissions, that with its request it sought Congress’ vote only on the proposal as above written, and did not in these proceedings seek any sanction against IFA”.30 Thus, while recognizing that the matter was related to Article 72(2) FIFA Statutes, which prohibits member associations and their clubs from playing on the territory of another member association without the latter’s approval, the PFA did not ask the CAS to weigh in on the application of that provision. The CAS Panel also rejected FIFA’s objection that the PFA lacked sufficient legal interest to challenge the decision of the Congress because the FIFA Council had already taken a decision on the PFA’s proposal (i.e., the FIFA Council decision discussed below). It held that the PFA “undoubtedly has a legal interest in establishing whether the Motion has been carried out as an improper alteration of the agenda pursuant to Article 28.3, and whether the First Appealed Decision was invalid”.31 It is so because “if that decision were held to be invalid, this would mean that the 67th FIFA Congress unlawfully decided that the matter pertained to the competence of the FIFA Council; this, in turn, could have an impact on the issue of whether the FIFA Council was entitled to take the Second Appealed Decision, consequently putting the validity of that second decision into question”.32 This in turn led the Panel to conclude that the PFA’s interest “does not merely pertain to abstract, theoretical legal issues but to concrete rights and duties which it has and which are established under the FIFA Statutes”.33 2.1.2

The Compatibility of the Motion with FIFA’s Procedural Rules

The Panel then turned to assess whether the controversial Motion violated FIFA’s own procedural rules. In order to do so, it had first to determine whether the Motion was procedural or substantive in nature. The Panel went on to define a procedural motion as relating “to procedural issues, such as the manner by which the assembly or meeting is conducted and agenda items are administered”, and a substantive motion as relating “to the substance or subject-matter of the agenda item under consideration”.34 In the present case, it concluded that the Motion was “a procedural motion because, by approving it, the FIFA Congress did not address in any way the PFA’s request to have […] its rights [recognized] under the FIFA

30 31 32 33 34

Ibid., para. 70. Ibid., para. 76. Ibid. Ibid. Ibid., para. 79.

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Statutes”;35 rather, the Motion “only related to the manner in which the substantive PFA proposal would be dealt with”.36 The Panel then stressed, relying on the experts who had testified for the parties, that under Swiss association law “the right to propose an item to be inserted in the agenda or even the right to add one […] does not entitle a member to a specific right as to how such item will be acted upon by the general assembly of an association”.37 In other words, “whatever the FIFA Congress decides to do with an item on the agenda (e.g. accept, dismiss, delegate, postpone it, etc.) and to whatever extent it elects to discuss it, the Congress is free to make that determination for itself”.38 These are important obiter dicta which have consequences for the operation of congresses (the key political bodies) and the division of powers inside all SGBs based in Switzerland. This Award recognizes that member assemblies of SGBs are subjected to few restrictions in terms of the way in which they organize themselves and deal with motions proposed by their members. Consequently, this limits the power of the member associations to put items to the vote during a congress. The main legal question of the dispute was whether, in this particular case, the FIFA Congress had violated Article 28 of the FIFA Statutes by adopting the Motion. In particular, the PFA argued that the Council’s Motion was not duly included in the agenda of the FIFA Congress, as it was submitted within the last two months prior to the Congress, contrary to the requirement set out in Article 28 (1) of the FIFA Statutes. According to the PFA, given its timing, the Motion should have been presented as an amendment of the Congress’ agenda, which would have been subject to approval by a 3/4 majority of the Congress, as provided in Article 28(3) FIFA Statutes.39 The arbitrators relied on their conclusion that the Motion was procedural in nature to reject these arguments and hold, instead, that the FIFA Council Motion “did not constitute a “proposal” or “alteration” of the agenda under Article 28 of the FIFA Statutes” and, therefore, “did not have to be included in the agenda of the FIFA Congress, or require that it be approved by a ¾ vote as alterations to the agenda must”.40 Regarding the procedure to be followed in order to submit procedural motions to the FIFA Congress, the CAS Panel pointed to Article 8 of the Standing Orders of the Congress, which implicitly “shows that there is no requirement to table a proposal in advance, or to formally alter the agenda in order to move, and then vote on a procedural motion”.41 Additionally, it expressed the view that “any general meeting of the members of an association has an inherent power to vote on a procedural motion and decide, for example, to postpone the

35 36 37 38 39 40 41

Ibid., Ibid., Ibid., Ibid. Ibid., Ibid., Ibid.,

para. 80. para. 81. para. 83. para. 85. para. 86. para. 87.

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voting on a given issue or, like in the case at hand, to delegate the decision on a given issue to the executive body of the organization”.42 Hence, because it was deemed procedural, the FIFA Council’s Motion was not subjected to the procedural requirements applicable to substantive proposals, as set out in the FIFA Statutes and the FIFA Standing Orders of the Congress. This decision reinforces the power of the simple majority in the FIFA Congress, which can then always remove an item from the Congress’ agenda on procedural grounds. In the context of a deeply unrepresentative FIFA Congress, in which any micro-association has the same power as the German or the Brazilian one, this is an interpretation that favours the interests of whoever controls the (unrepresentative) formal majority of the Congress, more often than not the FIFA President. It constitutes another procedural tool which can be used to limit debates and stifle dissent during the Congress, further entrenching the democratic deficit of FIFA. 2.1.3

The Compatibility of the Motion with the PFA’s Rights as a FIFA Member

While the violation of the procedural rules applicable to the FIFA Congress constituted the main argument raised by the PFA against the adoption of the FIFA Council Motion, it also argued that the Motion violated a number of rights derived by the PFA from a range of provisions enshrined in the FIFA Statutes and regulations. The CAS Panel did not engage into an in-depth assessment of each of these rather superficial claims made by the PFA. Nevertheless, it did clarify certain points which deserve mention in this commentary. First, against the view of the PFA, it stressed that “it would be absolutely counterintuitive and defy common sense if the bodies elected by the Congress to lead the organization were prohibited from expressing their opinions (and, in turn, naturally influencing the opinion of the voting members) and from submitting procedural motions during the Congress”,43 thus entrenching the competence of the FIFA Council and the President to submit motions and take part in the deliberations of the Congress. Second, the CAS arbitrators rejected the PFA’s claim that FIFA bodies had taken the side of the IFA by tabling the Motion and voting it. It emphasized instead that FIFA has “the institutional means in place to resolve the dispute between the PFA and IFA, such as the FIFA Congress and FIFA Council and even the Monitoring Committee, which FIFA established specifically to oversee and work on resolving the issues between said federations”.44 Third, the PFA contested the right of the FIFA Congress to delegate the power to suspend and expel a member to the Council. The Panel deemed the matter moot as

42 43 44

Ibid. Ibid., para. 96. Ibid., para. 99.

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the PFA had admitted that its proposal to the 67th Congress did not seek the suspension or expulsion of the IFA. Yet, interestingly, it also felt the need to specify that “the FIFA Council’s involvement in such a matter cannot be deemed to be a violation of the FIFA Statutes” as “Article 10 of the FIFA Statutes provides that the FIFA Congress has the power to suspend a member association “solely upon the recommendation of the Council”.45 Finally, the PFA claimed that the FIFA President violated Article 14.1(i) of the FIFA Statutes, which provides that the Member Associations must “manage their affairs independently and ensure that their own affairs are not influenced by any third parties in accordance with [Article] 19 of these Statutes”, by taking a call from the then Israeli Prime Minister, Benjamin Netanyahu. The CAS arbitrators rejected this claim by pointing out that “FIFA routinely has relationships with governments and heads thereof”, that “this, in and of itself, does not mean that it does not manage its affairs independently and without influence by any third parties”, and that “there is no evidence before the Panel that the alleged actions of the Israeli Prime Minister caused the FIFA Congress to act in one way or the other”.46 These relatively weak objections raised by the PFA were, thus, put aside by the CAS Panel, which concluded that the Motion and its adoption did not violate the PFA’s rights.

2.2

The Legality of the FIFA Council Decision

The second part of the CAS Award on the merits focuses on the legality of the FIFA Council decision. In particular, the PFA was claiming that “the FIFA Council did not have the authority to instruct the FIFA Congress and other FIFA bodies not to deal with the IFA-PFA matter” and that in “closing” the matter it “ha[d] violated the PFA’s right under the FIFA Statutes and Swiss law to “add” an item to the agenda under Article 13(b) and 28.1 of the FIFA Statutes”.47 In response, FIFA denied that the FIFA Council decision affected the prerogatives of any other FIFA body. The first key question that needed to be answered by the CAS Panel was whether the “pronouncement not to act on the PFA’s proposal extended to the FIFA Congress and other bodies of FIFA.”48 To do so, it needed to interpret the following sentence in the FIFA Council decision: “[t]he FIFA Council has decided to refrain from imposing any sanctions or other measures on either the Israel FA or the

45 46 47 48

Ibid., Ibid., Ibid., Ibid.,

para. para. para. para.

100, italics in the original. 101. 104. 107.

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Palestinian FA, as well as from requesting any other FIFA body to do so.”49 During the CAS hearing, FIFA clarified this statement by affirming that the decision was confined to the FIFA Council. The CAS Panel considered that this acknowledgement “commits the Respondent [FIFA] and may be relied upon by the Appellant [PFA] in the future”.50 In other words, the “[FIFA Council] decision only concern [ed] the Council and [did] not limit the other FIFA bodies, such as the FIFA Congress or disciplinary bodies”.51 Accordingly, the FIFA Council decision was to be understood as “more in the nature of a policy statement than a decision that is intended to legally bind the Council for the future”.52 Nevertheless, the Panel stressed that the FIFA Council decision did “qualify as an appealable decision, since declaring a matter closed (as far as the FIFA Council is concerned) constitutes an actual ruling which—being effective until reversed or modified by the Council itself—affects the legal situation of the PFA”.53 Turning to the legality of the decision of the FIFA Council, the Panel held laconically that “by deciding not to act, the FIFA Council exercised its discretion in a valid manner under the FIFA Statutes and Swiss law”.54 It did not specify the scope of that discretion, nor did it consider the potentially complex issue of the compatibility of the FIFA Council Decision with FIFA’s human rights commitments. These commitments have been translated into a specific human rights policy55 and were until recently monitored by FIFA’s independent Human Rights Advisory Board. In fact, prior to the decision of the FIFA Council, the Advisory Board urged the Council to “fully consider international human rights and humanitarian law standards in reaching its final decision” regarding the conflict between the PFA and IFA.56 Looking at the text of the decision, these recommendations clearly went largely ignored as no reference is made to international human rights or humanitarian law. Unfortunately, the PFA failed to raise the question of the compatibility of the FIFA Council’s decision with human rights, and the CAS Panel did not consider it ex officio.

49 Ibid., para 28 and also FIFA, FIFA Council Statement on the Final Report by the FIFA Monitoring Committee Israel-Palestine, 27 October 2017. https://www.fifa.com/about-fifa/ organisation/fifa-council/media-releases/origin1904-p.cxm.fifa.comfifa-council-statement-on-thefinal-report-by-the-fifa-monitoring-comm-2917741. Accessed 13 May 2022. 50 Ibid., para. 107. 51 Ibid., para. 108. 52 Ibid., para. 109. 53 Ibid., para. 110. 54 Ibid., para. 111. 55 FIFA, Human Rights Policy, May 2017. https://digitalhub.fifa.com/m/1a876c66a3f0498d/ original/kr05dqyhwr1uhqy2lh6r-pdf.pdf. Accessed 18 May 2022. 56 FIFA Human Rights Advisory Board, Report by the FIFA Human Rights Advisory Board, September 2017, https://digitalhub.fifa.com/m/684bc3b9ec3f4811/original/ab2ywftc8qle92nghieepdf.pdf Accessed 13 May 2022.

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3 Conclusion: Of Missed Opportunities and Democratic Backsliding In 2018, the Israeli-Palestinian conflict reached the apex of sporting tribunals, yet the resulting CAS Award does not qualify as a particularly memorable one. The highly explosive matter resulted in a rather dull decision, which did not address the burning legal and political questions it raises. The PFA and its legal advisers are partly to blame for this missed opportunity, as they failed to build a case that would require the CAS to assess the compatibility of FIFA’s decisions in the matter with its own human rights commitments. Nevertheless, this Award is also leaving a lot of doors open to the PFA if it wishes to continue the fight on this issue. It could certainly submit another proposal for a vote at a future FIFA Congress or try to trigger FIFA disciplinary proceedings, for example on the IFA’s compliance with Article 71 (2) FIFA Statutes 2021, which provides that “Member associations and their clubs may not play on the territory of another member association without the latter’s approval”. Indeed, it has been argued that the six clubs affiliated to the IFA but operating in the OPT violate this provision.57 More generally, beyond the Israeli-Palestinian dispute, this Award reinforces the executive power of the FIFA Council and FIFA President within FIFA’s political system. It entrenches the limits set to the power of FIFA’s member associations to raise issues during the Congress, as substantive agenda points can be pre-emptively removed by a procedural motion prior to being even discussed by the Congress. Accordingly, the Congress can kick the can back to the FIFA Council and delegate the responsibility of engaging with difficult issues to this less transparent, non-inclusive body. In light of the limited democratic representativity of the Congress and of the relative ease with which this body has been controlled by FIFA Presidents in the past, the interpretation adopted in the commented Award restricts the deliberative function of the Congress.

References Azarova V (2017) Israel’s Unlawfully Prolonged Occupation: Consequences under an Integrated Legal Framework. Policy Brief. European Council of Foreign Relations. Duval A (2020) Offside? Challenging the Transnational Legality of Israeli Football Activities in the Occupied Palestinian Territories. In: Duval A, Kassoti E (eds) The Legality of Economic

57 For such an argument, see Andreas Zimmermann, Legal status of Israeli football clubs located in the occupied Palestinian territory and ensuing legal consequences for FIFA. April 2017. https:// apidiakoniase.cdn.triggerfish.cloud/uploads/sites/2/2021/07/legal-status-of-israeli-football-clubslocated-in-the-occupied-palestinian-territory-and-ensuing-legal-consequences-for-fifa.pdf Accessed 13 May 2022.

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Activities in Occupied Territories: International, EU Law and Business and Human Rights Perspectives, Routledge, Routledge, pp. 212–235. Duval A, Heerdt D (2020) FIFA and Human Rights – a Research Agenda. Tilburg Law Review 25. Farah M, Abdallah M (2019) Security, Business and Human Rights in the Occupied Palestinian Territory. Business and Human Rights Journal 4:7-31. Ruggie JG (2016) For the Game. For the World. FIFA and Human Rights. Corporate Responsibility Initiative Report No. 68. Cambridge, MA. Harvard Kennedy School. Van Ho T (2020) Business and human rights in transitional justice: challenges for complex environments. In: Deva S, Birchall D (eds) Research Handbook on Human Rights and Business. Edward Elgar Publishing.

CAS 2018/A/5546, José Paolo Guerrero v. Fédération Internationale de Football Association (FIFA), CAS 2018/A/5571, World Anti-doping Agency (WADA) v. FIFA & José Paolo Guerrero, Award of 30 July 2018 (Operative Part of 14 May 2018) Howard L. Jacobs, Katlin N. Freeman and Aaron M. Mojarras Contents 1 2 3

4

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Facts and Procedure ............................................................................................................ The CAS Holding and Analysis ......................................................................................... The Costa Opinion .............................................................................................................. 3.1 What Does the Costa Opinion Actually Say with Regard to Proportionality? ........ 3.2 Was the Costa Opinion Intended to Preclude the Application of Proportionality in a Case like Guerrero’s?.......................................................................................... Examination of Cases Where Proportionality Has Been Applied (Pre- and Post-2015 WADA Code)...................................................................................................................... 4.1 Pre-WADC Cases Considering Proportionality in Assessing Sanction .................... 4.2 Pre-2015 WADC Cases.............................................................................................. 4.3 Post-2015 WADC....................................................................................................... Conclusion ...........................................................................................................................

144 145 147 148 150 150 150 152 154 155

Abstract Despite the fact that CAS declared in FIFA & WADA (CAS 2005/C/976 & 986) that all sanctions must comply with the principle of proportionality, CAS panels have been reluctant to engage in a proportionality assessment in individual cases. Panels have asserted a variety of rationales for their refusal to assess proportionality in individual cases: (i) former ECtHR Judge and President, Jean-Paul H. Jacobs, K. Freeman and A. Mojarras are attorneys at the Law Offices of Howard L. Jacobs, Westlake Village, CA USA. H. L. Jacobs (&)
K. N. Freeman
A. M. Mojarras Howard L. Jacobs, Westlake Village, CA, USA e-mail: [email protected] K. N. Freeman e-mail: [email protected] A. M. Mojarras e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2022 A. Duval and A. Rigozzi (Eds.), Yearbook of International Sports Arbitration 2018–2020 https://doi.org/10.1007/15757_2022_36

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Costa’s assessment, in a legal opinion issued in 2013, that the (2015) WADA Code’s sanction regime as a whole is proportionate; (ii) that a proportionality assessment is unnecessary in individual cases because proportionality is “built in” to the WADA Code; (iii) that a proportionality analysis is only permissible in an individual case where there is a “gap or lacuna” in the WADA Code; (iv) that a proportionality analysis would nullify the sanction regime of the WADA Code; and (v) that a proportionality analysis would lead to a landslide of cases risking the “exceptional mutat[ing] into the norm.” In the case of José Paolo Guerrero, despite outlining a series of circumstances that suggested that the 14-month sanction imposed by CAS was disproportionate, the CAS Panel refused to actually rule on the issue of proportionality, citing many of the rationales outlined above. The authors submit that a proportionality analysis remains a legal necessity in individual anti-doping cases, and that Judge Costa’s opinion that the sanction regime in the 2015 WADA Code is generally proportionate does not and cannot amount to a declaration that the sanction regime in the 2015 WADA Code will result in a proportionate sanction in every individual case. Furthermore, the oft-cited fear that a proportionality analysis will nullify the WADA Code or lead to a “landslide” of cases where a proper proportionality analysis supersedes the WADA Code is a fallacy that is not supported by the lex sportive. Keywords Proportionality


World Anti-Doping Code

1 Facts and Procedure José Paolo Guerrero, a Peruvian professional football player, tested positive for the cocaine metabolite benzoylecgonine (“BZE”) in a 5 October 2017 in-competition test during the 2018 FIFA World Cup Qualifier Rounds in Buenos Aires, Argentina.1 At the time, cocaine (including its metabolites) was a non-specified prohibited substance under the WADA Prohibited List.2 On 3 November 2017, FIFA notified Mr. Guerrero about the alleged presence of BZE in his urine sample, and provisionally suspended him for thirty days.3 Mr. Guerrero submitted a Request for Provisional Measures to have his provisional suspension lifted on 9 November 2017.4 However, on 10 November 2017, the FIFA Disciplinary Committee (“FIFA DC”) upheld the decision to provisionally suspend Mr. Guerrero.5 At his hearing before the FIFA DC on 30 November 2017, Mr. Guerrero argued that the presence

1

CAS 2018/A/5546, Guerrero v. FIFA, and CAS 2018/A/5571, WADA v. FIFA, Award of 30 July 2018, paras 2, 6–8. 2 Ibid., paras 8, 10. 3 Ibid., paras 11–12. 4 Ibid., para 14. 5 Ibid., para. 15.

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of BZE in his sample was a case of inadvertent ingestion, caused by drinking tea that—unbeknownst to him—contained coca leaves while in the Visitors Room at his hotel in Lima, Peru.6 On 8 December 2017, the FIFA DC suspended Mr. Guerrero for one year.7 On 12 December 2017, Mr. Guerrero lodged an appeal against the FIFA DC decision before the FIFA Appeal Committee (“FIFA AC”).8 On 20 December 2017, the FIFA AC partially upheld the suspension, reducing Mr. Guerrero’s period of ineligibility from one year to six months based on exceptional circumstances, allowing for the application of the principle of proportionality.9 Because the period of provisional suspension already served by Mr. Guerrero was credited against his total period of ineligibility, the FIFA AC decision rendered Mr. Guerrero eligible to compete at the 2018 FIFA World Cup.10

2 The CAS Holding and Analysis Thereafter, Mr. Guerrero filed an appeal with CAS on 29 January 2018.11 On 1 February 2018, WADA requested to intervene pursuant to Article R41.3 of the CAS code. On 19 February 2018, WADA filed its own appeal with CAS, and the two cases were ultimately consolidated.12 A hearing was held at the CAS headquarters in Lausanne, Switzerland on 3 May 2018, before a Panel composed of three arbitrators.13 In the Award, the Panel analyzed three main issues: (1) how did the BZE enter Mr. Guerrero’s system (“source”); (2) what was Mr. Guerrero’s degree of fault (“fault”); and (3) whether Mr. Guerrero could rely on the principle of proportionality to reduce his period of ineligibility (“sanction”).14 As to source, the Panel determined that Mr. Guerrero established on balance of probability that the BZE in his sample was indeed caused by his inadvertent ingestion of coca tea served to him at his hotel in Lima.15 In particular, the Panel stated that the expert opinions confirming the BZE levels in Mr. Guerrero’s sample were consistent with coca tea ingestion. In addition, the considerable degree of witness testimony corroborating that Mr. Guerrero drank tea in the Visitors Room at

6

Ibid., paras 20–21, 43. Ibid., para 22. 8 Ibid., para 23. 9 Ibid., para 24. 10 Ibid. 11 Ibid., para 25. 12 Ibid., paras 25–28. 13 Messrs Michael Beloff (President), Massimo Coccia and Jeffrey Benz. 14 Ibid., para 38, 64. 15 Ibid., para 70(i–iii). 7

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the hotel, and Mr. Guerrero’s otherwise clean record, left the Panel “sufficiently convince[ed]” that coca tea was the source of BZE.16 As to fault, the Panel, applying the fault analysis principles outlined in Cilic,17 characterized Mr. Guerrero’s degree of fault as “light.”18 While the Panel acknowledged that there were a number of ways Mr. Guerrero could have discharged his duty as an athlete to ensure no prohibited substance entered his body, such as inquiring into the hotel’s protocols or asking what teabags were being used in the Visitors Room, rather than relying on assumptions, his degree of fault was not significant for several reasons.19 For example, the prohibited substance was in tea, not medicine or supplements inherently more likely to be contaminated.20 Further, Mr. Guerrero reasonably believed that team officials, like they had in the past, would ensure any food or drink served to Players in designated areas was safe for consumption.21 Still, due to the constraints of FIFA’s Anti-Doping Rules (“FIFA ADR”), the Panel concluded that Mr. Guerrero’s period of ineligibility could be reduced to a minimum of one year, not less.22 Strictly following the FIFA ADR, which mirrored the World Anti-Doping Code (“WADA Code”), the Panel increased Mr. Guerrero’s sanction from six months to fourteen months—precluding his participation in the 2018 FIFA World Cup.23 In explaining its refusal to apply the doctrine of proportionality with respect to Mr. Guerrero’s sanction, the Panel found that the FIFA ADR, read together with the WADA Code, indicated that: (i) once finding the case to be one of no significant fault or negligence (as opposed to a case of no fault or negligence), and applying the WADA Code to the facts of the Guerrero case, it could only determine the appropriate sanction within the range of one to two years; (ii) even though cocaine is a non-specified substance, while other plant-based substances are classified as specified substances (which provides for a different sanction range in cases of no significant fault or negligence of between a warning and two years), Panels are not free to question or ignore WADA’s criteria for classification of substances or their corresponding consequences; and (iii) the timing of the sporting calendar and an athlete’s loss of opportunity during the period of ineligibility are expressly prohibited from being considered in assessing degree of fault.24

16

Ibid., para 70(ix–xi). CAS 2013/A/3327, Marin Cilic v. International Tennis Federation (ITF), and, CAS 2013/A/ 3337, ITF v. Marin Cilic, CAS Award of 11 April 2014. 18 Ibid., para 81. 19 Ibid., paras 80–82. 20 Ibid., para 82. 21 Ibid. 22 Ibid., paras 83, 85. 23 Ibid. 24 Ibid., para 85(i–iv). 17

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In addition, the CAS Panel cited CAS jurisprudence refusing to apply proportionality as a means of further reducing sanctions, arguing that the 2015 WADA Code had already fully taken proportionality into account in its assessment of sanction length and citing to Judge Jean-Paul Costa’s oft-quoted legal opinion on the 2015 WADA Code revisions.25 Finally, the Panel added that from a policy standpoint, it could not breach the boundaries of the WADA Code simply because its application would bear harshly on a particular individual.26 In the Panel’s view, such a departure from the principle of “legal certainty” would lead to endless debate on when exceptions to the Code were warranted, and risked provoking a landslide of cases where proportionality essentially “replaced” the sanction regime of the WADA Code, ultimately leading to the “exceptional mutat[ing] into the norm.”27 Thus, the Panel ultimately held that, unlike in cases where there is a lacuna in the Code, it was bound to strictly apply the WADA Code, and imposed a period of ineligibility of fourteen months on Mr. Guerrero, with credit for the six months he had already served under his provisional suspension.28

3 The Costa Opinion As mentioned above, the Guerrero Panel, like many before it,29 relied on former ECtHR Judge Jean-Paul Costa’s 2013 legal opinion on Draft 3.0 of the 2015 WADA Code (the “Costa Opinion”)30 in declining to consider the application of proportionality to Mr. Guerrero’s sanction. The Panel held that the Costa Opinion “vouched for” the “well-established perception that the WADA Code ‘has been found repeatedly to be proportional in its approach to sanctions, and the question of fault has already been built into its assessment of length of sanction’”.31 Prepared at WADA’s request, the Costa Opinion addresses eight questions, the first of which covers the compatibility of the proposed 2015 provisions pertaining to sanctions, in particular the provisions in draft Article 10.2 of the WADA Code,

25

Ibid., paras 86–87. Ibid., para 89. 27 Ibid., paras 89–90. 28 Ibid., paras 90–91. 29 CAS 2016/A/4534, Fiol Villanueva v. FINA, Award of 16 March 2017; CAS 2017/A/5015, FIS v. Johaug & CAS 2017/A/5110, Johaug v. NIF, Award of 21 August 2017. 30 “Legal opinion regarding the draft 3.0 revision of the World Anti-Doping Code”, 25 June 2013 (Jean-Paul Costa). 31 Ibid., para 87 (quoting CAS 2017/A/5015& CAS 2017/A/5110, at para 227). 26

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with the recognized principles of international law and human rights, including the principle of proportionality.32

3.1

What Does the Costa Opinion Actually Say with Regard to Proportionality?

Judge Costa considered draft provisions applicable to sanctions pursuant to Article 10.2 for presence, use, or attempted presence or use of a prohibited substance or method under WADA’s Revised Draft Code Version 3.0, which read as follows: “10.2.1 The period of Ineligibility shall be four years where: 10.2.1.1 The anti-doping rule violation does not involve a Specified Substance, unless the Athlete or other Person can establish that the anti-doping rule violation was not intentional. 10.2.1.2 The anti-doping rule violation involves a Specified Substance and the Anti-Doping Organization can establish that the anti-doping rule violation was intentional. 10.2.2 If Article 10.2.1 does not apply, the period of Ineligibility shall be two years. 10.2.3 As used in Articles 10.2 and 10.3, the term “intentional” means that the Athlete or other Person engaged in conduct which he or she knew constituted an anti-doping rule violation or knew that there was a significant risk that the conduct might constitute an anti-doping rule violation and manifestly disregarded that risk. Comment to Article 10.2: Harmonization of sanctions has been one of the most discussed and debated areas of anti-doping. Harmonization means that the same rules and criteria are applied to assess the unique facts of each case. Arguments against requiring harmonization of sanctions are based on differences between sports including, for example, the following: in some sports the Athletes are professionals making a sizable income from the sport and in others the Athletes are true amateurs; in those sports where an Athlete's career is short a two-year period of Ineligibility has a much more significant effect on the Athlete than in sports where careers are traditionally much longer. A primary argument in favor of harmonization is that it is simply not right that two Athletes from the same country who test positive for the same Prohibited Substance under similar circumstances should receive different sanctions only because they participate in different sports. In addition, flexibility in sanctioning has often been viewed as an unacceptable opportunity for some sporting organizations to be more lenient with dopers. The lack of harmonization of sanctions has also frequently been the source of jurisdictional conflicts between International Federations and National Anti-Doping Organizations.”33

Ultimately, while recognizing that “the internationally recognized principles of law encompass the notions of proportionality of sanctions and prohibition of excessively severe sanctions”, Judge Costa concluded that “the revised draft Article 10.2 (Version 3.0) [was] compatible with the principles of international law and human rights”, based primarily on the following determinations.

32 33

Costa Opinion, Sections 3 and 5. Ibid., Section 5, pp. 6–7.

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a. The envisaged increase in the level of sanctions was “moderate” in “relative terms” The Costa Opinion found that that the increase in the level of sanctions contemplated in the 2015 WADC was “moderate in relative terms and the outcome itself [was]… not excessive” and “not sufficient to shift the sanctions into the area of criminal subject matter”.34 In coming to this conclusion, Judge Costa considered that the draft Article 10.2 proposed an increased period of ineligibility for use of “classes of substances or agents hypothetically assumed to be more serious/dangerous”.35 While he acknowledged that there is “no doubt” that the increase in sanction length was significant, Judge Costa argued that it remained moderate, even when taking into consideration the devastating consequences for athletes.36 b. Sanctions were not automatic, but rather adjustable and scalable Judge Costa was clear that the principle of the individualization or personalization of sanctions and sentences requires that “sanctions (or sentences) must not be automatic and they must be adjustable depending on the circumstances”.37 He opined that the structure of the sanctions under the draft Article 10.2 of the 2015 WADC fit that criterion as the sanctions were “modular”—meaning they were adjustable and scalable based on consideration of several individual circumstances, including “the nature of the prohibited substance, the gravity of the individual fault, behavior during the procedure (“prompt admission”), or even age (minors)”.38 Finally, in this regard, Judge Costa opined that the modularity of sanctions works in favor of reduction, characterizing the sanction length as being “capped”.39 c. A perceived lack of breach of the equality of treatment of athletes Judge Costa noted that, under the proposed “modular” sanctions outlined in Article 10.2, “it is not possible to increase too significantly the consideration given to individual circumstances, since athletes have to be treated equally at the international level, and it would be unjust to treat athletes who have used the same prohibited substance differently, merely because they practice different sports.” He further noted that the equality of treatment of athletes was guaranteed by the system outlined in the revised draft as “the criteria applicable to the duration of the period of ineligibility are objective, and do not result in discriminatory distinctions being made between athletes.”40

34 35 36 37 38 39 40

Ibid., at p. 9. Ibid., at p. 7. Ibid., at p. 9. Ibid. at p. 8. Ibid. Ibid. Ibid.

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Was the Costa Opinion Intended to Preclude the Application of Proportionality in a Case like Guerrero’s?

Judge Costa’s opinion was specific to the structure of Article 10.2 of Draft 3.0 of the 2015 WADA Code, and was offered in a complete factual vacuum. While the Costa Opinion considered and addressed the issue of whether the structure of the 2015 WADA Code was disproportionate, it did not comment on the any specific or unique sets of circumstances, and certainly did not consider a set of circumstances as are presented in the Guerrero case.

4 Examination of Cases Where Proportionality Has Been Applied (Pre- and Post-2015 WADA Code) In refusing to consider proportionality in its assessment of Mr. Guerrero’s sanction, the Panel cited the necessity for “legal certainty”, arguing that the application of proportionality in specific instances would lead to endless debate on when precisely exceptions to the Code were warranted, and predicting that a proportionality assessment would lead to a landslide of cases risking the “exceptional mutat[ing] into the norm”.41 An examination of CAS cases in which proportionality has been applied, however, demonstrates that the “landslide” argument relied upon by the Panel is not consistent with historical precedent. Rather, CAS precedents show that the principle of proportionality has only been used rarely to lower a mandatory sanction, and only in rather extraordinary circumstances. In other words, there is no basis to fairly predict that a proportionality assessment in the Guerrero case would have led to the dire consequences apprehended by the Panel.

4.1

4.1.1

Pre-WADC Cases Considering Proportionality in Assessing Sanction Foschi v. FINA (CAS 1996/56)

In the Foschi case, a minor Athlete tested positive for the anabolic steroid mesterolone, in violation of FINA Anti-Doping Guidelines, Rule 4, under which a positive urine screening for an anabolic steroid created a presumption of doping and 41

Ibid., paras 89–90.

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mandated a two-year sanction for a first offense.42 The CAS Panel reduced the Athlete’s sanction from two years to six months based on proportionality considerations where evidence showed that: (1) the Athlete was a minor at the time of the offense; (2) the Athlete was not a chronic steroid user; (3) the Athlete’s performance was not enhanced by ingestion of the banned substance; and (4) while the presumption of intent was not sufficiently rebutted, evidence was shown establishing that (a) the drug was taken at a point in time when it would not have had a performance-enhancing effect and when the Athlete knew doping controls were likely to take place; and (b) the Athlete’s character was not that of someone who would intentionally cheat to win.43 Review of CAS case law after Foschi confirms that the reduction of Ms. Foschi’s sanction on the basis of a proportionality assessment did not lead to a landslide of proportionality-based sanction reductions, and did not lead to the “exceptional mutat[ing] into the norm.” 4.1.2

B. v. FINA (CAS 2001/A/337)

In this case, the CAS Panel considered the propriety of an automatic two-year sanction resulting from a positive test for the prohibited substance nandrolone, an anabolic agent whose presence mandated a four-year minimum suspension under the then-applicable FINA rules where the Athlete was unable to establish how the prohibited substance entered his body and that the prohibited substance did not arrive in his body as a result of any negligence on the part of the Athlete.44 Citing CAS precedent that “a sanction may not be disproportionate and must always reflect the extent of the athlete’s guilt”,45 the CAS Panel embraced its “discretion in fixing the extent of the sanction”, specifically noting that this discretion existed even in the case where there were “no exceptional attenuating circumstances”46 in reducing the sanction to two years. As with Foschi, the sanction reduction in B. v. FINA did not lead to a landslide of proportionality-based sanction reductions.

42

CAS 1996/56, Jessica Foschi v. FINA, Award of 6 October 1997, para 3.4. Ibid., at para 15.2. 44 CAS 2001/A/337, B. v. FINA, Award of 22 March 2002, at para 72. 45 Ibid., at para 78 (citing CAS 92/73, N. v. FEI, CAS Digest, Volume I, p. 153, 159; CAS 95/141, C v. FINA, CAS Digest, Volume I, pp. 215, 222; CAS 96/156, F. v. FINA, CAS Digest, Volume I, p. 48). 46 Ibid. 43

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Pre-2015 WADC Cases FIFA & WADA (CAS 2005/C/976 & 986)

The very first legal advisory opinion issued in relation to a dispute arising under the WADA Code tackled the principle of proportionality head-on, as follows: […] 138. The sanction must also comply with the principle of proportionality, in the sense that there must be a reasonable balance between the kind of the misconduct and the sanction. In administrative law, the principle of proportionality requires that (i) the individual sanction must be capable of achieving the envisaged goal, (ii) the individual sanction is necessary to reach the envisaged goal and (iii) the constraints which the affected person will suffer as a consequence of the sanction are justified by the overall interest in achieving the envisaged goal. 139. A long series of CAS decisions have developed the principle of proportionality in sport cases. This principle provides that the severity of a sanction must be proportionate to the offense committed. To be proportionate, the sanction must not exceed that which is reasonably required in the search of the justifiable aim… The Panel is of the view that the principle of proportionality is guaranteed under the WADC; moreover, proportional sanctions facilitate compliance with the principle of fault. Consequently, each body must consider the proportionality of imposed sanctions for doping cases.47

In other words, CAS recognized early on that the WADA Code did not, and could not, negate the legal requirement that any individual sanction must be proportionate. 4.2.2

Squizzato v. FINA (CAS 2005/A/830)

Later CAS panels have also made it clear that the WADA Code’s introduction of mechanisms by which sanctions could be reduced or eliminated does not remove the obligation of disciplinary panels to measure the sanctions applied in any particular case against the principle of proportionality, and the proportionality considerations in an individual case may mandate reduction of a sanction below what is provided by the applicable rules derived from the Code. In the Squizzato case, the CAS Panel (at paragraph 10.24) held that: […] the mere adoption of the WADA Code […] by a respective Federation does not force the conclusion that there is no other possibility for greater or less reduction a sanction than allowed by DC 10.5. The mere fact that regulations of a sport federation derive from the World Anti-Doping Code does not change the nature of these rules. They are still – like before – regulations of an association which cannot (directly or indirectly) replace fundamental and general legal principles like the doctrine of proportionality a priori for every thinkable case.48

47

CAS 2005/C/976 & 986, FIFA & WADA, Advisory Opinion dated 21 April 2006, at paras 138– 139. 48 CAS 2005/A/830, Squizzato v. FINA, Award of 15 July 2005, at para 10.24.

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Puerta v. International Tennis Federation (CAS 2006/A/1025)

In Puerta, the Athlete had previously served a nine-month period of ineligibility after using clenbuterol for an asthma attack without obtaining a medical exemption.49 He then tested positive for etilefrine, explaining that he inadvertently consumed a trace amount of etilefrine after drinking water out of a glass he believed was his own but actually had been used by his wife to dissolve her odorless, colorless medication.50 Here, the CAS Panel identified a gap or lacuna in the Code where an automatic eight-year sanction was imposed for second offenses without any possible reduction, even when an Athlete was found—as Mr. Puerta was—to bear “no significant fault or negligence”.51 Given the unique facts and circumstances of the case, the Panel applied the principle of proportionality to “fill in the lacuna” and reduce the sanction to two years.52 Since Puerta, in refusing to undertake a proportionality assessment to determine if a sanction in an individual case is disproportionate, some CAS Panels have interpreted Puerta to mean that tribunals considering a sanction under the WADA Code can only consider proportionality if it is determined that there is a gap or “lacuna” in the WADA Code itself.53 4.2.4

FINA v. Mellouli (TAS 2007/A/1252)

In the Mellouli case, the athlete (who was a university student at the time) tested positive for amphetamine after using a classmate’s ADHD medication while working on a school project, in a setting that was unrelated to sport. The CAS Panel found that the athlete was significantly negligent, but that the applicable sanction under the WADA Code (2 years) was “neither proportionate with the misconduct of the athlete nor would it be capable of achieving the envisaged goal—that is both to prevent abuse and educate—of the said rules.” The CAS Panel therefore applied the principle of proportionality to allow it to step outside the bounds of the WADA Code, reducing Mr. Mellouli’s sanction to 18 months.54 That sanction reduction ultimately enabled Mr. Mellouli to compete at the 2008 Olympic Games, where he won the gold medal in the 1500 m freestyle. As with the other cases cited above, the sanction reduction in Mellouli did not lead to a landslide of proportionality-based sanction reductions.

49 50 51 52 53 54

CAS 2006/A/1025, Puerta v. International Tennis Federation, Award of 12 July 2006, at p. 3. Ibid., at pp. 3–4. Ibid., at paras 90–95. Ibid., at para 103. See CAS 2014/A/3540, Klineman v. USADA, Award of 24 April 2014, at para 39. TAS 2007/A/1252, FINA v. Mellouli, Award of 11 September 2007, at para 97.

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Walilko v. Federation Internationale de l’Automobile (CAS 2010/A/2268)

In this case, the CAS Panel considered “the specific circumstances of the case and of the twofold aim—retributive and educational—of the sanction” and decided that the strict application of Article 10.2 would be “excessive and disproportionate” where (a) the Athlete had been a minor (age 13) at the time of the violation; (b) the Athlete was competing in a youth category; (c) the application of the same standard to a 13 year-old as to an adult in the same circumstance contradicted notions of fairness and justice; and (d) given the timing of the competition season, a suspension of two years would impact three competitive seasons.55 On a proportionality assessment, the Panel deemed an 18-month period of ineligibility (reduced from the minimum 2 years) to be “proportionate to the offense and, thus, a just and fair penalty.”56 4.2.6

Klein v. ASADA (CAS A4/2016)

In Klein, the Athlete’s sanction for evasion of a test attempt was reduced from four years to two years, where evidence showed that the Athlete took steps to immediately comply with the request for sample collection; attempted to supply a full sample; expressed willingness to provide a full sample at the airport; that the Athlete was not a “drug cheat” and her actions did not constitute a dishonest attempt to provide a sample; and the sample, though small, was negative for any prohibited substances.57

4.3 4.3.1

Post-2015 WADC WADA v. Russian Anti-doping Agency (CAS 2020/O/6689)

Most recently, the principle of proportionality featured as a central theme in the Panel’s decision in the 2020 RUSADA case. The Panel noted that CAS has the authority to determine, by reference to the relevant provisions in WADA’s International Standard for Compliance with the Code by Signatories (ISCCS), what consequences should be imposed and what conditions signatories must satisfy for

55

CAS 2010/A/2268, Walilko v. Federation Internationale de l’Automobile, Award of 15 September 2011, at paras 133, 142. 56 Ibid., at para 143. 57 CAS A4/2016, Klein v. ASADA, Award of 25 May 2017.

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reinstatement58 and emphasized that the ISCCS makes clear that all consequences should go no further than is necessary to achieve this objective, giving due consideration to the principle of proportionality.59 Based on these provisions, the Panel rejected WADA’s submissions that: (i) RUSADA’s consequences were not required to meet any test of proportionality, and (ii) if proportionality was applicable, it was unnecessary to adjust RUSADA’s consequences based on the Panel’s own assessment because the WADA Code already embodies proportionality.60 Highlighting that the principle of proportionality is a “fundamental tenet of natural justice,” the Panel held that it was entitled to make its own assessment of RUSADA’s consequences, “bear[ing] firmly in mind at all times the paramount need to consider notions of proportionality in the imposition of [consequences].”61 The Panel ultimately determined that the consequences sought by WADA were unduly harsh, and made several reductions or alterations. Most notable, perhaps, was the Panel’s reduction to RUSADA’s period of consequences. In determining the appropriate period of consequences, the Panel asserted that the principle of proportionality “must be assessed in light of the [consequences]... as a whole.”62 Accordingly, and with express regard to the seriousness of the non-compliance, the Panel concluded that the appropriate period of consequences was two years— marking a substantial reduction from the four-year period sought by WADA.63 Despite noting that the charges against RUSADA “could hardly be more serious,” the Panel here decided to impose consequences less extensive than those sought by WADA not “as any validation of the conduct of RUSADA or the Russian authorities”, but rather out of due respect to the principle of proportionality and the hope that its award would “mark a new path towards reconciliation and allow Russian athletes a fresh start to contribute to their otherwise proud sporting history”.64

5 Conclusion In its own decision, the CAS Panel in Guerrero identified the very factors that it would have relied upon had it conducted a proportionality analysis: (i) Mr. Guerrero’s clean record; (ii) “its finding that the adverse analytical finding resulted

58

CAS 2020/O/6689, WADA v. Russian Anti-Doping Agency, Award of 17 December 2020, at para 493; WADA Code, Article 23.5.6. 59 Ibid.; See also WADA Code Article 11.2.6. 60 Ibid., p. 150, para 718. 61 Ibid., at p. 151, paras 719, 723. 62 Ibid., at p. 154, paras 742–744. 63 Ibid., para 745. 64 Ibid., at p. 180, paras 861–862.

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from the consumption by Mr. Guerrero of an ordinary drink which contained, contrary to his reasonable belief, a prohibited substance”; (iii) that “Mr. Guerrero’s consumption of the tea [was] out-of-competition and without intent to enhance performance in the match”; (iv) that the small amount of the cocaine metabolite found in Mr. Guerrero’s urine sample would not have enhanced his performance; (v) that the classification of cocaine as a non-specified substance as compared to morphine or heroine was “arguably anomalous”; and (vi) the importance of the World Cup that Mr. Guerrero would miss as a result of a 14-month sanction.65 By all accounts, it appears that had the CAS Panel in Guerrero undertaken a proportionality analysis, it would have concluded that the 14 month sanction that it applied under the WADA Code was, in fact, disproportionate. Instead, the CAS Panel in Guerrero refused to actually determine whether the 14 month sanction that it imposed under the WADA Code was disproportionate, holding that: (i) the WADA Code itself incorporated proportionality and therefore negated any further proportionality analysis requirement; (ii) as a result of its finding that Mr. Guerrero was not significantly negligent (but did have some fault), the WADA Code restricted its analysis of the proportionality of the sanction to the imposed range of 1–2 years; and (iii) the WADA Code expressly excludes as a factor to be taken into account in assessing the degree of fault, inter alia, “the timing of the sporting calendar” as well as the athlete’s loss “of opportunity to earn large sums of money during the period of ineligibility”.66 The Tribunal also stated that proportionality with respect to sanction length is “built in” to the WADA Code, predictably citing the Costa Opinion.67 The regulations of sports federations—whether based on the WADA Code or not —cannot (directly or indirectly) replace the fundamental legal principles of proportionality for every thinkable case.68 Later amendments of the WADA Code do not and cannot change this fundamental principle, nor can legal opinions procured by WADA (such as the Costa Opinion). It is therefore submitted that a proportionality analysis remains a legal necessity in individual anti-doping cases; and that this necessity is not merely limited to egregious cases or to situations where there is an asserted gap or lacuna in the WADA Code. Finally, history has shown that the repeatedly articulated concerns that the legally required proportionality analysis would nullify the sanction regime of the WADA Code, or would lead to a landslide of cases risking the “exceptional mutat [ing] into the norm,” are unfounded. There have only been a handful of cases—both before and after the introduction of the first WADA Code in 2003—where CAS tribunals have reduced a sanction based solely on a proportionality assessment.

65

CAS 2018/A/5546, Guerrero v. FIFA, and CAS 2018/A/5571, WADA v. FIFA, Award of 30 July 2018, para 84. 66 Ibid., at para 85. 67 Ibid., at para 87. 68 CAS 2005/A/830, Squizzato v. FINA, Award of 15 July 2005, at para 10.24.

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None of these decisions led to a landslide of cases, nor did they nullify the sanction regime of the WADA Code. Instead, what history has shown is that CAS arbitrators, the ‘bench’ of “sport’s supreme court”,69 have the experience and expertise to prevent disproportionate sanctions where necessary, and that they can and should do so without any risk or concern that proportionality will undermine or nullify the WADA Code. In fact, Judge Costa’s finding that the sanction regime of the WADA Code is generally proportionate would suggest that the application of proportionality to reduce sanctions would be limited to those few, select cases where the individual facts require it.

69

See, e.g., https://www.wada-ama.org/en/court-of-arbitration-for-sport.

CAS 2018/A/5800 Samir Arab v. Union Européenne de Football Association (UEFA), Award of 14 November 2018 Madalina Diaconu

Contents 1 2 3 4

Facts and Procedure of the Case......................................................................................... The CAS Panels’ Power to Review Match-Fixing Sanctions............................................ Proportionality of Sanctions, Notably of Bans................................................................... Mitigating Circumstances in Match-Fixing Cases.............................................................. 4.1 The Concept of “Substantial Assistance” as a Mitigating Factor ............................. 4.2 Improper Education Tools; Absence of Reliable Reporting Mechanisms ................ 4.3 Fear of Repercussions as a Mitigating Factor? ......................................................... 5 Aggravating Circumstances—Age, Experience and Multiple Approaches to Fix a Match ................................................................................................................................ 5.1 Player’s Age and Experience ..................................................................................... 5.2 Multiple Unreported Approaches to Fix a Match ..................................................... 6 Non Ultra Petita, Non Reformation in Peius, and Res Iudicata........................................ 6.1 Procedural Aspects and Parties’ Arguments .............................................................. 6.2 No Violations of Non Ultra Petita and of Non Reformatio in Peius Principles .................................................................................................................... 6.3 Violation of Res Iudicata ........................................................................................... 7 Analysis, Remarks and Conclusion .................................................................................... References ..................................................................................................................................

160 161 162 163 163 165 166 166 166 166 167 167 168 169 170 173

Abstract This case is a part of a complex trial concerning a match-fixing plot in Maltese football. The context of this affair involves a match-fixing criminal group with ramifications in Europe and Asia, which were approaching young players of the Maltese U-21 national team, offering them EUR 3,000 to fix certain UEFA U-21 Championship matches, for betting purposes. One of these players, Samir Arab, failed to inform the relevant bodies of such repeated approaches. Although he later collaborated with the judicial authorities, the UEFA CEDB found him guilty of M. Diaconu (&) University of Neuchâtel, Neuchâtel, Switzerland e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2022 A. Duval and A. Rigozzi (Eds.), Yearbook of International Sports Arbitration 2018–2020 https://doi.org/10.1007/15757_2022_37

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“failure to report” (Article 12(2)(d) UEFA DR) and banned him from football activities for approximately two years. However, the UEFA Appeals Body changed the legal qualification of the offence into “active match-fixing” (Article 12(2)(a) UEFA DR), while maintaining the same ban. The CAS dismissed the Player’s appeal, stating mainly that a sanction imposed by a disciplinary body in the exercise of its discretion, as allowed by the relevant rules, could be reviewed only when such sanction was evidently and grossly disproportionate to the offence, which was not the case here. Besides this, the Player could not benefit from a reduction of the sanction based on the concept of “substantial assistance”. Finally, the CAS reminded us that the res iudicata principle, as enshrined in Swiss law, limits the discretion of appeals bodies to re-examine the case and does not allow them to change the legal qualification of the offence into “active match-fixing”, instead of the lesser grave “failure to report”.










Keywords Competition manipulation Match-fixing Res iudicata Proportionality of sanctions Aggravating and mitigating circumstances Substantial assistance Reporting mechanisms










1 Facts and Procedure of the Case This case represents one aspect of a multiple investigation and trial concerning a match-fixing plot in Maltese football. Mr. Samir Arab (the “Appellant” or the “Player”) was a Maltese professional football player in the Maltese U-21 national team, which participated in the UEFA European U-21 Championship. At least two matches of this championship and eight Maltese players were concerned by the investigations. The Appellant and some of his team members had been approached, through different means, by a match-fixing group masterminded by Ronnie Mackay (banned for life for match-fixing back in 2012, later sentenced to two years in prison), and Seyble Zammit, a 21-year-old former football player (also later convicted). The scheme was financed by an Asian “investor” calling himself “Fred”. The modus operandi consisted of approaching young players and offering them EUR 3,000 to lose a designated match, while also establishing the exact score which needed to be achieved. The fix was done for betting purposes. In her report of 29 May 2017, the UEFA Ethics and Disciplinary Inspector (EDI) requested disciplinary proceedings to be opened against eight players, including the Appellant, who was charged for “acting in a manner that was likely to exert an unlawful or undue influence on at least one UEFA match with a view of gaining an advantage for themselves and third parties” in violation of Article 12(2) (a) UEFA Disciplinary Regulations (the “UEFA DR”). The sanction requested by the EDI was a life ban or, alternatively, another appropriate disciplinary sanction. On 14 December 2017, following a hearing, the UEFA Control, Ethics and Disciplinary Body (CEDB) rendered its decision (the “CEDB Decision”), whereby it found that the Player was not guilty of a violation of Article 12(2)(a) UEFA DR;

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however, he was found guilty of a violation of Article 12(2)(d) UEFA DR (a failure to “immediately and voluntarily inform UEFA if approached in connection with activities aimed at influencing in an unlawful or undue manner the course and/or result of a match or competition”). The UEFA CEDB thus banned the Appellant from all football-related activities until 31 December 2019 (approximately two years). The Player appealed against that decision. On 9 April 2018, following a hearing, the UEFA Appeals Body rendered its decision (the “Appealed Decision”), rejecting the Player’s request for a reduction of the sanction for a violation of Article 12(2)(d) UEFA DR. The Appealed Decision held that the Player had violated Article 12(2)(a) UEFA DR (as initially proposed by the EDI), that the sanction imposed by the UEFA CEDB was actually too lenient, and that “the sanction should have gone beyond what was imposed against the player for not reporting the approach”. However, the UEFA Appeals Body did not modify the sanction pronounced by the CEDB. On 25 June 2018, the Player filed a Statement of Appeal against that decision in front of the CAS.

2 The CAS Panels’ Power to Review Match-Fixing Sanctions First, it was confirmed in this award that CAS panels—even though they have full power of review of the disputed facts and law in the exercise of their jurisdiction— will not review a sanction imposed by a disciplinary body in the exercise of the discretion allowed by the relevant rules, unless that sanction is evidently and grossly disproportionate to the offence (paras 71 et seq.). This concept is a leitmotif in the CAS jurisprudence.1 Indeed, the CAS Panels’ full power of review of a decision appealed against is a well-known feature and fundamental principle enshrined in Article R57 CAS Code, according to which “[t]he Panel has full power to review the facts and the law”. However, since the appealed decision falls within the category of disciplinary decisions of a private association under Article 75 of the Swiss Civil Code, it can be amended only if it is established that it violated the law or the association’s own statutes or regulations, i.e., if the relevant association has exceeded the margin of discretion accorded to it by law and, therefore, acted arbitrarily. The rationale behind this is to give certain deference to sport governing bodies in respect of the proportionality of sanctions. Hence, CAS panels will generally abstain from reassessing the proportionality of a sanction if they deem such sanction somewhat high or somewhat low; they will only intervene if they arrive at the conclusion that a sanction is evidently and grossly disproportionate (para 73).

1

From an abundant jurisprudence, see, for example: CAS 2016/A/4595 Al Ittihad Saudi v. Fédération Internationale de Football Association (FIFA), Award of 21 November 2016, paras 59 et seq.; CAS 2019/A/6393 Cruzeiro Esporte Clube v. Fédération Internationale de Football Association (FIFA), Award of 17 February 2020, paras 85 et seq.

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3 Proportionality of Sanctions, Notably of Bans The Panel gave a great amount of attention to the issue of proportionality of sanctions, both in general and in the specific context of match-fixing. It also formulated some specific indications of the proportionality of bans. Firstly, according to the Player’s version, he did not actively participate in any form of corruption and did not accept any offer to fix a match; also, he rejected the offer to fix a match and even assisted the police in putting the mastermind of the match-fixing plot behind bars. Thus, the Player argued that he should not be treated as the instigator, co-conspirator or active participant of the match-fixing plot (para 111). The Panel fully agreed with these broad considerations, but did not find any evidence that the UEFA CEDB actually regarded the Player as “instigator, co-conspirator or active participant of the match-fixing plot” (para 112). In this respect, the Panel clarified that such labels were never affixed on the Appellant, which did not mean that he could not be sanctioned for another offence, i.e., failing to report. Secondly, the Panel addressed the issue of bans from football-related activities, as opposed to suspensions for a specified number of matches or for a specified or unspecified period. Noting UEFA’s position that “all actions falling with the scope of Article 11(1)(a) and 12 UEFA DR are absolutely unacceptable in football and require sanctions of the utmost severity, not only to punish the offenders, but also to dissuade other possible wrongdoers from even considering getting involved in such activities”, the Panel found such position to be justifiable (para 114). This applies to persons that accepted bribes, but also for a failure to report approaches or their knowledge of a possible match-fixing plot. Finally on this point, the Panel emphasized that “match suspensions are generally imposed for infringements committed on the pitch, whereas sanctions with consequences beyond mere match suspensions are regularly imposed for infringements committed off the pitch, such as a failure to report a match-fixing approach” (para 115). Lastly, the Panel went on to analyze the proportionality of the sanction (i) taken alone; but also (ii) in comparison with the sanctions imposed on the Appellant’s teammates. Considering this first aspect, i.e., the proportionality of the sanction imposed on the Player individually, the Panel did not find that the two-year ban was evidently and grossly disproportionate, taking into account the specific circumstances of this matter. Indeed, and although the Player did not actively engage in match-fixing, he deliberately acted in breach of his duty to report a match-fixing approach, as imposed on him by Article 12(2)(d) UEFA DR, and thereby committed a passive match-fixing violation (para 134). Naturally, the Panel recognized that a two-year ban from all football-related activities is a severe sanction, also bearing in mind that it prevents the Player from training and because it deprives him of the income gained from his football activities (para 137). However, such a severe sanction seemed justified because the Player intentionally omitted to report the match-fixing approach, jeopardizing

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UEFA’s fight against match-fixing and demonstrating a serious disregard for UEFA’s key values and principles (para 138). Moving on to the second aspect, i.e., the proportionality of the sanction imposed on the Player in comparison with the sanctions imposed on his teammates, the Panel found that the violation committed by the Player was situated somewhere “in the middle”, as it was considerably less severe than the active match-fixing infringements committed by two other team members (who had been sanctioned with a ten-year ban), but more severe than the passive violations committed by three others (who were each sanctioned with a one to a one-and-a-half-year ban) (paras 141– 142). Finally, the Panel noted that, in application of para 84 of the UEFA CEDB Decision, as an exception, the Player was allowed to “return to train with a team or to use the facilities of a team or other member organisation of a national association during the shorter of: (a) the last two months of the player’s period of suspension; or (b) the last one-quarter of the period of suspension imposed” (para 146). Based on the above, the Panel did not consider a two-year ban to be evidently and grossly disproportionate.

4 Mitigating Circumstances in Match-Fixing Cases Like other offenses, match-fixing violations are sanctioned taking into account the concrete circumstances of each case, notably mitigating factors, among which a full and meaningful cooperation with authorities is key (Sect. 4.1 below). Other mitigating (or partly excusing) factors include inadequate education and awareness tools disseminated by sports federations, or the absence or improperness of reporting mechanisms (Sect. 4.2 below). Finally, fear of repercussions was also (unsuccessfully) invoked in this case (Sect. 4.3 below).

4.1

The Concept of “Substantial Assistance” as a Mitigating Factor

The Player did not dispute having violated the duty to report as provided in Article 12(2)(d) UEFA DR. However, he considered that the sanction taken against him should have been less significant because, according to his submissions, he provided substantial assistance in the investigation and trials of other accused persons. Specifically, the Appellant provided a witness statement against Mr. Mackay and Mr. Zammit and testified in court against Mr. Mackay, as a result of which both could be convicted.

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Here, the Player referred to the concept of “substantial assistance” as incorporated into the World Anti-Doping Code (WADC), specifically in Article 10.6.1.2 World Anti-Doping Code (edition 2015),2 currently Article 10.7.1 (edition 2021). The Panel did not object to making that analogy, considering instead that the Player’s behavior, while being valuable for the ongoing investigation, did not amount to the degree of substantiveness required to annihilate the rightful sanction which should apply to him (para 81). Instead, this circumstance could only be considered for a potential reduction of that sanction. Overall, while the Panel recognized that a “meaningful cooperation with domestic authorities” should in principle be considered as a mitigating factor also in disciplinary proceedings before UEFA, it also found that such mitigating circumstance had already been explicitly taken into account by the UEFA CEDB, which decided to apply a reduced two-year ban. Thus, even though the Appealed Decision did not specifically refer to this mitigating factor, it was clearly part of UEFA’s considerations on the proportionality of the sanction in the present matter. Indeed, as explained in the award, the evidence provided by the Player “was crucial in convicting Mr. Mackay and Mr. Zammit as he was the only witness before the Maltese criminal court that was not being prosecuted himself”, which notably led the Maltese Criminal Court to rule that “Samir Arab is a very important witness in this case who removes all doubt that might arise with regards to the credibility of the principal witness Seyble Zammit. He ties the evidence against the accused, says that Ronnie Mackay came with the Asian individual and the offer was made by both Ronnie Mackay and Seyble Zammit” (para 82, quoting the Maltese court’s judgment). However, the Panel noted that the Player voluntarily limited his assistance to answering questions from the judge and police officer, without spontaneously providing insight into his full knowledge of the circumstances at stake. In doing so, the Player did not meet the (high) standard of the concept of “substantial assistance”, which requires one to go beyond mere cooperation with the authorities, but to come clean and provide all information known. This led the Panel to a final interesting holding, in which the arbitrators perceptively addressed the UEFA’s overall policy towards cooperation in match-fixing cases. Indeed, the Panel acknowledged the Player’s argument that, should he have refused to testify before the Maltese courts, UEFA may well have lacked the required evidence to convict him for a failure to report. Therefore, in his good faith effort to cooperate with the judicial authorities, the Player incriminated himself in the disciplinary proceedings. Notwithstanding this, the Panel reiterated that it was “well within UEFA’s power to autonomously determine its policy in this respect. If UEFA, for whatever reason, does not deem it fit to prioritize encouraging players “The extent to which the otherwise applicable period of Ineligibility may be suspended shall be based on the seriousness of the anti-doping rule violation committed and the significance of the Substantial Assistance proved by the Athlete or other Person to the effort to eliminate doping in sport. No more than three-quarters of the otherwise applicable period of Ineligibility may be suspended” (Article 10.6.1.1 World Anti-Doping Code (edition 2015).

2

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to testify before ordinary courts in order to have the masterminds of match-fixing operations convicted in exchange for an acquittal or significant reduction of the ban for failing to report, or to provide substantial assistance in general, then it is not for this Panel to interfere with such policy” (para 87).

4.2

Improper Education Tools; Absence of Reliable Reporting Mechanisms

The Player also relied partly on the provisions of the Macolin Convention,3 which place on sports organizations the obligation to educate and raise awareness among their competition stakeholders, including young athletes, of the risk of manipulation of sports competitions and the efforts to combat it, through education, training and the dissemination of information.4 In this respect, he argued that his failure to report was justified or partly excused by the absence of proper education and of dissemination of information on match-fixing, and by the absence of a reliable and secure reporting tool that would guarantee the Player’s safety and would protect his identity. The Panel however did not agree with the Player that UEFA failed to comply with its duties in this respect. On the first argument, it was not disputed that the Player had received an instruction from the Maltese Football Association Integrity Manager, about a year and three months before the match-fixing approach. Although the Player argued that such instruction was very superficial and did not even last 5 min, the evidence indicated that the Player was educated (even briefly) about match-fixing and that at least one other player from his team had understood the instruction and reported the approach to his team manager (para 100). On the second argument, the Panel’s reasoning was quite brief. Firstly, the Panel underlined that the sport governing bodies have “a certain duty to make reporting easy and secure, especially related to match-fixing issues” (para 103). Furthermore, the Panel acknowledged and emphasized the importance of a “proper reporting tool, such as the UEFA Integrity App” and the UEFA’s duty to instruct football players from around the world on how to use it (para 103). However, no further analysis was made in respect of the reporting tool itself, since the Player had himself testified that he understood his obligation to “go to his coach or to the integrity officer” if he was approached. Therefore, the Panel was satisfied that the Player was educated on how to effectively report a match-fixing approach.

3

Council of Europe Convention on the Manipulation of Sports Competitions (Macolin Convention, CETS 215). 4 See notably Articles 6 and 7 Macolin Convention.

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Fear of Repercussions as a Mitigating Factor?

Finally, the Panel discussed the Player’s argument that he had failed to promptly report the match-fixing approaches because of fear of repercussions, seeing the criminal past of some of the masterminds in the scheme. However, the Panel noted that Player could have complied with his duty to report if he had reported the match-fixing approach anonymously (para 105). Also, the Player contradicted himself by testifying that he was “not afraid of Mr. Zammit”, who approached him first; he alleged being afraid only of Mr. Mackay, whom he met ulteriorly (para 107). Ultimately, the Panel found it difficult to reconcile the Player’s arguments that, on the one hand, he was not aware of a duty to report because no appropriate education had been given, but on the other hand, that he did not comply with his duty to report the approach because he was afraid of repercussions. As the Panel eloquently put it, “one cannot blow hot and cold at the same time: either the Player was aware of his duty to report or not and the Player’s reliance on the argument of fear suggests that he was aware of this duty” (para 102).

5 Aggravating Circumstances—Age, Experience and Multiple Approaches to Fix a Match 5.1

Player’s Age and Experience

In its submissions, UEFA maintained that the Player’s age and experience were to be considered as aggravating circumstances, while the Player maintained the contrary. The Panel however chose to give no specific significance to the age and experience factor in this case, where the Player was 21 at the relevant time. Indeed, that age does not generally allow someone to argue that he is so young and inexperienced that his violations deserve a lower sanction. Inversely, someone who is 21 years of age is not so experienced that this shall be considered as an aggravating circumstance in determining an appropriate sanction (para 123). In other words, a 21-year old Player is neither young nor old; thus, this age cannot be treated as a mitigating or as an aggravating circumstance.

5.2

Multiple Unreported Approaches to Fix a Match

The Panel did however find an aggravating circumstance in this case. Importantly, it agreed with UEFA that multiple unreported approaches to fix a match (in casu, the Player had been approached twice for match-fixing) was an important aspect and an aggravating circumstance (para 128). The rationale for this is that, instead of

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immediately reporting the first approach to the authorities, the Player—after having had about five days to think about what to do—chose to meet Mr. Zammit again, knowing that the purpose of this meeting was to discuss a possible collaboration to fix football matches (para 129). As already determined in other cases (e.g., CAS 2014/A/3467), the Player “deliberately proceeded to engage in what he knew full well to be a violation […] on at least two counts” (CAS 2014/A/3467, para 122). Thus, unsurprisingly, the Panel found that such multiple unreported approaches demonstrated the Player’s intentional and continued omission to report, and his serious disregard for UEFA’s key values and principles, which constitute aggravating circumstances.

6 Non Ultra Petita, Non Reformation in Peius, and Res Iudicata Finally, the award is also interesting because the Panel found a violation of the res iudicata principle, by the UEFA Appeals Body. We will analyze this aspect in detail here below.

6.1

Procedural Aspects and Parties’ Arguments

To rememorate, the Player had been initially accused by the EDI of having committed a violation of Article 12(2)(a) UEFA DR (active match-fixing), but the UEFA CEDB concluded that the Player was not guilty of such infringement. Given that the Player lodged an appeal against this decision with the UEFA Appeals Body —but the EDI did not—the Player submitted that it was an ultra petita ruling of the UEFA Appeals Body to consider that it was “satisfied with the conclusion that [the Player] accepted at a first instance the bribe”, that “at least at the beginning, [the Player] accepted the bribe. The fact that the [Player] refused the offer afterwards doesn’t change the fact that by accepting at a first instance he already violated Article 12(a) DR” and that “it is the Appeal Body’s strong conviction that the involvement of [the Player] in the match fixing activities prior to Match 1 corresponded also to a violation of Article 12(a) DR”, while ultimately concluding that “[i]t follows that the sanction to be imposed against the player should have gone beyond what was imposed against the player for not reporting the approach” (para 89). The Player thus submitted that, since the UEFA CEDB Decision was not appealed by the EDI, the UEFA CEDB’s ruling on Article 12(2)(a) UEFA DR became final and binding, as a consequence of which the UEFA Appeals Body’s conclusion violated the principle of res iudicata. By concluding that the Player

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violated Article 12(2)(a) UEFA DR, the UEFA Appeals Body did not seriously analyze the Player’s request to have his sanction for a violation of Article 12(2)(d) UEFA DR reduced. Because the analysis on the reduction of the sanction was contaminated by the unfounded and unwarranted conclusion that the Player had violated Article 12(2)(a) UEFA DR, the Player argued that the Appealed Decision constituted a clear ultra petita ruling (para 90). In response, UEFA maintained that the UEFA Appeals Body expressly declined to evaluate the disciplinary consequences of a potential breach of Article 12(2)(a) UEFA DR, in light of the limitations imposed by the principles of non reformatio in peius and non ultra petita, which prevented it from imposing a harsher sanction on the Player. Most significantly, the UEFA Appeals Body only evaluated the proportionality of the sanction in consideration of a breach of Article 12(2)(d) UEFA DR, without taking into consideration a possible violation of Article 12(2)(a) UEFA DR. UEFA underscored that, in its Decision, the Appeals Body had “noted that the CEDB imposed a sanction against the player strictly for not reporting (Article 12(2)(d) DR), and not for acting in a manner likely to exert an unlawful or undue influence on the course and/or result of a match (Article 12(2)(a) DR). Consequently, for UEFA, it was therefore this approach that is mainly under the scope of the Appeals Body evaluation” (para 91). Deciding on the matter, the Panel disagreed with UEFA, as the Appealed Decision did not exclusively consider the violation of Article 12(2)(d) UEFA DR. Indeed, the Panel observed that reference was made to the fact that “it is therefore this approach that is mainly under the scope of the Appeals Body evaluation” (emphasis added), thus leaving room for other circumstances to be taken into account (para 92). However, the Panel considered that this was not a violation of the principles of non ultra petita or non reformatio in peius (para 94). It was, however, a violation of res iudicata (paras 95 et seq.).

6.2

No Violations of Non Ultra Petita and of Non Reformatio in Peius Principles

Indeed, as the Panel explained it, the principle of non ultra petita does not extend to arguments advanced but is limited to a comparison between the decision and the prayers for relief (the petita) put forward. Given that the UEFA CEDB imposed a ban on the Player until 31 December 2019, and because only the Player lodged an appeal against this decision, pursuant to the principle of reformatio in peius, the UEFA Appeals Body could not increase the sanction, but only reduce it. The UEFA Appeals Body was therefore within its rights to dismiss the Player’s appeal and confirm the outcome of the UEFA CEDB Decision, even if the reasons invoked to reach such a conclusion were influenced by its illegitimate finding that the Player also violated Article 12(2)(a) UEFA DR.

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Violation of Res Iudicata

For the Panel, the Appeals Body reasoning did amount to a violation of the principle of res iudicata because the findings of the UEFA Appeals Body on the merits superseded those of the UEFA CEDB in considering that the Player had also violated Article 12(2)(a) UEFA DR. The mere fact that the Player, in his appeal against the UEFA CEDB Decision, asked the UEFA Appeals Body in his prayers for relief to “[c]onfirm the decision of the CEDB in regard to appellant as finding appellant not guilty of a violation of Article 12(2)(a) DR” did not make this any different, as UEFA should have filed an independent appeal against the UEFA CEDB Decision if it wanted the Player to be tried for a violation of such provision (para 95). In reaching that conclusion, the Panel relied on the CAS jurisprudence5 and on Swiss law doctrine.6 It recalled that, under Swiss law, res iudicata has two elements: (1) the so-called “Sperrwirkung” (prohibition to deal with the matter = ne bis in idem). The consequence of this effect is that if a matter (that is res iudicata) is brought again before the judge, the latter is not even allowed to look at it, but must dismiss it as inadmissible; and (2) the so-called “Bindungswirkung” (binding effect of the decision). According thereto, the judge in a second procedure is bound by the outcome of the matter decided with res iudicata effect. The binding effect is only of interest, if the judge asked second has to deal with a preliminary question that has been decided finally by the first judge (para 96). As such, the discretion of the UEFA Appeals Body to re-examine the case from both a factual and a legal perspective (comparable to the de novo competence of CAS pursuant to Article R57 of the CAS Code) does not allow the UEFA Appeals Body to change the matter in dispute, nor did UEFA provide any reasons why an exception should be made in the present case. Hence, the Appellant could rely on the findings of the UEFA CEDB, i.e. it could not reasonably be expected from the Appellant to defend himself against general accusations in respect of issues that were not individually assessed or established by the UEFA CEDB. Thus, UEFA could not, without appealing the decision of the UEFA CEDB, re-introduce such issues at the appeal stage before the UEFA Appeals Body. However, notwithstanding this violation of the “Sperrwirkung” attached to the principle of res iudicata, the Panel found that this should not lead to an annulment of the Appealed Decision, but rather to the fact that the Panel should focus its attention—as it did—on the proportionality of the sanction imposed for violating Article 12(2)(d) UEFA DR (failure to report).

5

CAS 2013/A/3256, Fenerbahçe Spor Kulübü v. UEFA, award of 11 April 2014, paras 138–140, quoted at para 96. 6 Oberhammer and Naegeli (2014), Article 236, no. 39 et seq., quoted in para 96.

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7 Analysis, Remarks and Conclusion The CAS 2018/A/5800 award is interesting from several perspectives. Firstly, it confirms the CAS panels’ power to review match-fixing sanctions only insofar as the latter are evidently and grossly disproportionate, thus preserving the sports bodies’ wide discretion in establishing and applying such sanctions. This principle is well established in the CAS jurisprudence (see, for example, cases N and V,7 Pakruojo,8 de la Rica,9 and Butt10). In our view, this question is key, notably because the rules of the international sports governing bodies are currently not coordinated insofar as sanctions are concerned, despite efforts aimed at achieving some degree of harmonization (such as the IOC 2018 Guidelines for Sports Organizations on the Sanctioning of Competition Manipulation (the “IOC Sanctioning Guidelines”).11 Thus, the nature and the quantum of sanctions for the same type of offence may largely vary across federations. To give just one example, the UEFA disciplinary bodies consistently apply fairly severe bans, both for active and passive match-fixing, including for failure to report,12 compared to the sanctions recommended in the IOC Guidelines for the same offenses. However, with a few recent exceptions,13 such severe sanctions seem to be accepted by CAS Panels. In the same vein, this award provides a fairly detailed insight on the general issue of the proportionality of sanctions. Unsurprisingly, this topic is one of the most scrutinized problems in cases of sanctions for match-fixing14 (see, for example, the

7

CAS 2010/A/2266, N. and V. v. UEFA, award of 5 May 2011, paras 43 and 81. CAS 2015/A/4351, Vsl Pakruojo FK (“Pakruojo”), Darius Jankauskas, Arnas Mikaitis, Sigitas Olberkis, Valdas Pocevicius, Alfredas Skroblas, Donatas Strockis, Diogo Gouveia Miranda, C. H. Alexandru and Taras Michailiuk v. Lithuanian Football Federation (“LFF”), award of 13 July 2016. 9 CAS 2014/A/3467, Guillermo Olaso de la Rica v. Tennis Integrity Unit (“TIU”), award of 30 September 2014, at para 122. 10 CAS 2011/A/2364, Salman Butt v. ICC, award dated 17 April 2013, at paras 56–57 and 60, 66– 69 and 74–75. 11 IOC Guidelines for Sports organizations the Sanctioning Competition Manipulation (2018). 12 See a list of cases analysed (in reverse chronological order) by: Diaconu et al. (2021); Diaconu and Kuhn (2019); Palermo and Williams (2018); Blackshaw (2018); White (2017); Beffa and Ducrey (2015). 13 See CAS 2019/A/6439, Samson Siasia v. FIFA, award of 21 June 2021. In this case, the initial sanction decided against Mr. Siasia by the FIFA Ethics Committee was modified from a life ban— considered excessive—to a five-year ban, and the fine of CHF 50,000 was set aside. 14 For an overview of the recent CAS jurisprudence on match-fixing, see Diaconu et al. (2021). 8

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awards in Siasia,15 Eskişehirspor,16 Metalist,17 N and V,18 Köllerer19 and Savic20). Secondly, the award clarifies several circumstances which may be retained as mitigating and aggravating factors when determining the sanction to be applied for match-fixing offenses. Insofar as mitigating factors are concerned, the Panel confirmed the legitimacy of rewarding the accused person’s “substantial assistance” to the authorities (by analogy with the concept used in doping cases, currently in Article 10.7.1 WADC). However, to be deemed substantial in that sense, the assistance provided must meet a very high standard: it must amount to “com[ing] clean and provid[ing] all information known” (emphasis added) in order to justify the elimination of an otherwise rightful sanction. In the present case, the Player did not meet such high standard, as he only provided “meaningful cooperation with domestic authorities”, which should in principle be considered as a mitigating factor. Given that, in the case at hand, this factor had already been expressly taken into consideration by the UEFA CEDB, it was found to have no specific bearing in the CAS appeals proceedings. Other potential mitigating factors, such as the alleged failure by UEFA to properly educate football players and to raise awareness on the dangers of match-fixing, or the alleged absence of a reliable and safe reporting tool, were dismissed by the Panel. In the author’s view, the latter argument (the implementation of safe and reliable reporting tools) deserves a second look, in view of its paramount importance in tackling the match-fixing phenomenon while simultaneously preserving athletes’ rights to protection (including confidentiality and data protection).21 The absence of such a reliable and safe tool may be, in our view, a mitigating circumstance benefitting the accused person (obviously, provided that it is proven by all available means that the accused person actually had the intention to report but was hindered by the absence or by the poor performance of such a tool). In casu, the Panel speedily acknowledged the importance of a “proper reporting tool, such as the UEFA Integrity App” (para 103) without actually analyzing—even briefly—the issue any further, notably the features of this app.

15

CAS 2019/A/6439, Samson Siasia v. FIFA, award of 21 June 2021. CAS 2014/A/3628, Eskişehirspor Kulübü (“Eskişehirspor”) v. UEFA, award of 2 September 2014. 17 CAS 2013/A/3297, Public Joint-Stock Company “Football Club Metalist” (“Metalist”) v. UEFA and PAOK FC, award of 29 November 2013. 18 CAS 2010/A/2266, N. and V. v. UEFA, award of 5 May 2011. 19 CAS 2011/A/2490, Daniel Köllerer v. Association of Tennis Professionals (“ATP”), Women’s Tennis Association, International Tennis Federation and Grand Slam Committee, award of 23 March 2012. 20 CAS 2011/A/2621, David Savic v. Professional Tennis Integrity Officers, award of 5 September 2012. 21 For an analysis, see International Olympic Committee—United Nations Office on Drugs and Crime (2019). 16

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Interestingly, the Panel took this opportunity to address the sport bodies’ power to autonomously determine their policy, goals, and priorities in the fight against match-fixing. According to the Panel, if UEFA, for whatever reason, does not deem it fit to prioritize encouraging players to testify in order to have the masterminds of match-fixing operations convicted, in exchange for an acquittal or significant reduction of the ban for failing to report, or to provide substantial assistance in general, then it is not for the CAS Panels to interfere with such policy. Again, this expresses the large autonomy and discretion exercised by sport bodies when establishing and enforcing their priority policies towards competition manipulation, legitimizing the specificity and diversity of their responses when facing this phenomenon. Concerning the aggravating factors, this award clarifies, firstly, that the age of 21 is neutral from the perspective of both mitigating and aggravating factors. In other terms, a 21-year-old person is neither sufficiently young nor sufficiently old to trigger the application of such circumstances in modulating the applied sanction. However, the Panel did identify an aggravating factor in the case at hand, which was the fact that the Player had been approached two times to fix a match, within a period of several days, and that he decided to attend the second meeting with the fixers, fully knowing what the subject of the discussion would be, all without reporting the approach(es). This reasoning is consistent with previous CAS jurisprudence, for ex. in the Butt22 case. Fourthly and lastly, this award reaffirms the interpretation of the res iudicata principle, as enshrined in Swiss law. The Panel recalled hat res iudicata has two elements: (1) the “Sperrwirkung” (precluding effect of the decision, i.e. ne bis in idem); and (2) the “Bindungswirkung” (binding effect of the decision). Based on this, the discretion of appeals bodies to re-examine the case from both a factual and a legal perspective (similar to the de novo competence of CAS pursuant to Article R57 of the CAS Code) does not allow them to change the matter in dispute (in casu, the legal qualification of the offence as “active” match-fixing, instead of the less grave failure to report). However, and notwithstanding this violation of res iudicata, the Panel decided not to annul the Appealed Decision, but rather to undertake an extended analysis in order to determine if the two-year ban sanction decided by the UEFA CEDB and upheld in the Appealed Decision was proportionate to the offence committed, which was exclusively the failure to report. After examining this issue under all its aspects (in general and specifically, individually and in comparison with other team members), the Panel—rightly, it is submitted—came to the conclusion that such sanction was not excessive (and certainly not grossly disproportionate), thus dismissing the appeal.

22

CAS 2011/A/2364, Salman Butt v. ICC, award dated 17 April 2013.

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References Beffa L, Ducrey L (2015) Review of the 2014 case law of the Swiss Federal Tribunal concerning sports arbitration. Causa Sport: die Sport-Zeitschrift für nationales und internationales Recht sowie für Wirtschaft (Issue 2)115–123 Blackshaw I (2018) The role of the Court of Arbitration for Sport (CAS) in countering the manipulation of sport. In: Breuer M, Forrest D (eds) The Palgrave handbook on the economics of manipulation in sport. Palgrave Macmillan, Cham, pp 223–246 Diaconu M, Kuhn A (2019) Match-fixing, the Macolin Convention and Swiss law: an overview. Jusletter (jusletter.weblaw.ch) 16 September 2019. https://jusletter.weblaw.ch/juslissues/2019/ 992/match-fixing_-the-ma_a4c44d5ea2.html Diaconu M, Kuwelkar S, Kuhn A (2021) The Court of Arbitration for Sport jurisprudence on match-fixing: a legal update. ISLJ (2021) 21:27–46 International Olympic Committee – United Nations Office on Drugs and Crime (2019) Reporting Mechanisms in Sport. A Practical Guide for Development and Implementation Oberhammer P, Naegeli G (2014) Art. 236. In: Oberhammer P, Domej T, Haas U (eds) Kurzkommentar ZPO: Schweizerische Zivilprozessordnung. Helbing Lichtenhahn Verlag Palermo G, Williams B (2018) Match-fixing and the evolution of CAS Jurisprudence. CAS Bull 2:8–25 White G (2017) Why sport needs a unified approach to sanctions for corruption offences. LawInSport. https://www.lawinsport.com/topics/item/why-sport-needs-a-unified-approach-tosanctions-for-corruption-offences

CAS 2019/A/6181, Fédération Royale Belge de Gymnastique (FRBG) v. Fédération Internationale de Gymnastique (FIG) and Japan Gymnastics Association (JGA), Award of 24 September 2019 (Operative Part of 25 April 2019) Jan Kleiner Contents 1

Facts and Procedure ............................................................................................................ 1.1 Factual Background.................................................................................................... 1.2 Proceedings Before the CAS and Positions of the Parties........................................ 2 Considerations of the CAS.................................................................................................. 2.1 Standing to Sue .......................................................................................................... 2.2 Interpretation of the Term “Mid-December” ............................................................. 2.3 Conclusion .................................................................................................................. 3 Final Remarks...................................................................................................................... References ..................................................................................................................................

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Abstract The Award in CAS 2019/A/6181, Fédération Royale Belge de Gymnastique (FRBG) v. Fédération Internationale de Gymnastique (FIG) and Japan Gymnastics Association (JGA) concerns the bidding process to host the 2023 Men’s and Women’s Artistic Gymnastics World Championships, more specifically the time limit by which potential bidders had to submit their bid. Ultimately, two bids were presented, with one bidder (FRBG) subsequently arguing that the other (JGA) had submitted its bid too late. The matter ended up before CAS, where various questions were disputed. In particular, the question arose whether the FRBG actually had standing to challenge the FIG’s decision to admit the JGA’s bid. For its decision on the substantive dispute, the CAS Panel had to determine what exact deadline applied based on the term “by mid-December” as used by the FIG.

Dr. Jan Kleiner is Director of Football Regulatory at FIFA, Switzerland. The views expressed in this chapter reflect the author’s personal views only. J. Kleiner (&) FIFA, Zürich, Switzerland e-mail: Jan.Kleiner@fifa.org © T.M.C. ASSER PRESS and the authors 2022 A. Duval and A. Rigozzi (Eds.), Yearbook of International Sports Arbitration 2018–2020 https://doi.org/10.1007/15757_2022_42

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The Award provides helpful clarification on these two points, in particular on the question whether a third party has standing to submit an appeal to the CAS in the context of a bidding process. The considerations on the merits (about the interpretation of the term “mid-December”) are rather straightforward, but they will surely help to avoid further disputes of this nature in the future. Keywords Standing to sue


Time limits
Interpretation

1 Facts and Procedure 1.1

Factual Background

The case CAS 2019/A/61811 involved the Fédération Royale Belge de Gymnastique (FRBG, or “the Appellant”), the Fédération Internationale de Gymnastique (FIG, or “the First Respondent”), and the Japan Gymnastics Association (JGA, or “the Second Respondent”). The dispute between the parties revolved around the bid applications for the 2023 Men’s and Women’s Artistic Gymnastics World Championships (hereinafter, “the 2023 World Championships”), and the relevant facts can be set out as follows.2 On 28 March 2018, the JGA requested the FIG to provide information about the bid applications for the 2023 World Championships. Later the same day, the JGA received from the FIG a blank copy of the Event Candidate Official Bid Contract for the organization of the 2023 World Championships (hereinafter, the Bid Contract). The Bid Contract stipulated the following with regard to the deadline to submit an application: 1. Questionnaire […] d) The Application File must be submitted as soon as possible but by no later than mid December 2018.

On 29 March 2018, the JGA asked the FIG to confirm whether its understanding that “the application files have to be submitted to the FIG Office by the middle [sic] to December 2018”was correct. The FIG replied later that day, confirming that this understanding was correct. On 22 June 2018, the FIG announced in an official communication that the 2023 World Championships would be allocated during the next Council meeting, to be

1

A summarized version of the Award has been published by the CAS in the CAS Bulletin 2020/1, pp. 62–68, available at https://www.tas-cas.org/fileadmin/user_upload/CAS_Bulletin_2020_1.pdf. Accessed 5 August 2021. 2 See also CAS Bulletin 2020/1, pp. 62–66. Note by the Editors: in the original (as yet unpublished) Award, the factual background is set out at paras 4–46.

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held in St-Petersburg, Russia, in May 2019. In this official communication, the FIG stated the following: we kindly ask you to please send your possible candidature files as soon as possible, but not later than 30th November 2018 (date of receipt in Lausanne). Please note that no late candidatures will be accepted.

In response to the FIG’s communication of 22 June 2018, the FRBG expressed on 3 September 2018 its interest in bidding for the organization of the 2023 World Championships. On the following day, the FIG sent the Bid Contract to the FRBG, which, in the same way as the copy sent to the JGA in March 2018, also stated that “the Application File must be submitted as soon as possible but by no later than mid- December 2018”. On 5 October 2018, the FRBG sent an email to Ms. Céline Cachemaille, Sports Event Manager of the FIG, seeking information about the deadline to submit its application. On that same date, Ms. Cachemaille replied as follows: […] for 2023, the Application File must be submitted by no later than mid-December 2018 and a decision will be taken by FIG Council in May 2019.

On 15 November 2018, the FRBG requested an extension of the deadline to submit its bid until the end of January 2019 due to political issues related to local elections in Belgium. On 27 November 2018, Mr. André Geissbuhler, Secretary General of the FIG, replied as follows to the FRBG’s request: I very much regret, but I cannot help you in this matter. […] [O]nly bids duly filled in received on or before 15th December 2018, including the necessary payment of the requested deposit of CHF 50’000.- will be considered. […]

On 14 December 2018, the FRBG submitted its application. On 17 December 2018, the FIG acknowledged receipt of the FRBG’s application to host the 2023 World Championships. On 21 December 2018, the JGA submitted its application to host the 2023 World Championships. On 22 December 2018, the FIG acknowledged receipt of the JGA’s application. On 17 January 2019, the FIG sent the following letter to the FRBG and the JGA: Dear BEL and JPN Federations, There are some points to bring to your attention regarding the bid process for the [2023 World Championships]. The points are as follows: – The bid contract stated the deadline for submission was mid-December 2018. This term of “mid-December” is open to interpretation because its true definition is neither at the beginning nor at the end of the month. – The FIG issued an Official Communication to all federations on 22 June 2018 entitled “2019 Council-Technical Regulations and FIG Events”. This document contained contradictory information regarding the deadline date for submission of the bids for the [2023 World Championships] by stating a deadline of 30 November 2018.

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We must acknowledge that we did receive two bids for the competition as follows: – BEL on 14 December 2018 – JPN on 21 December 2018 By our observations, BEL determined mid-December as being by 15 December 2018, while JPN determined mid-December to be in the middle two weeks of the month. An argument could be made that both federations are late based on the Official Communication dated 22 June 2018, but we consider the contract terms to take precedence. We want to acknowledge an email was sent by our Sports Event Manager, Céline CACHEMAILLE, on 18 December 2018 responding to Ilse ARYS of the BEL Federation’s question on how many bids has the FIG received. Our response to Ilse, “[y]ou are the only candidate who has presented a bid”. Celine delivered this information at the request of our former Secretary General, Mr Andr[é] [sic] GUEISBUHLER. On 18 December 2018, there was indeed only one candidature received for 2023 at the FIG office. After careful deliberation within the FIG office and consideration of past incidents with differences in interpretation, FIG will accept both bids and provide the opportunity for the two federations to present their bids (max. 15 min) at the Council 2019 in St. Petersburg (RUS) on the second day, 4th May. […]

By letter dated 21 January 2019, the FRBG requested the FIG to correct its decision and confirm that: (i) the FRBG’s bid was the only procedurally correct bid; and, as such, (ii) the FRBG was the only candidate eligible to host the 2023 World Championships. On 4 February 2019, the FIG informed the FRBG that the Presidential Commission had considered the FRBG’s letter, but determined that “the final decision regarding which federation(s) can make a presentation for their bid” would be taken by the FIG’s Executive Committee (EC) during a meeting in Lausanne to be held on 19 and 20 February 2019. On 5 February 2019, the FIG informed the JGA that the “FRBG has challenged the decision to allow two federations to bid for the 2023 World Championships”. On 10 February 2019, the JGA sent a letter to the FIG, explaining that it had followed the FIG’s instructions in submitting its application and, therefore, that the JGA’s candidacy for the 2023 World Championships should be permitted. On 12 February 2019, the FIG invited the FRBG and the JGA to submit a written report to the EC on the issue of the applicable deadline. On 15 February 2019, the JGA submitted its written report to the FIG and reiterated its position that it should be allowed to present its bid to the 2019 FIG Council, alleging it had followed the FIG’s instructions in relation to the submission of its application. Notably, the JGA asserted the following: We have the perception that ‘beginning of the month’ means ‘the first week of the month’, ‘end of the month’ means ‘the last week of the month’, and ‘middle of the month’ means the weeks except for the first and the last weeks of the month. Therefore, our interpretation of the term ‘mid-December’ is December 10th to 23rd. We successfully submitted our files within the deadline on December 21, 2018 based on this interpretation. […] The fact that FIG used a word ‘mid-December’ which is not clear led to confusion among Japan and Belgium. In this sense, it is not reasonable to differentiate treatments of two federations on the grounds of discrepancy in the interpretation of ‘mid-December’. The host

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country has to be determined in a way to serve the best interests of gymnasts and participants. […]

On 16 February 2019, the FRBG filed its written report to the EC, setting out its position on the matter, namely: As stated in the e-mail of 27 November 2018 sent by the acting FIG Secretary General, bids were only taken into consideration if they were received on or before 15 December 2018. 15 December 2018 is the only legally and semantically correct interpretation of ‘mid-December’ 2018. No further interpretation of this concept is required or should be considered in this case. […] If the bid of the Japanese federation were to be taken into account, the principles of equal competition and equal treatment would be harmed in two ways. On the one hand it should be noted that the Japanese federation did not respect the deadline of 15 December 2018 which was imposed and followed by the Royal Belgian Gymnastics Federation. This deadline was set out and communicated in the e-mail of 27 November 2018 to the Royal Belgian Gymnastics Federation as being a hard deadline. This approach should be applied to all interested federations, not only the Royal Belgian Gymnastics Federation. On the other hand the possibility should be taken into account that the Japanese federation had knowledge of the official Belgian bid and was in a position to structure and alter its bid taking into consideration that there were other official bids for the [2023 World Championships]. If the Japanese federation indeed had knowledge of the Belgian bid, they had a clear and undeniable advantage over the Belgian bid. Even without knowledge of the Belgian bid, the Japanese federation has received an advantage over the Belgian bid, the latter not getting any extension beyond the deadline of 15 December 2018. […]

On 19 and 20 February 2019, the EC held its meeting. The minutes of that meeting read in relevant part as follows: […] The lawyer confirmed that some information like ‘mid-December’ could be subject to interpretation. We are not going to repeat this kind of mistakes in the future. Nevertheless, both federations already informed us that they might decide to go to court. […]

On 20 February 2019, the FRBG and the JGA were informed that the EC had adopted a final decision (“the Appealed Decision”), allowing both of them to present their bids for the 2023 World Championships to the 2019 FIG Council in St. Petersburg. On 1 March 2019, the FRBG filed a complaint with the Compliance Section of the Gymnastics Ethics Foundation (“GEF”) in which it “formally denounce[d] the FIG Executive Committee decision due to (i) the unequal treatment the [FRBG] has received in the bidding process, (ii) the fact that rules are being interpreted which are unequivocal and therefore do in no way need to be interpreted, and (iii) the fact that FIG violates its own rules and statutes in allowing late bid applications to be admitted”.

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Proceedings Before the CAS and Positions of the Parties3

Also on 1 March 2019, the FRBG filed a Statement of Appeal before the Court of Arbitration for Sport, directed against the FIG, with respect to the aforementioned decision taken by the EC on 20 February 2019. On 15 March 2019, the JGA filed a request for intervention. Upon agreement between the Parties, the JGA was permitted to intervene as a co-Respondent alongside the FIG in the proceedings before the CAS. A three-member Panel composed of Messrs Luigi Fumagalli, Pierre Muller and Philippe Sands was appointed to hear the case. The Parties agreed that, as permitted by Article R57(2) CAS Code, the dispute would be decided solely on the basis of their written submissions, without an oral hearing. The FRBG’s position can be summarized as follows: the JGA’s application of 21 December 2018 did not comply with the FIG’s formal requirements for the submission of a bid to host the 2023 World Championships, as it had been submitted after the applicable deadline. According to the FRBG, on the basis of: (i) the express terms of the Bid Contract; (ii) the FIG’s conduct; (iii) the JGA’s own bid documents; and (iv) Swiss law principles and common sense, the only possible meaning of “mid-December 2018” was “15 December 2018”. The FRBG submitted that by taking the Appealed Decision, the FIG also committed a breach of the principle of equal treatment, to the extent that, having denied the FRBG’s request for an extension of the time limit to submit its bid, the FIG then allowed the FJA to submit its own bid after the time limit. On this basis, the FRBG’s position was that its bid to organize the 2023 World Championships was the only procedurally correct bid and that it should thus be the only eligible candidate to host this FIG event. The FIG requested that the CAS Panel dismiss the Appeal. According to the FIG, the EC exercised its power and discretion in a legally correct, responsible, and fair manner when it concluded that the FIG should allow both the FRBG and the JGA to present their bids to the upcoming Council. In addition, the FIG argued that: (i) there is no “right” to be awarded a FIG event, even assuming that the Appellant was the only bidder; (ii) the FIG was competent to organize the bidding process for hosting the 2023 World Championships and to specify the time limits for the submission of the applications; (iii) the relevant time limit of “mid-December 2018” was met by both applicants; (iv) the FIG had both the responsibility and the competence to decide on the admission of candidates for the organization of the 2023 [World Championships]; and (v) the FIG had not put the FRBG at a

3

The proceedings before the CAS and the Parties’ positions are summarized in the CAS Bulletin 2020/01, pp. 65–66. Note by the Editors: in the original Award (CAS 2019/A/6181, FRBG v FIG and JGA, Award of 24 September 2019 (operative part issued on 25 April 2019), unpublished), they are set out at paras 47–55.

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disadvantage, since its bid was accepted and would be presented to the Council on 4 May 2019 for a decision. The JGA argued, in essence, that: (i) the meaning of “mid-December” is open to interpretation and, as a result, “15 December” is not the only possible meaning of “mid-December”, and (ii) even if the Panel were to find that “mid-December 2018” does mean “15 December 2018”, the JGA’s bid should not be discarded, because, the JGA maintained, this would constitute a breach of the principle of equal treatment. In this regard, the Second Respondent noted that the FIG was aware that the JGA was preparing its application when it informed the FRBG of the 15 December 2018 deadline. This information was not shared with the JGA. Hence, insisting that the JGA comply with a deadline that was only communicated to the FRBG would be unfair and amount to unequal treatment. The Parties’ arguments were developed in two rounds of substantive written submissions,4 in accordance with the specially agreed procedural calendar, which had been accepted by the CAS Panel. The Panel issued the operative part of its Award, upholding the FRBG’s appeal, on 25 April 2019. The reasoned Award was issued on 24 September 2019.

2 Considerations of the CAS5 The Award rendered by the CAS is noteworthy in two respects in particular: first, the Panel was tasked with assessing whether the FRBG, as a participant in the bid, had standing to sue, i.e. the right to challenge the Appealed Decision. Secondly, if the FRBG did have standing, then the questions for the CAS Panel to resolve were: (i) the correct interpretation of the term “mid-December”, in order to establish whether the JGA’s bid could indeed be deemed to have been submitted within the applicable time limit, and (ii), assuming the answer to question (i) was negative, what consequences should be drawn from that determination.

4 In addition to the FRBG’s Appeal Brief and the Answers by FIG and JGA, in accordance with the standard procedure under Arts R51 and R55 CAS Code, the FRBG filed a Reply, followed by the submission of Rejoinders by the FIG and JGA. The Parties’ written submissions were all filed between 22 March and 22 April 2019. 5 The Panel’s reasoning in reaching its decision is summarized in the CAS Bulletin 2020/01, pp. 66–68. In the original Award (CAS 2019/A/6181, FRBG v FIG & JGA, Award of 24 September 2019 (operative part issued on 25 April 2019), unpublished), the reasoning is set out at paras 69–108.

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Standing to Sue

One of the key questions that arose in the present matter was whether the FRBG actually had a right to bring its challenge to the CAS. This was not self-evident, since the FRBG’s challenge did not concern its own participation in the bid (given that it had already been admitted), but rather the question whether the bid submitted by a second party, the JGA, should also be admitted. In other words, the CAS had to determine whether, in the circumstances of the case, the FRBG had “standing to sue”. CAS jurisprudence generally compares the issue of “standing to sue” (and its counterpart “standing to be sued”) to the Swiss law concept of “légitimation active/ passive”, or “qualité pour agir” (“Aktiv-/Passivlegitimation”).6 Under Swiss law, légitimation active/passive is deemed to be an issue pertaining to the merits, as it derives from the fact of legally owning the right in dispute.7 CAS Panels generally hold that a party has standing to sue or to be sued if a substantive right of its own is concerned by the claim.8 The CAS Panel in the present matter followed this principle,9 by stating that in general, standing to sue (or to appeal) is attributed to a party which can validly invoke the rights which it puts forward, on the basis that it has a legally protectable and tangible interest at stake in the dispute. The Panel noted that parties which have a direct, personal and actual interest are generally considered to have legal standing to appeal to the CAS. The CAS Panel further clarified that such an interest may exist not only when a party is the (direct) addressee of a measure, but also when it is a directly affected third party, i.e. a party that has a tangible interest of a financial or sporting nature at stake. Yet, the Panel also stated that there is a category of third-party applicants who, in principle, do not have standing, namely those who are generally deemed to be only “indirectly affected” by a measure. The CAS Panel held, in this context, that there is a “common thread” in CAS jurisprudence to differentiate between directly and only indirectly affected parties.10 For the CAS Panel, the correct approach in making this distinction is as follows: mere competitors of the addressee of a measure/decision are generally only 6

See, for example, CAS 2013/A/3278, Maritimo de Madeira - Futebol SAD v. Desportivo Brasil Participacoes LTDA, Award of 2 June 2014, para. 54 et seq. See also Haas (2018), p. 54 et seq. 7 Swiss Supreme Court decision 4P.282/2001 of 3 April 2002 (ATF 128 III 191), para. 4b. See also Keidel/Fischer (2018), pp. 43–44. 8 CAS 2013/A/3278, Maritimo de Madeira—Futebol SAD v. Desportivo Brasil Participacoes LTDA, Award of 2 June 2014, para. 56. 9 CAS Bulletin 2020/01, p. 66. 10 Ibid., p. 67. The Panel referred in this regard to, “among many other cases”, CAS 2008/A/1583 & 1584, Sport Lisboa e Benfica Futebol SAD v. UEFA & FC Porto Futebol SAD & Vitória Sport Clube de Guimaraês v. UEFA & FC Porto Futebol SAD, para. 31 and CAS 2016/A/4924 and 4923, Paolo Barelli v. FINA, para. 86. For additional CAS case law in this regard, see also Bernasconi and Trunz (2018), p. 98 et seq.

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indirectly affected, and thus excluded from standing, when the measure does not have tangible and immediate direct consequences beyond its generic influence on the competitive relationship as such.11 In this respect, and turning to the specifics of the case, the Panel then observed that a bidding process—however competitive in nature—may be different from the conduct of a plain sporting competition, where the exclusion of a competitor may or may not be irrelevant to the other participants in the event. According to the Panel, in a bidding process, procedural fairness and equality of treatment are of the essence, since, inter alia, the adjudication might depend also on a comparison between the different bids. Therefore, a decision as to the admission of other bidders appears to have tangible and immediate direct consequences for all bidders.12 In other words, the admission of the JGA into the bidding process was seen to have a tangible and immediate direct consequence also for the FRBG, because this evidently triggered the appearance of another bidder in a process, in which the FRBG would otherwise have been the sole bidder. Moreover, the CAS Panel held that in the present case, the parties had a legal interest in ensuring that the bid application standards, the FIG Statutes and the Bid Contract were all applied uniformly so as to create a level playing field for all FIG members in the sport. The CAS Panel confirmed that there is an interest in the law for everyone to compete under the same rules. Sports governing bodies must comply with certain basic principles of procedural fairness vis-à-vis their members, and are required to exercise their normative discretion by adopting regulations that conform with the procedures set out in their own statutes. According to the Panel, an international federation cannot simply disregard rules which bind it contractually to its member federations.13 However, the Panel also noted that the existence of competing bids is normal in a sports environment, and underlined that the admission of a bid is only half the battle; the bidder must also secure a majority vote. Nevertheless, the Panel affirmed that the requirement of a level playing field is a lex sportiva principle, which must be respected by all sports governing bodies and protected by the CAS.14 For all these reasons, the CAS Panel concluded that the FRBG had standing to bring its appeal before the CAS, “insofar as it aim[ed] at protecting its right to ensure that the bidding process is conducted by applying the same rules to all bidders”.15

11

See CAS 2016/A/4924 and 4943, Paolo Barelli v. FINA, Award of 28 June 2017, para. 87, with further references. 12 CAS Bulletin 2020/01, p. 67. 13 Ibid. 14 Ibid. 15 Ibid.

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Interpretation of the Term “Mid-December”

The key issue on the merits of the matter was then whether the bid submitted by the JGA on 21 December 2018 was on time, i.e. if it had been submitted within the “mid-December” time limit, as set out in the FIG’s Bid Contract.16 It is evident from the factual background of the case that all along the bidding process, FIG had issued divergent communications with regard to the exact time limit for the valid submission of bids to host the 2023 World Championships. However, taking into consideration all these communications, the CAS Panel was of the view that it was fair to presume that all candidates were generally aware that a bid needed to be filed “no later than mid-December”. Accordingly, the key issue was to determine what the term “mid-December” actually meant. The Bid Contract did not contain any specific definition of the term “mid-December”. The FRBG argued that Articles 76 and 77 of the Swiss Code of Obligation (CO) provide the answer to the meaning of “mid-December”.17 The FIG, however, contested that Article 76 CO applied to the present case, noting that it only concerns the time of performance of a contractual obligation. For its part, the JGA did not address this issue. The Panel noted that Article 18 of the Bid Contract stipulated that “this Contract shall be governed by and interpreted exclusively in accordance with the Laws of Switzerland”. Consequently, the Panel took the view that one had to turn first to Swiss law for the determination of the meaning of the expression “mid-December”.18 The Panel then remarked that according to Article 7 Swiss Civil Code, all the general provisions of the Swiss Code of Obligations (i.e. Articles 68 to 113 CO) are applicable to all legal matters, regardless of whether they concern contracts, decisions or expressions of intent. The CAS Panel thus concluded that Articles 76 and 77 CO applied to associations governed by Articles 60 et seq. of the Swiss Civil Code and thus also to the FIG. Having regard to Articles 76 and 77 CO, the expression “mid- December”, which was properly read as corresponding to the wording “middle of the month”, should therefore mean the 15th day of the month of December. For the CAS Panel, this conclusion was corroborated by the ‘natural and ordinary meaning’ of the expression, “understood in good faith in the context in which it is used, and if the intention of the draftsman (i.e., the ruling body) is considered”.19 In ordinary English parlance, the term “mid-December” might normally be interpreted as referring to a period of time comprised between 11 and 20 December (i.e., a period of time centred around 15 December), rather than a single date. Early 16

Id., pp. 67–68. Most notably, Art. 76(2) CO provides that: “[a] time limit expressed as the middle of the month means the fifteenth day of that month.” 18 CAS Bulletin 2020/01, p. 68. 19 Ibid. 17

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December might refer to the days between 1 and 10 December, while late December covers the period from 21 to 31 December. Therefore, even if the application of Swiss law was to be disregarded, a reading in accordance with the ordinary meaning of the term “mid-December” in the English language would not appear to allow an interpretation to the effect that a bid filed on 21 December 2018, as was done by the JGA, was duly submitted by “mid- December”.

2.3

Conclusion

In light of the foregoing analysis, the Panel found that the appeal filed by the FRBG should be upheld, that the Appealed Decision should be set aside, and that the bid presented by the JGA for the 2023 World Championships had to be disregarded.20 Shortly after the Operative Part of the Award was issued, the FIG Council awarded the hosting of the 2023 World Championships, a major qualifying event in the run up to the 2024 Olympic Games, to the city of Antwerp in Belgium.21

3 Final Remarks The outcome of the dispute and the reasoning of the CAS Panel are, overall, certainly convincing. The Award provides helpful additional guidance in determining whether, in the specific context of a bidding process, a participant has standing to appeal against a decision taken with regard to another participant. The CAS Panel confirmed that the FRBG had standing, relying primarily on the importance of “protecting its right to ensure that the bidding process is conducted by applying the same rules to all bidders”. However, in the author’s view, one could have concluded that the FRBG had standing already on the basis that the acceptance of a competing bidder into the bidding process, in and of itself, had a direct and tangible effect on the legal position of the FRBG. As seen above, the Panel’s analysis with regard to the correct interpretation of the term “mid-December” was rather straightforward and fully in line with the applicable Swiss law. The result is thus both unsurprising and persuasive. Nevertheless, the Award offers useful guidance on the approach to interpreting provisions on time limits, as well as, for sports governing bodies and member

20

Ibid. FIG Statement of 9 May 2019, https://www.gymnastics.sport/site/news/displaynews.php? idNews=2470. Accessed 5 August 2021.

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federations, a reminder of the importance of, for the former, setting clear time limits (taking into account their meaning under the governing law), and, for the latter, of scrupulously verifying the applicable rules, in order to avoid unnecessary disputes as well as missed opportunities.

References Bernasconi M, Trunz M (2018) Standing to Appeal in Proceedings before CAS. In: Bernasconi M, Rigozzi A (eds) International Sport Arbitration. Editions Weblaw, Bern, pp 89–121 Haas U (2018) Standing to Appeal and Standing to be Sued. In: Bernasconi M, Rigozzi A (eds) International Sport Arbitration. Editions Weblaw, Bern, pp 53–88 Keidel Ch, Fischer P (2018) Standing to Appeal of Third Parties in Front of CAS. In: Duval A, Rigozzi A (eds) Yearbook of International Sports Arbitration 2016. T.M.C. Asser Press, The Hague, pp 41–59

CAS 2019/A/6367, Paris Saint-Germain and Neymar Da Silva Santos Junior v. Union des Associations Européennes de Football (UEFA), Award of 17 February 2020 (Operative Part of Award of 17 September 2019) Carol Etter Contents 1

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Facts and Procedure ............................................................................................................ 1.1 Facts ............................................................................................................................ 1.2 Procedure .................................................................................................................... Submissions of the Parties .................................................................................................. 2.1 PSG and Neymar (“The Appellants”)........................................................................ 2.2 UEFA.......................................................................................................................... The Decision........................................................................................................................ 3.1 Correct Translation of the Statements........................................................................ 3.2 Scope of Application of Article 11 and Article 15 DR ............................................ 3.3 Were the Statements Directed at “Match Officials”? ................................................ 3.4 Was the Content of the Statements “Abusive” or “Insulting”? ................................ 3.5 Were There Any Mitigating or Aggravating Circumstances?................................... Observations ........................................................................................................................ 4.1 Application of Article 15 DR .................................................................................... 4.2 The Relevance of the Publicity of the Offence ......................................................... Conclusion ...........................................................................................................................

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Abstract Abusive or insulting statements made on social media by a player who is not participating in a match, but who is watching in the stadium, fall, in principle, within the scope of the sanctioned “misconduct… [at] competition matches” under Article 15 UEFA Disciplinary Regulations (“DR”), which is lex specialis vis-à-vis Article 11 DR. However, only statements that are directed at a match official breach Article 15 DR. Statements that are made in relation to a controversial scene of the match and stay within certain limits do not breach Article 15 DR. Accordingly, statements such as “it’s a disgrace” and “four guys who do not know anything C. Etter (&) Cavaliero & Associates AG, Geneva, Switzerland e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2021 A. Duval and A. Rigozzi (Eds.), Yearbook of International Sports Arbitration 2018–2020 https://doi.org/10.1007/15757_2021_32

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about football”, describing the Video Assistant Referees in relation to a controversial penalty scene, do not amount to a breach. Since the terms “abuse” (Article 15(1)(b) DR) and “insulting” (Article 15(1)(d) DR) overlap and no guidance on how to distinguish them appears to be provided in the UEFA DR, the less severe provision shall apply (“abuse”). The lack of intention to harm anyone with a statement is not a mitigating factor. On the other hand, the lack of remorse and the number of followers on social media are not aggravating factors either.







Keywords UEFA disciplinary regulations Misconduct of players Competition match Abusive or insulting language Aggravating factors Mitigating factors Social media













1 Facts and Procedure 1.1

Facts

On 6 March 2019, Paris Saint-Germain (“PSG”) played the second leg of the UEFA Champions League round of 16 at its home stadium against Manchester United (“the Match”). The player, Neymar Da Silva Santos Junior (“Neymar”), was watching the Match as a spectator in the stadium as he could not participate on the pitch due to an injury.1 In the added time of the second half, the referee of the Match awarded Manchester United a penalty kick after the Video Assistant Referees (“VAR”) had recommended a review of a penalty box scene. Manchester United scored and this last minute goal was decisive for it to proceed to the next round of the Champions League, while PSG was eliminated from the competition.2 Shortly after the Match, Neymar posted a picture of the penalty scene on his Instagram story together with the following statements in Portuguese (“the Statements”):3 Isso é uma vergonha!! Ainda colocam 4 caras que não entendem de futebol pra ficar olhando lance em camera lenta …. Isso não existe!!! Como o cara vai colocar a mão de costas? Ah vá pá pqp.

This Instagram post received immediate attention.

1 CAS 2019/A/6367, Paris Saint-Germain & Neymar Da Silva Santos Junior v. Union des Associations Européennes de Football (UEFA), Award of 17 February 2020 (operative part of 17 September 2019), paras 6 and 7. 2 Ibid., para 9. 3 Ibid., para 10.

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In the aftermath, Neymar’s Statements were reported and commented on by the international press.4

1.2

Procedure

On 13 March 2019, the UEFA Ethics and Disciplinary Inspector (“EDI”) initiated a disciplinary investigation in respect of Neymar’s Statements and notified both Neymar and PSG about the investigation on the next day (“the Parties”).5 Upon invitation from the EDI, both PSG and Neymar replied by means of separate letters on 20 March 2019, showing regret for the Statements made, but referring to the heat of the moment related to the decisive and controversial penalty kick that was awarded to Manchester United in overtime. On 21 March 2019, the EDI provided his report to UEFA together with a screenshot of the Instagram story and the Statements, and with the following translation of the Statements:6 This is a disgrace!! They put four guys who know nothing about football to watch the incident in slow motion… It can’t be!!! How can he handle the ball when his back[’s] turned? Oh, go f**k yourselves

Furthermore, the EDI referred to Neymar’s huge social media reach, noting that he has 110 million followers, and observed that a posted Instagram story is generally seen by 20% of the followers. The EDI therefore estimated that more than 20 million people had seen the Statements.7 The EDI also took into consideration the widespread media attention that the Statements had received.8 The EDI concluded that Neymar had committed a violation of Article 15(1)(d) of the UEFA Disciplinary Regulations (“DR”) by insulting the referee of the Match. Moreover, the EDI found that the “[w]idespread diffusion through the media and social networks undoubtedly constitute an aggravating circumstance” and recommended to suspend Neymar for the next three UEFA competition matches for which he would otherwise be eligible.9 On 22 March 2019, UEFA informed PSG that disciplinary proceedings had been initiated in accordance with Article 55 DR. On 25 April 2019, the UEFA Control, 4 5 6 7 8 9

Ibid., para 14. Ibid., paras 15 and 16. Ibid., para 19. Ibid. Ibid. Ibid.

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Ethics and Disciplinary Body (“CEDB”) passed a decision with the following ruling:10 1. To suspend the Paris Saint-Germain player Neymar Da Silva Santos Junior for three (3) UEFA competition matches for which he would be otherwise eligible, for insulting match officials. 2. The club ensures the player is informed personally of this decision.

On 10 May 2019, PSG lodged an appeal against this decision with the UEFA Appeals Body (“UEFA AB”). On 18 June 2019, the UEFA AB, having considered the submissions made by both PSG and Neymar, passed the following decision (“the Appealed Decision”):11 1. The appeal lodged by Paris Saint-Germain is rejected. Consequently, the UEFA Control, Ethics and Disciplinary Body’s decision of 25 April 2019 is confirmed. 2. The costs of the proceedings, totalling EUR 1,000 (minus the appeal fee) are to be paid by the Appellant. 3. The French Football federation is jointly and severally liable for the payment of the costs of the proceedings.

On 18 July 2019, PSG and Neymar filed an appeal before the CAS against the decision of the UEFA AB.12 The parties agreed for the case to be heard by a Sole Arbitrator, Prof. Ulrich Haas, whose appointment was confirmed on 2 September 2019.13 A hearing was held at CAS on 13 September, and the Sole Arbitrator issued the operative part of the Award on 17 September 2019 (“the Award”). The reasoned Award was rendered on 17 February 2020.

2 Submissions of the Parties Pursuant to the considerations mentioned in the Award, the following description of the parties’ submissions will focus on the arguments that were considered at length by the Sole Arbitrator, i.e. the correct translation of the Statements, which provision (s) of the DR should be applied, whether the Statements constituted a breach of the applicable provision(s) and whether there were any mitigating or aggravating circumstances.

10 11 12 13

Ibid., Ibid., Ibid., Ibid.,

paras 20–22. paras 24 and 25. para 26. paras 26–34 and 38.

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PSG and Neymar (“The Appellants”)

The Appellants argued that the Statements were “a mere and reasonable observation”, and that the translation of the Statements which had been provided by the EDI was incorrect. They explained that the meaning of the acronym “pqp”, which stands for “puta que pariu”, may vary in different circumstances. Only if the acronym is addressed to a specific person, it may be understood as an insult. In that case, the personal pronoun “te” would be included. However, using just the acronym or the expression “vai pra puta pariu” is not meant as an insult, but rather stands for “for f**k’s sake”. Therefore, the use of the acronym “pqp” by Neymar was only expressing a general exasperation and not an attack on the VAR members. For this reason, the CEDB and the UEFA AB did not classify the contents of the Statements appropriately.14 With regard to the sentence “four guys who do not know anything about football”, the Appellants claimed that this was a factual misunderstanding by Neymar, as he incorrectly assumed that the four video operators, who carried out the initial VAR review, were not match officials. The Appellants further explained that the words “This is a disgrace” were merely intended to express Neymar’s exasperation with the system, and were not directed at any of the officials. The Appellants underscored that irrespective of Neymar’s understanding, any alleged reproaches against the VAR system as such are not prohibited by the DR.15 The Appellants further argued that, even assuming the translation provided by the EDI was correct, Article 15 DR was not applicable, as that provision only concerns conduct during or at the match, i.e. when participating in the match. Since Neymar did not participate in the Match, only Article 11 DR could be applied in the case at hand, as this provision supersedes Article 15 DR in application of the principle of legal certainty, as well as on the basis of the contra proferentem maxim and of the right to equal treatment. The Appellants also referred to other cases where Article 11 DR was applied, such as the cases of Mr. Lovren, Mr. Carvalho, Mr. Simeone and Mr. Ronaldo.16 Still with regard to the applicable provisions, the Appellants further claimed that even if Article 15 DR was applicable, the Statements were at most “abusive language” within the meaning of Article 15(1)(b) DR and not “insulting language” in accordance with Article 15(1)(d) DR. In this respect, the Appellants pointed out that the French language version of the DR contains identical terms for lit. b and lit. d of Article 15(1) DR. Therefore, due to the little practical difference and for reasons of

14

Ibid., para 46(d). Ibid., para 46(e). 16 Ibid., para 46(g); Lovren: UEFA CEDB, Case N°32154—UNL—2018/19, Croatian Football Federation, decision of 10 January 2019; Simeone: UEFA CEDB, Case N° 32360—UCL—2018/ 19, Club Atlético de Madrid, decision of 7 March 2019; the cases of Mr. Carvalho and Mr. Ronaldo are not published. 15

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fairness, the provisions ought to be interpreted and construed contra proferentem.17 The Appellants submitted that the CEBD and UEFA AB had failed to properly take into account mitigating circumstances, such as the fact that Neymar deleted the Statements shortly after having posted them, that he was already internally disciplined, and that the Statements were made in the heat of the moment.18 As a consequence, the Appellants requested that CAS:19 …set aside the UEFA Decisions and: (a) Eliminate – or otherwise reduce as far as possible – the suspension imposed upon the Player: and (b) Order the Respondent to reimburse the Appellants their legal costs and other expenses pertaining to this appeal.

2.2

UEFA

UEFA submitted that the translation of the Statements relied upon by the EDI was correct and that the first two sentences of the Statements would suffice to constitute a violation of Article 15(1)(b) and (d) DR, as the language used was both abusive and insulting toward match officials.20 As for the acronym used, the best way to interpret the expression “Ah và pà pqp” is how Neymar’s millions of followers, as well as the press across the world, had understood it. UEFA referred to various news articles—including in the Brazilian press—which all interpreted the acronym in the Statements to mean “go f**k yourselves”.21 With reference to the description of the VAR team as “four guys who know nothing about football” and to the labelling of their decision as a “disgrace”, UEFA submitted that Neymar is a very experienced athlete and therefore ought to have known that the VAR review was not only performed by video assistants but by qualified match officials. Therefore, nothing in the Statements was reasonable.22 In respect to the general principles invoked by the Appellants, UEFA submitted that there is no room for the principle of contra proferentem in the context of the DR and that “[t]here is no lack of legal certainty that requires to be construed against UEFA as the legislator”. According to UEFA, the provisions at stake were

17 18 19 20 21 22

Ibid., Ibid., Ibid., Ibid., Ibid., Ibid.,

para para para para para para

46(h). 46(i). 45. 48(d). 48(e). 48(f).

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clear, precise and predictable, and there was no issue of unequal treatment, as the cases the Appellants referred to were not comparable to the one at hand.23 UEFA further argued that Article 15 DR is a lex specialis to Article 11 DR and that Article 15 DR applied to the case at hand. Article 15 DR does not require a specific “geographical” element and therefore it may be applied, even if a player does not participate in a match or is physically not present in the stadium. UEFA further referred to its practice of sanctioning players under Article 15 DR when they have used insulting and/or abusive language directed at match officials, irrespective of whether or not they were physically present at the match in question. UEFA also noted that PSG should be aware of this, since one of its players (Mr. Serge Aurier)24 had been previously sanctioned under Article 15 DR.25 Furthermore, UEFA pointed out that any reference to the French version of the DR could be of no avail to PSG and Neymar’s case, given that Article 79 DR clearly provides for the English version to prevail in case of discrepancy.26 Finally, UEFA also held that there were no mitigating circumstances as there was no evidence that Neymar had actively deleted the Statements, given that Instagram stories automatically expire after 24 h, or that Neymar had actually already been disciplined by the Club. In any event—according to UEFA—the Statements were not withdrawn “fast”, considering that they were still visible 17 h after they had been posted. Rather, in view of the fact that Neymar has over 120 million followers, his passivity was clearly an aggravating factor. Finally, Neymar did not show any remorse, as demonstrated by the fact that in his Appeal Brief he still maintained that he had done nothing improper and that the Statements were but “mere and reasonable observations”.27 UEFA therefore requested the CAS to issue a decision:28 (…) (a) Rejecting the reliefs sought by the Appellants; (b) Confirming the Decision under Appeal; (c) Ordering the Appellants to pay a significant contribution towards UEFA’s legal costs in the matter.

23 24 25 26 27 28

Ibid., para 48(c). UEFA CEBD, Paris St. Germain/Player Serge Aurier, Decision of 19 March 2015. Ibid., para 48(g). Ibid., para 48(i). Ibid., para 48(j). Ibid., para 47.

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3 The Decision The jurisdiction of the CAS and the admissibility of the Appeal were not contested in this matter. However, the Appellants objected to the certified translation of the Statements submitted by UEFA in the CAS proceedings, claiming that said translation should not be admitted because it was not part of the case file before the previous instances. In this respect, the Sole Arbitrator referred to Article R57 of the CAS Code, which provides that CAS proceedings are de novo proceedings and grants wide discretion to CAS Panels in deciding whether or not to exclude evidence. Since the case inter alia revolved around the question of the true content of the Statements, the Sole Arbitrator found there were no valid reasons to exclude such a translation.29 The main issues on the merits were as follows:30 i. What is the correct translation of the Statements? ii. Is the content of the Statements sanctionable under Article 11 and/or Article 15 DR? iii. If Article 15 DR is applicable, is the content of the Statements directed towards “match officials”? iv. If the aforementioned question is answered in the affirmative, is the content of the Statements abusive within the meaning of Article 15(1)(b) or insulting according to Article 15(1)(d) DR? v. Are there any mitigating/aggravating factors to be taken into account when imposing the correct sanction?

3.1

Correct Translation of the Statements

The Sole Arbitrator held that—having heard the parties’ experts—the correct translation of “Ah vá pápqp” was “Go f**k yourself/yourselves”, as UEFA had submitted, and not “Oh for f**k’s sake”, as the Appellants had argued. The Sole Arbitrator based his finding on the following facts:31 • The acronym “pqp” had been used in connection to the words “Ah vá”, which pointed towards “go…” and was therefore not used in isolation; • The context of the Statements was clearly negative as Neymar himself said he was disappointed, in rage, upset and/or frustrated; • The positioning of the acronym at the end of the Statement rather than in the middle of the Instagram post further confirmed this understanding, showing that

29 30 31

Ibid., paras 55 and 56. Ibid., para 59. Ibid., para 60.

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the expression was not used to intensify a finding previously expressed, but rather to cut short to the discussion; • The worldwide press unequivocally interpreted the passage in question in the same way as UEFA.

3.2

Scope of Application of Article 11 and Article 15 DR

The provisions under discussion are contained in Chapter II of the DR, under the heading “Offences”. Article 11 DR is entitled “General principles of conduct” and the relevant part of this provision, i.e. para 2 lit. b., reads as follows: 2. For example, a breach of these principles is committed by anyone: (…) b. whose conduct is insulting or otherwise violates the basic rules of decent conduct;

Article 15 DR bears the title “Misconduct of players and officials”, and its relevant parts read as follows: 1. The following suspensions apply for competition matches: (…) b. suspension of two competition matches or a specified period for directing abusive language at a match official; (…) d. suspension for three competition matches or a specified period for insulting any match official;

The Sole Arbitrator concluded that Article 15 DR is a lex specialis vis-à-vis Article 11 DR, as it provides for harsher minimum sanctions and may only be applied in the context of “competition matches”. In the Sole Arbitrator’s view, it makes sense to provide harsher sanctions for misconduct in the context of “competition matches” as such conduct will stir much more attention from the spectators or the media and will therefore bring greater harm to the interests of UEFA. As a consequence, a player is under a higher duty of loyalty and correct behavior when being in the spotlight of those matches.32 Having established that, the Sole Arbitrator turned to the meaning and scope of the term “competition matches”. In his eyes, the term covers all incidents in the stadium that are, time wise, closely connected to the match. It is therefore not restricted to the 90 (or 120) minutes of a match, but also covers certain periods before and after the match, such as the post-match press conference. The Sole Arbitrator further established that the term is not restricted to occurrences on the pitch but also includes all incidents in the stadium that are “visible in the public 32

Ibid., para 63.

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eye”. This should be so because such incidents will be picked up by the spectators and the media, and will thus be intensified and draw widespread attention.33 The Sole Arbitrator therefore concluded that Article 15 DR was clearly applicable to the case at hand, i.e. to Neymar’s Statements in his Instagram story.34

3.3

Were the Statements Directed at “Match Officials”?

The Sole Arbitrator established that the question whether Neymar was aware of the status of the VAR members could be left undecided, since in order for Article 15(1) (b) or (d) DR to apply, a determination on that point was not necessary. According to the Sole Arbitrator, it was enough that Neymar knew about the important official function of the VAR members for UEFA, and that their input could have a decisive effect on the Match. It was therefore irrelevant whether Neymar was aware of the exact status or title of the VAR members or of their precise mandate within the UEFA hierarchy; it sufficed that he knew them to be “officials” in the broad sense. For the Sole Arbitrator, it was “beyond doubt” that Neymar possessed such knowledge.35

3.4

Was the Content of the Statements “Abusive” or “Insulting”?

The Sole Arbitrator first established that it was difficult to decide whether the Statements were “abusive” or “insulting” as both terms overlap to a considerable extent, and neither party had provided clear guidance on how to differentiate between Article 15(1)(b) DR (“abusive”) and Article 15(1)(d) DR (“insulting”). Having considered the parties’ submissions at the hearing, the Sole Arbitrator concluded that he would apply Article 15(1)(b) DR, which provides for a lower minimum sanction, however noting that the sanction set therein could be exceeded depending on the circumstances.36 Applying, as a standard to assess the gravity of the infraction, the viewpoint of an objective third person, the Sole Arbitrator then moved on to dissect the different parts of the Statements and whether they amounted to a breach of Article 15(1)(b) DR. The Sole Arbitrator found that anything but the last sentence, i.e. until “Ah vá…” was “borderline”, but could not be considered a violation of Article 15(1)(b) DR. In the eyes of the Sole Arbitrator, the word “disgrace” in the context used 33 34 35 36

Ibid., Ibid., Ibid., Ibid.,

para para para para

64. 65. 66. 68.

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(“it’s a disgrace”) was not directed towards a match official but to the disputed penalty scene. It ought to be permitted to discuss controversially a referee’s (or VAR’s) decision, even more so if they are decisive. It must therefore be possible for a player to state what he thinks as long as it stays within certain limits. The Sole Arbitrator therefore concluded that anything but the last part of Neymar’s Statements was permissible under the given circumstances. The Sole Arbitrator felt comforted in his position because the UEFA AB did not discuss that part of the Statements at great length.37 However, in the Sole Arbitrator’s view, the final sentence of the Statements (“Ah vá…”) clearly tipped the scale. The Sole Arbitrator considered this final sentence to be inacceptable, whatever the surrounding circumstances. This meant that the emotions involved, the significance and the scope of the referee’s decision as well as its correctness could not make a difference in assessing whether the Statements were in breach of Article 15(1)(b) DR.38 When deciding what the appropriate sanction for the behaviour displayed by Neymar was, the Sole Arbitrator referred to another CAS Award rendered in 2004, where the player had made similar statements vis-à-vis the fourth referee and received a suspension of two matches.39 The Sole Arbitrator therefore concluded that the appropriate sanction would be—before taking mitigating and aggravating circumstances into consideration—a suspension of two matches.40

3.5

Were There Any Mitigating or Aggravating Circumstances?

The Sole Arbitrator first looked at the mitigating circumstances that the Appellants introduced into the proceedings, and in particular, the alleged lack of intention to harm anyone with the Statements. The Sole Arbitrator held that what mattered primarily was how a reasonable third person would understand the Statements, and pointed to the various declarations made by Neymar during the CAS proceedings, where he acknowledged that his words had upset the referees and that he never would have said “Ah vá…” directly to the referee.41 Furthermore, the Sole Arbitrator was not persuaded by Neymar’s submission that UEFA had applied a different standard and imposed milder sanctions in similar cases, noting that it is difficult to compare across such cases, which are mostly

37

Ibid., para 70. Ibid., para 71. 39 Ibid., para 72 with reference to TAS 2004/A/553, Djibril Cissé & Fédération Française de Football (FFF) c. Union des Associations Européennes de Football (UEFA), Award of 11 June 2004. 40 Ibid., para 72. 41 Ibid., para 73. 38

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fact-sensitive. The Sole Arbitrator also pointed out that the Appellants were not able to establish the existence of a constant practice by the CEBD or the UEFA AB.42 In respect of the aggravating circumstances, the Sole Arbitrator considered that Neymar did not err about the content and effect of his Statements and that he had not shown genuine remorse. He did not apologize to the referee, the VAR members or UEFA. However, the Sole Arbitrator held that the lack of remorse was not an aggravating circumstance.43 Lastly, even though the Appellants did not contest the aggravating factor of the publicity of the Statements, the Sole Arbitrator opined on the question whether the number of followers on Instagram, i.e. 120 million followers in Neymar’s case, is an aggravating circumstance. The Sole Arbitrator came to the conclusion that since the standard of an objective person is applied, it does not matter how many followers a player has.44 In conclusion, the Sole Arbitrator did not find any mitigating or aggravating circumstances and therefore a suspension of two UEFA competition matches for which Neymar would otherwise be eligible was the final sanction.

4 Observations 4.1

Application of Article 15 DR

One of the key issues at stake in these proceedings was the scope of application of Article 15 DR, and whether Neymar had breached this provision while not participating in the match in question. 4.1.1

Scope of Article 15 DR

The Sole Arbitrator first had to decide whether the Statements on Instagram published by Neymar, who was attending the Match as a spectator, would still be in a close enough nexus to a “competition match” in order for Article 15 DR to apply. The Sole Arbitrator determined that the term “competition match” should not be construed too narrowly. Interestingly, the Sole Arbitrator mainly focused on the temporal aspect of the term “competition match”, underlining that the term should cover more than just the 90 (or 120) minutes of the duration of a match. On the other hand, with regard to the spatial aspect of the term “competition match”, the Sole Arbitrator seems to have taken the stance that any breach of Article 15 DR needs to occur in close physical proximity, i.e. that this provision

42 43 44

Ibid., para 74. Ibid., para 73. Ibid., para 75.

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would only cover incidents in the stadium, as he mentioned this factor on three different occasions.45 It seems therefore that the Sole Arbitrator may not concur with the argument of UEFA, whose contention was that the scope of Article 15 DR does not foresee any “geographical” limits. Indeed, UEFA already applied such a wide scope in another CEBD decision, in the Aurier case, which occurred in 2015, and also involved a (then) PSG player.46 In that case, the player posted a video of himself on Facebook where he made some insulting statements (“Hey, referee, dirty son of a bi***”) against the referee while he was at home in front of the TV. That decision had not been challenged, whether by PSG or by the player. Even though the Sole Arbitrator did not have to analyze this issue any further due to the factual circumstances, it will be interesting to see how future CAS Panels interpret the geographical scope of this provision. Given that any abuse or insult deriving from a social media post does not differ depending on whether a player or official has created and uploaded it while in the stadium or in any other place, such a differentiation would not seem to be justified. Indeed, social media statements are “visible in the public eye” regardless of the location from which they are made. 4.1.2

Breach of Article 15 DR

After having established that Article 15 DR is a lex specialis vis-à-vis Article 11 DR, the Sole Arbitrator needed to decide two issues. The first issue to be determined was which parts of the Statements would qualify as a breach of Article 15 DR. As seen above, the Sole Arbitrator concluded that only the last part of the Statements, i.e. the part starting from “Ah vá…” could be considered an abuse or insult. The other parts, including where Neymar described the penalty decision as a “disgrace” and the VAR team as “four guys who do not know anything about football”, did not tip the scale. It is acceptable that a player or official may be emotional about a referee’s decisions as long as he or she keeps it within certain limits. Accordingly, a decisive element to assess a possible breach would be to determine whether a statement is directed against a match official or rather towards a (controversial) scene of a match only. This also seems to be the understanding of both Neymar and UEFA as another social media statement by Neymar made the headlines in 2021. On 16 February 2021, in the first leg of the UEFA Champions League round of 16 between PSG and FC Barcelona, a penalty was awarded to FC Barcelona. Neymar, being injured

Ibid., para 64: “[T]he term covers all incidents in the stadium […]”; para 65: “[T]he Player posted the Statements onto his Instagram story while he was still in the stadium […]” and “[I]n this context it is irrelevant that the Player was not fielded to play in the Match due to an injury. He attended the Match in the stadium, was in the official stands of the Club and in that function was bound to observe the duties of loyalty of a player within the meaning of Article 15 DR […]”. 46 UEFA CEBD, Paris St. Germain/Player Serge Aurier, Decision of 19 March 2015. 45

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again, promptly tweeted “joke that penalty” surrounded by emoji’s.47 It seems that UEFA did not open disciplinary proceedings against Neymar for this social media post. However, it is noteworthy that this tweet was deleted shortly after it had been posted. Secondly, the Sole Arbitrator pointed out the difficulty of deciding whether the sanctionable statement was abusive or insulting. The difference is important because the minimum sanctions vary between a suspension for two matches (Article 15(1)(b) DR “abusive”) and for three matches (Article 15(1)(d) DR “insulting”), with no express rule as to a maximum sanction. Since the Sole Arbitrator convincingly explained that the two terms overlap and neither of the parties could provide clear guidance on how to differentiate those terms, it was only logical to apply the less severe provision.

4.2

The Relevance of the Publicity of the Offence

The relevance of the publicity of the offence by Neymar was discussed at various places in the Award, which shows the difficulty of dealing with this issue in a coherent way. When discussing which provision should be applied, i.e. the general provision of Article 11 DR, which does not foresee a minimum sanction, or Article 15 DR, the Sole Arbitrator came to the conclusion that Article 15 DR is a lex specialis vis-à-vis Article 11 DR. The harsher minimum sanctions stipulated in Article 15 DR appeared logical to the Sole Arbitrator, since an offence in connection with “competition matches” will generally receive much more attention from the spectators and media. The Sole Arbitrator thereby concluded that any misbehavior in connection with “competition matches” will bring greater harm to the interests of UEFA, and therefore a player “[i]s under a higher duty of loyalty and correct behavior while in the spotlight of competition matches”.48 The Sole Arbitrator therefore emphasized that the publicity surrounding competition matches was a key factor in determining that Article 15 DR is to be understood as a lex specialis vis-àvis Article 11 DR. When interpreting the scope of Article 15 DR, the Sole Arbitrator pointed out that it covers “[a]ll incidents in the stadium that are “visible in the public eye”, because any such incident will be picked up by spectators and the media and, as a result, be intensified and draw widespread attention”.49

47

https://acefootball.com/football-news/neymar-deletes-tweet-about-barcelonas-controversialpenalty/ 48 CAS 2019/A/6367, Paris Saint-Germain & Neymar Da Silva Santos Junior v. Union des Associations Européennes de Football (UEFA), Award of 17 February 2020 (operative part of 17 September 2019), para 63. 49 Ibid., para 65.

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However, when considering aggravating circumstances, the Sole Arbitrator was not willing to take into account the massive number of followers, i.e. the publicity a footballer like Neymar enjoys. In this respect, the Sole Arbitrator considered that the standard to be applied is objective, and thus that it operates “[i]ndependently of whether the player is famous (and has a great number of followers)”.50 It remains open whether the Sole Arbitrator made these considerations having in mind that Article 15 DR already provides for harsher minimum sanctions, and thereby already includes the aggravating factor of the publicity of the offence. The rationale for this provision and what it aims to protect, i.e. UEFA’s interest in securing a correct behavior towards its match officials, would point to taking into consideration the publicity factor of abusive or insulting statements. The more people are exposed to such statements, the bigger the harm for UEFA is.

5 Conclusion This case shows the importance for lawmakers to take into consideration the predictability of their rules. Without any definitions of the terms “abusive” and “insulting” in Article 15 DR, there is a large margin of discretion on how such terms may be applied in a concrete matter. This is true both with regard to the kind of statements falling within the scope of the provision and with regard to the exact distinction between those two terms. Likewise, in light of the widespread use of social media by players, which leads to their statements being under an even bigger scrutiny, it might even be objectively justified to introduce a separate provision in the DR, specifically dealing with the use of, and conduct on social media. That way, UEFA could expressly set out the rules of conduct expected from the players when communicating via their social media platform(s), which type of statements warrant sanctions in accordance with the DR and whether the reach of the social media platform used has any relevance. Furthermore, one should also determine whether the fact that social media accounts are (often) managed by communication advisors—and not the players themselves—would play any (mitigating) role. As a last note, this Award did not have to deal with the freedom of expression of players as this issue was not raised by the Appellants. However, the potential limits of the right of UEFA to police free speech might become relevant in future cases with a similar factual background.

50

Ibid., para 75.

CAS 2019/A/6148, World Anti-doping Agency v. Sun Yang and Fédération Internationale de Natation, Award of 28 February 2020 Giulio Palermo and Panagiotis A. Kyriakou

Contents 1 2

Facts and Procedure of the Case......................................................................................... The Award ........................................................................................................................... 2.1 The CAS Panel’s Findings on the Admissibility of the Appeal............................... 2.2 The CAS Panel’s Findings on Liability..................................................................... 2.3 The Athlete’s Intent to Violate Article 2.5 FINA DCR............................................ 2.4 The CAS Panel’s Findings on the Appropriate Disciplinary Sanction..................... 3 Conclusion ........................................................................................................................... Reference....................................................................................................................................

204 205 206 207 214 214 217 219

Abstract The case of World Anti-Doping Agency v. Sun Yang and Fédération Internationale de Natation (CAS 2019/A/6148) concerned an appeal lodged by the World Anti-Doping Agency (WADA) before the Court of Arbitration for Sport (CAS) against a decision of the International Swimming Federation (FINA)’s Doping Panel. The latter had acquitted Mr Sun Yang (the Athlete) of a doping violation, reasoning that a member of the sample collection team had exhibited inappropriate behaviour during the collection process, and, in any event, the team had not provided the Athlete with a clear account of the consequences of his refusal to provide a blood sample. The CAS Panel reversed the decision of the FINA Doping Panel and held that the Athlete had intentionally “tampered” with the doping control. The CAS Panel thus imposed an eight-year period of ineligibility,

G. Palermo (&)
P. A. Kyriakou Archipel Geneva, Geneva, Switzerland e-mail: [email protected] P. A. Kyriakou Graduate Institute of International and Development Studies, Geneva, Switzerland e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2022 A. Duval and A. Rigozzi (Eds.), Yearbook of International Sports Arbitration 2018–2020 https://doi.org/10.1007/15757_2022_40

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taking account of the fact that the Athlete had committed a separate anti-doping rule violation in 2014, which called for a doubling of the minimum statutory sanction of four years.













Keywords CAS WADA WADA Doping Control Rules FINA International Standard for Testing and Investigations (ISTI) doping tampering







1 Facts and Procedure of the Case1 On 4 September 2018, Mr. Sun Yang, a Chinese Olympic and world-recordholding swimmer, was subject to an out-of-competition doping control ordered by FINA. Personnel from the company “International Doping Tests and Management” (IDTM), consisting of a Doping Control Officer (DCO), a Blood Collection Assistant (BCA) and a Doping Control Assistant (DCA) visited the Athlete’s home in China between 22:00 and 23:00 (local time) and requested him to provide blood and urine samples. The DCO carried with her an ID card issued by IDTM along with a letter of authority from FINA to IDTM, whereas the BCA carried her Certificate of Professional Skills in Nursing. In turn, the DCA carried a national ID card. The Athlete initially cooperated and provided two blood samples, which the IDTM team placed in secured containers inside a cooler. However, once the Athlete noticed that the DCA had taken unsolicited pictures of him and his surroundings, he refused to provide a urine sample insisting that the DCA (who was the only male member of the doping control team) be removed from his premises. What is more, the Athlete asked the members of the IDTM team to present him with their accreditation documents. Upon consulting with several members of his entourage, including the head of the Chinese national swimming team, the Athlete asked to retrieve the blood samples he had provided earlier, claiming that the documents presented to him fell short of the applicable accreditation requirements. Once the DCO handed the blood collection samples back to him, the Athlete asked his bodyguard to break the container and collect the blood. Moreover, the Athlete tore up the consent form he had previously signed. In October 2018, FINA initiated proceedings against the Athlete, asserting violations of Articles 2.3 (Refusing or Failing to Submit) and 2.5 (Tampering or Attempted Tampering with Any Part of Doping Control) of its Doping Control Rules (FINA DCR), before the FINA Doping Panel. On 3 January 2019, the FINA Doping Panel issued its decision, finding that the Athlete’s notification process was irregular since the accreditation documents presented to him fell short of the

1

A complete summary of the facts of the case is provided in CAS 2019/A/6148, World Anti-Doping Agency v. Sun Yang and Fédération Internationale de Natation, Award of 28 February 2020, paras. 1–123.

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mandatory requirements of the WADA-promulgated International Standard for Testing and Investigation (ISTI). Moreover, the Doping Panel found that the behaviour of the DCA was inappropriate, and that the DCO had not adequately explained to the Athlete that his conduct could constitute failure to comply with the doping control, which could lead to serious consequences. On 14 February 2019, WADA appealed the FINA Doping Panel’s decision before the CAS. A Panel composed of Messrs Franco Frattini (President), Michael Beloff and Philippe Sands was appointed to hear the case. The Athlete challenged Mr. Beloff on two separate occasions during the proceedings. In June 2019, after the second challenge, Mr. Beloff stepped down from the Panel, indicating that his decision to do so was taken in the interest of the expeditious conduct of the proceedings, but ought not to be construed as an acceptance that the challenge against him had merit. Mr. Romano Subiotto was subsequently appointed to replace Mr. Beloff on the Panel. In July 2019, the Athlete filed a challenge against Mr. Subiotto’s appointment, which was dismissed by the ICAS Challenge Commission. Upon the Athlete’s request, to which the other parties and the Panel agreed, a public hearing—only the second in CAS history—was held in Montreux, and streamed live on the internet, on 15 November 2019.2 As discussed below, in the course of the CAS proceedings, the Athlete raised two preliminary objections to the admissibility of WADA’s appeal, which were eventually rejected by the Panel. Specifically, the Athlete objected to the timeliness of the filing of WADA’s Appeal Brief under the applicable rules, and argued that a member of WADA’s counsel team, Mr Richard Young, was conflicted due to his prior involvement in FINA’s Legal Committee, with the consequence that WADA’s submissions in the case were to be deemed inadmissible. In parallel to the CAS proceedings, the Athlete filed three distinct applications with the Swiss Federal Tribunal, seeking the annulment of the Challenge Commission’s decision upholding Mr Beloff’s appointment, and of the Panel’s rulings on his preliminary objections.3

2 The Award WADA alleged a violation of Article 2.5 of the FINA Doping Control Rules Edition 2017 (FINA DCR) due to “tampering”, and subsidiarily, a violation of Art 2.3 FINA DCR due to the Athlete’s failure to submit to sample collection. Article

2

The hearing drew significant attention and public commentary in connection with the unsatisfactory simultaneous translation of the oral testimonies given, and of the questions put by the Panel to the witnesses, by the interpreters that had originally been selected for that purpose, prompting debate on the procedural rights of athletes in that respect (see e.g. B. Koh and T. Holmes, “Are you being heard? How the Sun Yang public hearing exposes a gap in athletes’ rights”, LawInSport, 3 January 2020). 3 See SFT 4A_265/2019, decision of 25 September 2019; SFT 4A_413/2019, decision of 28 October 2019; SFT 4A_287/2019, decision of 6 January 2020.

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2.5 FINA DCR defines “Tampering or Attempted Tampering with any part of Doping Control” as follows: Conduct which subverts the Doping Control process but which would not otherwise be included in the definition of Prohibited Methods. Tampering shall include, without limitation, intentionally interfering or attempting to interfere with a Doping Control official, providing fraudulent information to an Anti – Doping Organization, or intimidating or attempting to intimidate a potential witness.

In its Award issued on 28 February 2020, the CAS Panel declared the case admissible, found the Athlete guilty of a violation of Article 2.5 FINA DCR and suspended him for a period of eight years.

2.1

The CAS Panel’s Findings on the Admissibility of the Appeal

With respect to the admissibility of the Appeal, the Athlete claimed that WADA’s Appeal Brief of 3 April 2019 had not been filed in a timely manner, and that WADA’s counsel, Mr. Young, had a conflict of interest due to his previous occupation as a member of FINA’s Legal Committee. On the question of time limits, the Athlete’s key argument was that Article 13.7.1 FINA DCR could not be read to suggest that WADA’s deadline for filing an appeal could exceed that of FINA’s. The 2nd and 3rd paragraphs of Article 13.7.1 read as follows: […] The above notwithstanding, the filing deadline for an appeal filed by WADA shall be the later of: a) Twenty-one (21) days after the last day on which any other party in the case could have appealed, or b) Twenty-one (21) days after WADA’s receipt of the complete file relating to the decision. Similarly, the filing deadline for an appeal by FINA shall be in any event the later of: a) Twenty-one (21) days after the last day on which any other party (except WADA) could have appealed before CAS; or b) Twenty-one (21) days from the day of receipt of the complete file relating to the decision.

In the Athlete’s view, the word “similarly” at the start of the 3rd paragraph in Article 13.7.1 FINA DCR meant that FINA was subject to the same deadline as WADA to challenge the Decision; otherwise, Article 13.7.1, para. 3, of the FINA DCR would have come before Article 13.7.1, para. 2. The Athlete added that this interpretation complied with the WADA Code because no such “cascade” of deadlines could be found in the latter. FINA submitted a similar understanding of Article 13.7.1. The Panel pointed to the phrase “any other party”, and held that, since FINA was a party capable of filing an appeal, nothing in the text of Article 13.7.1

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FINA DCR could be taken to suggest that FINA’s deadline could not be used as a basis for calculating that of WADA. The Panel reasoned, agreeing with WADA, that the latter “needs to decide which decisions to appeal and that a relevant consideration in this respect could be whether any other party with a right to do so has already filed an appeal.” […] The special status and unique function of WADA serves in the general interest to prevent and counter doping-related violations in sport, and in doing so, it pursues one of the key objectives of the Olympic Charter.”4 The Panel added that the “WADA Code’s intention to recognize in some aspect that special status is made clear by the “ad hoc” paragraph proceeded by “[t]he above notwithstanding”, so as to clarify that the previous paragraph’s provisions are not applicable to the paragraph concerning WADA’s deadline.”5 As such, since FINA could challenge the decision until 18 February 2019, WADA had until 11 March 2019 to file a Statement of Appeal and until 10 April 2019 to file an Appeal Brief, taking account of a 20-day extension it had obtained to that effect from the Panel. As a result, WADA’s Appeal Brief of 3 April 2019 was timely. With regard to the purported conflict of interest of WADA’s counsel, the Panel noted that there were no concrete facts or circumstances indicating that Mr Young had acquired procedural or substantive benefits in relation to the proceedings from his past association with the FINA Legal Committee, the latter being a non-adjudicatory body that was usually not involved in anti-doping-related proceedings. In any case, Mr Young had received no information from FINA in relation to the proceedings, and it had not been established that Mr Young could use his general knowledge about FINA’s anti-doping rules in any meaningful way in the dispute.6

2.2

The CAS Panel’s Findings on Liability

Turning to the Athlete’s liability, the Panel began by noting that the main issue in dispute was whether WADA could establish that the Athlete had violated Article 2.5 of the FINA DCR to the Panel’s “comfortable satisfaction”.7 Seeing as a violation of Article 2.5 is perceived as more severe than a violation of Article 2.3, the CAS Panel indeed saw fit to begin its analysis on liability by examining the former.8

4

CAS 2019/A/6148, World Anti-Doping Agency v. Sun Yang and Fédération Internationale de Natation, Award of 28 February 2020, paras 173–176. 5 Ibid., para. 176. 6 Ibid., para. 182. 7 Ibid., para. 193. 8 Ibid., paras 189–191.

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Did the IDTM Team Validly Notify the Athlete Under the ISTI?

To determine whether the Athlete was liable for a violation of Article 2.5 of the FINA DCR, the Panel reasoned that it was necessary to establish that “there existed a compelling justification such as to allow [the Athlete] to take the steps he did”.9 The Panel thus disagreed with WADA’s view that “regardless of whether IDTM’s Sample Collection Personnel have been properly authorised and accredited, and have properly identified themselves, the Athlete will commit a tampering violation in all circumstances if he or she refuses to allow the DCO to remove the collected blood samples for delivery to the relevant laboratory”.10 The Panel observed, in this connection, that “it cannot be excluded that serious flaws in the notification process, or during any part of the Doping Control process, could mean that it might not be appropriate to require an athlete to subject himself to, or continue with, a sample collection session.”11 The Panel nonetheless clarified that “this could only be in the most exceptional circumstance”.12 Was There a Requirement for a “Specific and Individual” Authorization Letter? The Panel first addressed the Athlete’s argument that his refusal to continue with the sample collection process was justified due to the invalidity of his notification by the IDTM team. In particular, the Athlete had argued that, under Articles 5.3.3 and 5.4 of the ISTI, “a distinction must be made between two types of letters. The first is a “(generic) Letter of Authority”, that is to say a letter issued by a Testing Authority to a Sample Collection Authority authorising the latter to collect samples on behalf of the former. The second is a “(specific and individual) Authorisation Letter” from the Testing Authority to the Sample Collection Personnel, evidencing that each of the DCO, BCA and DCA have the individual authority to collect a sample from a specific athlete, within a specific period of time and under a specific mission order.” As he had only been presented with an authorization letter for the IDTM team as a whole, as opposed to one that certified that each member individually had the authority to participate in the collection process, the notification was invalid, warranting his refusal to proceed with the collection process. For ease of reference, Article 5.3.3 of the ISTI reads as follows: Sample Collection Personnel shall have official documentation, provided by the Sample Collection Authority, evidencing their authority to collect a Sample from the Athlete, such as an authorisation letter from the Testing Authority. DCOs shall also carry complementary identification which includes their name and photograph (i.e., identification card from the

9

Ibid., para. 212. Ibid., para. 207. 11 Ibid., para. 208. 12 Ibid. (emphasis in the original). 10

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Sample Collection Authority, driver’s license, health card, passport or similar valid identification) and the expiry date of the identification.

The Panel held that the plain meaning of the provision, as well as general sample collection practice, left it abundantly clear that a generic authorization letter sufficed for a valid notification. The provision itself simply required “[…] official documentation, […] such as an authorisation letter from the Testing Authority”, whereas the Athlete had not presented the Panel with any notification practice along the lines of what he had suggested.13 The Panel moreover observed that WADA’s Sample Collection Personnel Guidelines, which were not binding upon the parties but could still provide meaningful guidance as to the implementation of the WADA Code,14 provided that “[i]n the absence of a Sample Collection Authority-issued photo ID, the DCO may use a government-issued photo ID accompanied by an authorization letter from the Sample Collection Authority”. This being the only reference in the Guidelines to authorization letters, and seeing as said reference made no distinction between specific and generic letters, the Guidelines did not, in the view of the Panel, intend to introduce a distinction to that effect and could thus not be relied upon by the Athlete.15 Further, the Panel discarded the relevance of CHINADA practice with respect to the determination of the issue at hand, which pertained to notification requirements under the ISTI,16 and pointed to the fact that the IDTM had used the system employed in the incident at hand for six years consistently.17 Finally, the Panel noted that if the Athlete’s arguments were to be accepted, “tens of thousands (or more) samples” would be “at risk of being invalidated, on the basis that a (generic) Letter of Authority is somehow insufficient”;18 In this regard, the Panel also noted that the Athlete’s counsel “offered no helpful response as to how to avoid such a consequence”.19 The Panel thus concluded that the documentation shown to the Athlete complied with Article 5.3.3 of the ISTI.20

Did the DCO, DCA and BCA Individually Require a (Specific and Individual) Authorisation Letter Mentioning Their Names? The Athlete also contended that each individual member of the IDTM team should have presented an authorization letter clearly mentioning their names. In light of its 13 14 15 16 17 18 19 20

Ibid., Ibid., Ibid., Ibid., Ibid., Ibid., Ibid. Ibid.,

paras 222–225. paras 227–228. para. 231. paras 234–235, 241. para. 237. para. 243. para. 246.

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previous findings concerning the requirements of specificity and individuality, the Panel summarily dismissed the argument, noting inter alia that “it is almost impossible to know in advance of whom the team would be comprised, or to name the athlete that is to be tested”, especially “[g]iven the large number of tests conducted worldwide, on a daily basis”.21 The Panel further noted that the use of the word “their” in Article 5.3.3 of the ISTI was not conclusive, as the drafters of the provision could have used more precise wording had they wished to provide the type of requirement suggested by the Athlete.22 The Panel also observed that the DCA and the BCA had been trained by the DCO herself, and that confidentiality agreements had been signed and stored on IDTM’s records, such that it was not improper for the DCA to delegate part of her tasks to the BCA and DCO, nor was such an action outside the scope of FINA’s instructions to the IDTM team.23

Did the DCO, DCA and BCA Identify Themselves to the Athlete in Accordance with the ISTI and Did They Have the Required Training? Beyond highlighting the failure of the IDTM team to produce individual and specific authorization letters, the Athlete argued that the notification process had been tainted by the inability of each member to produce proper identification documents. With respect to the DCO, the Panel noted that her IDTM-issued ID card complied with the requirements of Article 5.3.3, as it contained his name and photograph. Moreover, the Athlete had not identified any concrete impartiality-related concerns in relation to the DCO that could have had an impact on the validity of her documents, beyond noting that that she had been the subject of a complaint by the Athlete in 2017.24 As it pertains to the DCA, the Panel observed that none of the relevant provisions (Articles 5.4.1(b), 5.4.2(b) and H.5.4 of the ISTI) required him to notify the Athlete, seeing as the DCA’s role was merely to witness the passing of urine, and given that the DCO herself had already made the relevant notification. As such, there was no requirement for the DCA to present an IDTM-issued ID card either.25 In making this finding, the Panel observed that the WADA Guidelines, which could be read to suggest that DCAs must present an IDTM-issued card at all events, do not prevail over the ISTI which does not expressly impose such a requirement.26 The Athlete had further argued that, as per the ISTI, a Chaperone must be “trained and authorized” by IDTM, a process which should involve a study of all

21 22 23 24 25 26

Ibid., Ibid., Ibid., Ibid., Ibid., Ibid.,

para. 251. para. 253. paras 249–250. paras 260–263. paras 265–272. para. 272.

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relevant requirements of the sample collection process.27 The Panel found that the DCA had been properly trained and authorized, such that his authorization and the notification of the same to the Athlete were valid. The fact that the DCA’s day-to-day job was unrelated to anti-doping was not deemed decisive in this connection, seeing as he had participated in several sample collections in the past and had been personally trained by the DCO.28 Moreover, the DCA was not required to present documentation of his training during the control, since such documentation was already available on file with IDTM, in the form of a signed statement by the DCA.29 As to the BCA, the Panel, again, was not persuaded by the Athlete’s arguments in respect of the need for an IDTM-issued ID card, largely for the same reasons as those that related to the DCA. What is more, the Panel observed that Article H.4.1. b.ii ISTI requires that “BCOs shall have adequate qualifications and practical skills required to perform blood collection from a vein”. The Athlete had, in this connection, argued that the Specialized Technical Qualification Certificate for Junior Nurses presented to the Athlete was not sufficient to demonstrate that the BCA was qualified to collect blood samples in China. Instead, she should have presented a Practice Nurse Certificate (PNC). The Panel observed that the BCA possessed both certificates, and that it did not matter that she had only produced the former certificate during the doping control as there was nothing in the ISTI requiring the actual demonstration of these qualifications on the spot, so long as proof of the same was held by IDTM.30 Finally, the Panel dismissed the Athlete’s objection in relation to the validity of the PNC outside Shanghai, noting, inter alia, that the relevant concern had not been raised during the incident in question.31 2.2.2

Was There a Valid Justification for the Athlete’s Failure to Comply with the Sample Collection Process?

The Panel then turned to the question of whether other concerns, besides the alleged defects in the notification process and authorization documents, could justify the Athlete’s refusal to complete the sample collection process.

27 28 29 30 31

Ibid., Ibid., Ibid., Ibid., Ibid.,

para. 274. paras 276–281. para. 281. para. 291. para. 292.

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The Taking of Pictures by the DCA The Panel first addressed the argument that the DCA had taken pictures of the Athlete on his mobile phone, causing the Athlete to lose confidence in the IDTM team, and resulting in the Athlete’s request that the DCA leave the area. The Panel began by noting that, indeed, “it would be totally inappropriate and unprofessional for a Chaperone/DCA to take any photographs or videos of an athlete in the course of a sample collection process.”32 The Panel however observed that there is a line of consistent CAS jurisprudence to the effect that “the logic of anti-doping tests and of the DC Rules demands and expects that, whenever physically, hygienically and morally possible, the sample be provided despite objections by the athlete.”33 Accordingly, while the Athlete had not acted improperly by demanding that the DCA be removed from the premises and refusing to proceed with the urine collection process in the absence of a male assistant, the same could not be said in relation to the blood collection process. Indeed, while the DCA’s behaviour might have offered a reason to revisit all relevant accreditation documents, it could not have justified the Athlete’s behaviour of simply taking matters into his own hands and refusing to proceed with the blood collection process.34 Instead, the Athlete should have recorded his objection and allowed the process to continue.35 In this vein, the Panel alluded to the fact that the notification and authorization documents complied with the ISTI and that there was no evidence warranting the Athlete’s accreditation concerns following the taking of pictures by the DCA.36

The DCO’s Failure to Warn the Athlete of the Consequences of His Failure to Comply with the Process The Panel then turned to the Athlete’s contention that the DCO had failed to inform him of the consequences of his refusal to complete the collection process. Citing the reasoning of the Troicki Award, the Panel noted that the collection team must ensure that there is no misunderstanding as to the consequences of refusing to proceed with the sample collection process.37 The Panel observed, however, that if the warning of the DCO had been lost in the noise of the events in the case at hand,

32

Ibid., para. 300. Ibid., para. 304, referring to CAS 2005/A/925 (the Laura de Azevedo v. FINA Award of 24 January 2005), para. 75, and the application of that Award’s logic in CAS 2012/A/2791, CAS 2013/A/3077, CAS 2013/A/3342 and CAS 2016/A/4631. 34 Para. 309. 35 Ibid., para. 310. 36 Ibid., para. 309. 37 CAS 2013/A/3279, Victor Troicki v. International Tennis Federation, Award of 5 November 2013, paras 9.13–9.17, cited at paras 312, 313. 33

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this was due to the actions of the Athlete himself.38 Testimonies on record confirmed that, on her part, the DCO had repeatedly made the relevant warning.39 The Panel thus disagreed with FINA, which had in this connection found that there was no clarifying and crystalizing moment (a metaphorical “bang”) ensuring that the Athlete clearly knew, in the face of the identified conduct, that his conduct was being treated by the DCO as a failure to comply and that serious consequences would apply.40 The FINA Doping Panel had in fact noted the following in its Decision: The Athlete consistently stated that this was not a refusal or a Failure to Comply and the situation was entirely the DCO’s fault for coming to test him with improper officials. The Athlete insisted that he was cooperating and would continue to do so and that he would wait at the doping control station until a properly authorized DCA arrived. The DCO refused to countenance this idea.41

Still, according to the CAS Panel, “as a matter of law, […] it was not for the DCO to decide whether or not there was a failure to comply”; rather, the DCO’s role was “(i) to inform the Athlete of the consequences of a possible failure to comply, (ii) to document the facts in a detailed report, and (iii) to report the circumstances to IDTM. Pursuant to Article A.4.2 of Annex 1 to the ISTI, it was ultimately for the Testing Authority (i.e. FINA) to determine whether or not there was a failure to comply”.42

The Alleged Decision of the DCO to Terminate the Sample Collection Session and Her Alleged Suggestion to Take and Destroy the Blood Samples The Athlete’s final justification for refusing to complete the collection process was that the latter had been terminated by the DCO herself. While the Panel agreed that the urine collection process had been terminated with the consent of the DCO, it did not agree with respect to the blood collection process. The Panel noted that it was the Athlete who had asked to retrieve his blood sample, with the DCO likely feeling that she had no option but to comply with the Athlete’s request in light of his “forceful” personality.43 Even if it was the DCO who informed the Athlete that the IDTM team would need to recover the collection material, this occurred once the situation had reached “another level, by which point it had become apparent that the Athlete and his entourage were determined to recover the blood samples”.44

38 39 40 41 42 43 44

Para. 314. Ibid., para. 315. Ibid., para. 317. Decision of the FINA Doping Panel 01/2019, dated 3 January 2019, para. 4.25. Para. 318. Ibid., para. 327. Ibid., para. 329.

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The Athlete’s Intent to Violate Article 2.5 FINA DCR

Having found that there was no compelling justification for the Athlete to refuse to complete the blood collection process, the Panel lastly turned to the question of whether the Athlete had the intent to violate Article 2.5 FINA DCR. In this connection, the Panel did not accept that the notion of “subverting” a doping control under Article 2.5 necessarily meant “to undermine authority”, and distinguished the case from CAS 2013/A/3341, in which the sole arbitrator had articulated “a certain surprise in noting the circumstances surrounding the destruction of two urine sample collection containers”, but had nonetheless found that based on the facts of that case the requisite intent of the Athlete could not be established.45 In particular, the Panel found that, in the case at hand, it could be concluded with comfortable satisfaction that the Athlete had “personally interfered” with the doping control process as he had destroyed a container and torn up the doping control form “with the intention to prevent the DCO from leaving the premises with the blood samples that had already been collected.” The Panel found that “such actions necessarily comprise intent.”46 Finally, the Panel noted that the Athlete could not shift the blame to his support staff, citing SR/NADP/782/2017 Rugby Football Union v. McIntosh and CAS 2012/A/2791 to that effect.47

2.4

The CAS Panel’s Findings on the Appropriate Disciplinary Sanction

Having found that the Athlete was liable for a violation of Article 2.5 FINA DCR, the Panel turned to the consequences attached to such a violation. The Panel noted that Article 10.3.1 FINA DCR reads as follows: For violations of DC 2.3 or DC 2.5, the Ineligibility period shall be four years unless, in the case of failing to submit to Sample collection the Athlete can establish that the commission of the anti-doping rule violation was not intentional (as defined in DC 10.2.3), in which case the period of Ineligibility shall be two years.

45

Ibid., para. 338, referring to the Award rendered on 28 May 2014 in the matter of WADA v. Daniel Pineda Contreras & Chilean Olympic Committee (COC). 46 Ibid., para. 338. 47 Ibid., paras 341–342; case SR/NADP/782/2017, as indicated in the Award, was decided by the British Anti-Doping Panel; in CAS 2012/A/2791, the Award, dated 24 May 2013, was rendered in the matter of WADA v. Norjannah Hafiszah Jamaludin, Nurul Sarah Abdul Kadir, Mohamad Noor Imran Hadi, Siti Zubaidah Adabi, Siti Fatimah Mohamad, Yee Yi Ling, Harun Rasheed & Malaysia Athletic Federation (MAF).

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As it had been established that the Athlete had the intent to violate Article 2.5, the Panel held that it had no discretion, under Article 10.3.1, to impose a period of ineligibility of less than four years.48 Moreover, Article 10.5.2 FINA DCR, which provides for a reduction of the period of ineligibility in relation to provisions where intent is not an element of the violation, was not capable of being engaged as the offence in question did contain the element of intent.49 Finally, the Panel took note of the following “exceptional circumstances” argued by the Athlete: “(i) the DCA surreptitiously took pictures and videos of him; (ii) he was advised by his support staff that IDTM’s Sample Collection Personnel did not have proper accreditation documents showing that they had the authority to conduct a test on him; (iii) he requested the test to be continued with properly accredited doping officers, but such request was denied without valid reason; (iv) the DCO induced him to take the blood out of the container; (v) the DCO never warned him about the possible adverse legal consequences; and (vi) the DCO decided to discontinue the test in view of the lack of accreditation (and authorisation) of the doping officers.”50 The Panel held that none of the above circumstances had been established as justifying the actions taken, such that they could not assist the Athlete in requesting the reduction of his sanction.51 The Panel thus found that a four-year period of ineligibility would be proportionate in light of the “egregious actions” taken.52 Finally, in relation to the Athlete’s conduct and overall stance during the proceedings, the Panel observed, among others, that, “unexpectedly, in the course of the closing statement [the Athlete] was invited to give by the Panel, he invited an unknown and unannounced person from the public gallery to join him at his table and act as an impromptu interpreter. He did not seem to deem it necessary to seek the permission of the Panel, or to otherwise act in a manner which suggested that he respected the authority of others, or of established procedures.”53 2.4.1

The Effect of the Athlete’s Previous Doping Violation

Having found that it could not impose a sanction lower than a four-year period of ineligibility, the Panel examined the effect on that sanction of an anti-doping rule violation the Athlete had committed in 2014. The Panel noted that Article 10.7.1 FINA DCR required it to double the Athlete’s ban due to his previous anti-doping rule violation.54

48 49 50 51 52 53 54

Para. 346. Ibid., para. 349. Ibid., para. 353. Ibid., para. 354. Ibid., para. 355. Ibid., para. 358. Ibid., paras 364–367.

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The Panel acknowledged that the 2021 edition of the WADA Code provided for additional exceptions capable of reducing the period of ineligibility down to four years, but noted that said instrument was not applicable to the case at hand as it had yet to enter into force.55 It nonetheless advised that, “as indicated by WADA during its closing submissions, it may be relevant for the Athlete to take note of Article 27.3 WADA Code (2021 edition), which provision allows him to apply to FINA for a reduction of the period of ineligibility imposed on him as soon as the 2021 edition of the WADA Code enters into force.”56 2.4.2

Consequences Besides the Imposition of a Period of Ineligibility

Lastly, the Panel addressed WADA’s argument that all competitive results obtained by the Athlete from 4 September 2018 through to the commencement of the applicable period of ineligibility should be disqualified. While noting that this was possible under Article 10.8 FINA DCR, the Panel opined that an eight-year period of ineligibility would constitute a severe enough sanction. In particular, the Panel reasoned: Adding to this a disqualification of all the Athlete’s results over the past year and a half, including results such as the Athlete’s world titles on the 200 and 400 meter freestyle at the 2019 FINA World Championships in Gwangju, South Korea, in July 2019, requires the Panel - in application of the rules - to assess whether fairness allows for the disqualification of results. The Panel notes that it is, under the rules, afforded a discretion to disallow the disqualification of results if fairness requires otherwise.57

The Panel noted in this connection that, as per CAS 2016/A/4481 (recte, CAS 2016/O/4481),58 the disqualification of results is in itself a severe sanction and, in certain respects, can be equated to a period of ineligibility.59 Moreover, doping tests performed on the Athlete shortly before (15, 19, 20, 21 and 24 August 2018) and after (28 September 2018) the night the Athlete committed the anti-doping rule violation had come out negative.60 Finally, FINA had “refrained from seeking the imposition of a provisional suspension on the Athlete when charging him with an anti-doping rule violation, as it could have done in accordance with Article 7.9.2 FINA DC.” [DCR].” As a result, the Athlete could “legitimately presume that he was free to continue to compete and keep the results obtained, particularly after he was acquitted by the FINA Doping Panel on 3 January 2019.”61

55

Ibid., para. 368. Ibid., para. 369. 57 Ibid., para. 376. 58 CAS 2016/O/4481, IAAF v. All Russia Athletics Federation (ARAF) & Mariya Savinova-Farnosova, Award of 10 February 2017. 59 Ibid., para. 377. 60 Ibid., para. 378. 61 Ibid., para. 379. 56

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The Panel thus concluded that, “having regard to the gravity of the sanction going forward, […] the results in the period prior to the sanction taking effect should not be disqualified.”62

3 Conclusion In WADA v. Sung Yang and FINA, the CAS Panel was called upon to strike a delicate balance between the need to guarantee the effectiveness of out-of-competition doping controls, on the one hand, and the need to ensure respect for health or privacy-related concerns, on the other. To elaborate, seeing as out-of-competition doping controls are intrusive by their very nature, and taking into account the hygienic concerns athletes may reasonably have in relation to the same, it is important for athletes to feel comfortable during the collection process, including by being able to verify that the members of the control team are fully authorized and trained to perform the activities in question. At the same time, a rigid accreditation regime requiring complete ex ante information about the composition of doping controls teams could undermine the flexibility and swiftness of out-of-competition doping controls. In its Final Award, the Panel opted to reject the alleged requirements for individual and specific authorization letters or separate authorization documents carried by each member of the team largely due to the practical consequences of finding otherwise, as well as the form-focused nature of the Athlete’s arguments. While on the whole reasonable, and while it was largely confirmed by the CAS Panel which reviewed the case upon the Swiss Federal Tribunal’s decision on revision,63 the Award still leaves, in the authors’ view, a strange aftertaste. In particular, the Award contains value judgments with respect to the Athlete’s personality which appear uncalled for. Indicatively, the Panel points out that the Athlete’s mother “played a most unhelpful role to her son”,64 characterizes the Athlete’s actions as “egregious” and his personality as “forceful” and suggests that the Athlete has no respect of the “authority of others”65 due to his engagement of an unannounced interpreter during the hearings. These references to the Athlete’s personality, his entourage and his family later (partially) formed the basis of the Athlete’s request for revision before the Swiss Federal Tribunal on impartiality-related grounds, a request which was eventually granted (albeit not on

62

Ibid., para. 380. See CAS 2019/A/6148, World Anti-Doping Agency v. Mr. Sun Yang and Fédération Internationale de Natation, Award of 22 June 2021, pp. 67–84. 64 Ibid., para. 314. 65 Ibid., paras. 327, 355, 358. 63

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grounds related to the value judgments contained in the Award but, rather, a series of offensive tweets by the President of the Tribunal).66 What is more, the Panel’s assessment of the facts and their legal consequences can at times be difficult to follow. Indicatively, the Panel found that the behaviour of the DCA could not serve as a factor in the analysis of the four-year ban’s proportionality as said behaviour was incapable of justifying the Athlete’s actions; in the authors’ view, in so reasoning, the Panel blurred the distinction between liability proper and the consequences of a positive finding on liability. As regards the Athlete’s intent under Article 2.5 FINA DCR, it is not entirely clear how the Panel deduced the same from the facts. To recall, it was uncontested that the Athlete had initially cooperated, and abruptly changed his approach after the DCA’s improper conduct. While recognizing that the DCA had behaved improperly, the Panel attached no practical consequence to its acknowledgement, notwithstanding its own emphatic statement that “serious flaws in the notification process, or during any part of the Doping Control process, could mean that it might not be appropriate to require an athlete to subject himself to, or continue with, a sample collection session”.67 In all, it is difficult to discern in the Award a clear explanation as to why the DCA’s behaviour was not a “serious flaw” in the control process. Finally, it appears that the Panel derived the intent of the Athlete’s interference with the doping control process largely from the mere existence of an interference itself,68 thereby producing a somewhat circular reasoning. In conclusion, it is submitted that the Panel could have avoided several insinuations and value judgments and offered more elaboration in several parts of its Award; be that as it may, the Panel’s dismissal of the Athlete’s arguments appears to have been motivated primarily by caution, more than anything else. That is, in the authors’ understanding, the Panel sought to avoid the possibility that the FINA Decision would create a precedent allowing athletes to evade out-of-competition controls at will by relying on formal notification defects. It moreover sought to avoid what would effectively amount to a retroactive invalidation of “tens of thousands (or more) samples” collected with a generic Letter of Authority. As for the Athlete, he was eventually able to secure a reduction of his ban to four years and three months by relying on the 2021 FINA DCR before the second CAS Panel,69 bringing an end to one of the most attention-grabbing sagas in sports law.

66

For an analysis of the grounds on which the Athlete’s request for revision was granted see Palermo and Kyriakou 2021. 67 Ibid., para. 208. 68 Ibid., para. 338. 69 CAS 2019/A/6148, World Anti-Doping Agency v. Mr. Sun Yang and Fédération Internationale de Natation, Award of 22 June 2021, paras. 376–397.

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Reference Palermo G, Kyriakou PA (2021) Swiss Federal Tribunal, Case 4A_318/2020, Judgment of 22 December 2020. 41 Revista del Club Español del Arbitraje

Giulio Palermo is a Partner at Archipel Geneva. Panagiotis A. Kyriakou is an Associate at Archipel Geneva and a Ph.D. Candidate at the Graduate Institute of International and Development Studies. The usual disclaimers apply.

CAS 2018/O/5830, International Surfing Association v. International Canoe Federation, Award of 5 August 2020 Rosmarijn van Kleef

Contents 1 2

Introduction.......................................................................................................................... Facts and Procedure ............................................................................................................ 2.1 Facts ............................................................................................................................ 3 Reasoning of the CAS......................................................................................................... 3.1 Validity and Scope of the Arbitration Agreement..................................................... 3.2 Settling the Dispute: Which Rules Apply?................................................................ 4 Conclusion ........................................................................................................................... References ..................................................................................................................................

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Abstract A dispute arose between the International Surfing Association (ISA) and the International Canoe Federation (ICF) after both international sport federations claimed governance over the newly emerging discipline of Stand-Up Paddleboard (SUP). After unsuccessful conciliation and mediation attempts, the dispute was brought before the CAS. The CAS Award largely focuses on, first, establishing the validity and the exact scope of the arbitration agreement and, second, the application of the regulations of the IOC. Ultimately, the CAS decided that ISA is the federation entitled to govern and administer SUP at the Olympic level, while both federations can continue their activities in relation to SUP at the world level.








Private regu-

© T.M.C. ASSER PRESS and the authors 2021 A. Duval and A. Rigozzi (Eds.), Yearbook of International Sports Arbitration 2018–2020 https://doi.org/10.1007/15757_2021_34

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Keywords Arbitration agreement Governance Applicable law lations Recognition of International Federations




R. van Kleef (&) UEFA, Nyon, Switzerland e-mail: [email protected]

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1 Introduction Stand-Up Paddleboard (SUP) has been one of the fastest growing sports in the world in terms of participation in recent years.1 This rise in popularity did not go unnoticed in the international sports world, when two international sport federations clashed over its governance. Defined in general terms as “a water sport in which an athlete stands on a board and uses a paddle to direct and propel him/herself through water”, SUP can be practiced both in open water, such as the ocean, and calm waters, such as lakes.2 By 2016, both the International Surfing Association (ISA) and the International Canoe Federation (ICF) claimed SUP as one of their respective recognised sport disciplines, triggering the dispute at hand. After both informal and formal mediation attempts failed, the dispute was brought before the CAS. This case is quite unique from a factual point of view. Although in the past there have been other times where the governance of new sporting disciplines was disputed between two federations,3 these did not result in a confrontation such as the one between the ISA and ICF. In addition, the reproduction of multiple letter exchanges in the Award gives a rare glimpse of the political landscape within the Olympic Movement. From a legal perspective, the case centres around two main issues. Namely, how the scope of an arbitration agreement can be established under Swiss Law and the applicability of private regulations to the dispute.

2 Facts and Procedure 2.1

Facts

From 2008, the ISA included SUP in its regulations as a surfing discipline and started to develop technical rules for the sport as well as competitions, such as yearly World Championships from 2012 onwards. In August 2015, ISA presented both surfing and SUP for inclusion into the Tokyo 2020 Olympic Sports Programme. Although only surfing was included in the Olympic Programme in 2015, SUP had been already included as a surfing discipline in various other multi-sport games taking place from 2012. 1

Schram and Furness (2017). CAS 2018/O/5830, International Surfing Association v. International Canoe Federation, Award of 5 August 2020, para 6. 3 Notably the sport of snowboarding. The IOC recognised the International Ski Federation as governing body instead of the International Snowboard Federation in the nineties, which at the time was favoured by the riders and the industry. See USA Today, Snowboarding story: From outcast to Olympic darling in 20 years, 8 February 2018, https://eu.usatoday.com/story/sports/ winter-olympics-2018/2018/02/08/snowboarding-story-outcast-olympic-darling-20-years/ 317370002/, accessed 14 July 2021. 2

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With regard to the ICF’s involvement in the sport, it recognised a well-known SUP race held in Bavaria (Germany) for the first time in 2016 and issued the first competition rules in 2017. In 2019, the ICF announced and held its first SUP World Championships in China. The exact date of the origin of the dispute between ISA and ICF remains somewhat ambiguous. Representatives of both organisations met in the spring of 2016 to discuss the governance of SUP, but it was not until later in that year that the ISA requested in writing that the ICF cease its ‘attempted hostile takeover’ of the SUP discipline.4 This letter was the first of an extensive exchange of correspondence between the parties, in which the International Olympic Committee (“IOC”) also became involved. In January 2017, the IOC invited the ISA and ICF to a meeting at its headquarters and requested that the parties agree, prior to the meeting, to a three-step process of (i) a facilitated discussion with the IOC, (ii) CAS mediation (if step (i) was not successful), and (iii) binding CAS arbitration (if steps (i) and (ii) were not successful). The text of a Memorandum of Understanding (MoU) detailing such three-step process was attached to the IOC’s invitation, but was never signed by either of the parties: MEMORANDUM OF UNDERSTANDING Entered into this […] 2017 by and between the INTERNATIONAL CANOE FEDERATION […] And the INTERNATIONAL SURFING ASSOCIATION […] WHEREAS the International Canoe Federation (the “ICF”) and the International Surfing Association (the “ISA”) are recognized by the International Olympic Committee (the “IOC”) as International Federations. WHEREAS this memorandum of understanding (the “MoU”) shall set out a framework for the ICF and ISA (hereinafter collectively referred to as the “Parties”) to find a solution regarding the governance of Stand Up Paddle, a discipline that both Parties claim to govern; NOW THEREFORE, in order to reflect the key principles agreed upon during their recent discussions and meetings and recognize the existing relationship between the ICF and ISA, the Parties hereby agree to be legally bound as follows. 1. The Parties shall, work closely together, in the spirit of mutual friendship and cooperation, and find a mutually agreeable solution, by 31 March 2017, as to how the discipline of Stand Up Paddle shall be governed. 2. If the Parties are unable to mutually agree on a solution, the dispute shall be submitted to mediation in accordance with the CAS Mediation Rules. The language to be used in the mediation shall be English. 3. If, and to the extent that, any such dispute has not been settled within 90 days of the commencement of the mediation or if, before the expiration of the said period, either Party fails to participate or continue to participate in the mediation, the dispute shall be submitted to and finally settled, to the exclusion of the ordinary courts, by CAS arbitration pursuant to the Code of Sports-related Arbitration.

4

CAS 2018/O/5830, International Surfing Association v. International Canoe Federation, Award of 5 August 2020, para 23.

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4. The present MoU enters into force upon signing by both Parties and shall expire automatically when the Parties have mutually agreed as to how Stand Up Paddle shall be governed, or upon final decision of CAS arbitration, whichever occurs first. 5. Any dispute arising from or in connection with the execution or interpretation of this MoU or breach thereof which cannot be settled amicably, shall be finally settled, to the exclusion of the ordinary courts, in accordance with the Code of Sports-related Arbitration. The parties undertake to comply with the said Code, and to enforce in good faith the award to be rendered. The seat of arbitration shall be at Lausanne, Switzerland. […].

In June 2017, after the facilitated discussion with the IOC did not resolve the dispute, the parties agreed to start the CAS mediation process. The merits discussion of this mediation was ultimately also unsuccessful. The draft mediation resolution (aimed at closing the mediation proceedings) sent to the parties by the CAS Court Office included an arbitration agreement. However, as the parties did not agree on the wording of the arbitration clause, the final mediation resolution accepted by the parties did not contain such clause. Ultimately, ISA initiated the CAS arbitration proceedings by lodging a request for arbitration to determine (i) which of the federations, ISA or ICF, is to govern SUP and be considered as the “International Federation” in accordance with the Olympic Charter.5

3 Reasoning of the CAS The main issues to be resolved in the award were the scope of the arbitration agreement between the parties and the applicable law and rules to settle the dispute as to which federation should be considered the governing body of SUP at the international and Olympic level.

3.1 3.1.1

Validity and Scope of the Arbitration Agreement What Constitutes a Valid Arbitration Agreement?

In its various submissions, the ICF questioned the jurisdiction of the CAS, stating that although it in principle wished to arbitrate, it had not agreed to do so on the basis suggested by the ISA.6 Therefore, the Panel was bound to first extensively review its jurisdiction and determine whether a valid arbitration agreement existed between the parties. Article R27 of the CAS Code provides that the CAS has jurisdiction when the parties have agreed to refer a sports-related dispute to CAS. The Panel noted that 5

Ibid., para 60. See Articles 25 and 26 of the Olympic Charter in respect of recognition of International Federations and their mission in the Olympic Movement. 6 Ibid., paras 131–139.

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considering that CAS arbitrations are seated in Switzerland and that at the time of the execution of the purported arbitration agreement the ISA was seated abroad, Chapter 12 of the Swiss Private International Law Act (PILA, i.e. the law governing international arbitration in Switzerland) applied.7 Article 178 PILA provides that an arbitration agreement is valid if it is made in writing and complies with the requirements of the law chosen by the parties, or the law governing the object of the dispute and, in particular, the law applicable to the principal contract, or with Swiss law. With respect to the first requirement, that of written form, the Panel considered that it was clearly met. According to the Panel, the parties’ will to arbitrate arose out of the MoU and was confirmed by the extensive exchange of written documents after 13 January 2017.8 The fact that the MoU was not signed was not deemed decisive for determining whether the CAS had jurisdiction, as under Swiss law the signature of the parties is not necessary for an arbitration agreement to be valid. Furthermore, the Panel considered that the conduct of the parties, which was in line with the process described in the MoU, demonstrated their agreement with the three-step process, resulting in the formal prerequisite established in Article 178(1) PILA being met.9 With respect to the second requirement, the Panel determined, with reference to Swiss case law, that the substantive validity of the arbitration agreement was to be assessed in accordance with Swiss law, given that it was both the law governing the dispute and the law of the seat of the arbitration.10 Pursuant to Swiss law, an arbitration agreement exists if the parties are in agreement on the following essential elements (essentialia negotii): (i) consensus between the parties that all or certain disputes between them shall be settled by arbitration and to the exclusion of state courts; and (ii) a determination of the subject-matter of the dispute or the legal relationship that the parties intend to submit to arbitration.11 With reference to the parties’ conduct and their regular and consistent expression of the will to subject their dispute to CAS arbitration (notably in their exchanges of letters and documents), the Panel held that they had concluded a valid arbitration agreement.12

7

Ibid., para 156. Ibid., para 160. 9 Ibid., para 161. 10 Ibid., para 162. 11 Ibid., para 163, referencing Noth, M./Haas, U., in Arroyo (2018). 12 CAS 2018/O/5830, International Surfing Association v. International Canoe Federation, Award of 5 August 2020, paras 165–171. 8

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Scope of the Arbitration Agreement

The more pressing topic in the award was however the scope of the arbitration agreement, or in other words: the exact dispute that the parties wished to have resolved by arbitration. The Panel noted that the interpretation of an arbitration agreement is subject to the general principles of interpretation of contracts under Swiss law. This meant that a “Court must first learn the real and common intent of the parties, empirically as the case may be, on the basis of clues without stopping at the inaccurate names or words they may have used. Failing this, it will apply the principle of reliance and determine the meaning that, according to the rules of good faith, the parties could and should give to their mutual statements of will in each circumstance”.13 The Panel proceeded accordingly, determining the true and common intention of the parties and examining the parties’ positions. For the purpose of this commentary, these can be summarised as follows. According to the ISA, the dispute between the parties had always consisted of determining which of the two federations should be recognized and should act as the international, non-governmental organization governing SUP in the sense of the Olympic Charter. During the first two steps (conciliation before the IOC and CAS mediation) the dispute was always defined as the determination of which of the two Federations should have the jurisdiction to act as the governing International Federation for the sport of SUP. The dispute was framed in the same way in the mediation resolution, and the ISA further stated that the core of the dispute was the one described in the MoU prepared by the IOC.14 Following the CAS mediation procedure, the ICF insisted that only the following point be submitted for arbitration: “the legal question of whether any federation holds exclusive rights in relation to any disciplines involving SUP” and to defer any decision with respect to which international federation(s) should act as the governing body for the Olympic discipline of SUP to such moment when any SUP disciplines are actually being considered for Olympic participation.15 ICF further claimed that the scope of the arbitration agreement as originally proposed by the IOC in the MoU, namely to cover disputes “as to how the discipline of Stand Up Paddle shall be governed”, was the last wording of the arbitration clause on which the Parties could be deemed to have agreed.16 After examining the parties’ submissions, the Panel concluded that “the Parties had a common intention from the very beginning that the subject-matter submitted to the 3-step resolution process was, in general and in the widest sense, the

13 Ibid., para 172, quoting Swiss Supreme Court decisions ATF 140 III 134 at 3.2; 135 III 295 at 5.2; 4A_124/2014. 14 CAS 2018/O/5830, International Surfing Association v. International Canoe Federation, Award of 5 August 2020, para 112–114. 15 Ibid., paras 49 and 133. 16 Ibid., para 134.

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governance of SUP, both at the International and Olympic levels”.17 The Panel continued to reflect further on the context in which the dispute had arisen, which in its view provided further insight into the parties’ intentions. In summary, the Panel found that the dispute started between 2015 and 2016 due to the ISA’s attempt to include SUP to the Olympic Sports Programme for the Tokyo Olympic Games, as until that moment ISA had been organising SUP competitions without the ICF objecting to those activities. Only from that moment onwards, the ICF made efforts to oppose the inclusion of SUP in a number of multi-sport events.18 Ultimately, the Panel considered that the goal of the parties was “to put an end to their dispute by determining which of the organisations shall govern the sport of SUP at the international and Olympic level”.19 It therefore defined the scope of the arbitration as follows: As the matter stands, the dispute and question for the Panel’s resolution is: How shall the discipline of Stand Up Paddle be governed from this point forward? Answering this question requires the Panel to decide the respective rights and responsibilities of the ISA and the ICF in relation to such governance in accordance with the applicable law.20

Finally, with reference to the parties’ disagreement on the specific terms of the dispute they wished to submit to arbitration following the mediation procedure, the Panel noted that in this respect, the time of the conclusion of the arbitration agreement was decisive. In the case at hand, the arbitration agreement was actually already in force by the time the parties commenced their exchanges in this regard.21 The ICF even received an implicit reprimand, with the Panel noting that unilaterally attempting to limit the scope of the arbitration at a later stage (i.e. after the arbitration agreement was concluded) can be considered contrary to the principle of good faith.22

3.2

Settling the Dispute: Which Rules Apply?

In its brief considerations on the applicable law, the Panel, referring to Articles R45 of the CAS Code and 187 PILA, decided that in absence of a choice of law made by the parties, the dispute would be determined in accordance with Swiss law.23

17

Ibid., para 178. Ibid., paras 179–183. 19 Ibid., para 185. 20 Ibid., para 186. 21 Ibid., para 187. 22 Ibid., paras 188–189. 23 Ibid., para 199. Article R45 CAS Code: The Panel shall decide the dispute according to the rules of law chosen by the Parties or, in the absence of such a choice, according to Swiss law. The Parties may authorize the Panel to decide ex aequo et bono. Article 187(1) PILA: “The arbitral tribunal shall rule according to the law chosen by the parties or, in the absence of such choice, according to the law with which the action is most closely connected”. 18

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From its very first submissions in the mediation procedure, the ISA had requested for the dispute to be decided ex aequo et bono. Considering, however, that the ICF was opposed to this request, the Panel confirmed that it could not be granted.24 With regard to ISA’s claim that in any case the parties would have agreed to apply the IOC regulatory framework, including the principles of Olympism, trust and fairness, as enshrined in the Olympic Charter, the Panel noted that it was aware that under Swiss law the parties are free to opt for private regulations instead of state rules. However, notwithstanding the constant referral to the Olympic Games and the IOC by both parties in their respective submissions, the Panel held that “such reference [was] not sufficient to ground a valid implicit choice of law made by the Parties in favour of the regulations of the IOC to the exclusion of any other applicable law”.25 Nevertheless, as will become clear, the fact that the IOC regulations could not be applied exclusively did not mean that the Panel would ignore them. 3.2.1

No Exclusivity at the World Level

With respect to the matter of which organisation should govern SUP at the world level, ISA’s exact claim is not easy to decipher from the award.26 From the outset, and as stated in its (first known) letter to the ICF dated 15 November 2016, the ISA argued that it had “always been the sole and exclusive International Federation managing the sport since its creation”. However, ISA also insisted that the dispute was not originally defined or framed as being about which organization should have “exclusivity rights” with respect to SUP.27 But then it argued that the Panel should apply (in addition to other provisions of Swiss law) the “One Sport, One Federation” principle and the criteria to recognise an International Federation to determine “if either the ISA or ICF is in a better position to govern SUP on a worldwide level and within the framework of the Olympic Movement”.28 Although the Panel ultimately concluded that the topic of governance at world level was acknowledged by the ISA as not being at issue, it still provided an assessment of the various provisions and principles of Swiss law that were put forward by ISA as a basis for its claim. The following elements can be noted in the Panel’s assessment in this respect:

24 CAS 2018/O/5830, International Surfing Association v. International Canoe Federation, Award of 5 August 2020, para 200. 25 Ibid., para 201. 26 Various wordings are used in the initial correspondence between the parties and the submissions during the Mediation and Arbitration procedures. See CAS 2018/O/5830, International Surfing Association v. International Canoe Federation, Award of 5 August 2020, paras 23, 26, 35, 50, 60, 84. 27 Ibid., para 113. 28 Ibid., para 121.

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• Although the principle of a single federation per sport is of particular relevance and is rooted in the social importance of sport as the best means of safeguarding the interest of sport and the benefits that it delivers to society, this general principle is not useful to decide the present dispute.29 • Articles 60 et seq. of the Swiss Civil Code are intended to “safeguard the independence and autonomy of international federations in connection with the administration of their sport” and are as such irrelevant in the specific context of adjudicating the governance and administration of a sport at the world level.30 • The principle of good faith under Swiss law (Article 2(1) of the Swiss Civil Code) encompasses the interpretation of contracts, acts, and even the limitation of rights. It therefore may refer to an existing legal relationship or situation, but it cannot create it.31 • Even if the ICF’s conduct constitutes an instance of unfair competition within the meaning of the Swiss Act on Unfair Competition (UWG), entailing a breach of Article 5 (the exploitation of the ISA’s work result), or of Article 2 UWG,32 such a finding would entitle the ISA to seek the legal remedies available under the UWG, but not to claim the governance and administration of SUP at world level.33 Ultimately, the Panel found that Swiss law does not provide for the attribution of the governance and administration of SUP at world level to only one International Federation and dismissed ISA’s request to that effect.34 This dismissal of all the arguments put forward by ISA in support of its claim, some of which were quite creative, makes for an interesting precedent. Even though the Panel reminded (multiple times) that its award would only bind the two parties to the dispute before it,35 the reasoning on the elements put forward by ISA would clearly be equally applicable to any future claims of international federations on exclusive governance of a specific sport or discipline. In essence, the CAS clarified that, under Swiss law, no international organisation can claim sole governance over a young sporting discipline.

29

Ibid., para 211, noting that the principle’s significance was recognized by the Resolution of the European Parliament of 2 February 2017 (P8_TA(2017)0012). 30 CAS 2018/O/5830, International Surfing Association v. International Canoe Federation, Award of 5 August 2020, paras 213–214, referring to CAS OG 02/001, TAS 2007/A/1424, and CAS 2011/A/2675. 31 Ibid., para 215. 32 Article 2 of the UWG provides that “[a]ny behaviour or business practice that is deceptive or that in any other way infringes the principle of good faith and which affects the relationship between competitors or between suppliers and customers shall be deemed unfair and unlawful”. 33 CAS 2018/O/5830, International Surfing Association v. International Canoe Federation, Award of 5 August 2020, paras 216–217. 34 Ibid., para 218. 35 Ibid., paras 218, 226–227, 237.

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Application of the IOC Regulations to Determine Exclusivity at the Olympic Level

With regard to governance at the Olympic level, the ICF argued that the IOC regulations are irrelevant because they govern the relationship between the IOC and its members (or candidates for membership), but do not contain any provision with respect to the situation where two members are in dispute over the governance of a sport, or to relations as between IOC-recognized member federations.36 The Panel did not follow this reasoning and considered that ISA and ICF are bound by the IOC regulations given their status as ‘Recognised International Federation[s]’ in accordance with Article 25 of the Olympic Charter. It did so by reference to the existence of a contractual basis to adjudicate the dispute between the parties: In regard to the governance of SUP at the Olympic level, the Panel considers however that, within the framework of the Olympic Movement, in this case a legal and contractual basis for the adjudication of the Parties’ dispute does indeed exists. (…) Furthermore, the Panel notes that, within this contractual framework, “the Olympic Charter defines the main reciprocal rights and obligations of the three main constituents of the Olympic Movement, namely the International Olympic Committee, the International Federations and the National Olympic Committees, as well as the Organising Committees for the Olympic Games, all of which are required to comply with the Olympic Charter” (Introduction to the Olympic Charter, para. c). The same mandate can be found in Art. 1.1 of the OC, pursuant to which, as constituent members of the Olympic Movement, both Parties “agree to be guided by the Olympic Charter” (art. 1.1 of the OC). Furthermore, in accordance with art. 1.4 of the OC, “Any person or organisation belonging in any capacity whatsoever to the Olympic Movement is bound by the provisions of the Olympic Charter and shall abide by the decisions of the IOC”.37

The Panel continued that, pursuant to the Olympic Charter, the regulations that are issued by the IOC Executive Board, including the “Recognition Rules” (i.e. the rules governing the attribution of ‘Recognised International Federation’ status in order to administer one or several sports within the Olympic Movement), are also legally binding on IOC members.38 The CAS concluded therefore that these rules should be applied to the dispute at hand: (…) in the Panel’s view, even though the IOC regulations do not have the rank of state law, given that pursuant to the constitutional principle of freedom of association Swiss law gives private associations full autonomy to rule and regulate [their own] business and activities and their internal legal relationships (i.e. between the association and its members and between their members with each other), taking into account that in the present case a specific substantive legal relationship exists (as both Parties are members of the IOC and are subjected to its regulations), the Panel considers that for the limited purpose of deciding on an inter parties basis who of the two Parties shall govern and administer SUP within the Olympic Movement, the IOC regulations must be applied.39

36 37 38 39

Ibid., Ibid., Ibid., Ibid.,

para 220. paras 221 and 223. para 224. para 227.

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Hence, in its reasoning the Panel first referred to the relationship between the two international federations and the IOC as being embedded in a “contractual framework”. A few paragraphs later, however, it referred to the “specific substantive legal relationship” between the parties and the IOC. It remains open whether these statements were meant to provide some elaboration on the legal debate on the qualification of such relationship as either of a contractual nature or as a sui generis membership relationship.40 Another interpretation could be that the Panel was merely aiming to strengthen its decision in favor of applying the IOC regulations by grounding it in both approaches. Then, before turning to the actual application of the IOC regulations to the case at hand, the Panel first addressed the consequences of the decision it was about to make. It noted that its decision would not imply any pronouncement with regard to the recognition of SUP at the Olympic level, its inclusion in the Olympic programme or any kind of official recognition within the Olympic Movement of one of the federations as the International Federation administrating such sport within the IOC, as the CAS lacks jurisdiction in that respect.41 The Panel therefore underscored that any adjudication made in the award would only affect the ISA and the ICF, as follows: “from this point forward” only the Party that has been adjudicated with the governance and administration of SUP at the Olympic level will be entitled to exercise any right or perform any action inherent to such entitlement, such as, inter alia: claim the governance of the sport to the IOC, request the inclusion of its SUP competitions or to organize SUP competitions in official events or competitions organized by the IOC or held under the IOC patronage and that the other Party shall refrain from doing so. At the same time, the Party that has not been adjudicated with the governance and administration of SUP at the Olympic level will be free to develop SUP and organise its own SUP competitions and events outside the IOC sphere.42

The IOC’s Recognition Rules contain the conditions and decision-making process for a federation to obtain the status of Recognised International Federation. Both parties already had the status of Recognised International Federation, the ICF with respect to canoeing, and the ISA with regard to surfing. In respect of the criteria set forth by the Recognition Rules of the IOC, the Panel established that, relating to the governance of SUP, only two criteria were in dispute: • be the only Federation governing the sport worldwide; and • have existed in such capacity for at least five years.43 To establish an answer to these criteria, the Panel assessed both parties against another set of criteria set out in the Recognition Rules: governance, history and 40 See in the context of disciplinary regulations van Kleef (2016), p. 31ff and references cited there. 41 CAS 2018/O/5830, International Surfing Association v. International Canoe Federation, Award of 5 August 2020, para 226. 42 Ibid., para 229. 43 Ibid., para 230.

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tradition, universality, popularity, athletes, and development of the sport.44 After considering the factual involvement of the ISA and ICF in SUP, the Panel concluded that ISA was the party that satisfied the greatest number of Recognition criteria, and should therefore be entitled to govern and administer SUP at the Olympic level. Of the two parties, only ISA had been truly active in the development, promotion and governance of SUP, “because during this long period and until this dispute arose, the ICF never acted as the governing body of SUP, or purported to be so, and in no way for at least five years”.45 The Panel pointed out that it was not only that ISA was the first to organise and de facto govern SUP at the international level (although this was an important fact), but also that it was the only International Federation showing genuine interest in SUP, notably by spending considerable time and money to develop and grow the sport both on the professional and grassroots level. Conversely, ICF had not shown any interest in SUP until very recently, which the Panel pondered was likely only sparked by the high popularity SUP gained worldwide and the risk that SUP would be recognised by the IOC as a surfing discipline.46 It should be noted that this part of the Panel’s award was rendered by majority only. As CAS awards do not reveal any dissenting opinions, it will remain unclear whether the disagreement in the Panel was related to the conclusion, as a matter of principle, that the IOC regulations were to be applied to the decision on governance at the Olympic level, or whether there was disagreement on the manner of application of these regulations to the facts of the case.

4 Conclusion The ISA v. ICF award provides a useful reminder that under Swiss law an arbitration agreement can be established by the parties’ conduct, even if an arbitration clause was not specifically agreed upon in writing. More interesting perhaps, is the Panel’s finding that Swiss law did not provide any grounds to grant exclusive governance and administration of SUP at world level to only one organisation. Even though the Panel underscored repeatedly that its award would only bind ISA and the ICF, the reasoning underlying its decision on ISA’s arguments would clearly be equally applicable to any future claims of other sport organisations in respect of exclusive governance of a specific sport or discipline. In essence, the CAS clarified that, under Swiss law, no (international) sport organisation can claim sole governance over a young sporting discipline. The decision leaves us with many questions. Will the ICF continue with its SUP activities? Will SUP-athletes be able to take part in events of both federations, or will they have to choose? Will this

44 45 46

Ibid., para 232. Ibid., para 234. Ibid., paras 235–236.

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award motivate additional sports federations to get involved in sports that were traditionally seen as being within the purview and governance of other federations? It all remains to be seen.

References Arroyo M (ed) (2018) Arbitration in Switzerland—The Practitioner’s Guide, vol 1, 2nd edn. Wolters Kluwer, The Netherlands, pp 1439–1440. Schram B, Furness J (2017) Exploring the Utilisation of Stand up Paddle Boarding in Australia. Sports 5:53. van Kleef RHC (2016) Liability of football clubs for supporters’ misconduct. A study into the interaction between disciplinary regulations of sports organisations and civil law. Eleven International Publishing, The Hague.

CAS 2020/A/6807, Blake Leeper v. IAAF, Award of 23 October 2020 Marjolaine Viret

Contents 1 2

Introduction.......................................................................................................................... Facts and Procedure ............................................................................................................ 2.1 Background: From Pistorius to Leeper ...................................................................... 2.2 Preamble to the CAS Proceedings ............................................................................. 2.3 CAS Proceedings........................................................................................................ 2.4 Proceedings Before the Swiss Federal Tribunal ........................................................ 2.5 Second CAS Proceedings........................................................................................... 2.6 Revision of World Athletics Rules ............................................................................ 3 Reasoning of the CAS Award ............................................................................................ 3.1 Jurisdiction and Applicable Law................................................................................ 3.2 Merits .......................................................................................................................... 4 Commentary......................................................................................................................... 4.1 Interpreting the ‘Overall Advantage’ Test ................................................................. 4.2 Burden of Proof as a Policy Issue ............................................................................. 4.3 Burden of Proof Versus Evidentiary Duties .............................................................. 4.4 A Jurisprudence Rooted in Inclusion......................................................................... 4.5 Impact of the Award Beyond Mechanical Aids? ...................................................... 5 Conclusion ........................................................................................................................... References ..................................................................................................................................

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Abstract On 23 October 2020, the Court of Arbitration for Sport rendered an award on the use of prosthetic aids in athletics, in the matter opposing track runner Blake Leeper to World Athletics (formerly: IAAF). The CAS panel invalidated a World Athletics rule that placed on disabled athletes the burden to prove that their mechanical aid does not give them an overall competitive advantage over able-bodied competitors. The award is remarkable in that it declared this allocation M. Viret (&) Institute of Sport Sciences, University of Lausanne, Lausanne, Switzerland e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2022 A. Duval and A. Rigozzi (Eds.), Yearbook of International Sports Arbitration 2018–2020 https://doi.org/10.1007/15757_2022_45

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of the burden of proof invalid, and shifted the burden back on World Athletics to show the existence of a competitive advantage. The case illustrates how issues of proof can be decisive for the real-life impact of a policy involving complex scientific matters, and how CAS decisions can force sports governing bodies to revisit their regulatory approach, as evidenced by the subsequent adoption of the World Athletics Mechanical Aids Regulations. Beyond providing a commentary of the CAS award itself, this article retraces the origins of the World Athletics rule, back to the case of Oscar Pistorius, includes an analysis of subsequent decisions of the CAS and the Swiss Federal Tribunal concerning Blake Leeper, and incorporates the regulatory developments prompted by the CAS award between 2020 and 2022. Keywords Discrimination based on disability Burden of proof


Inclusion
Mechanical aids


1 Introduction On 23 October 2020, a panel of the Court of Arbitration for Sport (‘CAS’) rendered an award1 in the matter opposing Mr. Blake Leeper (‘Mr. Leeper’ or ‘the Athlete’) to the international federation governing athletics, World Athletics.2 The CAS panel was asked to make a ruling on the validity of a World Athletics rule that placed on disabled athletes the burden to prove that a mechanical aid used to compete in international athletics competitions does not give the athlete an overall competitive advantage over able-bodied competitors. The award is remarkable in that it declared the shift of the burden of proof invalid, and reworded the rule so that the burden is shifted back on World Athletics to show the existence of a competitive advantage. Thus, while World Athletics won its case against Blake Leeper as the panel found that the sports-governing body had discharged its burden in casu, the outcome could be viewed as a victory for disabled athletes looking to participate in World Athletics-sanctioned events. Beyond the immediate issue at stake, the case further presents an illustration of how—all things being equal—assigning the burden of proof can be decisive for the real-life impact of a policy involving complex scientific matters. After summarising the factual and procedural background of the case (Sect. 2), and the reasoning of the CAS panel (Sect. 3), this commentary focuses, in Sect. 4, on key aspects of the award that relate to proof in assessing competitive advantage, and includes in the analysis subsequent decisions concerning Blake Leeper and recent regulatory developments.

1

https://www.tas-cas.org/fileadmin/user_upload/Award__6807___for_publication_.pdf. Accessed 12 December 2022. 2 CAS 2020/A/6807, Blake Leeper v. IAAF, Award of 23 October 2020. The award still uses the federation’s former name, i.e. International Association of Athletics Federation (‘IAAF’).

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The CAS award also analysed broader questions regarding the prohibition of discrimination in the regulation of sports, as well as the interplay with international human rights instruments such as the European Convention on Human Rights (‘ECHR’), which are not explored in depth here.

2 Facts and Procedure 2.1

Background: From Pistorius to Leeper

In 2008, a CAS panel was asked to look into the requirements for participation of disabled athletes using mechanical aids in World Athletics-sanctioned events. Oscar Pistorius, a bilateral amputee and track runner using carbon fibre prostheses, claimed the right to compete in track events alongside ‘able-bodied’ athletes. World Athletics refused his participation, relying on a newly introduced rule prohibiting the use of technical devices that give an athlete an advantage over other competitors, specifically the. [u]se of any technical device that incorporates springs, wheels or any other element that provides the user with an advantage over another athlete not using such a device. (IAAF Competition Rule 144.2(e), at the time)3

As a result, Oscar Pistorius brought the matter before CAS. Though the rule contained no explicit allocation of the burden of proof, it was common ground among the parties that the burden of proof was on World Athletics to prove the existence of an ‘advantage’.4 As regards the standard of proof, the CAS panel determined that it would apply the ‘balance of probabilities’ standard, since it did not regard the issue as a disciplinary one that would mandate a higher standard, such as ‘comfortable satisfaction’.5 Though Pistorius underwent a series of performance tests supervised by the Sports University in Cologne, Germany, the CAS panel deemed the scientific evidence produced inconclusive. Specifically, to the panel, the evidence did not allow for a sufficiently robust conclusion that Pistorius enjoyed an overall net advantage over able-bodied competitors. Thus, Pistorius should not be prevented from competing at World Athletics events. Shortly after the Pistorius award, World Athletics amended its Competition Rules with a view to having the burden of proof shifted to the athlete claiming the right to compete with mechanical aids. Since then, the rule—in its version still applicable in the Leeper matter (the equivalent provision became subsequently enshrined in the World Athletics Technical Rules, Rule 6.3.4)—has provided that receiving assistance during an event is not allowed, including:

3

CAS 2008/A/1480, Oscar Pistorius v. IAAF, Award of 16 May 2008, p. 3. Ibid., para 38. 5 Ibid., para 39. 4

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[t]he use of any mechanical aid, unless the athlete can establish on the balance of probabilities that the use of an aid would not provide him with an overall competitive advantage over an athlete not using such aid. (Rule 144.3(d); emphasis added)

This comment will refer hereinafter to Rule 144.3(d) of the World Athletics Competition Rules or Rule 6.3.4 of the World Athletics Technical Rules, as assessed by the CAS award, as ‘the Rule’. That shift of burden showed tangible effects. In 2016, Markus Rehm, a German long jumper and single-leg amputee, using the same type of prosthesis, set out on an attempt to achieve qualification for the Rio Olympic Games. Studies were again conducted at the Sports University in Cologne that had already produced the expert report for Oscar Pistorius.6 The research conclusions were that it was impossible to tell with certainty whether the prosthesis conferred Markus Rehm an overall advantage in long jump.7 However, due to the regulatory amendment, this inconclusiveness now weighed against the athlete. After an IAAF meeting in June 2016, World Athletics President Sebastian Coe commented: “Rehm still has to prove that the prosthetic doesn’t give him an unfair advantage and he has not been able to show that”.8 To the best of the author’s knowledge, Markus Rehm never took formal legal action against the sports authorities and finally renounced seeking a selection to the Rio Olympic Games, so that the new version of the Rule and its effects had not been subject to the scrutiny of a judicial body prior to the challenge brought by Leeper, to which we will now turn.

2.2

Preamble to the CAS Proceedings

It thus took more than ten years after Oscar Pistorius obtained the right to compete under the former World Athletics rules, for the new Rule with its modified burden of proof to be submitted to a CAS panel. The appellant, Mr. Blake Leeper, is an elite runner specialising in 400 m events, and a bilateral transtibial amputee who uses passive-elastic carbon-fibre prostheses

6

Amputee long jumper hopes science will clear him for Olympics—OlympicTalk|NBC Sports, available at https://www.dshs-koeln.de/english/news/news-details/meldung/advantage-ordisadvantage-for-long-jumper-markus-rehm/, accessed 12 December 2022; Advantage or disadvantage for long jumper Markus Rehm? German Sport University Cologne, available at https:// www.dshs-koeln.de/english/news/news-details/meldung/advantage-or-disadvantage-for-longjumper-markus-rehm/, accessed 12 December 2022. 7 Rehm “not giving up” on Rio 2016 Olympics after study on use of prosthetic blade inconclusive, available at https://www.insidethegames.biz/articles/1037950/rehm-not-giving-up-on-rio-2016olympics-after-study-on-use-of-prosthetic-blade-inconclusive, accessed 12 December 2022. 8 Associated Press, IAAF still undecided on amputee long jumper competing in Olympics, 17 June 2016, available at https://olympics.nbcsports.com/2016/06/17/iaaf-undecided-amputee-longjumper-markus-rehm/. Last accessed 12 December 2022.

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to run.9 In 2017, Leeper began competing at non-paralympic international athletics competitions, against able-bodied athletes.10 In 2018, Leeper was contacted by USA Track and Field, and invited to provide record to World Athletics that his prostheses did not give him an advantage over other competitors.11 The respondent in the case was the international federation governing athletics, formerly known as International Association of Athletics Federation (‘IAAF’), and renamed World Athletics in October 2019. This commentary uses the new appellation ‘World Athletics’, save where it quotes the CAS award itself, which still referred to ‘IAAF’. After various exchanges between the parties, World Athletics described to Mr. Leeper a 7-step process through which an application under the Rule would be processed.12 In July 2019, Mr. Leeper made a formal application for a ruling that the prostheses he used and planned to use in pursuit of his qualification for the 2020 Olympic Games were allowable.13 In support of the application, the Athlete submitted the results of various tests and an analysis conducted through University of Colorado Boulder, by Dr Grabowski, Dr Taboga, and Dr Owen Beck (referred to in the award as the “Grabowski Report”).14 From July to December 2019, the parties exchanged various submissions: an ‘Assistance Review Group’ created by World Athletics’ Technical Committee issued a provisional report with a provisional recommendation to World Athletics that the Athlete had not met his burden of proof. The Athlete submitted supplementary comments from the authors of the Grabowski Report, which did not change the position of the Assistance Review Group. In February 2020, the Assistance Review Group issued a final report confirming its conclusions and the recommendations to deny the application.15 On 18 February 2020, World Athletics, through a letter of its Chief Executive Officer, formally notified Blake Leeper that World Athletics had decided to follow the Assistance Review Group’s recommendations and deny his application (the ‘Decision’).16

9

CAS 2020/A/6807, Blake Leeper v. IAAF, Award of 23 October 2020, para 1. Ibid., para 13. 11 Ibid., para 14. 12 Ibid., para 20. 13 Ibid., para 5. 14 Ibid., para 23. 15 Ibid., paras 35–45. 16 Ibid., para 46. 10

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CAS Proceedings

On 27 February 2020, Blake Leeper filed a statement of appeal before CAS against the Decision.17 The parties agreed for the procedure to take place on an expedited basis in accordance with Article R52 of the CAS Code.18 Various submissions for the provision of data and documents were filed on both sides. In particular, World Athletics requested access to the raw data underlying the Grabowski Report, arguing that the report had not been published, nor peer reviewed,19 and requested additional information from the Athlete with respect to the Maximum Allowable Standing Height (‘MASH’) rule applicable in paralympic events, the height Mr. Leeper intended to compete at in World Athletics competitions, and the body measurements needed to estimate his MASH height.20 Though the ‘MASH rule’ or ‘formula’ was not directly applicable in athletics events, this commentary will show that it was actually at the core of the dispute, and should continue to play a role in future cases based on the new regulations adopted by World Athletics.21 The Athlete requested disclosure of documents pertaining to the discussions behind the Decision concerning his case, but also the discussion behind the change of the burden of proof in the World Athletics rules.22 A hearing took place by videoconference on 13 and 15 July 2020.23 World Athletics refused to grant the CAS panel the authorisation to decide the case ex aequo et bono in accordance with Article R45 of the CAS Code.24 After the hearing, the parties were allowed to file amended requests for relief.25 Blake Leeper submitted that the CAS panel should overturn the Decision and permit him to compete against able-bodies athletes in all international competitions.26 World Athletics requested that the CAS panel dismiss the appeal. Alternatively, should the panel decide that the reversal in the burden of proof was unlawful, World Athletics submitted that the award should find (and rule on the

17

Ibid., para 47. Ibid., paras 51 and 54. 19 Ibid., para 62. 20 Ibid., para 67. 21 The World Athletics Mechanical Aids Regulations adopted after the case refer to the MASH rule, which is defined as “the formula used by World Para Athletics to determine the maximum permitted standing height in competition of an athlete who is eligible for Para athletics on the basis of a bilateral lower limb deficiency and requires the use of two leg prostheses in order to compete (which formula is based on measurements of that athlete’s other body segments) and competes in sport class T/F61 or T/F62 in Para athletics” (Section Specific Definitions). 22 CAS 2020/A/6807, Blake Leeper v. IAAF, Award of 23 October 2020, para 70. 23 Ibid., para 98. 24 Ibid., para 100. 25 Ibid., para 103. 26 Ibid., para 118. 18

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basis) that in casu World Athletics had shown it to be more likely than not that the use of the Athlete’s prostheses gave him an overall competitive advantage over competitors not using such prostheses.27 On 23 October 2020, the CAS panel rejected Blake Leeper’s appeal. The panel ruled that Rule 6.3.4 of the World Athletics Technical Rules is unlawful and invalid insofar as it places the burden of proof upon an athlete desiring to use a mechanical aid to establish that the use of the mechanical aid will not provide the athlete with an overall competitive advantage over an athlete not using such an aid. However, in casu, World Athletics had “established on a balance of probabilities that the particular running specific prostheses used by Mr. Blake Leeper give him an overall competitive advantage over an athlete not using such a mechanical aid. Accordingly, Blake Leeper may not use his particular running specific prostheses in the Olympic Games or World Athletic Series competitions”.28

2.4

Proceedings Before the Swiss Federal Tribunal

Blake Leeper subsequently filed an application for the annulment of the CAS award before the Swiss Federal Tribunal (SFT).29 Among the—notoriously narrow—annulment grounds that are admissible under Article 190 of the Swiss Private International Law Act (‘PILA’), two were invoked by Blake Leeper. The first, on the right to be heard, was directed at the MASH formula applicable in paralympic competitions and was dismissed by the SFT on the basis that the Athlete’s arguments had been duly taken into consideration in the CAS award and he was in reality trying to make a case against the panel’s reasoning in that regard, which the SFT cannot review in annulment proceedings against an international arbitral award. The second ground for annulment invoked by Blake Leeper was a violation of substantive public policy. Within this ground, the Athlete relied, in particular, on the prohibition against discrimination, including Article 14 of the European Convention of Human Rights (‘ECHR’), and on the protection of human dignity. This ground was equally rejected. The discrimination and human dignity arguments were related to the alleged discriminatory character of the MASH formula for black athletes of African descent, due to—allegedly—different body proportions of this population on which the formula had not been scientifically validated (on this, see Sect. 2.5). The SFT noted that the CAS panel had not applied the MASH formula to reach its decision, but had found that the Athlete was running taller than if he had had his biological legs. To the extent that the arbitrators had used the MASH

27

Ibid., para 255. Ibid., operative part. 29 SFT 4A_618/2020, decision of 2 June 2021. 28

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formula to estimate this hypothetical height, this was part of their assessment of the evidence, which cannot be reviewed by the SFT in annulment proceedings against an international arbitral award. From the broader perspective of international sports arbitration, the Blake Leeper matter is a recent illustration of a case—along with the Caster Semenya matter30— in which the SFT was asked to look at the horizontal application of human rights law to private sports organisations, and at the relevance of the ECHR as part of a challenge against an international arbitral award under the ground of public policy. The issues were largely left undecided, since in both cases the SFT reached the conclusion that the impugned CAS awards were not in breach of the rights and principles that were put forward under the heading of substantive public policy.31 In particular, the SFT explicitly left a question mark on whether the prohibition of discriminatory measures falls within the scope of application of the restrictive concept of public policy when discrimination emanates from a private person and occurs in relationships between individuals.32

2.5

Second CAS Proceedings

While this comment deals with the published, initial award issued by the CAS on 23 October 2020, Blake Leeper subsequently filed another appeal before the CAS against a second decision of the World Athletics Mechanical Aids Review Panel, which was issued on 26 April 2021 and denied him the right to compete with prostheses that reduced his height by 5 cm.33 This latter decision was based on new testing conducted through arrangements between World Athletics and Blake Leeper, by Prof. Weyand at the Southern Methodist University in Texas.34 The Mechanical Aids Review Panel had found that the MASH rule, being rooted in fairness (to avoid that athletes over-compensate for the absence of limbs), has an application also beyond the

30

SFT 4A_248/2019/4A_398/2019, decision of 25 August 2020. SFT 4A_618/2020, decision of 2 June 2021, para 5.3.1; SFT 4A_248/2019/4A_398/2019, decision of 25 August 2020, para 9.4. 32 SFT 4A_618/2020, decision of 2 June 2021, para 5.3.1 (free translation): «[savoir si] la prohibition des mesures discriminatoires entre dans le champ d'application de la notion restrictive d'ordre public lorsque la discrimination est le fait d'une personne privée et survient dans des relations entre particuliers». 33 World Athletics Mechanical Aids Review Panel in the matter of an application by Blake Leeper, decision of 26 April 2021. Unlike the CAS award, this decision is published at https:// worldathletics.org/news/press-releases/world-athletics-panel-decision-application-from-blakeleeper. Accessed 12 December 2022. 34 World Athletics Mechanical Aids Review Panel, Decision of 26 April 2021, para 2. 31

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context of para-athletics.35 Additionally, the Mechanical Aids Review Panel had found that the scientific evidence allowed a conclusion that the MASH rule can be applied also to black athletes.36 Mr. Leeper’s appeal against that second decision was equally rejected by the CAS, in June 2021. To the author’s knowledge, the second award has not been challenged before the SFT. The second CAS award has not been published, but the main strands of reasoning can be derived from the published decision of the Mechanical Aids Review Panel,37 as well as the press release issued by the CAS on 11 June 2021.38 The appeal specifically targeted the question whether World Athletics takes an appropriate approach with regard to race or ethnic origin and the validity of the MASH formula for certain athlete populations. The CAS press release reiterated that the burden was on World Athletics to prove that Leeper’s aids gave him an overall advantage, and that World Athletics had discharged its burden in casu. The panel had also considered less intrusive alternatives that would allow Leeper to take part with the proposed prostheses, and did not see any harm to the Athlete’s health caused by him having to use MASH-compliant prostheses. The appeal seemed to revolve primarily around the application of the MASH rule to black athletes of African descent. While the Athlete’s case is not set out in detail in the CAS press release, one can discern his line of argument from the SFT’s decision on the application to set aside the first CAS award (see Sect. 2.4), namely that: the MASH rule would create, in case, a discrimination against him, based on race or ethnic origin, as it was established based on data related exclusively to Spanish, Australian, and Asian individuals. However, he argues, athletes of African or Afro-American descent have legs that are proportionally longer than individuals of Caucasian or other type. The direct or indirect application of the MASH rule to persons of African or Afro-American origin like the appellant, would therefore be discriminatory.39

35

Ibid., paras 24–25. Ibid., para 44. 37 World Athletics, World Athletics panel decision on application from Blake Leeper, 26 April 2021. https://worldathletics.org/news/press-releases/world-athletics-panel-decision-applicationfrom-blake-leeper. Accessed 12 December 2022. 38 Court of Arbitration for Sport, Media release, 11 June 2021. https://www.tas-cas.org/fileadmin/ user_upload/CAS_Media_Release_7930.pdf. Accessed 21 September 2022. 39 SFT 4A_618/2020, decision of 2 June 2021, para 5.3.2 (free translation): «la règle MASH créerait en l'espèce une discrimination à son égard, fondée sur la race ou l'origine ethnique, car elle aurait été établie sur la base de données concernant exclusivement des individus espagnols, australiens et asiatiques. Or, fait-il valoir, les athlètes d'origine africaine ou afro-américaine ont des jambes proportionnellement plus longues que les individus de type caucasien ou autre. L'application directe ou indirecte de la règle MASH à des personnes d'origine africaine ou afro-américaine, comme le recourant, serait dès lors discriminatoire». 36

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As noted in the CAS press release, based on the evidence on the record, the panel was “unable to accept the argument, put forward by Mr. Leeper, that the MASH methodology cannot be considered sound unless and until it has been specifically validated by reference to Black athletes of African descent”.40 Of note, the CAS panel nevertheless encouraged World Athletics, in the interest of avoiding future disputes, to undertake validation of the MASH formula on the above population of athletes also.

2.6

Revision of World Athletics Rules

In a press release published upon the issuance of the award (dated 23 October 2020) commented here, World Athletics took note of the CAS panel’s findings and announced that it would undertake a review of its rules.41 Since then, the Rule has been revised, and dedicated Mechanical Aids Regulations have been approved and became effective on 25 March 2022.42 The new Rule 6.3.4 of the World Athletics Technical Rules provides that is “considered assistance”, and therefore not allowed: The use of any mechanical aid, except by an athlete with an impairment as authorised or permitted in accordance with the Mechanical Aids Regulations. (emphasis added)

In the Mechanical Aids Regulations, Mechanical Aid is defined as: (1) one or more passive prosthetic devices (including a running specific prosthesis) that is used by an athlete with a physical impairment to enable them to compete in athletic events, or (2) any other aid or device from time to time designated as Mechanical Aid by World Athletics. (Definitions)

The Mechanical Aids Regulations provide for a procedure for athletes to submit an application along with all relevant supporting information to the ‘Review Officer’, who will assess the file—if needed with further investigations and enquiries—and submit recommendations on behalf of World Athletics to the Mechanical Aids Review Panel as to the authorisation, or refusal thereof (section 4 of the Regulations). The Mechanical Aids Review Panel makes a decision which may be appealed before the CAS either by the athlete or by World Athletics (section 7 of the Regulations).

40

Court of Arbitration for Sport, Media release, 11 June 2021. https://www.tas-cas.org/fileadmin/ user_upload/CAS_Media_Release_7930.pdf. Accessed 21 September 2022. 41 World Athletics, World Athletics’ response to CAS announcement of decision in Leeper case, 26 October 2020. https://www.worldathletics.org/news/press-releases/world-athletics-responsecas-leeper. Accessed 12 December 2022. 42 See https://www.worldathletics.org/about-iaaf/documents/book-of-rules, under Book C, Competition, adopted by the World Athletics Council on 10 March 2022, effective from 25 March 2022. Accessed 12 December 2022.

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The Mechanical Aids Regulations include a process for monitoring compliance with the Regulations or with the terms of any authorisation (section 5 of the Regulations). Breach of the Regulations may lead to disciplinary proceedings against the athlete that will be referred to the Athletics Integrity Unit (section 6 of the Regulations).

3 Reasoning of the CAS Award 3.1

Jurisdiction and Applicable Law

The CAS panel’s jurisdiction was not disputed among the parties.43 It was equally common ground that the applicable rules included the World Athletics Constitution and its rules and regulations. There was, however, disagreement about the applicable version of the rules and the application of the laws of Monaco (the seat of World Athletics), as well as the application of the IOC Charter.44 The CAS panel noted that most of the procedure in the dispute had taken place under the new World Athletics Technical Rules, in force as of 1 November 2019, as opposed to the IAAF Competition Rules applicable at the time of the filing of the initial application, and that the terms of both sets of rules were “materially identical” regarding the use of mechanical aids.45 The CAS panel further stressed that it was required under the CAS Code to undertake a de novo review of the dispute, and that both parties had requested a determination on the validity of the relevant rule as it stood at the time of the CAS’s own review of the case.46 The CAS panel further determined that neither the dispute around the application of the IOC Charter, nor the implications of applying the laws of Monaco, carried any material bearing on the award’s reasoning and conclusions. Indeed, the CAS panel considered—as accepted by the respondent—that the World Athletics Constitution is to the same effect as the IOC Charter in proscribing unlawful discrimination.47

3.2

Merits

In its analysis of the merits, the CAS panel proceeded in three steps: (i) deciding on the proper construction of the Rule;

43

CAS 2020/A/6807, Blake Leeper v. IAAF, Award of 23 October 2020, para 259. Ibid., para 267. 45 Ibid., para 275. 46 Ibid., para 276. 47 Ibid., paras 277–279. 44

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(ii) assessing the validity and lawfulness of the provision that imposed the burden on the athlete to establish absence of an overall competitive advantage; and (iii) considering the findings on the previous points, deciding whether Mr. Leeper should in casu be entitled to compete at World Athletics-sanctioned events using his prostheses.48 In short, after defining an appropriate ‘test’ for presence (or absence) of an overall competitive advantage, the CAS panel found that it was not admissible for the Rule to place on the athlete the burden of establishing the factual prerequisites for such test. The CAS panel then reworded the Rule by ‘deleting’ the parts related to the burden of proof, thus in effect shifting the burden back to World Athletics, as per the former version of the rule (which had been applicable in the Pistorius matter). Nevertheless, considering the evidence on the record, the CAS panel found that, in the instant case, World Athletics had met such burden, so that Mr. Leeper could not be allowed to compete at World Athletics-sanctioned events with his current prostheses. The award contains some noteworthy reasoning regarding the parties’ respective burden of proof with regard to the general validity of rules enshrined in sports regulations. The CAS panel proceeded along the lines adopted in previous cases in which a discrimination was invoked, and thus, referring explicitly to the proceedings involving Dutee Chand and Caster Semenya,49 the panel described the analysis as a two-step one: (i) “the party seeking to challenge an allegedly discriminatory regulation bears the burden of establishing that the rule discriminates on the basis of a protected ground”; (ii) if so: “the burden of proof shifted to the IAAF to establish that the regulation was necessary, reasonable and proportionate”.50 Regarding the Rule, the panel found that, while “neutral on its face (in the sense that it applies to all athletes equally and irrespective of any disability), the practical effect of the Rules is likely to be significantly greater for disabled athletes than able-bodied athletes.”51 Thus, the Rule was characterised as “indirectly discriminatory”,52 so that the panel proceeded to assess whether World Athletics had

48

Ibid., para 291. In fact, this is not entirely accurate since in the Dutee Chand matter, the panel considered the burden of proof was on the athlete when it comes to the scientific validity of the regulation, and the athlete did not object to this burden. For an analysis, Viret and Wisnosky 2016. 50 CAS 2020/A/6807, Blake Leeper v. IAAF, Award of 23 October 2020, para 315. 51 Ibid., para 318. 52 Ibid., para 319. 49

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demonstrated that the provision on the burden of proof pursued a legitimate objective and was proportionate. Turning to this central issue, the CAS panel’s analysis considered a number of elements. In a first step, the CAS panel supported the argument whereby an international sports governing body such as the IAAF is legitimately entitled to take the view that fairness requires that the outcome of competitive athletics should be determined by natural physical talent, training and effort, and that athletes should not be able to use artificial technology during competitions in a way that provides them with an overall advantage over athletes who are not using such technology. The Panel considers that this is particularly so where (as here) the mechanical aid is one that most athletes would not, in practice, be able to utilise. (emphasis added)53

On the other hand, the panel declared itself mindful that disabled athletes such as Blake Leeper would be “unable to participate at all in IAAF-sanctioned events in circumstances that would enable their results to be ranked alongside their fellow able-bodied competitors. A rule which was specifically designed to prevent disabled athletes from competing in IAAF-sanctioned events could not be said to pursue a legitimate interest” (emphasis in the award). While deploring that World Athletics seemed to have given little weight to facilitating participation of disabled athletes (“it is apparent to the Panel that the rights and legitimate interests of disabled athletes were, at best, a secondary consideration in the IAAF’s regulatory decision-making”),54 the arbitrators declared themselves nevertheless satisfied on balance that the Rule was intended to pursue the legitimate objective of ensuring the fairness and integrity of competitive athletics. On the issue of proportionality, the panel started by acknowledging that there is a potential at least that prosthetic aids could enable disabled athletes to run faster than if they had fully intact biological legs, before reviewing the arguments specifically put forward by World Athletics. World Athletics’ first principled argument was that an exception to the ‘normal’ eligibility requirements justifies placing a burden on athletes to establish that “granting the exception sought will not undermine the objectives on which that rules is based”.55 The CAS panel refused the analogy claimed by World Athletics to the ‘precautionary principle’, but accepted that there was a valid analogy to some extent to the therapeutic use exemption regime (‘TUE’) in doping regulations, with the reservation that TUE regulations were not designed specifically with disabled athletes in mind, and thus there was nothing to suggest that the TUE regulations have any disparate impact upon disabled athletes.

53

Ibid., para 325. Ibid., para 330. 55 Ibid., para 340. 54

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The second argument put forward by World Athletics, of a practical nature, was that athletes are in a better position to provide the evidence regarding any advantages and disadvantages they derive from the use of the mechanical aid. The panel did not consider this argument “a particularly persuasive reason”,56 given that World Athletics could obtain at least evidence regarding performance in competitive races, and an athlete who would refuse without justification to give data to World Athletics could see adverse inferences drawn against him or her. The panel continued that there were, on the other hand, a number of factors pleading against the burden of proof provision being a proportionate solution; most notably, the “onerous practical burden” that the Rule imposes upon disabled athletes, who are: required, in effect, to prove a negative: namely, that they derive no overall competitive advantage from having prosthetic rather than biological limbs. As the material presented by the parties in this appeal amply demonstrates, the factual and scientific enquiries necessarily entailed by that requirement are multifaceted and complex.57

In addition, the CAS panel emphasised that World Athletics failed to provide for a “clear, accessible and structured process that must be followed” by the disabled athletes to obtain a determination on their participation.58 Finally, the panel considered that “when dealing with a rule that has a substantial disparate impact on disabled athletes, it is neither necessary nor proportionate for any doubt to be resolved against the disabled athlete”.59 Based on the reasons stated above, the panel concluded that the Rule was unlawful and invalid with respect to its allocation of the burden of proof. As a result, applying World Athletics Rules of Interpretation 2.2,60 the CAS panel decided that the part-provision of the Rule imposing the burden of proof on the disabled athlete was to be “deemed deleted”,61 so that the Rule would state that the assistance not allowed for athletes included: [t]he use of any mechanical aid, unless [text deleted] on the balance of probabilities [text deleted] the use of an aid would not provide them with an overall competitive advantage over an athlete not using such an aid.62

The sections that follow focus on the aspects of the CAS panel’s reasoning directed at the overall advantage test and the implications of the burden of proof for

56

Ibid., para 342. Ibid., para 344. 58 Ibid., para 350. 59 Ibid., para 356. 60 Ibid., para 360: “If any provision or part-provision of any Rules or Regulations is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity, legality and enforceability of the rest of the Rules or Regulations.”. 61 Ibid., para 361. 62 See Footnote 61. 57

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the test. Where appropriate, this commentary will refer to the newly adopted Mechanical Aids Regulations to assess World Athletics’ interpretation of, and response to, the award.

4 Commentary 4.1

Interpreting the ‘Overall Advantage’ Test

The panel spent considerable time on the interpretation of the Rule, pondering on the appropriate test for evaluating an overall performance advantage, especially ‘who’ and ‘what’ to use as a comparator for the athlete’s performance. The panel considered that this determination must be guided by the “overarching object and purpose of the Rule, and by the need to ensure that the Rule is not interpreted in a way that gives rise to consequences which are absurd or unworkable”.63 The panel first stressed that it would lead to absurd results to use as a comparator either only the very best abled-bodied athletes in the world, or the disabled athlete himself without his mechanical aids. It would be equally unworkable to look at the likely performance of a different (real or hypothetical) able-bodied athlete, “unless there was a principled, objective and consistent basis for determining the identity/ attributes of that able-bodied comparator”.64 Having considered and rejected other constructions, the CAS panel concluded that: [t]he only logical, principled and workable construction of the Rule is one that, in the case of disabled athletes who use a mechanical aid to overcome a disability, requires a comparison to be undertaken between the athlete’s likely athletic performance when using the mechanical aid and their likely athletic performance had they not had the disability which necessitates the use of that aid.65 A disabled athlete who uses a mechanical aid which does no more than offset the disadvantage caused by their disability cannot be said to have an “overall competitive advantage” over a non-disabled athlete who is not using such an aid. (emphasis added)66

The test thus departs from the assessment conducted by the CAS panel in the Pistorius matter, which sought to identify whether the device gave Oscar Pistorius an advantage “over other athletes not using the device”.67 In the case of Pistorius, actual comparative tests had been performed by Cologne using a control group of able-bodied athletes, and in fact the wording of the rule at the time explicitly referred to comparison to “another athlete not using such a device” (emphasis 63

Ibid., para 306. Ibid., para 309. 65 Ibid., para 88. 66 Ibid., para 310. 67 CAS 2008/A/1480, Oscar Pistorius v. IAAF, Award of 16 May 2008, para 47. 64

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added, see Sect. 2.1 above). The relevance of this control group was not assessed in detail in the Pistorius award, possibly because the panel found that the scientific experts had not been asked by World Athletics to assess the relevant question, i.e. whether the athlete enjoyed an ‘overall net advantage’—including all advantages and disadvantages—over able-bodied athletes. The conundrum with the test as designed by the Blake Leeper award is that it results in a comparison that is in essence hypothetical, if not metaphysical. The hypothetical character is now explicit in the Mechanical Aids Regulations that rely on the phrase ‘overall competitive advantage’ and stick to the assessment as proposed by the Blake Leeper CAS panel, by comparing: (a) the performance that the athlete who uses a Mechanical Aid is capable of achieving while competing with their impairment and their Mechanical Aid; and (b) the performance that that same athlete would hypothetically have been capable of achieving in the same event if they were competing without their impairment and without that Mechanical Aid. (section 3.3.1 of the Regulations, emphasis added)68

The Regulations specify that ‘overall’ competitive advantage “requires a weighing of the advantages and disadvantage of those athletic performances” (section 3.3.2 of the Regulations). This standard may prove difficult to translate into scientific terms amenable to testing: unlike studies that can actually measure performance against other ‘real’ competitors, there is no straightforward empirical way of comparing an athlete with his fictional able-bodied self. The CAS panel indeed conceded that this hypothetical performance “is necessarily a matter of informed estimation, rather than the establishment of a scientifically verifiable fact”, adding that, “any material uncertainty” in that regard should be resolved in favour of the athlete.69 In fact, in the case of Blake Leeper, the analysis conducted proved a largely non-empirical one and was facilitated by the CAS panel focusing on a single criterion—i.e. running height that required no empirical assessment of performance on the track. Ultimately, the assessment in the CAS award was reduced to one single question, with two sub-questions: (i) does Mr. Leeper run ‘unnaturally tall’ on his prostheses, and (ii) does this give him any performance advantage? The first sub-question was resolved through the MASH rule: a formula applied in para-athletics competitions which allows for an estimation of the maximum height that a Paralympic runner is allowed to run at on his prostheses.70 Blake Leeper’s prostheses placed him well above (i.e. by 15 cm) the MASH height so determined. The panel treated this as indication that Leeper runs at a height

68 However, the stance taken in the Mechanical Aids Regulations is not that clear: in the next section, the Regulations also say that the athlete possesses “an advantage that an athlete who does not require use of a Mechanical Aid does not (cannot) possess” (section 3.3.2 of the Regulations). 69 CAS 2020/A/6807, Blake Leeper v. IAAF, Award of 23 October 2020, para 364. 70 See for a discussion ibid., para 67 et seq.

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substantially taller “than his height if he had intact biological legs, with a generous margin of appreciation for the diverse shapes and sizes of the human body”.71 The second question was equally resolved by general biomechanical considerations: the panel found that the empirical evidence produced by the Athlete was inconclusive on this point, and the panel was willing to follow the World Athletics experts in that “there is a direct relationship between leg length and running speed”.72 Thus, using two mathematical formulas and without truly exploiting the results of the tests conducted on the Athlete, the panel was able to conclude that: by virtue of the fact that he uses [running-specific prostheses] that enable him to run at a height that is several inches taller than his maximum possible height if he had intact biological legs, Mr. Leeper is able to run the 400m event in a time that is several seconds faster than the fastest time he would have been able to achieve with intact biological legs.73

In the second Blake Leeper matter as assessed by the Mechanical Aids Review Panel, the decision endorsed the overall advantage test with its hypothetical comparator.74 However, what ultimately proved decisive for the assessment conducted on the additional testing and scientific evidence available to that panel, was equally that Blake Leeper had an advantage on his longer prostheses compared to him running on prostheses at his MASH height, NOT compared to him running on intact biological legs (see Sect. 5). In other words: neither decision so far actually applied in full the test as designed by the CAS panel. The Blake Leeper case thus did not genuinely put the ‘overall advantage’, and the weighing of advantages versus disadvantages that is implied, through the test of practice. In particular, both the CAS panel and the Mechanical Aids Review Panel highlighted, obiter dictum, a number of unresolved questions about the impact of prostheses on various components of an athlete’s performance (acceleration at start, speed in curves, negative split), that might affect the overall advantage balance.75 These questions did not prove decisive since both panels were equally satisfied that Blake Leeper was in any event ‘running tall’ and that the unnatural height would in any event offset any disadvantage the Athlete could experience due to his prostheses. They do, however, open a window on possible controversies that could arise in other, less clear-cut, cases of mechanical aids use.

71

Ibid., para 379. Ibid., para 389. 73 Ibid., para 390. 74 World Athletics Mechanical Aids Review Panel, Decision of 26 April 2021, para 16. 75 CAS 2020/A/6807, Blake Leeper v. IAAF, Award of 23 October 2020, paras 368–371; World Athletics Mechanical Aids Review Panel, Decision of 26 April 2021, para 57. 72

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Burden of Proof as a Policy Issue

Various arguments discussed by the CAS panel demonstrate sympathy for athletes with a disability, including recognition of the insurmountable hurdle that a burden of proof on scientific issues may constitute for such athletes in the ‘overall advantage’ test. The panel took the view that an athlete could not be reasonably expected to carry such a heavy burden. This position was confirmed by a different CAS panel in the second Blake Leeper matter (see Sect. 2.5). These expressions of sympathy could be of relevance for cases in other areas of sports regulations, as highlighted in Sect. 5. When considering the heaviness of the burden for athletes, the CAS panel stressed that assessing whether a mechanical aid confers an overall competitive advantage would suppose “obtaining, analysing and presenting […] complex scientific data”, which “is likely to be challenging, expensive and time consuming”.76 The arbitrators listed a number of enquiries that such a determination would entail: it will typically be necessary to obtain, analyse and present detailed and highly technical scientific evidence concerning metrics such as the biomechanics, acceleration, maximum velocity, sprint endurance, curve-running, running economy and aerobic capacity (and, potentially, other metrics too). It will also be necessary to establish (insofar as this is scientifically possible) how each of those metrics would differ if the individual in question had biological legs rather than prosthetic limbs, and how those actual and hypothetical metrics compare to the other able-bodied athletes who compete in the same event”.77

Predictably, in all but the exceptional case, the outcome of studies would result in an inconclusive state of evidence. In this constellation, the burden of proof becomes the main—if not the sole—determinant of the outcome: it decides which party carries the risk of scientific uncertainty. In certain situations, what was formally presented as a rebuttable presumption in the sports regulations may thus turn de facto into an irrebuttable one.78 As mentioned (see Sect. 2.1), in each of Oscar Pistorius’ and Markus Rehm’s cases, studies of the athlete’s performances did not allow for a clear-cut conclusion. The two cases were fairly similar in terms of scientific assessment. The difference was a purely legal one, namely: under the new version of the rule enacted by World Athletics and applied to Markus Rehm, an inconclusive state of scientific evidence had to lead to the refusal of the athlete’s participation.79 In the matter of Blake Leeper, the panel reversed the effects of the amendment to the Rule made by World Athletics after the Pistorius award: this means that

76

CAS 2020/A/6807, Blake Leeper v. IAAF, Award of 23 October 2020, para 345. Ibid., para 344 (emphasis added). 78 Viret 2016, p. 662. 79 For a similar analysis, see Pielke 2016, pp. 262–263. 77

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disabled athletes should be admitted to participate in World Athletics-sanctioned events with mechanical aids, in all but the exceptional situations in which the scientific evidence could show an overall advantage (on the balance of probabilities). Though it may seem surprising that the Leeper matter turned out to be one of these ‘exceptional’ cases, as shown in Sect. 4.1, the CAS panel did not genuinely need to apply the ‘overall advantage’ test to its full extent, because the Athlete was running clearly above his MASH height. In effect, the CAS panel was thus able to bypass almost entirely the findings of the studies conducted by and on the Athlete— after brushing aside the peer-reviewed study on the record—to focus exclusively on the opinion of the World Athletics experts rooted in the general biomechanics of running and the MASH rule. It is unlikely that panels would easily be able to reproduce that straightforward a benchmark in future cases with different disabilities, and a different usage of mechanical aids. The Mechanical Aids Regulations seem to implicitly acknowledge these difficulties, since they include athletes competing “at or below their MASH” as a special category for which World Athletics will give the benefit of a presumption of lack of overall advantage in their authorisation procedure (section 3.4.1 of the Regulations). The Mechanical Aids Review Panel found that the purpose of the MASH rule was equally relevant—and the rule therefore applicable —outside the context of para-athletics.80 In spite of the insistence in the Blake Leeper case—in particular in the appeal before the SFT—that the CAS panel did not directly apply the MASH rule to the Athlete, the formula might thus be gradually evolving into a proxy for assessing competitive advantage outside of para-athletics. Indeed, one could wonder whether World Athletics would ever be able to discharge their burden of proof, if they genuinely had to demonstrate lack of overall advantage compared to the athlete’s hypothetical able-bodied counterpart, as opposed to simply demonstrating advantage compared to their regular MASH height.

4.3

Burden of Proof Versus Evidentiary Duties

In spite of the very clear stance that the CAS panel took on the burden of proof issue, one would need to monitor what expectations the Mechanical Aids Review Panel, and/or future CAS panels, might put on World Athletics in individual cases, and what expectations are placed on athletes in terms of duty to cooperate to the evidentiary process, to ensure that the allocation of the burden of proof will not be undermined by its application in practice. The evidentiary burden on World Athletics in the Blake Leeper award appeared much lighter than what the panel described as the enquiries that athletes would have

80

World Athletics Mechanical Aids Review Panel, Decision of 26 April 2021, para 25.

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to conduct in order to even stand a chance of discharging their burden. The assessment was also facilitated by the fact that Blake Leeper had actually undergone a series of tests as part of his seeking to discharge his burden of proof, so that World Athletics had the benefit of the resulting data. The arbitrators themselves noted that it is rather unusual for a party to be able to discharge a burden of proof without having proactively submitted any scientific evidence of their own.81 In its new Mechanical Aids Regulations, World Athletics acknowledges the CAS ruling by providing that: In any case where World Athletics does not authorise use by an athlete of a Mechanical Aid, it is World Athletics’ burden to prove that use of that Mechanical Aid will provide that athlete with an overall competitive advantage. The applicable standard of proof is the balance of probabilities. (section 3.3.3 of the Regulations, emphasis added)

The Mechanical Aids Regulations add a list of situations in which “athletes will benefit from a rebuttable presumption that use of a Mechanical Aid will not provide them with an overall competitive advantage” when World Athletics considers applications for authorisation (section 3.4 of the Regulations).82 However, while the Mechanical Aids Regulations formally accept that the burden of proof is on World Athletics, the implementation of a regime of prior authorisation, along with the extensive duty of collaboration and disclosure that athletes must agree to as part of the application processing, puts considerable evidentiary constraints on the athlete. Thus, the athlete must submit “the data from any physiological performance and/or biomechanical testing […] (and any analysis and/or expert opinion based on that data)” (section 4.1.2 of the Regulations). The athlete is responsible for ensuring that “nothing relevant to the Mechanical Aids Review Panel’s assessment of the case is withheld” (section 4.1.3 of the Regulations), including through waivers allowing their physician to disclose any information deemed relevant by the panel (sections 2.2.3 and 4.1.4 of the Regulations). Athletes are asked to agree “to cooperate promptly and in good faith”, including, on request, “participating fully and in good faith in physical and performance testing, MASH measurement collection, and other investigations” pursuant to the Regulations (sections 2.2.2 and 4.2.2 of the Regulations). Athletes that participate without authorisation or refuse compliance monitoring may be referred for disciplinary proceedings to the Athletics Integrity Unit (section 6.1 of the Regulations).

81

CAS 2020/A/6807, Blake Leeper v. IAAF, Award of 23 October 2020, para 365. The notion of ‘rebuttable presumption’ in favour of the athlete here cannot be understood in its strict legal meaning, since World Athletics already bears the burden of proof on the overall competitive advantage, in general. What this presumably should be taken to mean, is that World Athletics’ assessment and request for evidence from the athlete will be less stringent in these situations. 82

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The prior authorisation procedure—as opposed to a regime in which athletes with an impairment could simply compete with their mechanical aids until proven to have an overall advantage83—means that, in practice, World Athletics’ burden of proof will materialize only if, and to the extent, an athlete has the resources to challenge a refusal of authorisation before CAS (see, on this, Sect. 4.5).

4.4

A Jurisprudence Rooted in Inclusion

As explained, the jurisprudence on participation with mechanical aids developed in connection with Blake Leeper’s matter is very idiosyncratic of his situation: a double amputee running clearly above his MASH height that would be admissible in para-athletics. It is unclear to what extent the test proposed by the CAS panel could or should find application to other instances of mechanical aids and other physical impairments. Disadvantages that originate in natural physical traits are commonplace (some may be at a natural disadvantage due to a smaller-than-average size, due to their body proportions, due to their muscle fibres or cardiovascular characteristics, etc.). However, these natural disadvantages are not typically compensated for in sport: individuals who have them simply will never reach elite sport (unless categories are created to account for these differences, e.g. weight classes). It would seem unimaginable that mechanical aids be in future declared admissible as long as they just compensate such physical ‘disadvantage’. The CAS panel in the Pistorius matter had insisted that “disability laws only require that an athlete such as Mr. Pistorius be permitted to compete on the same footing as others”.84 However, the notion of equal footing is a fiction in this context, since neither Pistorius nor Leeper would be in a position to compete if they were not granted assistance not available to other competitors. Indeed, the various panels’ reasoning in these matters indicates that the entire debate is firmly rooted in the protection against discrimination based on disability, and inclusion of athletes with a disability in sport. The new Mechanical Aids Regulations stress in their preamble the wish “to be as inclusive as possible” (section 1.1.2 of the Regulations), and the need to “avoid improper discrimination and stigmatisation on grounds of disability” (section 1.14 of the Regulations). In sum, athletes with a disability should be able to ‘offset’, but not ‘over-compensate’, that disability.85

83

Note, however, that Sect. 3.2.2 of the Mechanical Aids Regulations allows athletes to compete without authorisation (or if the authorisation has been denied), outside World Athletics Series and the Olympic Games, and provided the athlete’s results are listed in a separate category. 84 CAS 2008/A/1480, Oscar Pistorius v. IAAF, Award of 16 May 2008, para 29. 85 See in that regard World Athletics Mechanical Aids Review Panel, Decision of 26 April 2021, para 24.

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In the award, the CAS panel did insist that there is an “obvious desirability of a rule that is specifically tailored to the use of prosthetic aids by athletes”,86 and criticized World Athletics’ choice “to shoehorn such athletes into a wider rule concerned with the use of mechanical aids in general”.87 The CAS panel did not circumscribe the categories of athletes who should benefit from the right to offset their disadvantage in comparison to their hypothetical able-bodied self. Should only athletes who fulfil the conditions of an ‘Eligible Impairment’88 for purposes of participation in Paralympic sports—including Paralympic Athletics89—be authorised to compensate their disadvantage? Should certain other, non-eligible, impairments and medical conditions also qualify, and according to what criteria? World Athletics has responded to the CAS award’s invitation by creating a special exemption regime for athletes “with an impairment” under Rule 6.3.4, and by allowing assistance to be authorised for them in accordance with the Mechanical Aids Regulations. However, neither the Rule, nor the Mechanical Aids Regulations include a definition of what constitutes an ‘impairment’ for purposes of these rules. Some sections describe the impairment targeted as “physical” (e.g. sections 1.1 and 1.1.3 of the Regulations), and the Regulations impose that the athlete must provide “evidence” demonstrating the impairment (section 4.1.2 of the Regulations). The Definition section states that Mechanical Aids refers to “prosthetic devices”, but may also cover “any other aid or device from time to time designated as Mechanical Aid by World Athletics”. Unless one would strictly limit the notion of impairment to the Paralympic eligibility criteria, there will inevitably be value judgements involved in distinguishing between a disadvantage that represents a genuine disability creating a right to compensation, versus a disadvantage that results merely in a sub-standard physical ability that is part of an individual’s characteristics and which simply makes the athlete ill-suited for (specific) sports.

4.5

Impact of the Award Beyond Mechanical Aids?

A shift in the burden of proof is a tool commonly used in sports regulations for issues that require complex scientific proof: for example, when a CAS panel in the 86

CAS 2020/A/6807, Blake Leeper v. IAAF, Award of 23 October 2020, para 300. Ibid., para 331. 88 International Paralympic Committee, IPC Classification Code 2015. https://www.paralympic. org/classification-code. Accessed 12 December 2022. 89 International Paralympic Committee, Classification Rules and Regulations 2018. https://www. paralympic.org/sites/default/files/document/180305152713114_2017_12_20++WPA +Classification+Rules+and+Regulations_Edition+2018+online+version+.pdf. Accessed 12 December 2022. 87

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Veerpalu v. FIS matter determined that it was upon the anti-doping organisation to establish the validity of its analytical methods and decision limits used, the prompt reaction in the review process of the World Anti-Doping Code (‘WADA Code’) ongoing at the time was to introduce a provision shifting that burden to the athlete (Article 3.2.1 WADA Code).90 Other well-known reversals of this kind in anti-doping matters include establishing a departure from applicable testing or analytical procedures (Article 3.2.2/3.2.3 WADA Code), or the presumption resulting from the report of an adverse analytical finding, which requires the athlete to adduce evidence regarding the manner in which a prohibited substance came to enter his or her body in order to establish absence of or low fault.91 The parallels are even more striking with the WADA system for obtaining TUEs. The WADA International Standard for Therapeutic Use Exemptions (‘ISTUE’) provides that athletes have to establish the requirements for obtaining a TUE, by a balance of probabilities, one of these requirements being: The Therapeutic Use of the Prohibited Substance or Prohibited Method is highly unlikely to produce any additional enhancement of performance beyond what might be anticipated by a return to the Athlete’s normal state of health following the treatment of the acute or chronic medical condition. (ISTUE 4.1(b))

In the Blake Leeper matter, the panel accepted that there was a “certain analogy to be drawn” with TUE regulations. However, the panel appeared to consider that there was nevertheless a material difference between the situation of a disabled athlete using mechanical aids and an athlete requiring a TUE: the regulations governing TUEs were not specifically enacted with disabled athletes in mind. Unlike the Rule under consideration here, there is nothing to suggest that the TUE regulations have any disparate impact upon disabled athletes. (emphasis added)92

Assuming there was an intent on part of the panel to practice distinguishing here, the rationale for such distinguishing remains obscure. It suggests that athletes suffering from permanent health conditions are somehow less worthy of legal protection than disabled athletes, or better armed with financial and expert resources. Whether disabled athletes are affected specifically by the TUE regulations, or other athletes with acute or chronic health conditions, does not seem to bear any relevance for the impact of such a regulation on the affected athletes, and hence, for the proportionality of the burden of proof. On the contrary, the principled and practical rationale that led the panel to find a lack of realistic prospects for athletes to discharge that burden would apply equally

90

Viret and Wisnosky 2016, p. 50. Viret 2016, p. 662. 92 CAS 2020/A/6807, Blake Leeper v. IAAF, Award of 23 October 2020, para 341. 91

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in TUE cases. As highlighted in connection with the case ISSF v. WADA,93 which concerned a young shooter who proved unable to establish that the medically necessary beta-blockers did not enhance her performances, this aspect of the TUE requirements raises considerable issues. First, it equally supposes proof of a negative, which ought to lead at least to the recognition of a situation of ‘evidence necessity’ (Beweisnotstand), similar to the one applied by the CAS panel in the WADA & UCI v. Contador & RFEC94 matter, to ease the burden on the athlete. Second, establishing performance enhancement associated with use of a substance is an onerous and often impracticable task, and a burden that WADA itself refuses to carry, since the WADA Code claims that performance enhancing effects cannot be challenged in court (Article 4.3.3). It has been repeatedly emphasised in WADA circles that proving performance enhancement would prove unethical and impractical in many cases. Specifically, this extract from the Leeper award could also accurately describe the situation in which many athletes will find themselves when faced with anti-doping proceedings: many, if not most, disabled athletes in that position will not have immediate access to experts with the requisite expertise or to appropriate testing and research facilities that enable such data to be gathered for analysis. […] there is a significant risk that the financial cost of obtaining the relevant data and expert analysis will be prohibitive for many disabled athletes, and therefore they will be unable to attempt to meet the burden imposed by the Rule […].95

For many athletes, challenging the validity of an analytical method or decision limit, showing entitlement to a TUE, or even just demonstrating how a substance ended up in their sample in order to establish their absence of fault, will plainly never be a realistic option. As the panel stressed in the Blake Leeper matter, in certain situations both fairness and access to evidence could be adequately accounted for, on a case-by-case basis, by drawing adverse inferences against an athlete who would refuse to cooperate with anti-doping organisations without legitimate justification. As shown in connection with the Mechanical Aids Regulations (see Sect. 4.3), such collaboration may still entail significant evidentiary duties for the athlete, such as the obligation to submit to testing organised by the SGB, and intrusion into their privacy. There is thus no evidentiary panacea when it comes to dealing with complex scientific issues in these disputes.

93

CAS 2013/A/3437, International Shooting Sport Federation v. WADA, Award of 18 December 2014. See Antonio Rigozzi, Marjolaine Viret & Emily Wisnosky, The ISSF v. WADA CAS Award: Another Therapeutic Use Exemption Request for Beta Blockers Shot Down, 18 December 2014. http://wadc-commentary.com/issf-v-wada/. Accessed 12 December 2022. 94 CAS 2011/A/2384, Union Cycliste Internationale (UCI) v. Alberto Contador Velasco & Real Federación Española de Ciclismo (RFEC) & CAS 2011/A/2386, World Anti- Doping Agency (WADA) v. Alberto Contador Velasco & RFEC, Award of 6 February 2012. 95 CAS 2020/A/6807, Blake Leeper v. IAAF, Award of 23 October 2020, para 347.

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5 Conclusion The outcome of Blake Leeper’s battle, and the relative ease with which the two CAS panels reached their decision considering the difficulty of their task, seem for a great part rooted in the circumstances of the case: a clear-cut case of an athlete with a disability (bilateral amputee), a hypothetical able-bodied counterpart that was relatively easy to picture conceptually (the same individual with intact biological legs), but also—and perhaps more importantly—an athlete who had chosen mechanical aids that made him taller than he would ever have been authorised to compete at in para-athletics. We can only speculate how the ‘overall advantage’ test designed by the CAS panel will work out in future cases. In a broader perspective, the ruling in the Blake Leeper matter no doubt represented a signal for inclusion in athletics and sports in general. The CAS panel was adamant that SGBs must not adopt rules that discriminate—directly or indirectly— against athletes with a disability, or at least not without very robust justification. The CAS award triggered a revision of World Athletics rules, with the adoption of a specific set of regulations for mechanical aids used by athletes with impairments. The CAS panel also pulled the brakes on what has become the go-to regulatory tool when SGBs stumble on issues that may be affected by irreducible uncertainty in science, or that would require significant evidentiary efforts: transferring these efforts onto the athletes by shifting the burden of proof to them. As shown in this comment, it remains to be seen whether the authorisation regime provided for in the Mechanical Aids Regulations, with the burdensome evidentiary and cooperation duties on the athlete as part of the application process, will be implemented in such way that it does not undermine the allocation of the burden of proof to World Athletics. Finally, the series of cases from Oscar Pistorius to Blake Leeper highlights that the burden of proof is a policy choice first of all. In situations that are characterized by scientific complexity, the burden of proof determines the outcome of individual cases as effectively as if the parties were confronted with an irrebuttable presumption or legal fiction. The burden of proof can thus be said to reflect the “institutional default” behind the regulator’s or (here) the arbitrators’ value framework.96 This makes it all the more important that the administration of such burden of proof in practice is not dealt with too lightly by panels in individual matters. In this regard, the series also forces us to recognise that there is no way a level playing field can be defined through science, or at least not through science alone. The findings reached by the panel in Blake Leeper are based on a moral choice of what a ‘fair’ competition should look like, rooted in ideals of inclusion and non-discrimination. World Athletics and the CAS panel insistently recalled the

96

Roger Pielke, The Blade Runner and the Burden of Proof, 2 November 2020. https:// rogerpielkejr.substack.com/p/the-blade-runner-and-the-burden-of. Accessed 12 December 2022.

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Rule’s goal that outcomes be determined by “competitors’ natural talent, training and effort”, as opposed to aids that confer an “artificial” competitive advantage.97 While the distinction natural versus artificial is a thread that runs through all areas of fairness in sport, the solution reached by the CAS arbitrators cannot be reconciled with the legitimate aim they relied on, unless one considers that the disabled athlete’s ‘natural’ state is their fictional self without the disability. In other words, inclusion of a disabled athlete in sport is only justifiable within the paradigm chosen by the CAS if one regards the athlete as a dysfunctional, ‘lesser’, version of themselves, a perception that would probably seem untenable and would be fought against in any other sphere of social activities as non-inclusive. Unless one treats disability as unnatural, and prostheses as restoring a supposed natural state, any mechanical aid used by a disabled athlete to allow him to complete a 400 m is necessarily ‘artificial’ to use the language of the CAS. Here again, the panel’s reasoning—though based at first sight on the MASH formula and objective biomechanical principles—is in reality deeply entwined with what the panel envisioned as a ‘normal’—perhaps rather than ‘natural’—human body, thus arguably a normative rather than biological standard. This means that it would be unreasonable to place all expectations on science to resolve the societal dilemmas that inclusiveness in sport creates. Instead, we are bound to continue to feel our way forward through all conflicting interests and values at stake, continuously renegotiating their respective importance. The fact that the CAS award was immediately followed by another challenge directed at the scientific validity of the MASH rule in its application to black athletes of African descent, with an argument of discrimination based on race or ethnic origin, is testimony to the never-ending character of the debate, where each ruling carries the potential to trigger equally intractable scientific questions. This is as true for the regulation of doping in sport, as it is for the participation of transgender athletes or athletes with variations in sexual characteristics. As the panel in the case of Oscar Pistorius concluded, noting that World Athletics would have to assess each athlete’s situation in the future on a case-by-case basis: “[h]owever, if it does create an additional burden, it must be viewed as just one of the challenges of 21st Century life”.98 Apparently, the challenge has only just started.

97 98

CAS 2020/A/6807, Blake Leeper v. IAAF, Award of 23 October 2020, para 332. CAS 2008/A/1480, Oscar Pistorius v. IAAF, Award of 16 May 2008, para 56.

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References Pielke R (2016) The Edge: The war against cheating and corruption in the cutthroat world of elite sports. Roaring Forties Press, Berkeley Viret M (2016) Evidence in Anti-Doping at the Intersection of Science and Law. T.M.C. Asser Press, The Hague Viret M, Wisnosky E (2016) The Validity of Analytical Science in Anti-doping—A Scientific and Legal Challenge. In: Duval A, Rigozzi A (eds) Yearbook of International Sports Arbitration 2015. T.M.C. Asser Press, The Hague, pp. 39–72

Marjolaine Viret PhD, is a Swiss-qualified attorney at the Geneva bar and a postdoctoral researcher at the Institute of Sport Sciences, University of Lausanne, Switzerland.

Part III

Sports Arbitration in National and International Courts

Landgericht Frankfurt, Az. 2-06 O 457/19, Behrens and Tillmann v. Deutscher Volleyball-Verband e.V. (DVV), 7 October 2020 Björn Hessert

Contents 1 2 3

Facts of the Case ................................................................................................................. Findings of the LG Frankfurt.............................................................................................. Commentary......................................................................................................................... 3.1 The Issue of Arbitration Agreements in Organised Sport......................................... 3.2 Putting Behrens and Tillmann v. DVV in Perspective .............................................. 4 Conclusion ........................................................................................................................... References ..................................................................................................................................

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Abstract The Landgericht (District Court) Frankfurt has written a further chapter in the widely debated issue of the acceptance of arbitration clauses in sports-related disputes. The decision commented here is notable as it is the first judgement by a German court in this respect in the aftermath of the so-called ‘Pechstein saga’. In its decision, the District Court took into consideration the decision Mutu and Pechstein v. Switzerland of the European Court of Human Rights. The District Court ultimately found that both athletes had been forced to accept the arbitration clauses at issue, which were therefore considered invalid. This reasoning differs from the decision of the Bundesgerichtshof (German Federal Court of Justice) in Pechstein, which held that the validity of arbitration clauses contained in athletes’ agreements is subject to a balancing process of the competing interests involved. The decision of the District Court raises one important question in particular: what is the legal consequence of the forced nature of arbitration agreements in sports?

B. Hessert (&) Lausanne, Switzerland e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2021 A. Duval and A. Rigozzi (Eds.), Yearbook of International Sports Arbitration 2018–2020 https://doi.org/10.1007/15757_2021_33

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Keywords Arbitration agreement Compulsory arbitration (In)validity of arbitration agreement Balancing process Abuse of a dominant position Pechstein Article 6 ECHR













1 Facts of the Case The action at the heart of this case was brought by two professional beach volleyball players—Kim Behrens and Cinja Tillmann—against the governing body for the sport of volleyball in Germany, i.e. the Deutscher Volleyball-Verband e.V. (hereinafter referred to as ‘DVV’). After the retirement of the gold-medallist Kira Walkenhorst in January 2019, her then team member Laura Ludwig was looking for a new teammate, leading to a shift in the composition of the German women’s volleyball duos. This also led to Behrens and Tillmann forming a team, despite both players being defensive players. In the meantime, the DVV decided on a new selection method for international beach volleyball competitions. In order to give young players more international experience, the DVV started to generally favour the selection of so-called National- und Perspektivteams (national and perspective teams). Thus, due to their age (which was above the national and perspective teams’ eligibility threshold) and regardless of the fact that they were better ranked in the FIVB World Ranking, the claimants were disregarded for selection to play in international competitions. More specifically, the duo Behrens/Tillmann was no longer considered by the DVV for international tournaments, unless the national and perspective teams would decide not to participate in a given tournament. Consequently, the claimants could not start in certain international tournaments sanctioned by the FIVB and were therefore denied the possibility to earn the minimum prize money of USD 20,000 (as argued in their submissions) or USD 17,000 (as stated in the respondent’s submissions). Hence, the players requested compensation thereof. What makes the case particularly interesting for the purposes of this Yearbook is the discussion surrounding the validity of arbitration agreements in favour of an ad hoc arbitral tribunal (composed of the president of the association tribunal and one member to be nominated by the athlete and one by the DVV). Both players had concluded an arbitration agreement “by reference”. Behrens had signed a Kadervereinbarung (squad agreement), and Tillman had signed an athlete’s agreement, whereby they accepted the rules and regulations of the DVV, which included an arbitration clause. To do that, the athletes had to tick a box on the online portal of the DVV, consenting to the application of the DVV’s rules. Both players challenged the validity of the arbitration clause before the Landgericht Frankfurt (hereinafter, the ‘District Court’, or ‘LG Frankfurt’) on the grounds of lack of consent, arguing that they had had no opportunity to individually negotiate its terms. In turn, the DVV submitted that such arbitration agreements are common practice in organised sport. In addition, the DVV argued that the players,

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had they wanted to, would have been free and able to sign their respective entry forms without the arbitration agreement. As a threshold matter, the LG Frankfurt had to determine—inter alia—whether it had jurisdiction to deal with this matter. This entailed, in particular, an examination of the validity of the arbitration agreement, which is the focus of this contribution.

2 Findings of the LG Frankfurt After considering all circumstances, the District Court concluded that neither of the players had freely and voluntarily consented to the arbitration agreement. In the Court’s view, the arbitration agreement was a specific condition for the athletes’ participation in professional beach volleyball tournaments sanctioned by either the DVV or FIVB.1 It therefore rejected the DVV’s position that the players could have ratified their entry forms to DVV competitions without consenting to the arbitration agreements in question. The legal consequence of this holding—according to the LG Frankfurt—is the invalidity of the arbitration agreement as such. The District Court came to this conclusion by examining the situation of the players at the material time of agreeing to the arbitration agreement on the online portal of the DVV. In this regard, it compared this situation to the circumstances faced by Claudia Pechstein as discussed in the Mutu and Pechstein2 ruling of the European Court of Human Rights (‘ECtHR’). The LG Frankfurt, in consideration of said decision of the ECtHR, held that:3 ‘Die Schiedsvereinbarung ist … unwirksam, weil die [Spielerinnen] sich ihr nicht freiwillig unterworfen haben … Der Justizgewährungsanspruch, der aus dem Rechtsstaatsprinzip in Verbindung mit den Grundrechten, insbesondere mit Artikel 2 Abs. 1 GG hergeleitet wird, garantiert den Zugang zu Gerichten, die in staatlicher Trägerschaft stehen und mit unabhängigen Richtern besetzt sind. Auf diesen Zugang zu staatlichen Gerichten kann jedoch zugunsten einer Schiedsgerichtsbarkeit verzichtet werden, sofern die Unterwerfung der Parteien unter die Schiedsvereinbarung und der damit verbundene Verzicht auf die Entscheidung eines staatlichen Rechtsprechungsorgans freiwillig erfolgt ist (BGH, Urt. v. 07.06.2016, BGH, KZR 6/15, Rn. 53 - Pechstein). Diese Freiwilligkeit ist nach der Rechtsprechung des Bundesgerichtshofs bei Sportlern trotz der latenten Drohung, ohne Eingehung einer Schiedsvereinbarung ihren Beruf als Athlet nicht ausüben zu können, gegeben (vgl. BGH, a.a.O., Rn. 54, 55). Dieser Rechtsprechung ist mit der vom Europäischen Gerichtshof für Menschenrechte gegebenen Begründung nicht zu folgen. Bei Leistungssportlern, die ihren Sport zum Beruf machen, ist danach von Unfreiwilligkeit auszugehen, wenn sie vor der Wahl stehen, eine Schiedsklausel anzunehmen, um durch die Ausübung ihres Sports auf beruflicher Ebene ihren Lebensunterhalt bestreiten zu können,

1

LG Frankfurt NJOZ 2021, 382, 384. Mutu and Pechstein v. Switzerland, ECtHR, Application no. 40575/10 and no. 67474/10, 2 October 2018. 3 LG Frankfurt NJOZ 2021, 382, 383. 2

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oder sie nicht anzunehmen und vollständig auf ihren Lebensunterhalt durch Ausübung ihres Sports auf einer solchen Ebene zu verzichten (EGMR, Urt. v. 02.10.2018, 67474/10, Rn. 113, 114 - Pechstein).’ [free translation: the arbitration agreement is … invalid because the [players] have not voluntarily submitted to it … The right of access to justice, which is derived from the principle of the rule of law in conjunction with fundamental rights, in particular Article 2(1) of the German Basic Law, guarantees access to courts which are state-run and staffed with independent judges. However, this access to state courts can be waived in favour of arbitration, provided that the parties’ submission to the arbitration agreement and the associated waiver of the decision of a state judicial body has been made voluntarily (BGH, decision of 7 June 2016, KZR 6/15, para. 53 - Pechstein). According to the case law of the Bundesgerichtshof, this voluntariness is given in the case of athletes despite the latent threat of not being able to exercise their profession as an athlete without entering into an arbitration agreement (see BGH, decision of 7 June 2016, KZR 6/15, paras. 54, 55). This case law must be disregarded based on the assessment provided by the European Court of Human Rights. Accordingly, in the case of athletes, who make their sport their profession, involuntariness is to be assumed if they are faced with the choice of accepting an arbitration clause in order to be able to earn a living by practicing their sport at a professional level, or refusing it and having to renounce earning a living from their sport at that level (ECtHR, decision of 2 October 2018, 67474/10, paras. 113, 114 - Pechstein).]

In summary, the LG Frankfurt concluded—by reference to the Mutu and Pechstein decision of the ECtHR—that the limited choice of athletes when entering into an arbitration agreement with monopolistic sports organisations leads to the invalidity of the agreement.

3 Commentary 3.1

The Issue of Arbitration Agreements in Organised Sport

The discussion surrounding the validity of arbitration agreements (by reference) in organised sport has been at the centre of many German and other national and international sports-related disputes.4 The main issue in this respect stems from the structure and functioning of organised sport based on the so-called Ein-Platz-Prinzip, i.e. with only one federation at national level and one federation at international level per sport.5 This recognised specificity of sport ensures the harmonisation and uniformity of the applicable regulations within one sport, on the one hand, but leads to a monopoly of the corresponding national and international sports organisations, on the other hand. The latter aspect grants national and international sports organisations the power, among others, to create an internal judicial system for the purpose of a uniform interpretation, application and 4

See e.g. District Court (LG) Cologne, decision of 13 September 2006, 28 O (Kart) 38/05; District Court (LG) Munich I, decision of 26 February 2014, 37 O 28331/12; Higher Regional Court (OLG) Munich, decision of 15 January 2015—U 1110/14 Kart. 5 Commission of the European Communities (2007), 13.

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enforcement of their rules and regulations. Having a level legal playing field is deemed necessary in the sports movement in the light of its core values of fairness and equality.6 These values are as important off the field as they are on the field. In this regard, it appears to be essential that independent arbitration tribunals rather than national courts decide on sporting matters with an international dimension for the purpose of maintaining a legal level playing field.7 In international sports, this objective would suffer a fatal blow if it were left to national courts to decide on sports matters, as individual national courts could interpret and apply sports regulations differently—with the consequence that athletes from different countries could be exposed to different sporting sanctions for comparable rule violations. In order to avoid this risk, it has become common practice that sports regulations contain arbitration agreements in favour of private sports arbitral tribunals, e.g., the Court of Arbitration for Sport (CAS) in Lausanne, Switzerland. Athletes are generally not direct members of national and international sports federations. Therefore, for the preservation of the internal sports judicial system, athletes have to agree to sports regulations of the respective national and international sports federation through their employment contracts (in team sports), athlete agreements or other entry forms (hereinafter collectively referred to as ‘entry forms’). By signing these entry forms, athletes agree to the rules of the governing sports organisations, including arbitration agreements contained in their regulations. For example, Rule 3.1 of the World Athletics Disputes and Disciplinary Proceedings Rules provides in pertinent part as follows: This Rule 3 relates to any legal dispute of any kind whatsoever arising between World Athletics on the one hand and any Member, Area Association, athlete, athlete support personnel or other person who is subject to the Constitution and/or any of the Rules or Regulations on the other hand, in relation to the Constitution and/or any Rule or Regulation and/or any World Athletics decision or act or omission, howsoever arising, that is not covered by the dispute resolution provisions of the Constitution or any Rules or Regulations (each, a “Dispute”). Subject to, and in accordance with Article 84 of the Constitution, a Dispute shall be submitted to arbitration before the CAS (Ordinary Arbitration Division or Appeal Arbitration Division, depending on the circumstances of the case), to the exclusion of any other court or forum.

References in the athlete entry forms to such arbitration clauses contained in the rules and regulations of national and international sports federations have been described as ‘arbitration agreements by reference’.8 Based on the jurisprudence of the Swiss Federal Tribunal, such arbitration clauses are considered, in principle, to be valid:9

6

Rigozzi and McAuliffe (2013), 15, 17; Haas (2015), p. 524; see also CAS 2006/A/1025, Mariano Puerta v. ITF, Award of 12 July 2006, para 16. 7 Haas (2015), p. 524. 8 See e.g. SFT 4A_246/2011, decision of 7 November 2011, para 2.2.2. 9 SFT 4A_246/2011, decision of 7 November 2011, para 2.2.2; see also SFT 4A_314/2017, decision of 28 May 2018, para 2.3.1; SFT 4A_490/2017, decision of 2 February 2018, para 3.1.2; see also Swiss Federal Act on International Private Law (‘PILA’), Article 182(4).

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in sporting matters the Swiss Federal Tribunal examines arbitration agreements between parties with a certain goodwill in order to promote the fast resolution of disputes by specialised courts, which as the CAS, offer comprehensive guarantees of independence and neutrality. (emphasis added)

The validity question may appear in a different light if one keeps in mind the above-mentioned monopolistic structure in organised sport. This situation causes athletes to be confronted with the dilemma of either accepting the arbitration agreements of their respective sports federation or renouncing their calling as professional athletes.10 This was confirmed by the ECtHR in the Mutu and Pechstein judgement, and reiterated in the Behrens and Tillmann v. DVV decision. As the ECtHR put it with regard to Pechstein,11 the only choice in [Pechstein’s] case was between accepting the arbitration clause and thus earning her living by practising her sport professionally, or not accepting it and being obliged to refrain completely from earning a living from her sport at that level. Having regard to the restriction that non-acceptance of the arbitration clause would have entailed for her professional life, it cannot be asserted that she had accepted that clause freely and unequivocally.

In the author’s view, it appears that there are very limited circumstances in which an athlete is not forced to accept arbitration clauses in organised sport. In this regard, it may be necessary to differentiate between the time of concluding the entry form and of filing the complaint. Firstly, the athlete could have signed the entry form without the arbitration clause.12 In theory, this could apply to athletes with equal bargaining power as the sports organisation.13 But even for athletes with the highest market values, such as Cristiano Ronaldo, Naomi Osaka, Serena Williams or Roger Federer, it is hardly imaginable that they could enter into rule acceptance contracts without arbitration agreements, keeping in mind the objective of a legal level playing field. Secondly, arbitration is also voluntary when the athlete has a genuine choice to file a complaint with either an arbitral tribunal or the ordinary courts. The ECtHR has confirmed the absence of forced arbitration in this regard in the Mutu limb of the Mutu and Pechstein decision. Mr. Mutu was free to choose ‘to take his case to the CAS—and not to a national court’ based on the FIFA regulations in place.14 However, situations where athletes are not compelled to accept the arbitration agreement in favour of a sports arbitral tribunal are rare in organised sport. In other 10

SFT4P.172/2006, decision of 22 March 2007, para 4.3.2.2.; BGH, decision of 7 June 2016, KZR 6/15; Mutu and Pechstein v. Switzerland, ECtHR, Application no. 40575/10 and no. 67474/ 10, 2 October 2018, para 113. 11 Mutu and Pechstein v. Switzerland, ECtHR, Application no. 40575/10 and no. 67474/10, 2 October 2018, paras 113, 114; LG Frankfurt NJOZ 2021, 382, 383. 12 Mutu and Pechstein v. Switzerland, ECtHR, Application no. 40575/10 and no. 67474/10, 2 October 2018, para 119. 13 Cf. SFT 4P.172/2006, decision of 22 March 2007, E.4.3.2.2. 14 Mutu and Pechstein v Switzerland, ECtHR, Application no. 40575/10 and no. 67474/10, 2 October 2018, para 122.

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words, forced arbitration is the norm. The question then arises as to what legal consequences result from the forced nature of the underlying arbitration agreements.

3.2

Putting Behrens and Tillmann v. DVV in Perspective

The decision of the LG Frankfurt is remarkable because it entered new territory by taking the Pechstein decisions of both the Bundesgerichtshof (‘BGH’) and the ECtHR into consideration when assessing the validity of forced arbitration agreements in sports. First, the LG Frankfurt correctly decided—in line with the ECtHR and in contrast to the decision of the BGH—that Behrens and Tillmann were forced to accept the arbitration clause contained in their squad agreement, respectively, athlete’s agreement.15 However, by referencing the Mutu and Pechstein decision, the LG Frankfurt also came to the conclusion that compulsory arbitration clauses are invalid.16 The problem with this interpretation of the Mutu and Pechstein decision is that the ECtHR did not rule on the validity of the arbitration clause— because it did not have to adjudicate this question. Instead, the ECtHR derived a different legal consequence from the acceptance of forced arbitration, namely, the necessity for CAS proceedings to comply with the guarantees of Article 6(1) of the ECHR:17 The Court thus concludes that, even though it had not been imposed by law but by the ISU regulations, the acceptance of CAS jurisdiction by [Claudia Pechstein] must be regarded as “compulsory” arbitration within the margin of its case-law … The arbitration proceedings therefore had to afford the safeguards secured by Article 6 § 1 of the Convention…

The question of fair proceedings before sports arbitral tribunals, including the CAS, may only be of concern if the arbitration clause itself is valid, as the arbitral tribunal seized of the case would otherwise lack jurisdiction. Therefore, the first step in the correct analysis is to examine the legal implications of the coercive element for the validity of the arbitration agreements athletes enter into with monopolistic sports organisations.

3.2.1

Invalidity of the Arbitration Clause

At first sight, the assessment of the LG Frankfurt appears to be reasonable if one considers that the legitimacy of opting for arbitration proceedings—to the exclusion

15

LG Frankfurt NJOZ 2021, 382, 384. Mutu and Pechstein v. Switzerland, ECtHR, Application no. 40575/10 and no. 67474/10, 2 October 2018, para 122. 17 Ibid., para 115. 16

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of ordinary courts—is rooted in the autonomy of the parties.18 In principle, parties to the arbitration agreement must freely and voluntarily consent to arbitration as an alternative dispute resolution mechanism.19 It therefore seems logical to declare arbitration clauses invalid if one of the parties did not consent freely to arbitration, with the consequence that compulsory arbitration cannot be accepted at all in organised sport. However, the LG Frankfurt did not take into account the degree of severity of the coercion exercised. Parties to inter-individual legal relationships are often compelled to accept the contractual conditions of the other party to the contract. For example, it is generally necessary for consumers to accept the terms and conditions of (oligopolistic) companies if they wish to enter into purchase contracts, insurance agreements, etc.20 It is accepted in general contract law that not every form of coercion leads to the invalidity of the contract. Instead, the rights of the weaker party must then be safeguarded through the mechanisms of a balancing process of the competing interests at stake. In this regard, the BGH stated in its Pechstein decision as follows:21 ‘Ein unfreiwilliger Verzicht auf die Grundrechtsausübung liegt dann vor, wenn physische oder psychische Gewalt, z. B. durch Drohung mit empfindlichen Übel ausgeübt wird, wenn der Verzichtende getäuscht wird, wenn er sich der Tragweite und Bedeutung seiner Erklärung nicht bewusst ist.’ [CAS translation of the judgement: An involuntary waiver of reliance on fundamental rights may have been obtained in cases where physical or psychological coercion have been used, e.g. by threatening considerable disadvantages, where the party waving its rights has been misled, where he or she is not aware of the significance and scope of his/her declaration.]

The consequence is that arbitration agreements in organised sport are only invalid if the coercion reaches this threshold. If that is not the case, the validity of the agreement is subject to a balancing process in consideration of the competing interests of the sports organisations and athletes at stake.22 As a side note, it is also worth noting that the interpretation of the notion of voluntariness seems to differ across jurisdictions, in domestic and international case law. The BGH construes voluntariness more broadly, while the interpretations of the SFT23 and ECtHR24 seem to be narrower. Whether or not the interpretation of voluntariness falls within the ambit of the ‘margin of appreciation doctrine’ of the contracting states to the ECHR remains to be seen.

18

Hessert (2020), p. 493. Berger and Kellerhals (2021), para 455; Hülskötter (2021), p. 147. 20 Haas (2016), p. 257. 21 BGH, NZKart 2016, 328, 332. 22 BGH, NZKart 2016, 328, 332; Haas (2016), p. 258; see also SFT 4P.172/2006, decision of 22 March 2007, para 4.3.2.3. 23 SFT 4P.172/2006, decision of 22 March 2007, para 4.3.2.2. 24 Mutu and Pechstein v. Switzerland, ECtHR, Application no. 40575/10 and no. 67474/10, 2 October 2018, para 113. 19

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In addition, the legal implications of the interpretation adopted by the LG Frankfurt would have dramatic consequences for the objective of guaranteeing a level playing field in national and international sports. The consequence would be that neither sports organisations nor athletes could benefit from the advantages that specialised sports arbitration tribunals offer in comparison to the jurisdiction of ordinary courts. Arbitration proceedings are perceived to be faster and cheaper.25 It is true that this argument has been weakened in the light of the Pechstein case, as Claudia Pechstein had to wait for nine years for the final judgement by the ECtHR. Nevertheless, sports arbitration institutions, including the CAS, ensure that members of the arbitral panels have the necessary knowledge and experience in sports law that ultimately leads to consistency in consideration of the specificity of sport.26 The same expertise in sports law is generally not guaranteed before ordinary courts which can have severe implications on the overall aim of the uniform and harmonised application and enforcement of sports regulations. More specifically, national courts would have to decide—inter alia—on the consequences of a sports rule violation. There is an inherent risk that different national courts would come to different findings in similar cases.27 The invalidity of arbitration clauses would prevent the consistent and uniform application of sports regulations and would ultimately jeopardise the legal and sporting level playing field.28 The approach taken by the LG Frankfurt is therefore detrimental to fair and equal sports competitions.

3.2.2

Balancing Process Required

The question on the (in-)validity of compulsory arbitration agreements in organised sport requires a more nuanced assessment, in consideration of the interests of the parties to the agreement and the advantages associated with sports arbitration proceedings. This can best be achieved by applying a balancing process that takes into account the competing interests at stake.29 On the one hand, sports organisations and (honest) athletes have an interest in timely and effective remedies to solve sports-related disputes.30 In addition, the consistent interpretation and application of sports rules and regulations is in the interest of said parties. On the other hand, athletes facing forced arbitration have an interest in due process and in the 25

Cf. Rigozzi and Robert-Tissot (2015), pp. 59–94. See e.g. Article S14 of the CAS Code which reads as follows: ‘The ICAS shall appoint personalities to the list of CAS arbitrators with appropriate legal training, recognized competence with regard to sports law and/or international arbitration, a good knowledge of sport in general and a good command of at least one CAS working language, …’; see also Rigozzi and McAuliffe (2013), pp. 15, 16; Ioannidis (2021), p. 24. 27 Haas (2015), p. 524. 28 Hessert (2020), p. 494. 29 BGH, NZKart 2016, 328, 331; Haas (2016), p. 250. 30 BGH, NZKart 2016, 328, 331; Kaufmann-Kohler and Rigozzi (2015), para 3.96. 26

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protection of their fundamental procedural rights, in compliance with the minimum standards guaranteed under Article 6(1) of the ECHR.

Independence and Impartiality In this regard, the basic requirement for a fair procedure before sports arbitration tribunals is that the arbitration tribunal and its arbitrators are (objectively and subjectively) impartial and independent.31 In sporting matters, it can be difficult to differentiate between internal sports association tribunals and external arbitral tribunals. In this case, the independence of the arbitral tribunal is to be determined according to the following criteria: manner of appointment and terms of office of arbitrators, existence of guarantees against outside pressure, and appearance of independence of the tribunal.32 In addition, the impartiality of the panel members must be assessed subjectively, i.e. based on ‘whether the judge held any personal prejudice or bias in a given case’.33 Furthermore, the objective impartiality test requires the assessment of ‘whether the court offered, in particular through its composition, guarantees sufficient to exclude any legitimate doubt about [its] impartiality.’34 If the tribunal in question does not meet the minimum requirements of independence and objective and subjective impartiality for both the institution itself and its panel members, then it cannot be qualified as an arbitration tribunal within the meaning of Article 6(1) of the ECHR.35 In this case, the interests of athletes in the protection of their fundamental procedural rights prevail. Athletes cannot be forced to waive their right of access to court in favour of arbitral tribunals that do not meet the basic requirements of independence and objective as well as subjective impartiality. The examination of the independence and impartiality of the arbitral tribunal at stake is subject to a case-by-case analysis. In the Mutu and Pechstein case, the ECtHR came to the conclusion that the CAS meets the minimum standard of independence and impartiality. In this regard, the ECtHR found—inter alia—that CAS awards are ‘proper judgements comparable with those of a national court’.36

31

Kaufmann-Kohler and Rigozzi (2015), para 3.96; Haas (2016), p. 230. Mutu and Pechstein v. Switzerland, ECtHR, Application no. 40575/10 and no. 67474/10, 2 October 2018, para 140; Ali Riza and Others v. Turkey, ECtHR, Application nos. 30226/10, 17880/11, 17887/11, 17891/11 and 5506/16 (ECtHR, 28 January 2020) paras 194 et seq. 33 Mutu and Pechstein v. Switzerland, ECtHR, Application no. 40575/10 and no. 67474/10, 2 October 2018, para 141; Ali Riza and Others v. Turkey, ECtHR, Application nos. 30226/10, 17880/11, 17887/11, 17891/11 and 5506/16 (ECtHR, 28 January 2020) para 197. 34 Mutu and Pechstein v. Switzerland, ECtHR, Application no. 40575/10 and no. 67474/10, 2 October 2018, para 141. 35 Haas (2016), p. 232. 36 Mutu and Pechstein v. Switzerland, ECtHR, Application no. 40575/10 and no. 67474/10, 2 October 2018, para 149; see also Dissenting Opinion of Judges Keller and Serghides; Rigozzi (2020), pp. 88 et seq. 32

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By contrast, if the above criteria are applied to the arbitration court to whose jurisdiction Behrens and Tillmann were forced to submit, its independence must be rejected due to its composition. The arbitration clause stipulated that the president of the arbitral tribunal is the president of the association tribunal, with the consequence that the arbitral tribunal lacked institutional independence.37 The LG Frankfurt did not consider the independence and impartiality of the arbitral tribunal due to its conclusion that the arbitration clause was invalid, which led it to rule that the arbitral tribunal lacked jurisdiction. However, in this author’s view, the jurisdiction of the LG Frankfurt did not derive from the forced nature of the arbitration clause. It rather resulted from the fact that the arbitral tribunal was not independent of the DVV. Consequently, the interests of Behrens and Tillmann in their right of access to justice—secured by Article 6(1) of the ECHR—outweighed the interests of the DVV in a legal and sporting level playing field.

Finding an Adequate Balance Between the Interests at Stake If we come to the conclusion that lack of voluntariness does not per se automatically lead to the invalidity of sports arbitration in light of the latter’s advantages, the question arises as to how to counterbalance the forced nature of arbitration agreements (by reference) in organised sport, so as to secure their validity. In this regard, it is necessary that athletes be offered a guarantee that the arbitral proceedings they are required to consent to are in full compliance with their fundamental procedural rights. The imbalance in the relationship between athletes and sports organisations can only be compensated—as correctly determined by the ECtHR38—with the safeguards enshrined in Article 6(1) of the ECHR. Thus, on the one hand, the need to preserve a level playing field at national and international level and, on the other hand, the protection of the basic procedural rights of athletes are adequately taken into consideration.

4 Conclusion The LG Frankfurt has opened a new chapter in the discussion around the legitimacy of mandatory arbitration in sports. The findings of the LG Frankfurt make an important contribution and encourage us to reconsider the consequences of the Pechstein decisions taken by the BGH and ECtHR. Most notably, concluding to the general invalidity of sports arbitration agreements as a consequence of forced arbitration would amount to a fatal blow for the core principles of fairness and

37

Hessert (2020), p. 495; Hülskötter (2021), p. 146. Mutu and Pechstein v. Switzerland, ECtHR, Application no. 40575/10 and no. 67474/10, 2 October 2018, para 115.

38

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equality in sport. A decision-making body detached from the national courts is necessary to ensure the uniform interpretation and application of sports rules and regulations nationally and internationally. This is generally not only in the interest of sports organisations, but also in the interest of athletes. Nevertheless, it is important to strike an appropriate balance between the interests at stake. The restrictions imposed on the athletes’ fundamental procedural rights associated with compulsory arbitration proceedings need to be “offset” by adequate guarantees. This can be best achieved through adopting the solution put forward by the ECtHR in Mutu and Pechstein. Accordingly, compulsory arbitration proceedings must ‘afford the safeguards secured by Article 6 § 1 of the Convention’.39 At the time of writing, the Behrens and Tillmann v. DVV case is pending before the Higher Regional Court (OLG) Frankfurt. It remains to be seen whether the OLG Frankfurt will concur with the LG Frankfurt or whether it will actually undertake a thorough examination of the BGH’s and ECtHR’s decisions in Pechstein.

References Berger B, Kellerhals F (2021) International and Domestic Arbitration in Switzerland. Stämpfli, Bern. Commission of the European Communities (2007) ‘White Paper on Sport’, COM (2007) 391 final. Haas U (2015) Der Court of Arbitration for Sport im Spiegel der deutschen Rechtsprechung. ZVglRWiss 15(144): 516–544. Haas U (2016) The German Federal Court on Treacherous Ice - A final point in the Pechstein case. In: Müller Ch, Besson S, Rigozzi A (eds) New Developments in International Commercial Arbitration 2016. Schulthess, pp. 219–265. Hessert B (2020) Schiedsklauseln: Die Notwendigkeit eines sachgerechten Ausgleichs. Causa Sport 20: 490–496. Hülskötter T (2021) Eine Frage der Freiwilligkeit? – Zugleich Anmerkung zum Urteil des LG Frankfurt am Main vom 7.10.2020 – 2-06 O 457/19. SchiedsVZ 21:145–149. Ioannidis G (2021) How a system of judicial precedent may help the rights of athletes before the Court of Arbitration for Sport (CAS). In: Chatziefstathiou D, Garcia B, Seguin B (eds) Routledge Handbook of the Olympic and Paralympic Games. Routledge, pp. 20–33. Kaufmann-Kohler G, Rigozzi A (2015) International Arbitration. Oxford University Press, Oxford. Rigozzi A (2020) Sports Arbitration and the European Convention of Human Rights - Pechstein and beyond. In: Müller Ch, Besson S, Rigozzi A (eds) New Developments in International Commercial Arbitration. Stämpfli, pp. 77–130. Rigozzi A, McAuliffe W (2013) Sports Arbitration. The European, Middle Eastern and African Arbitration Review 13: 15–22. Rigozzi A, Robert-Tissot F (2015) “Consent” in Sports Arbitration: Its Multiple Aspects. In: Geisinger E, Trabaldo-de Mestral E (eds) ASA Special Series No. 41, Sports Arbitration as a Coach for Other Players. JurisNet, pp. 59–94.

39

Ibid; in addition, athletes cannot be forced to waive their right to appeal against future arbitral awards, cf. SFT 4P.172/2006, decision of 22 March 2007, para 4.3.2.2. The LG Frankfurt refers to this decision without further differentiating between compulsory arbitration and mandatory waiver of the right to seek redress.

Swiss Federal Tribunal, 4A_486/2019 (SFT 146 III 358), Trabzonspor Sportif A. S. et al. v. Turkish Football Federation, Fenerbahçe Futbol A.S. and Fédération Internationale de Football Association, 17 August 2020 Despina Mavromati Contents 1 2

Introduction.......................................................................................................................... Factual and Procedural History........................................................................................... 2.1 Facts ............................................................................................................................ 2.2 Proceedings Before the Turkish Criminal Courts and the TFF Instances ................ 2.3 Proceedings Before UEFA ......................................................................................... 2.4 Proceedings Before FIFA........................................................................................... 2.5 Appeal to the CAS, Request for a Public Hearing and Bifurcation of the Proceedings ...................................................................................................... 2.6 The Appeal to the Swiss Federal Tribunal ................................................................ 2.7 Departure from the Facts as They Are Established in the CAS Award ................... 2.8 Violation of Public Policy.......................................................................................... 2.9 Concluding Remarks .................................................................................................. Reference....................................................................................................................................

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Abstract This contribution reviews the SFT judgment that ended the legal battle of the Turkish football club Trabzonspor to initiate disciplinary proceedings against another Turkish club before the tribunals of national, continental, and international football governing bodies and subsequently before CAS and the SFT. The SFT judgment addresses several interesting legal questions. These include—but are not limited to—the right of a party to request a public hearing before the CAS, the conditions for the standing to appeal a decision by a third party indirectly affected by such decision, and the right of the CAS to bifurcate the proceedings without violating the parties’ right to be heard.

D. Mavromati (&) Law Faculty, University of Lausanne, Lausanne, Switzerland e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2021 A. Duval and A. Rigozzi (Eds.), Yearbook of International Sports Arbitration 2018–2020 https://doi.org/10.1007/15757_2021_35

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Keywords Swiss Federal Tribunal Football Disciplinary infraction Third parties Standing to appeal Bifurcation of CAS proceedings Public policy Public hearing













1 Introduction This contribution relates to the legal battle of a Turkish football club, Trabzonspor,1 to initiate disciplinary proceedings against another Turkish club before the tribunals of national, continental, and international football governing bodies and subsequently before CAS and the SFT. The SFT judgment discussed here summarizes the facts and proceedings and addresses several interesting legal questions. These include—but are not limited to —the right of a party to request a public hearing before the CAS, the standing to appeal a decision by a third party indirectly affected by such decision, and the right of the CAS to bifurcate the proceedings without violating the parties’ right to be heard.

2 Factual and Procedural History 2.1

Facts

Both Trabzonspor and Fenerbahçe are first-division football clubs playing in the Turkish Süper Lig; they are affiliated with the Turkish Football Federation (TFF), and, in turn, with FIFA. The TFF is the national regulatory body for football in Turkey and a member of the international governing body, namely FIFA. FIFA has disciplinary jurisdiction over its national member associations. In the 2010/2011 Süper Lig season, Fenerbahçe and Trabzonspor finished the season with the same number of points, but Fenerbahçe had more scored goals and thus were named the champion and qualified for the group stage of the 2011/2012 UEFA Champions League. Shortly afterwards, a criminal investigation was opened in Turkey in connection with the alleged manipulation of Süper Lig matches during that same season, which resulted in the arrest of several Turkish football clubs’ officials.

1 The claimants involved not only the football club Trabzonspor but also other legal entities that run the professional football club. They are all collectively referred to as “Trabzonspor” or “the Club” throughout this text.

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Proceedings Before the Turkish Criminal Courts and the TFF Instances

The TFF Executive Committee requested an investigation over the suspicions of match-fixing and did not allow Fenerbahçe to participate in the Champions League. UEFA subsequently awarded the vacant position to Trabzonspor. On 20 December 2011, the TFF Executive Committee established through a report that several acts of match fixing involved Fenerbahçe’s officials. Trabzonspor filed a complaint with the TFF in April 2012, requesting to be awarded the title of the Süper Lig 2010/2011 champion (which was previously awarded to Fenerbahçe). While considering that some Fenerbahçe officials were involved in match-fixing activities, the TFF Ethics Committee and the TFF Disciplinary Committee found that such practice could not be attributed to the football club itself. Trabzonspor’s subsequent appeal to the TFF was also dismissed on the grounds that Trabzonspor was not entitled to challenge a decision refusing to sanction another club. The situation became even more complicated when, in July 2012, a Turkish criminal court found that Fenerbahçe’s President had formed a criminal organization, and convicted the club’s officials for manipulating several Süper Lig matches during the 2010/2011 season. However, shortly afterwards all officials were acquitted by the Turkish criminal court for lack of evidence. Ultimately, all requests and appeals filed by Trabzonspor to cancel the results of the rigged matches were rejected by the competent bodies of the TFF.

2.3

Proceedings Before UEFA

Subsequently, Trabzonspor requested that UEFA impose sanctions against Fenerbahçe for match-fixing in Turkey during the 2010/2011 season. UEFA opened disciplinary proceedings against Fenerbahçe but did not initiate proceedings against TFF and did not allow Trabzonspor to intervene in the proceedings. UEFA sanctioned Fenerbahçe with an exclusion from the next two UEFA competitions for which the club would qualify.2 Trabzonspor further requested UEFA to intervene with the Süper Lig, to sanction teams and individuals, and to award the Süper Lig title to Trabzonspor. However, the request was dismissed by UEFA (and by the CAS on appeal),3 on the ground that UEFA had no jurisdiction to intervene at the national level.4 2

UEFA Appeals Body Decision of 13 July 2013 (decision with grounds of 15 July 2013). This decision was confirmed by the CAS in CAS 2013/A/3256, Fenerbahçe Spor Kulübü v UEFA, Award of 4 April 2014 (operative part issued on 28 August 2013), and the Swiss Federal Tribunal (SFT 4A_324/2014, decision of 16 October 2014). 3 CAS 2015/A/4343, Trabzonspor v. TFF, UEFA & Fenerbahçe, Award of 27 March 2017. 4 SFT 4A_486/2019, decision of 17 August 2020, para A.e.

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Proceedings Before FIFA

Apart from the proceedings initiated before the TFF and UEFA, Trabzonspor had informed FIFA of the match-fixing incidents in Turkey in 2011 and again in 2013 and in 2015–2016, requesting FIFA to take all necessary measures to protect the integrity of football in Turkey. Trabzonspor eventually filed a complaint with the FIFA Ethics Committee and the Disciplinary Committee against both the TFF and Fenerbahçe, requesting the opening of an investigation into Fenerbahçe’s activities as well as the attribution of the 2010/2011 Süper Lig champion title, along with the associated economic benefits, to Trabzonspor. In a letter sent in February 2018, the FIFA Disciplinary Committee informed Trabzonspor that it could not intervene in the Fenerbahçe case since the disciplinary proceedings in Turkey had been conducted “in compliance with the fundamental principles of law”.5 Trabzonspor requested a formal decision, and FIFA maintained that it could not issue a decision in the present case. On appeal, FIFA stated that the FIFA rules confer standing to appeal only to the party that has taken part in the first instance proceedings and therefore Trabzonspor was not entitled to appeal.6

2.5

Appeal to the CAS, Request for a Public Hearing and Bifurcation of the Proceedings

Trabzonspor appealed against the FIFA letters to the CAS, naming TFF, Fenerbahçe and FIFA as respondents. It requested that CAS annul the FIFA “decision”, declare that the TFF failed to prosecute Fenerbahçe’s infringements, and order that the TFF award the title of 2010/2011 Süper Lig champion, along with the accompanying benefits, to Trabzonspor.7 The CAS Panel appointed to hear the case decided to hold a hearing on the preliminary issues raised by the appeal, namely the questions of admissibility, jurisdiction and standing to appeal. While Trabzonspor repeatedly requested a public hearing, the CAS rejected the request, but clarified that this decision was without prejudice with regard to a possible subsequent hearing on the merits of the case. The date of the hearing on preliminary issues was also not published on the CAS website, on the basis that Trabzonspor fans had in the past protested in front of the CAS premises and disrupted the proceedings. Hence, on 15 March 2019, the CAS Panel held an in camera hearing in Lausanne. In its Award rendered on 30 July 2019, the Panel declared Trabzonspor’s

5 6 7

SFT 4A_486/2019, decision of 17 August 2020, para 6.1. Ibid., para A.f. Ibid., para B.a.

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appeal admissible, but dismissed it for lack of standing, without examining the merits of the dispute.8

2.6

The Appeal to the Swiss Federal Tribunal

In the subsequent application to set aside the CAS award, Trabzonspor invoked a violation of public policy (Article 190(2)(e) PILA), a violation of its right to be heard (Article 190(2)(d) PILA) and a violation of its right to a public hearing under Article 6(1) of the European Convention on Human Rights (ECHR).

2.7

Departure from the Facts as They Are Established in the CAS Award

In its submissions to the SFT, Trabzonspor reproduced the facts describing the context of the dispute. However, in so doing, it partially departed from the factual findings made by the Panel, which are binding for the SFT. As a general rule, it is not admissible to depart from the facts as they were established in the arbitral award. This is due to the fact that the SFT does not review the contested award as an appellate court but as a “court of cassation”. The only exceptions to this general rule arise when the arbitral tribunal’s factual findings are themselves challenged on the basis of Article 190(2) PILA’s grounds, or when facts or evidence that existed at the relevant time are discovered at a later stage. Here, the SFT found that Trabzonspor’s statements which departed from the facts as they were established in the Award did not fall within these exceptions and therefore disregarded them in its decision.9

2.8 2.8.1

Violation of Public Policy Definition and Notion of Public Policy According to the SFT

Generally, the violation of public policy is a commonly invoked ground for the annulment of CAS awards. At the same time, there is not a clear or all-encompassing definition of public policy and it is very difficult to establish an

8

Ibid., paras B.d. and B.e. Ibid., para 2.4.2, with further references; see also SFT 4A_424/2008, decision of 22 January 2009, para 2.3. 9

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actual violation of such ground.10 According to the SFT’s case law, public policy within the meaning of Article 190(2)(e) PILA includes all—procedural and substantive—“essential and widely recognised values which (…) should form the basis of any legal system”11 and the “fundamental principles of substantive law”. These principles include contractual fidelity, good faith, the prohibition of abuse of rights and discrimination.12 The SFT often recites in its decisions a list of a list of principles which may fall within the concept of public policy under Article 190(2)(e) PILA, but that list is not exhaustive. At the same time, the SFT has excluded some elements from the scope of its review of arbitral awards’ compliance with public policy, including the arbitrators’ contractual interpretation or their assessment of the evidence, as well as any (even manifestly) incorrect factual findings on their part.13 In addition, the SFT regularly underscores (with regard to substantive public policy) that it is not enough that (some of) the tribunal’s findings violate public policy: a violation of Article 190 (2)(e) PILA will only be established when the actual result of the award, i.e. its operative part, offends public policy.

Violation of Public Policy as a Result of the Panel’s Refusal to Hold a Public Hearing? As a general rule, a party to SFT proceedings can only invoke violations of the grounds for annulment enumerated exhaustively in Article 190(2) PILA. In this respect, it would not be admissible to invoke a violation of public policy due to the panel’s refusal to hold a public hearing as guaranteed under Article 6(1) ECHR. However, the SFT reiterated the fact that the guarantees of Article 6 ECHR may indeed coincide with some principles falling within the scope of public policy or may concretize said principles.14 Trabzonspor also argued that the refusal of the Panel to hold a public hearing in the meaning of Article 6(1) ECHR implies a violation of Article 190(2)(e) PILA because this provision should be interpreted in the light of the jurisprudence of the European Court of Human Rights (ECtHR). In such a case, the party invoking the

10

So far, there have only been two CAS award that were annulled for violation of public policy, one for violation of procedural public policy (SFT 4A_490/2009, decision of 13 April 2010, Atletico) and one for violation of procedural public policy (SFT 4A_558/2011, decision of 27 March 2012, Matuzalem). 11 SFT 4A_486/2019, decision of 17 August 2020, para 3.1 f.; see also SFT 144 III 120, para 5.1; SFT 132 III 389, para 2.2.3. 12 SFT 4A_486/2019, decision of 17 August 2020, para 3.2; see also SFT 144 III 120, para 5.1; SFT 132 III 389, para 2.2.1). 13 SFT 144 III 120, para 5.1; SFT 121 III 331, para 3a; SFT 4A_318/2018, decision of 4 March 2019, para 4.3.1; SFT 4A_304/2013, decision of 3 March 2014, para 5.1.1. 14 SFT 4A_486/2019, decision of 17 August 2020, para 4.1; see also SFT 142 III 360, para 4.1.2; SFT 4A_268/2019, decision of 17 October 2019, para 3.4.3.

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alleged violation bears the burden of proving how the alleged violation of Article 6 (1) ECHR could constitute a violation of procedural public policy under Article 190 (2)(e) PILA, based on the general duty of the appellant to justify the invoked grounds.15 The SFT held that in this specific case, Trabzonspor could not invoke a violation of the procedural guarantees of Article 6(1) ECHR because the Club did not fall within the personal scope of the provision. Specifically, Trabzonspor was neither affected in its rights and obligations in a civil matter, nor was it the subject of a criminal charge. The SFT made the distinction between athletes who are parties to a dispute related to their own rights/obligations and the applicant Club in this case, which was a whistle-blower but was not affected in its rights.16 In the view of the SFT, Trabzonspor did not have a right to initiate disciplinary proceedings against another club. The SFT further differentiated Trabzonspor from other third parties that are directly affected by a possible disqualification of their competitors and held that the situation fell outside the scope of Article 6(1) ECHR.17 In this respect, the analysis made by the SFT is difficult to follow, since the Club was also affected by a possible disqualification of the competitor club for match fixing. Notwithstanding the inadmissibility of the invoked ground, the SFT still examined the plea and held that there were sufficient grounds to justify the refusal of the Panel to hold a public hearing in the present case. As such, a preliminary hearing discussing only legal and admittedly highly technical issues rightly fell within the exception to the principle of public hearings in accordance with ECHR case law.18 It must be recalled that the requirement of a public hearing was raised in extenso during the Pechstein & Mutu proceedings before the ECtHR.19 In the Pechstein judgment, the ECtHR partially dismissed Pechstein’s case but confirmed a violation of Article 6(1) ECHR due to the CAS’s refusal to hold a public hearing. Prior to the Pechstein judgment, the CAS Code allowed public hearings only upon consent of both parties.20 The CAS Code was modified shortly after the Pechstein judgment, making it possible for a physical person who is party to disciplinary proceedings to request a public hearing without the need to have the consent of the other party or parties. The wording of Article R57 CAS Code gives the discretion of the panel to deny such request “in the interest of morals, public order, national security, where the interests of minors or the protection of the private life of the parties so require,

15

SFT 4A_486/2019, decision of 17 August 2020, para 4.1. SFT 4A_486/2019, decision of 17 August 2020, para 4.2. 17 Ibid. and para 5. 18 Ibid., para 4.3. 19 Mutu and Pechstein v. Switzerland, Nos. 40575/10 and 67474/10, 2 October 2018 (original decision in French). 20 See Article R57 second paragraph CAS Code (2018), according to which “At the hearing, the proceedings take place in camera, unless the parties agree otherwise”. 16

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where publicity would prejudice the interests of justice, where the proceedings are exclusively related to questions of law or where a hearing held in first instance was already public”.21 2.8.2

Violation of Public Policy and the Principle of Good Faith

The Panel’s Findings on Trabzonspor’s Standing to Appeal the FIFA Decision As a reminder, the CAS Panel had considered that the question of Trabzonspor’s standing to appeal against the FIFA decision had to be resolved according to FIFA rules and Swiss law, that apply on a subsidiary basis in accordance with Article 57 (2) of the FIFA Statutes.22 Under CAS case law, it is possible for third parties (i.e., not only the addressees of the appealed decision) to have standing to appeal, provided that they are “directly affected” by the decision.23 Conversely, indirectly affected parties lack standing to appeal, unless the applicable rules provide otherwise. In this respect, the Panel considered that a party affected by a decision in its capacity as a competitor is an “indirectly” affected party, unless the decision also rules on the rights of such third party, with tangible and immediate consequences upon it. The Panel finally highlighted that it is for such third party to establish that it is directly affected by the decision in accordance with the general rule on the burden of proof of Article 8 Swiss Civil Code (CC).24 In this case, Trabzonspor was not a party in the disciplinary proceedings that FIFA would initiate or would have initiated. Furthermore, Articles 70(2) and 180(2) of the FIFA Disciplinary Code (FDC, 2017 edition) gave FIFA the discretion to open disciplinary proceedings following the filing of a complaint by a whistle-blower, therefore Trabzonspor lacked the right to compel FIFA to initiate proceedings against Fenerbahçe. This is also in line with Swiss law, according to which a whistle-blower does not automatically become a party to the proceedings that may result from the denunciation of an irregular behaviour.25

21

See Article R57(2) CAS Code (2021 edition). See CAS 2018/A/5746, Trabzonspor v. TFF, Fenerbahçe & FIFA, Award of 30 July 2019, para 160. It must be noted that the CAS considered the FIFA letter as a «decision» appealable to the CAS under Article R47 CAS Code (ibid., paras 143–147). On standing to appeal before the CAS see also Keidel and Fischer (2018). 23 CAS 2018/A/5746, Trabzonspor v. TFF, Fenerbahçe & FIFA, Award of 30 July 2019, paras 174–181. See also CAS 2002/O/373; CAS 2008/A/1583 & 1584; CAS 2014/A/4151; CAS 2016/ A/4924 and 4923, para 86. 24 See CAS 2018/A/5746, Trabzonspor v. TFF, Fenerbahçe & FIFA, Award of 30 July 2019, para 179. 25 See Article 301 para 3 of the Swiss Code of Criminal Procedure: “Le dénonciateur qui n’est ni lésé, ni partie plaignante ne jouit d’aucun autre droit en procedure”. 22

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Furthermore, the Panel held that even if Fenerbahçe was sanctioned and eventually disqualified as the 2010/2011 Süper Lig champion, the TFF system did not provide for the automatic replacement of such champion by the runner-up, in casu Trabzonspor. In the Panel’s view, this only gave Trabzonspor the status of an indirectly affected party with no right to automatically become the champion.26 The CAS Panel eventually dismissed the appeal holding that Trabzonspor was not entitled to act before the FIFA Appeal Committee and did not examine the merits of the appeal, i.e., whether FIFA had determined that the TFF proceedings in Turkey were conducted in line with the fundamental principles of law.27

Principle of Good Faith Trabzonspor alleged that both the TFF and FIFA had acted against the principle of good faith, which is anchored in Article 2 CC and is part of substantive public policy under Article 190(2)(e) PILA. More specifically, Trabzonspor argued that a sports federation creates legitimate expectations for all affiliated sports clubs in view of the vertical relationship between the two. As such, both the TFF and FIFA have enforced rules aimed at the fight against match fixing and thus allegedly created legitimate expectations for Trabzonspor. While the TFF should have imposed sanctions on Fenerbahçe, FIFA failed to intervene with the TFF, as it is allowed to do under Article 70(2) FDC, which reads as follows:28 The judicial bodies of FIFA reserve the right to sanction serious infringements of the statutory objectives of FIFA (cf. final part of art. 2) if associations, confederations and other sports organisations fail to prosecute serious infringements or fail to prosecute in compliance with the fundamental principles of law.

As seen above, the CAS Panel first held that a possible sanction against Fenerbahçe would not automatically grant the champion’s title to Trabzonspor. Second, Article 70 FDC provides for the discretion of FIFA to intervene but does not oblige it to do so. Furthermore, the interpretation of FIFA’s Statutes is excluded from the scope of substantive public policy. Most importantly, however, the SFT has already held that it cannot review whether the arbitral tribunal has correctly applied the law in case of refusal of the standing of appeal. The SFT regards issues related to a party’s standing to appeal as a matter not pertaining to jurisdiction but to the standing to act based on the interpretation, by the CAS, of the applicable regulations. The SFT can not review whether the CAS Panel rightly applied the law in making its determination.29

26

CAS 2018/A/5746, Trabzonspor v. TFF, Fenerbahçe & FIFA, Award of 30 July 2019, para 188. 27 SFT 4A_486/2019, decision of 17 August 2020, para 5, in fine. 28 Ibid., para 6.1. 29 See SFT 4A_424/2008, decision of 22 January 2009, para 3.3.

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Therefore, the SFT held that Trabzonspor could not rely on Article 2 CC to argue that it was entitled to expect FIFA’s intervention in a competition that is not under its proper authority.30 The SFT also left open the question whether Trabzonspor could in good faith expect FIFA to use its discretion to intervene against the Turkish Süper Lig. In light of the SFT’s case law, a violation of Article 2 CC does not per se lead to the violation of substantive public policy, which needs to be properly established and substantiated by the appellant.31 The SFT held that Trabzonspor failed to meet its burden and consequently dismissed this plea. 2.8.3

Violation of Public Policy and Promises of Bribes

Trabzonspor also invoked a violation of substantive public policy because the contested award allegedly endorsed and gave effect to proven acts of corruption and match fixing, which fall within the scope of public policy.32 The SFT swiftly dismissed this argument to the extent that the subject matter of the dispute did not include the acts of corruption for which sanctions should have been imposed but rather Trabzonspor’s entitlement to challenge FIFA’s decision and subsequently to be recognized as the Süper Lig champion for the 2010/2011 season. As seen above, the CAS Panel held that Trabzonspor lacked standing in appealing the FIFA decision not to intervene in the TFF proceedings related to Fenerbahçe. As such, the SFT found that the Panel did not need to address Trabzonspor’s various complaints challenging the merits of the FIFA decision, and that in doing so it did not endorse the various acts of corruption in Turkish football during the 2010/2011 season.33 2.8.4

Violation of the Right to Be Heard

Definition and Notion of the Right to Be Heard in Federal Proceedings Generally, there is a violation of the parties’ right to be heard if the arbitral tribunal fails to consider allegations, arguments or evidence submitted by the parties and which could be relevant for the purposes of the award.34 However, this ground cannot be used by a party in order to criticize the panel’s findings in application of 30

SFT 4A_486/2019, decision of 17 August 2020, para 6.1. Ibid., paras 2.4.1 and 3.2; see also SFT 4A_220/2007, decision of 21 September 2007, para 12.2.2; SFT 4P.167/2002, decision of 11 November 2002, para 3.2. 32 SFT 4A_486/2019, decision of 17 August 2020, para 7.1. See also SFT 119 Il 380, para 4b; SFT 4P.208/2004 of 14 December 2004, para 6.1. 33 SFT 4A_486/2019, decision of 17 August 2020, para 7.2. See also SFT 4A_548/2019, decision of 29 April 2020, para 6.2.2. 34 SFT 4A_486/2019, decision of 17 August 2020, para 8.1. See also SFT 142 III 360, para 4.1.1; SFT 133 III 235, para 5.2 and references cited therein. 31

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the substantive law, given that, in annulment proceedings under Article 190(2) PILA, the SFT does not act as a court of appeal.35 In addition, parties must raise potential violations of their right to be heard immediately, failing which such criticisms will not be admitted.

Bifurcation of the Proceedings and Right to Be Heard Trabzonspor alleged that FIFA abused its discretionary power under Article 70(2) FDC: even if there is discretion in the application of this provision, it should still be applied in a proportionate manner, failing which serious violations of the FIFA Statutes could remain unsanctioned. By not examining this argument raised by Trabzonspor, notwithstanding its full power of review under Article R57 CAS Code, the CAS Panel had allegedly violated Trabzonspor’s right to be heard. In essence, Trabzonspor attacked the Panel’s decision to bifurcate the proceedings and thus leave certain issues pertaining to the merits undecided after finding that Trabzonspor lacked standing to appeal the FIFA decision. This argument was quickly dismissed by the SFT.36 The SFT found that the CAS Panel decided to initially limit the procedure to the issues of admissibility, jurisdiction and standing for reasons of procedural economy. After an analysis of the issues of legal standing, the Panel dismissed the appeal and thus did not need to further examine the issues related to the merits. The SFT reiterated that the decision to bifurcate the proceedings was entirely within the discretion of the CAS Panel, similar to the proceedings before ordinary civil courts.37 Overall, the arbitral tribunal is not obliged to address all the arguments raised by the parties and could ignore the ones that have been rendered moot following its analysis on other issues (in casu the issue of Trabzonspor’s standing). In other words, the right to be heard does not confer a right to an obiter dictum.38

Interpretation of the Applicable Rules, Violation of the Right to Be Heard and/or Violation of Procedural Public Policy Trabzonspor also criticized the Panel’s interpretation of the various applicable rules, in particular Article 75 CC, which allows indirect members of a federation to challenge decisions rendered by such federation. By dismissing Trabzonspor’s request, the CAS allegedly prevented Trabzonspor from obtaining a review of the

35 36 37 38

SFT 4A_486/2019, decision of 17 August 2020, para 8.1. See also ATF 142 III 360, para 4.1.1. SFT 4A_486/2019, decision of 17 August 2020, paras 8.2. and 8.3. See Article 125(a) of the Swiss Code of Civil Procedure. SFT 4A_486/2019, decision of 17 August 2020, para 8.3.

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FIFA decision by an independent judicial body. The SFT held that such criticism evidently constituted appellatory criticism and was thus inadmissible. In a similar vein, Trabzonspor criticized the allegedly too restrictive interpretation of the question of standing by the CAS and held that this evaluation rendered the FIFA decision de facto immune from judicial review. In Trabzonpor’s view, this violated procedural public policy by denying its rights to an effective remedy and to a fair trial. Here again, the SFT held that this argument was merely an inadmissible criticism of appellatory nature to the extent that it sought a re-evaluation by the SFT of the CAS Panel’s decision on the issue of standing to appeal.39

2.9

Concluding Remarks

Overall, this is an interesting judgment that compiles some important considerations on the CAS practice and reviews the rights and obligations of sports federations towards their—direct and indirect—members. From a procedural point of view, an appeal before the SFT against a CAS award has—statistically—limited chances of success: generally, the SFT will not review the merits of the case but is only called to establish whether the exhaustively enumerated grounds for appeal set out in Article 190(2)(e) PILA—which should be clearly mentioned and substantiated in the appellant’s submissions—are met. The above means that criticisms of appellatory nature are not admissible, even in the guise of arguments linked to Article 190(2)(e) PILA’s grounds. It also means that arguments or allegations relying on facts that depart from the tribunal’s findings in the award will be entirely disregarded by the SFT. A further limitation is linked to the alleged violations in the arbitral award: these should strictly relate to the exhaustively enumerated grounds for annulment of Article 190(2) PILA, and cannot arise from other laws or provisions. To the extent that a principle enshrined in the ECHR may coincide with a principle enumerated in Article 190(2)PILA, applicants before the SFT bear the burden of establishing— and substantiating—both the existence of the guarantee they invoke under Article 190(2) PILA, and its actual violation by the CAS Panel. Within this framework, the refusal to hold a public hearing does not necessarily lead to a violation of public policy, and the SFT judgment examined here has drawn the boundaries between the current case and the well-known Pechstein case. Taking into account the aforementioned limitations, the SFT avoided reviewing the well-founded principles of the CAS case law regarding the Club’s standing to appeal the FIFA decision before the CAS. It only reiterated that the review of a party’s standing is not a jurisdictional question—which can then be freely reviewed by the SFT—but rather falls within the appreciation of the arbitral tribunal, which is

39

Ibid., para 8.4. See also SFT 4A_606/2013, decision of 2 September 2014, para 5.3.

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not reviewable in annulment proceedings before the SFT. The CAS Award still offers an interesting analysis of the question of standing to appeal. Therefore, unchallenged finding of the CAS award is that third parties (i.e. parties that are not direct addressees of the decision) may file an appeal only if they are “directly” affected by such decision. The CAS Panel proceeded to an analysis of such “directly affected” parties and differentiated between various constellations that may arise in the sporting context, among federations, sports clubs and athletes. Accordingly, the status of a mere whistle-blower cannot be equated to an athlete who has a direct interest in the outcome of the case, even more if the disqualification of another person/entity following such decision does not automatically lead to the change of status of the appellant. Finally, the SFT judgment is a good reminder of the high burden of the party invoking the violation of general principles which may fall within the violation of substantive public policy. As such, a violation of the principle of good faith (anchored in Article 2 CC) does not render the arbitral award incompatible with public policy per se; rather, the party invoking such violation must establish how the violation infringes upon substantive public policy within the meaning of Article 190 (2)(e) PILA.

Reference Keidel Ch, Fischer P (2018) Standing to Appeal of Third Parties in Front of CAS. In: Duval A, Rigozzi A (eds) Yearbook of International Sports Arbitration 2016. T.M.C. Asser Press, The Hague, pp 41–59.

European Court of Human Rights, Mutu and Pechstein v. Switzerland, Judgment of 2 October 2018 Richard Lungstras

Contents 1

Facts and Procedures of the Two Cases ............................................................................. 1.1 Facts and Proceedings Leading to Claudia Pechstein’s Application to the ECtHR (No. 67474/10) ........................................................................................................... 1.2 Facts and Proceedings Leading to Adrian Mutu’s Application to the ECtHR (No. 40575/10) ........................................................................................................... 2 Decision ............................................................................................................................... 2.1 Applicability of Article 6(1) ECHR Before CAS Panels.......................................... 2.2 Independence and Impartiality of CAS...................................................................... 2.3 Public Hearing ............................................................................................................ 3 Conclusion ........................................................................................................................... References ..................................................................................................................................

292 292 294 295 295 297 303 304 306

Abstract The combined Mutu and Pechstein v. Switzerland judgment of the European Court of Human Rights (ECtHR) has been long-awaited in order to assess whether and how the Court of Arbitration for Sport (CAS) guarantees procedural safeguards pursuant to Article 6 of the European Convention on Human Rights (ECHR). The judgment of the ECtHR is certainly a landmark decision providing clarity for some aspects relevant under Article 6 ECHR. The Court held that the acceptance of CAS jurisdiction in disciplinary proceedings is to be regarded as “compulsory” arbitration. Consequently, the CAS appeal arbitration proceedings have to afford the safeguards secured by Article 6(1) ECHR, in particular the right to a public hearing. However, not only the two applicants in this case but presumably also the majority of the international sports law community were left disappointed by the superficial analysis conducted by the ECtHR with respect to the composition and structure of the CAS. In particular, questions regarding the R. Lungstras (&) GvW Graf Von Westphalen, Munich, Germany e-mail: [email protected]; [email protected] © T.M.C. ASSER PRESS and the authors 2022 A. Duval and A. Rigozzi (Eds.), Yearbook of International Sports Arbitration 2018–2020 https://doi.org/10.1007/15757_2022_39

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independence and impartiality of the CAS remain unanswered and will be subject to further discussion, encouraged by the powerful dissenting opinion of two of the seven ECtHR judges.


















Keywords Pechstein Mutu ECtHR Article 6 ECHR CAS Court of Arbitration for Sport Compulsory arbitration Sports arbitration Public hearing Independence and impartiality







1 Facts and Procedures of the Two Cases 1.1

Facts and Proceedings Leading to Claudia Pechstein’s Application to the ECtHR (No. 67474/10)

In early February 2009, Germany’s most successful Winter Olympian of all time, Claudia Pechstein, wanted to take part in the upcoming Speed Skating World Championships, in Hamar, Norway. To be eligible for the event, she had to sign an arbitration agreement with the International Skating Union (ISU). During a doping control carried out by the ISU just a few days before the start of the 2009 World Championships, Pechstein was found to have anomalous blood profile results. Consequently and upon complaint of the ISU, the ISU Disciplinary Commission (ISU DC) banned Pechstein for two years, as it considered the blood results to be a doping violation.

1.1.1

Pechstein’s Referral to the CAS and the SFT

Pechstein lodged an appeal against the ISU DC decision before the CAS. In its award dated 25 November 2009,1 the CAS Panel confirmed the ban imposed by the ISU. Pechstein then sought the annulment of the CAS award before the Swiss Federal Supreme Court (SFT), which, in a judgment issued on 10 February 2010, dismissed her application pursuant to Article 190(2) of the Swiss Federal Act on Private International Law (PILA).2 Further, an application for revision filed by Pechstein based on a new medical report in which newly developed evaluation algorithms were applied, was also rejected by the SFT a few months later.3 On 11 November 2010, Pechstein filed her application against Switzerland before the ECtHR, submitting that the ISU DC and CAS could not be regarded as

1 CAS 2009/A/1912 & 1913, Claudia Pechstein v. International Skating Union (ISU) & Deutsche Eisschnelllauf Gemeinschaft e.V. (DESG) v. International Skating Union (ISU), Award of 25 November 2009. 2 SFT, 4A_612/2009, decision of 10 February 2010. 3 SFT, 4A_144/2010, decision of 28 September 2010.

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independent and impartial tribunals in accordance with Article 6(1) ECHR’s guarantees, and complaining that her requests for a public hearing had been rejected by the ISU DC, the CAS and the SFT, also in violation of her rights under Article 6 (1) ECHR. In addition, Pechstein argued that her right to a fair hearing had been breached on the ground that Swiss law did not provide for any judicial re-examination of the facts after the CAS award and that the SFT only had a limited power of review. Finally, she submitted that the procedure before the CAS was incompatible with the principle of the presumption of innocence under Article 6(2) ECHR.

1.1.2

Pechstein’s Referral to the German Courts

After losing her case before the SFT, and in parallel to her action before the ECtHR, Pechstein applied to the German national courts, seeking damages against the ISU and the German Speed-skating Federation (DESG). Firstly, the Regional Court of Munich I (LG München I)4 assumed the invalidity of the arbitration agreement, but dismissed the case due to both the lack of abuse of a dominant position by the ISU and the lack of a complaint as to the invalidity in the arbitration proceedings by Pechstein. On Pechstein’s appeal, the Higher Regional Court of Munich (OLG München)5 ruled that the arbitration agreement was invalid due to a violation of mandatory antitrust law. However, with judgment of 7 June 2016, the German Federal Court of Justice (Bundesgerichtshof, BGH) overruled the previous judgments and, thus, ultimately rejected Pechstein’s claim before the German courts.6 It is to be expected that the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) will be the court to write the last chapter in this Pechstein-Saga. Already in 2016, Pechstein brought a constitutional appeal before the BVerfG against the BGH decision on the questions of whether the mandatory submission to CAS must be dismissed as inadmissible and whether the CAS constitutes an independent court of arbitration within the meaning of sec. 1034 et seq. of the German Code of Civil Procedure (ZPO). Although, the BVerfG already listed the matter in its annual preview for 2021,7 the BVerfG has still not rendered its long-awaited decision, but is expected to do so in 2022.

4

LG München I, 37 O 28331/12, judgment of 27 April 2014. OLG München, U 1110/14 Kart, judgment of 15 January 2015. On this judgment, see Maisonneuve (2015). 6 BGH, KZR 6/15, judgment of 7 June 2016. On this judgment, see Ehle and Guaia (2018). 7 See the annual preview provided by the BVerfG (Pechstein’s appeal no. is 1 BvR 2103/16): https://www.bundesverfassungsgericht.de/DE/Verfahren/Jahresvorausschau/jahresvorausschau_ node.html https://www.bundesverfassungsgericht.de/DE/Verfahren/Jahresvorausschau/vs_2021/ vorausschau_2021_node.html. Accessed 15 February 2022. 5

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Facts and Proceedings Leading to Adrian Mutu’s Application to the ECtHR (No. 40575/10)

Adrian Mutu was a professional football player who played as one of Romania’s best footballers for several European top clubs, including Juventus FC, ACF Fiorentina and, most importantly in the present context, Chelsea. In August 2003, Mutu was transferred from AC Parma to Chelsea for a transfer sum in the amount of approx. EUR 26.3 million. In July 2004, Mutu found himself subject to a doping test carried out by Chelsea after the club had grown suspicious about Mutu’s unreliable behaviour off the pitch. Even though this first drug test turned out to be negative, a second targeted drug test carried out by the English Football Association (FA) tested Mutu positive for cocaine. Consequently, Chelsea terminated the employment contract with immediate effect and Mutu was suspended. In January 2005, Mutu and Chelsea agreed to jointly refer their dispute to the FIFA-affiliated Football Association Premier League Appeals Committee (FAPLAC). The main legal question to be resolved by the FAPLAC was whether Mutu’s unilateral breach of his obligations under the contract with Chelsea could be deemed “without just cause” within the meaning of Article 21 FIFA Regulations for the Status and Transfer of Players (the 2001 RSTP). In April 2005, the FAPLAC decided that Mutu had committed such a breach and the CAS upheld this decision by an award dated 15 December 2005;8 Mutu did not challenge this award. On request of Chelsea, the FIFA Dispute Resolution Chamber (DRC) then ordered Mutu to pay Chelsea the sum of approx. EUR 17 million as compensation for his breach of contract. This decision was upheld by the CAS in an award dated 31 July 2009.9 Mutu challenged this award before the SFT, disputing inter alia the independence and impartiality of the arbitrator chosen by Chelsea because he had presided over the first CAS Panel deciding on the merits about the justification of the termination. The SFT dismissed this appeal in a judgment rendered on 10 June 2010.10 On 13 July 2010, Mutu filed his application with the ECtHR, submitting that the CAS and SFT proceedings had given effect to violations of his right to a fair hearing under Article 6(1) ECHR to the extent that the CAS Panel that heard his case could not be considered as independent and impartial, and that the sum he had been ordered to pay to Chelsea violated his rights under Articles 4(1) (prohibition of slavery and forced labour) and 8 (right to respect for private and family life) ECHR, and under Article 1 Protocol n. 1 to the ECHR (protection of property).

8

CAS 2005/A/876, Adrian Mutu v. Chelsea FC, Award of 15 December 2005. CAS 2008/A/1644, Adrian Mutu v. Chelsea FC, Award of 31 July 2009. 10 SFT, 4A_458/2009, decision of 10 June 2010. 9

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2 Decision As noted, Mutu’s and Pechstein’s applications were filed in July and November 2010 respectively. In December 2016, the ECtHR decided to join the two applications in accordance with Rule 42(1) of its Rules of Court. The Court’s judgment was then rendered almost two years later, on 2 October 2018, that is, eight years after the two athletes had lodged their applications. In its judgment, the ECtHR held that there had only been a violation of Article 6 (1) ECHR with regard to the obligation of the CAS Panel in the Pechstein case to hold a public hearing, but found that the CAS was independent and impartial. Further, the Court rejected Pechstein’s claims for pecuniary damages, but ruled that Switzerland had to pay her just satisfaction in an amount of EUR 8,000 (instead of the EUR 400,000 she had claimed) in respect of the non-pecuniary damage she suffered as a result of the violation of Article 6(1) due to the denial of a public hearing. The ECtHR judgment was rendered by the Court’s third section with a 5–2 majority of the judges (Majority Decision). The Swiss judge Helen Keller and the Cypriot judge Georgios Serghides rendered a joint partly dissenting, partly concurring opinion (Minority Opinion). Surprisingly for most of the commentators,11 on 5 February 2019, the ECtHR rejected Pechstein’s request to have the case referred to the Grand Chamber12 and irrespective of the Minority Opinion’s view that the case raised “new and significant questions”.13 Therefore, the Chamber’s 5– 2 decision became final and legally binding. This commentary focuses on the applicability of Article 6(1) ECHR before CAS Panels (Sect. 2.1), the independence and impartiality of the CAS (Sect. 2.2) and the CAS’s obligation to hold public hearings (Sect. 2.3).

2.1

Applicability of Article 6(1) ECHR Before CAS Panels

It must be regarded as a milestone that the ECtHR clarified that Article 6(1) ECHR is applicable to CAS Panels and, therefore, that CAS Panels must afford the safeguards enshrined therein.14 This was based on the Court’s reasoning that Pechstein’s consent to CAS jurisdiction in disciplinary proceedings was not free and unequivocal, but compulsory,15 and that, although, Mutu’s consent to

11

Hendel and Smadja (2019), p. 119. See Press Release of 5 February 2019 issued by the Registrar of the ECtHR (ECHR 053 (2019)). https://hudoc.echr.coe.int/eng-press#{%22itemid%22:[%22003-6321717-8260093%22]}. Accessed 15 February 2022. 13 ECtHR, Mutu & Pechstein v. Switzerland, Applications nos. 40575/10 and 67474/10, judgment of 2 October 2018, Minority Opinion, para 4. 14 Ibid., para 95. 15 Ibid., para 114. 12

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arbitration had been free, he had not, by entering into that agreement, unequivocally waived the guarantees of Article 6(1) ECHR.16 Referring, in particular, to the Tabbane case,17 which is related to a commercial arbitration arising from a freely negotiated contract between a businessman and a company, the Court found that Pechstein, in contrast to Tabbane (who had voluntarily agreed to arbitration and could have chosen to negotiate with a different commercial partner if he wanted to avoid the arbitration agreement), only had a choice “between accepting the arbitration clause and thus earning her living by practising her sport professionally, or not accepting it and being obliged to refrain completely from earning a living from her sport at that level for her entire professional life.”18 Consequently, the Court held that Pechstein did not consent to CAS jurisdiction freely and unequivocally.19 With its finding that the consent of Pechstein to arbitrate her case before the CAS was based on a compulsory arbitration agreement it can be argued with De Ly that the ECtHR introduced an intermediate category of arbitrations in between voluntary and mandatory arbitrations, i.e., compulsory arbitrations.20 Whereas in voluntary arbitrations such as Mutu’s a waiver of all or some of the article 6 ECHR guarantees is authorized provided there is free and unequivocal consent, in mandatory arbitrations, article 6 ECHR applies and waiver is not authorized.21 In the “new category” of compulsory arbitrations such as Pechstein’s, article 6 ECHR guarantees also apply and no waiver is possible and, thus, compulsory arbitrations is equivalent to mandatory arbitrations.22 Further, the judgment’s clarity must be welcomed against the background of the unclear reasoning of the BGH in this context. The BGH held that Pechstein had freely signed the arbitration agreement, but was forced to do so (“fremdbestimmt”).23 In contrast, the ECtHR’s conclusion that CAS (appeals) arbitration agreements imposed by sports federations as a condition for participation in the sport are to be deemed compulsory helps to protect the weaker parties in the context of sports.24 Regarding Mutu’s complaints as to the lack of impartiality of the CAS, the ECtHR held that Mutu had consented freely to CAS jurisdiction but acknowledged that he had not unequivocally waived his rights under Article 6(1) ECHR due to the fact that he challenged the independence and impartiality of one arbitrator before 16

Ibid., para 122. ECtHR, Tabbane v. Suisse, Application no. 41069/12, judgment of 1 March 2016. 18 ECtHR, Mutu & Pechstein v. Switzerland, Applications nos. 40575/10 and 67474/10, judgment of 2 October 2018, paras 113–114. 19 Ibid., para 114. 20 De Ly (2019), p. 60. 21 Ibid. 22 Ibid. 23 BGH, KZR 6/15, judgment of 7 June 2016, paras 55–56. See Duval (2020), p. 190. 24 Nathalie Voser and Benjamin Gottlieb, How the European Court for Human Rights Interferes in (Sports) Arbitration, 19 December 2018. http://arbitrationblog.kluwerarbitration.com/2018/12/19/ how-the-european-court-for-human-rights-interferes-in-sports-arbitration/. Accessed 15 February 2022. 17

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the SFT.25 However, the Minority Opinion considered that the Majority Decision had reasoned in a contradictory way by acknowledging that Mutu’s waiver of Article 6(1) ECHR guarantees was not unequivocal since he had challenged one of the arbitrators, and then rejecting his application by relying on the finding that he had voluntarily consented to CAS arbitration.26 Further, the ECtHR qualified the CAS Panels as “tribunals established by law” in the sense of Article 6(1) ECHR.27 Even though the ECtHR only cursorily discussed this point and thus missed the opportunity to provide an in-depth analysis on the criteria under which a private arbitration tribunal such as the CAS may qualify as a “tribunal established by law”,28 this holding must be welcomed. In particular, this is the case in the context of the Court’s assessment of the compulsory nature of CAS appeals arbitration in disciplinary cases. For the athlete who must submit to the arbitration agreement provided by the relevant International Federation (IF) in order to be able to compete, it cannot make any difference whether the “pressure” to arbitrate is being exercised by the legislator—with the consequence of mandatory arbitration—or by the IF—with the consequence of compulsory arbitration.29 It is now clear that in both cases the arbitral tribunals in question must comply with the safeguards provided for in Article 6 ECHR.

2.2

Independence and Impartiality of CAS

The cornerstone of the Court’s judgment should have been its in-depth analysis of the independence and impartiality of the CAS. Unfortunately, the Majority Decision failed to deliver a comprehensive analysis of the composition of the CAS system but, in essence, simply referred to the jurisprudence of the SFT in this regard. This is also the heart of the criticism voiced by the powerful Minority Opinion.30 In summary,31 the ECtHR held that there had been no lack of independence and impartiality on the part of the CAS. The judgment was based on the following considerations:

25

ECtHR, Mutu & Pechstein v. Switzerland, Applications nos. 40575/10 and 67474/10, judgment of 2 October 2018, para 122. 26 Ibid., Minority Opinion, para 26. 27 Ibid., para 149. 28 Hülskötter (2018), p. 262. 29 Lungstras (2019), p. 38. 30 ECtHR, Mutu & Pechstein v. Switzerland, Applications nos. 40575/10 and 67474/10, judgment of 2 October 2018, Minority Opinion, paras 5–16. 31 See a similar summary of this part of the ECtHR judgment provided by Antoine Duval, The “Victory” of the Court of Arbitration for Sport at the European Court of Human Rights: The End of the Beginning for the CAS, 10 October 2018. https://www.asser.nl/SportsLaw/Blog/post/thevictory-of-the-court-of-arbitration-for-sport-at-the-european-court-of-human-rights-the-end-of-thebeginning-for-the-cas. Accessed 15 February 2022.

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• The financing of the CAS by sports bodies is not problematic because national courts are also financed by their own states;32 • Regarding the structural problem stemming from an imbalance between Sport-governing Bodies (SGBs)33 and athletes in the mechanism for appointing arbitrators, the ECtHR conceded “the existence of a certain link between the [International Council of Arbitration for Sport (ICAS)] and organisations that might be involved in disputes with athletes before the CAS, especially those of a disciplinary nature”;34 • Pechstein “did not submit any factual evidence such as to cast any general doubt”35 with regard to any of the 300 arbitrators on the list at that time; • The Court acknowledged that the SGBs which were likely to be involved in disputes with athletes before the CAS had “real influence over the mechanism for appointing arbitrators, [however, the Court could not] conclude that, solely on account of this influence, the list of arbitrators, or even a majority thereof, was composed of arbitrators who could not be regarded as independent and impartial, on an individual basis, whether objectively or subjectively, vis-à-vis those organisations.”36

2.2.1

Does the CAS Present an Appearance of Independence and Impartiality?

According to the case law of the ECtHR, the benchmark for assessing a tribunal’s independence and impartiality is clear: “justice must not only be done, it must also be seen to be done”.37 The Court emphasized that the requirements in order to establish whether a tribunal can be considered as independent are inter alia “the manner of appointment of its members and their term of office, the existence of guarantees against outside pressure and the question whether the body presents and

32

ECtHR, Mutu & Pechstein v. Switzerland, Applications nos. 40575/10 and 67474/10, judgment of 2 October 2018, para 151. 33 Olympic Sport-governing bodies are: the International Olympic Committee (IOC); the International Sports Federations (IFs), the Summer Olympic IFs (ASOIF), the Winter Olympic IFs (AIWF), the National Olympic Committee (NOC) and the Association of the National Olympic Committees (ANOC). 34 ECtHR, Mutu & Pechstein v. Switzerland, Applications nos. 40575/10 and 67474/10, judgment of 2 October 2018, para 154. 35 Ibid., para 157. 36 Ibid., para 157. 37 ECtHR, Mutu & Pechstein v. Switzerland, Applications nos. 40575/10 and 67474/10, judgment of 2 October 2018, para 143; ECtHR, Delcourt v. Belgium, Application no. 2689/65, judgment of 17 January 1970, para 31; ECtHR, Campbell and Fell v. The United Kingdom, Application nos. 7819/77 and 7878/77, judgment of 28 June 1984, para 81; ECtHR, De Cubber v. Belgium, Applications no. 9186/80, judgment of 26 October 1984, para 26; ECtHR, Micaleff v. Malta, Application no. 17056/06, judgment of 15 October 2009, para 98.

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appearance of independence.”38 Further, the Court reiterated that impartiality “normally denotes the absence of prejudice or bias”, which must be determined by a subjective test (whether a particular judge shows any personal prejudice or partiality in a given case) and an objective test (whether the given court offers guarantees sufficient to exclude any legitimate doubt about his impartiality).39 Even though, the ECtHR rightly stated that there is “no watertight division between subjective and objective impartiality, since the conduct of a judge may not only prompt objectively held misgivings as to impartiality from the point of view of the external observer (objective test) but may also got to the issue of his or her personal conviction (subjective test)”,40 the ECtHR seemed to have lost sight of this objective-subjective-test of impartiality in the present case. Whereas the Court should have examined whether the CAS’s structure and composition and its impact on the appointment of arbitrators passes the objective test of impartiality, the Court in particular concentrated on matters of the arbitrator’s individual independence and impartiality only. In doing so, the ECtHR failed to apply its settled case law analysing whether a tribunal “has no appearance of independence or impartiality”41 from a structural point of view. The ECtHR required Pechstein to fully establish proof on an individual basis whether the CAS arbitrators in question could be regarded as being not independent and not impartial. Consequently, the Court’s requirement on an individual basis is contrary to the Court’s own settled case law.42 Drawing a comparison to employment tribunals, the Minority Opinion correctly stated that the ECtHR would always make sure that the tribunal’s composition is balanced, and, hence, would “not accept an employment tribunal made up (almost) exclusively of employers’ representatives.”43 Further, the ECtHR set high evidentiary hurdles for the applicants without giving reasons to justify this deviating standard from its case law. In practice, how should an applicant be able to establish full proof on an individual basis for a CAS arbitrator’s bias and lack of independence? The judgment leads to a false burden of proof: it is not the person seeking justice who should have to establish proof for the appearance of a tribunal’s lack of independence, but the tribunal itself must do everything to ensure that this appearance does not arise in the first place.

38

ECtHR, Mutu & Pechstein v. Switzerland, Applications nos. 40575/10 and 67474/10, judgment of 2 October 2018, para 140. 39 Ibid., para 141. 40 Ibid., para 142. 41 ECtHR, Mutu & Pechstein v. Switzerland, Applications nos. 40575/10 and 67474/10, judgment of 2 October 2018, Minority Opinion, para 13; Delcourt v. Belgium, Application no. 2689/65, judgment of 17 January 1970, para 31; ECtHR, Campbell and Fell v. The United Kingdom, Application nos. 7819/77 and 7878/77, judgment of 28 June 1984, para 78; ECtHR, De Cubber v. Belgium, Applications no. 9186/80, judgment of 26 October 1984, para 26. 42 ECtHR, Mutu & Pechstein v. Switzerland, Applications nos. 40575/10 and 67474/10, judgment of 2 October 2018, Minority Opinion, paras 12–17. 43 Ibid., para 13.

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Yet, contrary to its case-law, the ECtHR came to a different conclusion when analysing the independence and impartiality of the CAS.

2.2.2

“Certain Link” Between the ICAS and SGBs

The ECtHR failed to acknowledge the consequences of its finding of the existence of a “certain link between the ICAS and organisations that might be involved in disputes with athletes before the CAS, especially those of a disciplinary nature.”44 Both the structure and the powers of the ICAS within the CAS system alone should have pushed the ECtHR to a different conclusion. The ICAS is a Swiss private-law foundation composed of twenty members whose majority is appointed directly by the SGBs.45 Pursuant to Article S4 of the Code of Sports-related Arbitration (CAS Code) the appointment of the ICAS members goes as follows: three-fifths of its current members are selected by the SGBs, and these, in turn, select the remaining two-fifths of the members, consisting, for one fifth, of personalities selected “with a view to safeguarding the interests of the athletes”, and for another fifth (to be selected with the participation of the members appointed with a view to safeguarding the interests of athletes), of “personalities independent of the [SGBs]”.46 Consequently, all of the ICAS members are directly or indirectly appointed by the SGBs, without any direct influence from the clubs and, in particular, not from the athletes, resulting in the fact that the SGBs can still exercise a “preponderant influence on the CAS through the ICAS”.47 Based on the SFT’s decision in the Gundel case,48 in 1994 the ICAS was created in order to disentangle the CAS from the IOC.49 However, in reality, this endeavour has failed. As commentators have noted, the personal links between the IOC and the ICAS and CAS representatives are still in place.50 For example, Thomas Bach, the former President of the CAS Appeal Arbitration Division is the current IOC President. Further, John Coates is acting concurrently as President of the ICAS and Vice-president of the IOC.51

44

Ibid. Lungstras (2019), p. 272; Antoine Duval, The Court of Arbitration for Sport after Pechstein: Reform or Revolution? 17 November 2015. https://www.asser.nl/SportsLaw/Blog/post/the-courtof-arbitration-for-sport-after-pechstein-reform-or-revolution#_ftnref6. Accessed 15 February 2022. 46 See Article S4(1)(d) and (e) CAS Code. 47 Rigozzi et al. (2018), Introduction, Introduction to the CAS Code, para 10. 48 SFT 119 II 271. 49 Lungstras (2019), p. 70. 50 Lungstras (2019), p. 294; Antoine Duval, The Court of Arbitration for Sport after Pechstein: Reform or Revolution? 17 November 2015. https://www.asser.nl/SportsLaw/Blog/post/the-courtof-arbitration-for-sport-after-pechstein-reform-or-revolution#_ftnref6. Accessed 15 February 2022. 51 Blackshaw (2020), § 8.09. 45

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Moreover, the ICAS has all-encompassing powers. In addition to appointing and removing arbitrators from the closed CAS list,52 the ICAS, inter alia, elects the President of the Appeals Arbitration Division.53 The latter, in turn, appoints the Sole Arbitrator or, in cases where a three member Panel is to be constituted, the President of each Panel, after consulting the two arbitrators chosen by the parties.54 Consequently, the President of the Appeals Arbitration Division appoints the Sole Arbitrator or the President of the CAS Panel in every single CAS appeals arbitration procedure, without the parties having any influence on this appointment. The German courts Pechstein applied to, including the BGH,55 as well as even the otherwise correct Minority Opinion,56 have misinterpreted this decisive aspect. These courts were subject to the misconception that the President of the Appeals Arbitration Division only appoints the president of the CAS Panel in case the parties fail to reach an agreement in this regard. In reality, Article R54(2) CAS Code clearly provides that “the President of the [Appeals Arbitration] Division shall appoint the President of the Panel […] after having consulted the [party-appointed] arbitrators”. No room is left for the parties to intervene in the appointment of Panel President under this rule, which is a mandatory provision of the CAS Code, meaning that it cannot be altered by party agreement.57

2.2.3

Closed List of CAS Arbitrators

As noted by the Minority Opinion, the “closed list” system results in the athletes being obliged to choose their arbitrator from among the individuals selected by the ICAS.58 This raises the questions whether such a closed list of arbitrators is, at all, necessary and if so, whether the “real influence” of the SGBs on the appointment of CAS arbitrators can be justified.

52 See Article R34(2) CAS Code. Since the revision of the CAS Code in 2019, this decision can be made alternatively by the so-called Challenge Commission consisting of one ICAS member and the three presidents of the Ordinary, Appeal and Anti-Doping Division, with the exclusion of the President whose Division is concerned by the specific procedure for challenge, Article S7(2)(c) CAS Code. 53 See Article S6(2) CAS Code. 54 See Article R54(1) and (2) CAS Code. 55 BGH, KZR 6/15, judgment of 7 June 2016, para 27. 56 Minority Opinion, para 14: “Should the parties fail to reach agreement, [the (Appeals or Ordinary) Division Presidents] are responsible for appointing the presidents of the panels.” 57 By contrast, in ordinary proceedings, the default rule provided by the CAS Code is that President of the Ordinary Division shall appoint the President of the Panel only in case the two arbitrators appointed by the parties fail to select the President of the Panel by mutual agreement, Article R40.2(3) CAS Code, and this rule is not mandatory in the sense that the parties are free to agree to a different procedure for the constitution of their panel; see also Lungstras (2019), p. 86. 58 ECtHR, Mutu & Pechstein v. Switzerland, Applications nos. 40575/10 and 67474/10, judgment of 2 October 2018, Minority Opinion, para 14.

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Necessity of a Closed List of CAS Arbitrators? The main arguments put forward in favour of the necessity of the closed list system are the efficiency of the arbitral tribunals, the quality assurance of the CAS awards and the development of a coherent sports jurisprudence.59 Based on these arguments, the SFT has consistently upheld the validity of the CAS’s closed-list system and an open list of arbitrators as a threat to the functionality of sports arbitration arguing that such an open list entails the risk that the parties may appoint non-specialized arbitrators who could be inclined to act as if they were advocates to the parties who appointed them rather than neutral adjudicators.60 However, the SFT failed to answer the question of why it should not be within the party’s very own interest to appoint an experienced arbitrator and, therefore, to ensure the quality of the arbitral proceedings.61 In practice, most of the commercial arbitration institutions,62 and even arbitration institutions in much more technical areas of arbitration, do not consider it to be necessary to provide for a closed list of arbitrators and it is not apparent why this should be any different in sports arbitration. The lowest common denominator of the many alternatives that have been discussed for the CAS’ current closed-list systems63 should be to make information publicly available on which organization had suggested the nomination of the individual arbitrator to the closed list.64 This has also been regarded as “desirable” by the SFT as it would enable the parties to select their arbitrators in full knowledge of all relevant facts.65

Real Influence of the SGBs on the Appointment of CAS Arbitrators At the relevant time, the closed list of arbitrators was, in accordance with the CAS Code version then in force, to be composed as follows: three fifths of arbitrators selected from among persons proposed by the SGBs, one fifth of arbitrators chosen by the ICAS “after appropriate consultations, with a view to safeguarding the interests of the athletes” and the remaining fifth of arbitrators from among persons independent of the aforementioned organizations.66 By acknowledging “that the organisations which were likely to be involved in disputes with athletes before the CAS had real influence over the mechanism for

59

See for further details Lungstras (2019), pp. 283. SFT 129 III 445, 3.3.3.2. 61 Lungstras (2019), p. 283. 62 Rules of arbitration not providing for a closed list of arbitrators, e.g. Article 13 of the ICC Arbitration Rules and Article 12-a of the AAA Arbitration Rules. 63 Maisonneuve (2015), p. 344; Lungstras (2019), pp. 290–293. 64 Lungstras (2019), p. 293; Rigozzi (2020), p. 105. 65 SFT 129 III 445, 3.3.3.2. 66 Ibid., para 153. 60

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appointing arbitrators”,67 the ECtHR itself raised serious concerns regarding the appearance of control by the SGBs over the CAS. However, as the Minority Opinion rightly stated, the ECtHR failed to draw the right conclusion that this “real influence” could have an impact on the independence and impartiality of the arbitrators on the list from which the panels are composed.68 In 2012, the then relevant mechanism was replaced by a more general wording. Pursuant to the current version of Article S14(1) CAS Code, the ICAS (upon proposals of its newly created Membership Commission) shall now appoint personalities “whose names and qualifications are brought to the attention of ICAS, including by the IOC, the IFs, the NOCs and by the athletes’ commissions of the IOC, IFs and NOCs.” In terms of transparency, this new provision does not provide any improvements. It remains unclear how exactly the appointment process shall take place based on the provision that the personalities are “brought to the attention” of ICAS. Further, the argument put forward by the ECtHR regarding the possibility for parties to choose from 300 arbitrators (now more than 400)69 is not convincing. If one were to follow this argument, this in turn would lead to placing the burden of proof upon the complainants to provide concrete evidence of each appointed arbitrator’s bias.70 As outlined above,71 this does not correspond to the benchmark to assess a tribunal’s independence and impartiality within the meaning of Article 6 (1) ECHR as established in the ECtHR’s own case law.

2.3

Public Hearing

As rightly stated by the Minority Opinion,72 one must agree with the ECtHR’s finding that the lack of a public hearing in the proceedings before the CAS constitutes a violation of the public character of proceedings as one of the fundamental principles enshrined in Article 6(1) ECHR.73 On a side note, it might be considered as a strong indication that the procedural guarantee in question should always be adhered to if the SFT—who is rather reluctant to insist on the respect of procedural guarantees—considers the procedural guarantee at issue to be “desirable”. This was

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Ibid., para 157. Ibid., Minority Opinion, para 7. 69 In February 2022, 429 arbitrators were included on the list (all lists). https://www.tas-cas.org/en/ arbitration/liste-des-arbitres-liste-generale.html?GenSlct=2&nmIpt = . Accessed 15 February 2022. 70 Lungstras (2019), p. 289. 71 See above under Sect. 2.2.1. 72 ECtHR, Mutu & Pechstein v. Switzerland, Applications nos. 40575/10 and 67474/10, judgment of 2 October 2018, Minority Opinion, para 28. 73 Ibid., para 175. 68

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exactly the case for the public hearings in the proceedings before the CAS according to an obiter dictum of the SFT rendered already in 2010.74 As a consequence of the ECtHR judgment, the CAS revised its CAS Code. Since 1 January 2019, concerning public hearings Article 57(2) CAS Code now stipulates: After consulting the parties, the Panel may, if it deems itself to be sufficiently well informed, decide not to hold a hearing. At the hearing, the proceedings take place in camera, unless the parties agree otherwise. At the request of a physical person who is party to the proceedings, a public hearing should be held if the matter is of a disciplinary nature. Such request may however be denied in the interest of morals, public order, national security, where the interests of minors or the protection of the private life of the parties so require, where publicity would prejudice the interests of justice, where the proceedings are exclusively related to questions of law or where a hearing held in first instance was already public.

3 Conclusion The judgment of the ECtHR is to be read against the background of the international sports law’ dichotomy: on the one hand, the CAS is indispensable in order to provide for international uniformity of sports law decisions. In its position as the supreme court of world sport—as once envisaged by former IOC president Juan Antonio Samaranch—the CAS can prevent national courts from making divergent decisions that would jeopardise the comparability of competition performances. This aspect was recognised by the ECtHR by emphasizing the importance of the recourse to a “single and specialised international arbitral tribunal [that] facilitates a certain procedural uniformity and strengthens legal certainty.”75 On the other hand, the weakest person within this system—the athlete—is particularly in need of protection and should, as a matter of principle, enjoy the protection of every fair trial guarantee enshrined in Article 6(1) ECHR in proceedings before CAS Panels. In recognition of this, the ECtHR acknowledged that the athlete’s consent to CAS jurisdiction in disciplinary proceedings was generally compulsory with the consequence that CAS Panels must ensure the safeguards secured by Article 6(1) ECHR. With its judgment, the ECtHR has definitely strengthened the CAS system. Most importantly, the ECtHR confirmed that CAS Panels—save for the lack of public hearings—satisfy the requirements of Article 6(1) ECHR and, in particular, do not lack independence and impartiality. However, the ECtHR missed a great opportunity to request from the CAS to afford all of the procedural safeguards enshrined in Article 6(1) ECHR—and not only to hold a public hearing. The ECtHR acknowledged the existence of a “certain 74

SFT 4A_612/2009, decision of 10 February 2010, para 4.1. ECtHR, Mutu & Pechstein v. Switzerland, Applications nos. 40575/10 and 67474/10, judgment of 2 October 2018, para 98.

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link” between the SGBs and the ICAS and, consequently, the CAS system in general. However, the ECtHR failed to draw the right conclusion from this acknowledgement, which would have been to establish that the CAS in its current structure and composition is not independent and impartial from the SGBs. To quote, once again, the Minority Opinion, this “certain link” should not only be acknowledged but is “worrying”76 and, ultimately, must result in structural reforms of the CAS. Although the ECtHR missed this opportunity, the CAS remains free to reform its system. Perhaps the CAS itself is better placed to carry out this task than the courts judging its structure. Notwithstanding its reluctance to reform its structures radically ever since, the CAS has at least acknowledged the importance of safeguarding human rights in its proceedings. In April 2021, the CAS published an overview from a CAS perspective on “Sport and Human Rights” including, inter alia, a list of CAS arbitrators with specific expertise in human rights.77 As a consequence of the ECtHR judgment the CAS has to make sure that that all of its proceedings, especially the disciplinary proceedings, are rigorously kept in line with the constantly evolving jurisprudence of the ECtHR on Article 6(1) ECHR.78 The CAS would be well advised to strengthen the athletes’ trust in its proceedings through reforms. After all, the CAS was created precisely for this purpose, to provide a jurisdiction tailored to the special requirements of international sports disputes and, ultimately, to meet the parties’ legitimate expectations of fairness and justice. Therefore, the CAS should put practical instruments at the centre of its reform that enable the parties to fully trust the CAS arbitrators’ independence and impartiality. In this context, the CAS could benefit from the practical reforms successfully implemented by commercial arbitration already long ago. For example,79 the CAS would be well advised to incorporate and apply the IBA Guidelines on Conflicts of Interest in International Arbitration (IBA Guidelines)80 in its proceedings. The IBA Guidelines contain general principles on the independence, impartiality and disclosure obligations of arbitrators and categorise them in their practical application according to a “traffic light” system” ranging from “red” to “green”. Even though they are not legally binding, the SFT considered the

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Ibid., Minority Opinion, para 11. Sport and Human Rights: Overview from A CAS perspective, 16 April 2021. https://www.tascas.org/fileadmin/user_upload/Human_Rights_in_sport__CAS_report_updated_16.04.2021_.pdf. Accessed 15 February 2022, p. 8. 78 Antoine Duval, The “Victory” of the Court of Arbitration for Sport at the European Court of Human Rights: The End of the Beginning for the CAS, 10 October 2018. https://www.asser.nl/ SportsLaw/Blog/post/the-victory-of-the-court-of-arbitration-for-sport-at-the-european-court-ofhuman-rights-the-end-of-the-beginning-for-the-cas. Accessed 15 February 2022. 79 See for further proposed reforms on the CAS Code, Lungstras (2019), p. 407; see also Rigozzi (2020), p. 105. 80 Published by the International Bar Association (IBA). 77

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IBA Guidelines as “precious instrument”81 to concretize the notion of a panel’s independence and impartiality. Although some CAS Panels already applied the IBA Guidelines in some cases,82 a permanent incorporation of the IBA Guidelines in the CAS Code could help the CAS to counteract its appearance of control by the SGBs. For example, Article 3.1 IBA Guidelines (orange list) requires an arbitrator to reveal his/her “previous services” for one of the parties or other involvement in the case within the past three years.83 Establishing such a disclosure as required by Article 3.1 IBA Guidelines could significantly contribute significantly to the transparency of the recent appointments of individual arbitrators and, thus, help CAS counteract the appearance of control by SGBs. Since the Minority Opinion was rightly applauded by the vast majority of commentators on the ECtHR judgment, the aim of the CAS should be that one day, as a result of reforms carried out by the CAS, even the Judges who authored the Minority Opinion will come to the assessment that the CAS fully complies with the requirements of Article (1) ECHR. It remains to be seen whether and when the CAS will achieve this aim.

References Blackshaw I (2020) Chapter 8: Access to Justice in Sports Arbitration. In: Leonardo VP et al. (eds) Access to Justice in Arbitration: Concept, Context and Practice. Wolters Kluwer, Alphen aan den Rijn, pp. 147–166 De Ly F JM (2019) European Court of Human Rights, 2 October 2018, Cases 40575/10 and 67474/10, Mutu and Pechstein/Switzerland—Case note: a landmark decision on arbitration and the European Convention on Human Rights. In: Snijders H J (ed) Tijdschrift voor Arbitrage 2:55–61 Duval A (2020) Not in My Name! Claudia Pechstein and the Post-Consensual Foundations of the Court of Arbitration for Sport. In: Ruiz Fabri H et al (eds) International Judicial Legitimacy: New Voices and Approaches. Nomos, Baden-Baden, pp. 169–202 Ehle B, Guaia I (2018) Bundesgerichtshof, Az. KZR 6/15, Pechstein v. / International Skating Union (ISU), 7 June 2016. In: Duval A, Rigozzi A (eds) Yearbook of International Sports Arbitration 2016. TMC Asser Press, The Hague, pp. 415–427 Hendel CJ, Smadja G (2019) A Riff on the Legal Saga of Claudia Pechstein—Litigation as a Sub-Optimal Means of Advancing Transparency and Legitimacy in Sports Arbitration. Spain Arbitration Review 35:109–121

81

SFT 4A_506/2007, decision of 20 March 2008, para 3.3.2.2; Lungstras (2019), p. 301. Arbitration CAS 2015/A/3892 Roberto Alexander Del Pino v. Union Internationale Motonautique (UIM), Award of 2 June 2015, para 56; Arbitration CAS 2011/O/2574 Union des Associations Européennes de Football (UEFA) v. FC Sion/Olympique des Alpes SA, Award of 31 January 2012 (operative part of 15 December 2011). 83 However, this fairly rigid approach is softened in a footnote of the IBA Guidelines with respect to specialized courts of arbitration; see Lungstras (2019), p. 319 with a suggestion for handling this aspect within the specific CAS context. 82

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Hülskötter T (2018) Anmerkung zu EGMR: Unabhängigkeit und Unparteilichkeit des CAS (Fälle Mutu und Pechstein [Commentary to ECtHR: Independence and Impartiality of the CAS (Cases Mutu and Pechstein)]. Sport und Recht (SpuRt) 6:2018 253–263 Lungstras R (2019) Das Berufungsverfahren vor dem Court of Arbitration for Sport (CAS) im Lichte der Verfahrensgarantien gemäß Art. 6 EMRK [The Appeal Procedure before the Court of Arbitration for Sport (CAS) in Light of the Procedural Guarantees Under Article 6 of the European Convention on Human Rights (ECHR)]. Nomos, Baden-Baden Maisonneuve M (2015) Oberlandesgericht München, Az. U 1110/14 Kart, Claudia Pechstein v/ International Skating Union (ISU), 15 January 2015. In: Duval A, Rigozzi A (eds) Yearbook of International Sports Arbitration 2015. TMC Asser Press, The Hague, pp. 335–347 Rigozzi A (2020) Sports Arbitration and the European Convention of Human Rights—Pechstein and beyond. In: Müller Ch. et al (eds) New Developments in International Commercial Arbitration 2020. Stämpfli, Bern, pp. 78–130 Rigozzi A, Hasler E et al (2018) Chapter 15, Part I: Introduction to the CAS Code—Commentary. In: Arroyo M (ed) Arbitration in Switzerland—The Practitioner’s Guide, 2nd edn. Wolters Kluwer, Alphen aan den Rijn, pp. 1419–1432

Sports Arbitration Cases Before the Swiss Federal Tribunal in 2018–2020—A Digest Yann Hafner, Riccardo Coppa and Erika Hasler

Contents 1 2

Introduction.......................................................................................................................... Summaries of the SFT’s Decisions Rendered Between 1 January 2018 and 31 December 2020 ..................................................................................................................................... 2.1 Article 190(2)(a) PILA—Irregular Constitution of the Arbitral Tribunal............... 2.2 Article 190(2)(b) PILA—Incorrect Decision on Jurisdiction .................................. 2.3 Article 190(2)(c) PILA—Award Ultra, Extra or Infra Petita .................................. 2.4 Article 190(2)(d) PILA—Violation of the Parties’ Right to Be Heard and Equal Treatment .................................................................................................................. 2.5 Article 190(2)(e) PILA—Award Contravening Public Policy ................................ 2.6 Article 76 SCA—Locus Standi................................................................................ 2.7 Article 77 SCA—Challengeable Decisions ............................................................. 2.8 Article 121(a) SCA (By Analogy)—Revision on the Ground of Irregular Composition of the Tribunal or Lack of Impartiality and Independence ............... 2.9 Article 123(2)(a) SCA—Revision—Discovery of New Facts or Evidence............ 2.10 Article 338 CCP—Request for Enforcement........................................................... References ..................................................................................................................................

310 311 311 316 325 329 351 366 369 370 372 374 389

Y. Hafner Union des Associations Européennes de Football (UEFA), Nyon, Switzerland e-mail: [email protected] R. Coppa Kellerhals Carrard, Lausanne, Switzerland e-mail: [email protected] E. Hasler (&) Lévy Kaufmann-Kohler, Geneva, Switzerland e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2023 A. Duval and A. Rigozzi (Eds.), Yearbook of International Sports Arbitration 2018–2020 https://doi.org/10.1007/15757_2023_46

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Abstract Continuing from where we left off in the previous edition, this digest summarizes the decisions issued by the SFT, in its capacity as the court of supervisory jurisdiction over sports-related arbitral awards rendered in Switzerland, between 1 January 2018 and 31 December 2020. A table setting out the case references, the grounds invoked in the annulment, revision and enforcement proceedings, and the outcome of the SFT’s decisions, as well as links to English translations thereof and published commentaries, can be found at the end of the digest.
















Keywords SFT CAS Chapter 12 PILA SCA Part 3 CCP remedies against arbitral awards annulment constitution of the arbitral tribunal jurisdiction infra extra or ultra petita right to be heard public policy revision locus standi enforcement of arbitral awards





























1 Introduction In the period under review, the SFT rendered 53 decisions with respect to sports arbitration matters. Below, we have summarized the decisions that contain holdings on the merits of the application, as opposed to those that are limited to dispositive procedural determinations, i.e. where the application was found to be inadmissible or withdrawn, or where it was summarily dismissed.1 As in our previous digests, the summaries in Sects. 2.1–2.5 are grouped on the basis of the grounds relied upon by the applicants in seeking the annulment of the underlying award, and thus ordered in accordance with subsections (a)–(e) of Article 190(2) PILA, which sets out the available grounds for annulment in international arbitration matters.2 Beyond its rulings on the grounds for annulment, the SFT rendered noteworthy decisions on other topics pertaining to annulment proceedings (e.g., on issues of standing), as well as dealing with requests for revision and one application for the enforcement of an arbitral award.3 These decisions are summarized in Sects. 2.6–2.10.

1

SFT 4A_30/2018, decision of 8 February 2018; SFT 4F_8/2018, decision of 14 March 2018; SFT 4A_234/2019, decision of 9 July 2019; SFT 4A_160/2020, decision of 30 April 2020; SFT 4A_202/2020, decision of 5 August 2020; SFT 4A_290/2020, decision of 26 August 2020. 2 For a review of the legal framework governing remedies against sports arbitral awards in Switzerland, including the grounds for annulment before the Supreme Court, see Hasler and Hafner (2016), pp. 350–370, with further references. 3 SFT 4A_426/2017, decision of 17 April 2018; SFT 4A_560/2018, decision of 16 November 2018; SFT 4A_56/2018, decision of 30 January 2019; SFT 4A_662/2018, decision of 14 May 2019; SFT 4A_146/2019, decision of 6 June 2019; SFT 4A_597/2019, decision of 17 March 2020; SFT 4A_543/2019, decision of 30 April 2020.

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2 Summaries of the SFT’s Decisions Rendered Between 1 January 2018 and 31 December 2020 2.1

2.1.1

Article 190(2)(a) PILA—Irregular Constitution of the Arbitral Tribunal SFT 4A_260/2017 (ATF 144 III 120), Decision of 20 February 2018

Underlying Facts, Proceedings and Decision(s) On 30 January 2015, Royal Football Club Seraing (RFC Seraing), a football club playing in the Belgian third division, and Doyen Sports Investment Limited (Doyen Sports), a company registered under Maltese law, entered into a “Third-Party Ownership” (TPO) agreement. Under the terms of this agreement, RFC Seraing assigned 30% of the economic rights relating to three of its players to Doyen Sports, in exchange for a payment of EUR 300,000. Similarly, in a second agreement, RFC Seraing assigned to Doyen Sports 25% of the economic rights relating to a Portuguese player, for an amount of EUR 50,000. On 2 July 2015, the FIFA Disciplinary Committee (FIFA DC) sanctioned RFC Seraing for violations of Articles 18bis and 18ter of the FIFA Regulations on the Status and Transfer of Players (FIFA RSTP). In its decision of 7 January 2016, the FIFA Appeal Committee (FIFA AC) rejected the appeal filed by RFC Seraing and confirmed the decision issued by the FIFA DC. On 9 March 2016, RFC Seraing appealed FIFA’s final decision before the Court of Arbitration for Sport (CAS), requesting that it be set aside on the basis that Articles 18bis and 18ter of the FIFA RSTP were illegal. On 9 March 2017, the CAS Panel rendered its award, substantially upholding the FIFA AC’s decision, and confirming the validity of Articles 18bis and 18ter of the FIFA RSTP. However, the CAS Panel considered that the sanction imposed on RFC Seraing was disproportionate and reduced it. On 15 March 2017, RFC Seraing filed an application for the annulment of the CAS award.

Annulment Action and SFT Decision As a first argument, RFC Seraing invoked Article 190(2)(a) PILA to dispute the (structural and financial) independence of the CAS. In this respect, the SFT recalled that the structural independence of the CAS vis-à-vis the International Olympic Committee (IOC) had already been recognized in its 2003 Lazutina decision (ATF 129 III 445); after the Lazutina case, the CAS’s structural independence had been confirmed by several subsequent decisions in cases where international sporting federations (including FIFA) had appeared as a party in the arbitral proceedings (cf. e.g. SFT 4A_600/2016 of 29 June 2017, Michel Platini v. FIFA). With regard to RFC Seraing’s allegations that the CAS was financially dependent from FIFA, the

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SFT noted that the contribution to the CAS’s general costs paid annually by FIFA represented less than 10% of the institution’s overall annual budget and thus CAS is financially independent from FIFA. In addition, the SFT pointed out that contributions paid by international federations make it possible for athletes to have access to the CAS. The SFT further noted that the independence of the CAS had also been confirmed by a decision of the German Bundesgerichtshof, rendered on 7 June 2016 in the case concerning Claudia Pechstein. For these reasons, as well as those summarized in Sects. 2.4.1 and 2.5.2, the SFT dismissed RFC Seraing’s application. 2.1.2

SFT 4A_318/2018, Decision of 4 March 2019

Underlying Facts, Proceedings and Decision(s) In December 2017, Peruvian professional football player José Paolo Guerrero Gonzalez (the Player) was sanctioned by FIFA’s Appeal Committee with a 6-month ban, after benzoylecgonine, a metabolite of cocaine, which is on WADA’s list of substances prohibited in-competition, was found in his urine samples. The samples had been collected in an anti-doping control conducted just after a qualifying match for the 2018 FIFA World Cup, between Peru and Argentina, in October of that year. Both the Player and WADA appealed FIFA’s decision before the CAS, and, with the Parties’ agreement, the two proceedings were joined. In its Award, which was issued without the grounds on 14 May 2018, and in reasoned form on 30 July 2018, the CAS Panel, applying the 2015 WADC, rejected the Player’s appeal and partially upheld WADA’s, increasing the period of ineligibility imposed on Mr. Guerrero to fourteen months (minus the provisional suspension he had already served). In a nutshell, the Panel found that the Player had committed an inadvertent anti-doping violation by unknowingly consuming coca-leaves tea served to him at a hotel prior to the match against Argentina. The Panel held that the Player’s conduct did not denote an absence of fault or negligence, but rather that his fault and negligence were not significant, and refused to fix his period of ineligibility below the WADC-prescribed minimum of one year, by considering that the principle of proportionality was already incorporated in the WADC’s sanctions regime and could thus not be applied to further reduce that period.

Annulment Action and SFT Decision On 25 May 2018 (i.e. prior to the communication of the grounds for the CAS Panel’s ruling), the Player4 filed an application for the annulment of the CAS

Shortly after the Player’s application, FIFA also filed an application for annulment against the Award (SFT 4A_560/2018, Decision of 16 November 2018), the outcome of which is summarized in Sect. 2.6.2.

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Award. Importantly, Mr. Guerrero also sought from the SFT an immediate ex parte order for the stay of the Award under Articles 103 and 104 SCA, which was granted by the SFT on 30 May 20185 and allowed him to compete in the final round of the FIFA World Cup, pending the Court’s decision on the merits of his application for annulment. In seeking the annulment of the Award, the Player argued inter alia that the CAS Panel had violated Article 190(2)(a) PILA by unduly limiting its power of review in considering the Parties’ arguments on the application of the WADC and the principle of proportionality, thus failing to act as a duly constituted arbitral tribunal. The SFT rejected the Player’s argument. It found, on the contrary, that the Panel had carefully examined, fully exercising its power of review, whether the principle of proportionality could enable it to reduce the sanction below the minimum fixed in the WADC, ultimately concluding that it could not, as the principle’s application was already foreseen within the WADC’s framework itself. For these reasons, as well as those summarized under Sects. 2.4.12 and 2.5.8, the SFT denied the Player’s application. 2.1.3

SFT 4A_287/2019, Decision of 6 January 2020

Underlying Facts, Proceedings and Decision(s) On 4 September 2018, Sun Yang, a Chinese swimmer (the Athlete), was subjected to an unannounced out-of-competition doping control. No urine or blood samples could be taken as a result of this control. On 3 January 2019, Sun Yang was cleared by the anti-doping commission of the Fédération Internationale de Natation (FINA). On 14 February 2019, the World Anti-doping Agency (WADA) appealed this decision before the CAS and requested that the Athlete be suspended for 8 years. On 22 March 2019, the Athlete filed a motion requesting the CAS Panel to render a termination order on the ground that the appeal was inadmissible due to the late filing of WADA’s Appeal Brief. The Panel rejected the plea of inadmissibly raised by the Athlete, who challenged this decision before the SFT.

Annulment Action and SFT Decision Relying on Article 190(2)(a) PILA, the Athlete complained of the irregular composition of the CAS Panel that had rendered the contested decision (upholding the

5

SFT 4A_318/2018, Order issued by the President of the SFT’s 1st Civil law division on 30 May 2018, and summarized in the press release issued by the SFT on 31 May 2018, available (in French) at https://www.bger.ch/files/live/sites/bger/files/pdf/Medienmitteilungen/fr/4A_318_ 2018_Intranet_Rupture_d_embargo_f.pdf. The aforementioned Order was then revoked by the SFT, upon WADA’s request once the reasoned Award became available, in a new Order issued on 22 August 2018. On 6 September 2018, the Player filed another application for the stay of the Award, which was rejected by the SFT on 27 September 2018.

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admissibility of the appeal). In particular, the Athlete argued that the arbitrator appointed by WADA did not offer the required guarantees of independence and impartiality. The SFT rejected this argument, noting that the arbitrator in question had, in the meantime, resigned spontaneously. In this respect, Article R36 CAS Code provides that “[u]nless otherwise agreed by the parties or otherwise decided by the Panel, the proceedings shall continue without repetition of any aspect thereof prior to the replacement [of the resigning arbitrator]”. The SFT observed that the Athlete did not dispute the applicability of said provision and that, after the resignation of the challenged arbitrator, the newly recomposed Panel had expressly ratified the decision confirming the admissibility of WADA’s appeal. As a result, the Athlete’s application was declared inadmissible, for want of a current and practical interest in obtaining the annulment of the decision rendered by the Panel in its original (impugned) composition, which had since been ratified by the Panel in its new (unchallenged) composition. 2.1.4

SFT 4A_248/2019 and 4A_398/2019 (ATF 147 III 49), Decisions of 25 August 2020

Underlying Facts, Proceedings and Decision(s) On 23 April 2018, the International Association of Athletics Federations (IAAF, now World Athletics) published new regulations entitled “Female Classification: Athletes with Differences of Sex Development” (DSD Regulations), which entered into force on 1 November 2018. Caster Semenya, an athlete potentially affected by the new regulations (the Athlete), sought a decision from the CAS recognizing that they were unlawful. She considered the DSD Regulations to be unfairly discriminatory, arbitrary and disproportionate, and in violation of international instruments protecting human rights. In the CAS Award, the Panel accepted that the DSD Regulations were prima facie discriminatory but held that they were necessary, reasonable and proportionate to achieve the legitimate objective of ensuring a fair competition. In particular, the Panel noted that the Athlete did not need to undergo surgery, and that testosterone control could be achieved through the conventional use of birth control pills. On 28 May 2019, Caster Semenya and her national federation, Athletics South Africa (ASA), sought the annulment of the CAS Award before the SFT, as well as an order granting suspensive effect to the application and certain provisional measures. The SFT denied these requests and rejected the application for annulment.

Annulment Action and SFT Decision As a first ground for annulment, ASA invoked a violation of Article 190(2)(a) PILA in connection with an alleged restriction of the Panel’s power of review which, in its view, would have the consequence that the CAS could not be regarded as a

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properly composed arbitral tribunal. In support of its argument, ASA referred to several sections contained in the challenged Award from which it appeared that the Panel had unduly limited its power of review to the question of assessing, as a whole, the proportionality of the DSD Regulations. The SFT opined that the admissibility of such a claim was “questionable”, considering it doubtful that the restriction of the arbitral tribunal’s power of review could validly fall within the scope of Article 190(2)(a) PILA, and intimating that it could rather, perhaps, amount to a violation of the right to be heard within the meaning of Article 190(2) (d) PILA. Furthermore, the SFT found that, notwithstanding its reliance on Article 190(2)(a) PILA, ASA was in reality challenging the interpretation of the concept of proportionality given by the Panel, which is a matter of substantive law and, therefore, at the stage of annulment proceedings before the SFT, can only be examined under the restrictive notion of public policy (Article 190(2)(e) PILA). In any event, the SFT concluded that the Panel had not unduly restricted its power of review. For these reasons, as well as those summarized in Sects. 2.4.22 and 2.5.18, the ASA’s and Caster Semenya’s applications for annulment were dismissed. 2.1.5

SFT 4A_318/2020 (ATF 147 III 65), Decision of 22 December 2020

Underlying Facts, Proceedings and Decision(s) This section completes the facts as set out under Sect. 2.1.3, relating to the connected matter involving the same parties, SFT 4A_287/2019. After the filing of an appeal by WADA, on 1 May 2019, the CAS informed the parties of the composition of the Panel, which was chaired by Mr. Franco Frattini, a former Italian magistrate and politician. In an award dated 28 February 2020, the CAS Panel found the Athlete guilty of a violation of the FINA anti-doping rules (the Award). On 28 April 2020, the Athlete applied for the annulment of the Award before the SFT. As these annulment proceedings were under way, the Athlete discovered that, two years earlier, Mr. Frattini had posted, on his Twitter account, a series of comments that could raise legitimate doubts as to his impartiality. The following words emerged from a number of tweets intended, according to Mr. Frattini’s explanations, to denounce Chinese practices of dog slaughtering and to condemn the consumption of dog meat at a local festival in China: “those bastard sadic chinese who brutally killed dogs and cats in Yulin […] This yellow face chinese monster smiling while torturing a small dog, deserves the worst of the hell […] those horrible sadics are CHINESE! […] Old yellow-face sadic trying to kill and torture a small dog […] Torturing innocent animal is a flag of chinese! Sadics, inhumans”. On 15 June 2020, the Athlete filed a request for revision of the CAS award before the SFT.

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Annulment Action and SFT Decision As just seen, the Athlete brought two separate actions before the SFT, seeking two different remedies against the same arbitral award: an application for annulment and a request for revision. In such a case, the application for annulment (i.e. the ‘ordinary’ remedy) must normally be prioritized over the request for revision (i.e. the ‘extraordinary’ remedy). However, in this instance, the SFT derogated from this rule and decided to deal with the application for revision first, given that it concerned one specific challenge (going to the impartiality of the President of the Panel) which could, if admitted, directly affect the validity of the underlying proceedings and Award. Cf. Sect. 2.8.1.

2.2

2.2.1

Article 190(2)(b) PILA—Incorrect Decision on Jurisdiction SFT 4A_432/2017, Decision of 22 January 2018

Underlying Facts, Proceedings and Decision(s) A professional football player (the Player) and an AFA-licensed agent (the Agent) entered into an exclusive agency agreement (the Agreement) for a two-year period, from 1 September 2011 to 31 August 2013. The Agreement provided for a 10% compensation in case of successful mediation and contained a dispute resolution clause. In December 2012, the Player terminated the Agreement and, a month later, he signed a new employment contract with Club F. The Agent filed a claim with the FIFA Player’s Status Committee (PSC), requesting compensation based on the Agreement. The FIFA PSC declined jurisdiction to decide the dispute. The Agent appealed that decision to the CAS, which upheld his claim and ordered the Player to pay him EUR 559,300, plus 5% interest, starting from 11 September 2013 (the Award).

Annulment Action and SFT Decision The Player sought the annulment of the Award on the ground that the Panel had incorrectly upheld the jurisdiction of the CAS, following the refusal of the FIFA PSC to hear the case. The SFT recalled that the existence and validity of an arbitration agreement are determined in accordance with the law chosen by the parties, the law applicable to the main contract or Swiss law (Article 178(2) PILA). Under Swiss law, arbitration agreements are interpreted in accordance with the principles of contract law. Specifically, the so-called principle of trust applies if the will of the parties cannot be established. If the parties’ intent to arbitrate can be

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established but the chosen arbitration procedure is disputed, then the principle of utility applies. The SFT noted that the CAS Panel had asserted jurisdiction based on the Agreement. However, the SFT could not discern, in the Award, a finding on the common and mutual intent of the Player and the Agent with regard to a specific dispute resolution method. On the contrary, the parties expressly chose to submit disputes to the jurisdiction of the commercial courts of the capital of Argentina, without prejudice to any disputes falling within the purview of the Argentinian Football Association (AFA) and FIFA. The SFT held that there was no clear intention of the parties to submit disputes arising from the Agreement to an arbitral tribunal (to the exclusion of state courts), considering in particular (i) that the Agreement did not clearly define the scope of AFA’s and FIFA’s envisaged jurisdiction, (ii) that the adjudicative bodies of these associations are not arbitral tribunals, and (iii) the parties’ explicit reference to the jurisdiction of the state courts of Argentina and to the constitutional guarantee of access to the courts. In application of the principle of trust, the SFT concluded that the CAS Panel had incorrectly accepted jurisdiction to adjudicate the dispute between the Player and the Agent. Accordingly, the SFT upheld the application for annulment and, as requested by the applicant, declared that CAS lacked jurisdiction to decide the parties’ dispute. 2.2.2

SFT 4A_490/2017, Decision of 2 February 2018

Underlying Facts, Proceedings and Decision(s) The International Association of Athletics Federations (IAAF) investigated a female heptathlon athlete (the Athlete) for anti-doping violations. According to the applicable rules, the first instance proceedings should have been conducted by the Athlete’s national federation. However, the national federation’s status as a member was suspended and therefore it could not conduct the proceedings. As a result, the IAAF took charge of the proceedings and, upon the Athlete’s request for a hearing, directly referred the case to a sole arbitrator appointed by the CAS. The Athlete contested the sole arbitrator’s jurisdiction, arguing that according to the applicable rules, the first instance proceedings were to take place under the auspices of the national federation and that only if said national federation failed to complete such hearing within two months, the IAAF could bring the case before the CAS. The sole arbitrator and the CAS Panel subsequently hearing the case on appeal rejected this argument. The Athlete filed an application for annulment before the SFT.

Annulment Action and SFT Decision Based on Article 190(2)(b) PILA, the Athlete argued that the CAS lacked jurisdiction on the ground that the IAAF had not exhausted the available internal remedies, in accordance with Article R47 of the CAS Code, which governs appeals

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before the CAS Appeals Division. The SFT rejected this argument, considering that the aforementioned provision was not applicable in the case at hand, which had been brought before the CAS Ordinary Division, not the Appeals Division. In any event, given the suspension of the relevant national federation, the IAAF was entitled to submit the dispute directly to the CAS. Accordingly, the Athlete’s application was dismissed. 2.2.3

SFT 4A_170/2017 and 4A_194/2017, Decisions of 22 May 2018

Underlying Facts, Proceedings and Decision(s) Etoile Filante de Garoua (the Club) is a football club affiliated to the Fédération Camerounaise de Football (FECAFOOT), a FIFA member association, which was administered by a Normalisation Committee at the relevant time. In order to resolve the situation prevailing in Cameroon, the Normalisation Committee had planned for a two-step process, namely the adoption of new FECAFOOT Statutes/Electoral Code and the election of a new Executive Committee, at assemblies that were held in August and September 2015 respectively. FECAFOOT and the Club filed separate appeals against the resolutions of these assemblies before the Conciliation and Arbitration Chamber (the Chamber) of the National Olympic and Sports Committee of Cameroon (the NOSCC). In its appeal, FECAFOOT argued that the new Statutes were unlawful. The Chamber agreed and annulled their adoption. Etoile Filante de Garoua challenged the two-step process and all related decisions. On 12 November 2015, the Chamber concurred and annulled the two-step process as a whole. The relevant decision was notified to the Club on 18 November 2015. On 9 December 2015, Etoile Filante de Garoua appealed that decision before the CAS, arguing that its prayer for relief was not considered in full. In an award dated 27 February 2017, the Sole Arbitrator declared the appeal inadmissible, finding that it had been filed one day after the applicable time limit as stipulated in the NOSCC Statutes, and confirmed the appealed decision (the Award).

Annulment Action and SFT Decision The Club and FECAFOOT filed separate applications for the annulment of the Award, which the SFT decided to join. The Club6 sought to have the Award annulled inter alia on the ground that the Sole Arbitrator had violated Article 190 (2)(b) PILA by exercising his jurisdiction on the basis of an incorrect interpretation of the laws of Cameroon. According to the Club, the time limit for appeal was established by the Law on Sport, as supplemented by the Code of the Chamber,

6

FECAFOOT’s application was solely based on Article 190(2)(c) PILA; it is summarized in Sect. 2.3.2.

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which provided for a 21-day time limit to file the appeal. In other words, the time limit stipulated in the NOSCC Statutes (20 days) was not relevant in the context at hand. The SFT noted that the Sole Arbitrator had applied the principle of hierarchy of norms and found that the time limit stipulated in the NOSCC Statutes prevailed over the time limit set forth in the Code of the Chamber, a document enacted by a judicial body established by the NOSCC Statutes. Accordingly, the SFT held that Sole Arbitrator’s decision on jurisdiction (and on the inadmissibility of the appeal) was correct. On this basis, and for the reasons summarized in Sects. 2.4.3 and 2.5.3, the Club’s application for annulment was dismissed. 2.2.4

SFT 4A_314/2017, Decision of 28 May 2018

Underlying Facts, Proceedings and Decision(s) The Fédération Internationale de Motocyclisme (FIM), an association governed by Swiss law, is the international governing body for the sport of motorcycling. Membership of FIM operates according to the so-called Ein-Platz-Prinzip, meaning that only one National Motorcycling Federation (NMF) per country can become a vote-holding affiliate member of FIM. To become a FIM affiliate member, an NMF must submit its application together with the enclosures described in the FIM By-Laws, including a declaration that the applicant commits to comply, and ensure compliance by its own members, with the Statutes, rules and decisions issued by FIM. The FIM Statutes contain an arbitration clause, at Article 5(1), which reads as follows: “[f]inal decisions handed down by the jurisdictional bodies or the GA of the FIM shall not be subject to appeal in the ordinary courts. Such decisions must be referred to the Court of Arbitration for Sport (CAS) which shall have exclusive authority to impose a definitive settlement in accordance with the Code of Arbitration applicable to sport.” The Kuwait International Automobile Club (KIAC) has been the recognized NMF and FIM member for Kuwait since 1980. The Kuwait Motor Sports Club (KMSC) is a non-profit Kuwaiti entity, approved by the Kuwaiti Ministry of Youth and Sports in 1997. In 2009, the KMSC applied to become a member of FIM, to which the KIAC objected. The KMSC reiterated its application in 2013, which was again met by KIAC’s objection. Several exchanges, including proposals for resolving the dispute by mediation, ensued between the two Kuwaiti entities and FIM, but no decision was taken by FIM on KMSC’s application. In the meantime, judicial proceedings had been commenced in Kuwait, which culminated in a decision by the Kuwaiti Court of Cassation, issued in October 2015. The Kuwaiti Court, without fully clarifying the respective roles of the KIAC and KMSC, appeared to confirm that the KIAC could pursue its activities within the sport and that the KMSC was not to be recognized as the sole entity entitled to represent automobile and motorcycling sports within Kuwait. On 26 November 2015, the KMSC filed a Request for arbitration with the CAS against FIM, seeking a decision

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ordering the latter to admit it as the NMF for Kuwait, to exclude the KIAC from its membership, and to pay damages to the KMSC for its undue prolonged exclusion from FIM’s membership. A three-member Panel was appointed to hear the case, and the KIAC was informed of its right to intervene in the arbitration, which it declined to do. FIM raised a jurisdictional objection. In its Award, issued on 1 May 2017, the Panel partly upheld its jurisdiction, ruled that FIM had committed a denial of justice by failing—over an unreasonably long period of time—to render a decision on the KMSC’s application for membership, and ordered it to make a determination on that application, duly observing of the applicant’s right to be heard, within 9 months from the notification of the Award.

Annulment Action and SFT Decision FIM challenged the Panel’s ruling on jurisdiction, both ratione personae and ratione materiae. According to FIM, the personal scope of Article 5 could not be extended to non-members such as the KMSC, and FIM’s handling of the KMSC’s application could not be held to amount to a denial of justice, assuming even that such a notion could be relevant to a private association’s relationship with a non-member applicant, in particular because the KMSC’s status could not be deemed to have been definitively determined, as a matter of Kuwaiti law, until the Court of Cassation’s decision rendered in October 2015, i.e. only a few weeks before the KMSC filed its Request for arbitration. The SFT started by recalling that its case law considers arbitration clauses in favor of CAS as Branchentypisch (i.e. standard) in the field of professional sports. Given FIM’s role as the global governing body for motorcycle sports, the SFT opted to interpret its Statutes in accordance with the methods of statutory interpretation (as opposed to the methods of contractual interpretation it applies to the regulations of smaller organizations), i.e. by following (in a pragmatic and non-hierarchical fashion) a literal, systematic, teleological and historical interpretation. Before turning to the interpretation of the Statutes, however, the SFT raised and determined a preliminary point, finding that candidate members of sports federations have a right, protected by the prohibition against infringements of personality rights under Article 28 SCC, to challenge a refusal to admit them in a federation, provided they meet the requirements for admission. Examining Article 5 of the FIM Statutes, the SFT found that, given that clause’s broad wording, its relationship to other provisions (including the requirement that candidate members commit to comply with the Statutes) and its purpose—namely, excluding the jurisdiction of the state courts over disputes relating to the global organization and administration of motorcycle sports, it ought to be read as a standing offer to arbitrate such disputes, which the KMSC had impliedly accepted by filing its Request for arbitration with the CAS. This finding was reinforced, in the SFT’s view, by the fact that the FIM’s membership is organized in accordance with the Ein-Platz-Prinzip, as it would be unsatisfactory, and potentially conducive to conflicting decisions, to have membership disputes determined by different tribunals (the CAS or state courts) depending on the current

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(member or non-member) status of the applicant. The SFT underscored that it should be clear from its decision that this conclusion was specific to the facts of the case, including the type of regulations at stake (and the relevance of the Ein-Platz-Prinzip in that context) and could not be generalized without distinction to other disputes arising from applications for membership in Swiss domestic associations. As to FIM’s jurisdictional objection ratione materiae, relying on the (non-)existence of a denial of justice in the case at hand, the SFT held that that question pertained to the merits of the dispute, not to the CAS Panel’s jurisdiction, and as such it could not be reviewed under Article 190(2)(b) PILA. For these reasons and those summarized in Sect. 2.3.3, FIM’s application for annulment was dismissed. 2.2.5

SFT 4A_272/2019, Decision of 4 September 2019

Underlying Facts, Proceedings and Decision(s) In January 2016, a football player (the Player) and a club (the Club) entered into an employment contract until 30 November 2016 (the Contract). The Club subsequently terminated the Contract unilaterally. On 22 July 2016, the Player filed a claim with the FIFA Dispute Resolution Chamber (the DRC). The DRC upheld the claim and ordered the Club to pay the Player USD 18,000, plus interest, in outstanding salaries, and USD 166,000, plus interest, as compensation for the termination of the Contract without just cause (the DRC Decision). The operative part of the DRC Decision was notified to the parties on 27 September 2017. On 11 October 2017, the Club requested the grounds of the DRC Decision, to which FIFA replied that the decision had become final and binding, in the absence of a specific request within the applicable deadline (ten days, in accordance with Article 15(1) of the Rules Governing the Procedures of the Player’s Status Committee and the DRC). The Club renewed its request once. FIFA provided an identical response. On 15 December 2017, the Club filed an appeal with the CAS against the Player, with the aim of forcing FIFA to communicate the grounds of the DRC Decision to the parties. In August 2018, the Sole Arbitrator dismissed the application (the First Award), having found that the Player lacked standing to be sued in this instance (the decision not to communicate the grounds was FIFA’s own, not that of the Player). The Sole Arbitrator noted, however, that FIFA’s refusal to communicate the grounds of the DRC Decision was unjustified. Relying on this finding, the Club again requested the grounds of the DRC Decision, which FIFA finally forwarded to the parties together with a copy of the CAS guidelines on appeal proceedings. The Club appealed the reasoned decision (the DRC Reasoned Decision) within the applicable time limit of 21 days. On 15 April 2019, the CAS declared the appeal inadmissible (the Second Award).

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Annulment Action and SFT Decision The Club sought the annulment of the Second Award on the ground that the Panel had incorrectly denied the jurisdiction of the CAS. The SFT held that the matter at hand did not relate to the jurisdiction of the CAS but to the fact that the First Award was vested with res judicata, a legal principle which forms part of procedural public policy within the meaning of Article 190(2)(e) PILA, a ground for annulment that had not been raised in the application. In the First Award, the Sole Arbitrator had dismissed the appeal by the Club and, by the same token, confirmed the final and binding nature of the DRC Decision. The failure by the Club to obtain the DRC Reasoned Decision in the first place was deemed, under the applicable FIFA rules, a waiver of its right to appeal, and the communication of the DRC Reasoned Decision by FIFA could not revive (whether vis-à-vis the Club or vis-à-vis the Player) the time limit for appeal to the CAS, nor could it constitute a (new) offer to arbitrate the dispute. Accordingly, the application for annulment was declared inadmissible. 2.2.6

SFT 4A_268/2019, Decision of 17 October 2019

Underlying Facts, Proceedings and Decision(s) In July 2015, a professional football player (the Player) and Club B concluded an employment agreement that was to last until the end of the season 2016–2017 (the Employment Agreement). In August 2016, the parties agreed to extend the Employment Agreement until 30 June 2018 and to increase the Player’s gross salary. Article 7 of the Employment Agreement provided for a dispute resolution mechanism, i.e. a referral to the National Dispute Resolution Chamber of the Algerian Football Federation (AFA NDRC). Following a dispute over unpaid salaries and the demotion of the Player to the second team of Club B, including withdrawal from the players’ list and cancellation of his license for the 2017–2018 season, the AFA NDRC ordered Club B to pay the Player a net amount of DZD 5,153,980 in outstanding salaries as well as DZD 400,000 in compensation. On appeal, the Algerian Court of Sports Dispute Resolution annulled the decision of the AFA NDRC and ordered Club B to pay the Player the amount of DZD 9,618,564.64. In August 2108, the Player filed an appeal with the CAS against Club B and the Algerian Football Federation (the AFA) seeking to overturn the decision of the Algerian Court of Sports Dispute Resolution, and to receive payments for several months of unpaid salaries as well as damages. In its award rendered on 9 April 2019, the CAS declined jurisdiction.

Annulment Action and SFT Decision The Player sought to have the CAS award annulled inter alia on the ground that the Panel had violated Article 190(2)(b) PILA by deciding that it did not have

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jurisdiction ratione personae vis-à-vis AFA, and holding that neither the FIFA Statutes nor the AFA Statutes allowed for an appeal to the CAS in the case at hand. The SFT found, first, that Article 7 of the Employment Agreement bound only the Player and Club B, not the AFA. The mere fact that the AFA NDRC ruled on the dispute between the parties or declared that the Employment Agreement had been terminated did not have the effect of conferring upon AFA the standing to be sued. Second, the SFT confirmed the findings of the Panel that third parties may not rely on the FIFA Statutes to establish a right to appeal against decisions of FIFA member associations and/or their judicial bodies before the CAS. Third, the SFT confirmed that the AFA Statutes only provide for a right to appeal to the CAS if the AFA is a party to the proceedings at domestic level, which was not the case here. The SFT also dismissed a plea arguing that the Algerian Court of Sports Dispute Resolution lacked independence, finding that the Player had not contended that he had been forced to consent to arbitration. For these reasons and those summarized in Sect. 2.4.16, the Player’s application for annulment was dismissed. 2.2.7

SFT 4A_413/2019, Decision of 28 October 2019

Underlying Facts, Proceedings and Decision(s) The facts set out in this section complete and are to be read together with the facts set out in Sect. 2.1.3, relating to the (connected) matter SFT 4A_287/2019 (decision of 6 January 2020). Sun Yang argued that one of the counsel for WADA should cease to act in the proceedings due to an alleged conflict of interest arising from the fact that he had been, in the past, a member of the FINA Legal Commission. During the proceedings before the CAS, after the impugned WADA counsel refused to withdraw from the case, the Athlete and FINA raised a plea of inadmissibility arguing that the counsel in question had lacked the capacity to file the appeal on behalf of his client and, therefore, WADA’s appeal brief had been filed belatedly. By decision of 26 July 2019, the CAS dismissed the Athlete’s objections. On 2 September 2019, Sun Yang lodged an application for the annulment of that decision.

Annulment Action and SFT Decision According to Article 190(3) PILA, an interim award may be sought to be set aside only on the grounds of the panel’s irregular composition (Article 190(2)(a) PILA) or of an incorrect decision on jurisdiction (Article 190(2)(b) PILA). Relying on Article 190(2)(b) PILA, the Athlete submitted that (i) the statement of appeal and the appeal brief were filed by a conflicted counsel, which ought to lead to the conclusion that the appeal should be declared inadmissible, and (ii) the appeal brief was filed belatedly, with the consequence that the CAS lacked jurisdiction, ratione temporis, to decide on the appeal. As to the first argument, the SFT held that the

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CAS’s decision rejecting the Athlete’s argument on the inadmissibility of the appeal due to the incapacity of WADA’s counsel did not raise an issue of jurisdiction of the arbitral tribunal; as a result, the said decision could not be challenged before the SFT. As to the second argument, the SFT’s case law had not yet ruled on the question whether the consequence of the late filing of an appeal before the CAS (i.e. after the time limit for appeal in accordance with Article R49 CAS Code) was that the tribunal lacked jurisdiction or the inadmissibility of the appeal. Relying in particular on the “convincing” opinion of two legal scholars, the SFT decided that compliance with the time limit for appeal before the CAS constitutes a condition of admissibility and not an issue pertaining to jurisdiction within the meaning of Article 190(2)(b) PILA. Consequently, the failure to comply with the time limit for appeal leads to the loss of the substantive right to submit the decision to the review of any judicial forum and not (merely) to the lack of jurisdiction of CAS in favor of the state courts. For this reason, the Athlete’s application for annulment was declared inadmissible. 2.2.8

SFT 4A_287/2019, Decision of 6 January 2020

Underlying Facts, Proceedings and Decision(s) The facts of this case have been summarized in Sects. 2.1.3 and 2.2.7.

Annulment Action and SFT Decision The Athlete challenged a CAS decision upholding the admissibility of the appeal filed by WADA. By invoking Article 190(2)(b) PILA, the Athlete argued that the CAS panel had wrongly affirmed its jurisdiction (ratione temporis) since WADA had not complied with the time limit for appealing to CAS. The SFT started its reasoning by recalling the principles governing the plea of lack of jurisdiction within the meaning of Article 186(2) PILA, in particular the fact that, when the respondent proceeds on the merits of the case without making any reservation on the jurisdiction of the arbitral tribunal (i) it tacitly accepts the jurisdiction of the arbitral tribunal and (ii) it definitively loses the right to raise the plea of lack of jurisdiction at a later stage. This does not mean, however, that a respondent that objects to the tribunal’s jurisdiction cannot take position on the merits of the case by way of arguments presented in the alternative, i.e. in the event that the plea of lack of jurisdiction is not accepted. The SFT noted that by dismissing the objection related to the inadmissibility of WADA’s appeal, the Panel had not ruled “definitively” on its jurisdiction and that, in any event, the issue of compliance with the time limit for appeal before the CAS does not pertain to jurisdiction but rather to the admissibility of the appeal (as the SFT had recently ruled in the connected matter SFT 4A_413/2019, decision of 28 October 2019, summarized in Sect. 2.2.7). As a result, the SFT declared the Athlete’s application inadmissible.

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SFT 4A_618/2019, Decision of 17 September 2020

Underlying Facts, Proceedings and Decision(s) A dispute arose between a professional football Player (the Player) and the Greek anti-doping agency (NADO), after the Player tested positive at an anti-doping control. The Greek NADO found a violation of the applicable anti-doping rules and sanctioned the Player, who appealed against the NADO’s decision before the CAS. The Sole Arbitrator appointed by CAS dismissed the appeal for lack of jurisdiction, having established that, under the relevant regulations, a direct appeal before the CAS was only available for cases involving “international level players”, which was not the case in the present proceedings. The Player applied for the annulment of the CAS award before the SFT.

Annulment Action and SFT Decision The Player argued that the CAS Sole Arbitrator had wrongly declined jurisdiction, since the respondent had not participated in the proceedings and had not raised a jurisdictional objection. The SFT noted that, according to Article 186(2) PILA, objections to jurisdiction must be raised before any defense on the merits. However, if the respondent fails to appear, the arbitral tribunal must review its jurisdiction ex officio, considering the information at its disposal. This does not mean that the arbitral tribunal cannot conduct its own investigations or seek additional information from third parties where necessary for the purposes for determining its jurisdiction. In the present case, the Sole Arbitrator requested information regarding the international status of the Player from FIFA, as this information was needed to rule on the CAS’s jurisdiction. Based on the information so obtained, the Sole Arbitrator concluded that the Player had not exhausted the NADO’s internal legal remedies before bringing the case to the CAS. Thus, she was correct to decide that CAS had no jurisdiction to decide the dispute. For this reason, and those summarized in Sect. 2.5.19, the SFT dismissed the application.

2.3

2.3.1

Article 190(2)(c) PILA—Award Ultra, Extra or Infra Petita SFT 4A_508/2017, Decision of 29 January 2018

Underlying Facts, Proceedings and Decision(s) A professional football coach (the Coach) and Club A entered into an employment agreement, effective from 15 December 2015 to 15 June 2018 (the Employment

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Agreement). Article 3 of the Employment Agreement not only provided for the total amount payable to the Coach for his services (EUR 7,370,000 without bonuses) but also clarified that all the payments to be made under the said Agreement were net. Article 3 in fine of the Employment Agreement stipulated that “all the fees, taxes, contributions, generated by the net income obtained according to the [Employment Agreement] will be paid by [Club A.]”. The Employment Agreement also provided for contractual penalties in different scenarios of early termination, including in the event the Coach terminated it prematurely for just cause, in which case he would be entitled to payment of the remaining value of the Employment Agreement, including any bonuses “pro rata on a time basis, in case that they were not achieved by [the Coach] in full”. On 10 July 2016, the Coach terminated the Employment Agreement for just cause and immediately thereafter filed a claim for compensation with the CAS. The Coach claimed EUR 1,070,000 net in unpaid salaries and EUR 6,020,000 net in damages for the early termination of the Employment Agreement, plus 5% interest as of 10 September 2016. On 8 August 2017, the CAS Panel partially upheld the claim and ordered Club A to pay the Coach EUR 5,570,000, divided as follows: EUR 1,070,000 net for unpaid salaries and EUR 4,500,000 net in damages, plus 5% interest as of 10 September 2016 (the Award). In the Award, the Panel set out a deduction mechanism for the payments to be made by Club A to the Coach (i.e. payments were first to be credited against unpaid salaries and then against the damages awarded), and clarified that the payments were to be made net. In other words, Club A was to bear all “fees, taxes [and] contributions” in relation with the payments, in line with Article 3 of the Employment Agreement.

Annulment Action and SFT Decision Club A sought the annulment of the Award inter alia on the ground that it violated the ne eat iudex ultra petita partium principle on two accounts. First, according to Club A, the Coach did not request a ruling on “fees, taxes [and] contributions” as part of his prayers for relief. The SFT dismissed this plea on the ground that the Coach had claimed net amounts based on the Employment Agreement, which explicitly defined such concept in its Article 3. The Coach’s claim—interpreted in light of the Employment Agreement—obviously included the payment of “fees, taxes [and other] contributions”. Second, Club A argued that the Award violated Article 86(1) CO in the absence of any request by the Coach for a clarification of how partial payments were to be dealt with. The SFT found that it was unclear how this argument would fit with Article 190(2)(c) PILA, especially considering that the CAS Panel did not award monies or interest in excess of the Coach’s claims. The SFT held that the payment deduction mechanism provided for in the Award merely had the effect of establishing a sequence for payments and of setting out how interest would continue to accrue from one segment of the payments due to the next. For these reasons and those summarized in Sect. 2.5.1, the application for annulment was dismissed.

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SFT 4A_170/2017 and 4A_194/2017, Decisions of 22 May 2018

Underlying Facts, Proceedings and Decision(s) The facts of this case have been summarized in Sect. 2.2.3.

Annulment Action and SFT Decision FECAFOOT applied to have the Award set aside, arguing that the Sole Arbitrator had confirmed the decision of the Chamber sua sponte, i.e. in the absence of a prayer for relief to that effect by Etoile Filante de Garoua or the FECAFOOT. The SFT found that FECAFOOT did not have a legal interest worthy of protection in requesting the annulment of the relevant paragraph in the operative part of the Award, which was superfluous in nature and merely confirmed a decision the FECAFOOT itself had not challenged. Accordingly, the Sole Arbitrator could not be deemed to have ruled ultra petita. For this reason, FECAFOOT’s application for annulment was deemed inadmissible. 2.3.3

SFT 4A_314/2017, Decision of 28 May 2018

Underlying Facts, Proceedings and Decision(s) The facts of this case have been summarized in Sect. 2.2.4.

Annulment Action and SFT Decision In addition to its jurisdictional challenge (see Sect. 2.2.4), FIM argued that the CAS Panel had ruled ultra or extra petita by ordering it to examine and make a determination on the KMSC’s application within a set deadline, given that the relief sought by the KMSC in the arbitration was (in addition to its claim for damages) a decision by the CAS as to its entitlement to FIM membership, as well as the exclusion therefrom of the KIAC. The SFT noted that, as explained in the Award, the CAS had acted in line with its own case law, which avoids interfering in federations’ membership decisions, in accordance with the principles of freedom and autonomy of associations under Swiss law. In light of the SFT’s jurisprudence under Article 190(2)(c) PILA, including its application of the maxim iura novit curia, the CAS Panel’s decision could not be read to have awarded anything more than or beyond what the KMSC had sought in its prayers for relief. Rather, the Panel’s ruling, abstaining from a direct decision on the KMSC’s application for membership and enjoining FIM to take such a decision, was within its powers in accordance with the principle a maiore minus. For these reasons and those summarized in Sect. 2.2.4, FIM’s application for annulment was dismissed.

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SFT 4A_284/2018, Decision of 17 October 2018

Underlying Facts, Proceedings and Decision(s) Mr. Tommy Wiking was first elected President of IFAF in 2006 and subsequently re-elected in 2008 and 2012. His third term of office was due to expire in 2016. In December 2014, Mr. Wiking temporarily stepped down from his duties as President of IFAF for medical reasons, and IFAF decided to relocate its flagship event from Sweden to the United States of America (there were allegations of mismanagement in relation with the Swedish organization committee chaired by Mr. Wiking). In this context, in a series of written exchanges, the IFAF Executive Board and Mr. Wiking discussed an extension of his leave of absence and, subsequently, agreed on his resignation, with effect on 30 April 2015. Mr. Wiking then revoked his resignation. Following this, a schism occurred within IFAF’s membership: one group of member associations remained loyal to Mr. Wiking, while another faction elected Mr. Roope Noronen as the new President for the remainder of the ongoing term. In 2016, Mr. Richard MacLean was elected President of IFAF, for a 4-year term. Mr. Wiking initiated CAS arbitral proceedings against IFAF, as well as certain individuals and IFAF member associations. The CAS Panel ruled that Mr. Wiking had validly resigned from the presidency in February 2015 and, as a consequence, the acts he had accomplished on behalf of IFAF after 30 April 2015 were null and void, and that Mr. MacLean had validly been elected as IFAF President in 2016 (the Award).

Annulment Action and SFT Decision Mr. Wiking sought the annulment of the Award, inter alia on the ground that the Panel had ruled beyond the claimants’ prayers for relief on two accounts, namely by finding that Mr. Noronen had been elected President of IFAF ad interim on 17 July 2015, and by declaring Mr. Wiking’s actions—including as President of IFAF or on behalf of IFAF more generally—null and void as from 30 April 2015. The SFT found that the Panel had conducted a good faith interpretation of the prayers for relief, in light of the circumstances, by (i) confirming that Mr. Noronen had been elected President of IFAF ad interim instead of just declaring which one of the meetings held on 17 July 2015 was the lawful 2015 IFAF Congress (and election), and (ii) stating the legal consequences thereof, as well as those of Mr. Wiking’s resignation. Accordingly, the Panel had not ruled ultra petita or extra petita. On this basis and for the reasons summarized in Sect. 2.4.8, Mr. Wiking’s application for annulment was dismissed.

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SFT 4A_198/2020, Decision of 1 December 2020

Underlying Facts, Proceedings and Decision(s) In May 2018, football club B (Club B) brought a claim against another club (Club A) and a professional player (the Player) in connection with the execution of an agreement for the transfer of the Player to Club B and subsequent clubs. Following domestic proceedings, Club A was ordered to pay the sum of EGP 2,500,000 (i.e. approximately EUR 130,000) in connection with the Player’s transfer, as well as a contractual penalty of USD 500,000. Club B and Club A appealed against this decision before the CAS. Club A objected to the admissibility of the appeal brief submitted by Club B, arguing that it had been filed late and was not signed. The CAS Court Office, on behalf of the Panel, informed the parties that Club B’s appeal brief was deemed admissible. In its award, the CAS Panel then dismissed Club A’s claim and upheld Club B’s counterclaim, ordering Club A to pay USD 750,000 to Club B for the transfer of the Player, as well as the contractual penalty (the Award).

Annulment Action and SFT Decision Club A sought the annulment of the Award inter alia on the ground that it violated the ne infra petita principle. In its submissions before the CAS, Club A had requested that Club B’s appeal brief be declared inadmissible. Before the SFT, Club A argued that the CAS Panel had not ruled on its second objection to the admissibility of Club B’s appeal brief, namely the fact that it was not signed. The SFT found that the CAS Panel had implicitly denied this ‘prayer for relief’, on the one hand, by using the standard formula “all other motions or prayers for reliefs are dismissed” and, on the other, by partially upholding Club B’s counterclaim, for which the admissibility of the appeal was a prerequisite. On this basis, and for the reasons summarized in Sect. 2.4.24, Club A’s application for annulment was dismissed.

2.4

Article 190(2)(d) PILA—Violation of the Parties’ Right to Be Heard and Equal Treatment

2.4.1

SFT 4A_260/2017 (ATF 144 III 120), Decision of 20 February 2018

Underlying Facts, Proceedings and Decision(s) The facts in this case have been summarized in Sect. 2.1.1.

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Annulment Action and SFT Decision In addition to Article 190(2)(a) PILA (Sect. 2.1.1), RFC Seraing also invoked a violation of its right to be heard. In this regard, the SFT recalled that an alleged violation of the right to be heard, just like any another procedural deficiency, must be raised immediately in the arbitral proceedings. It would be contrary to good faith to invoke a procedural violation only at the stage of the annulment of the award, when it could have been raised (and remedied) during the arbitral proceedings. In addition, when a party alleges a violation of its right to be heard, it must explain how the argument it was allegedly prevented from developing—in casu, relating to the morality of certain members of the FIFA Executive Committee—was relevant to and could influence the outcome of the dispute. Having found that RFC Seraing had not complied with these jurisprudential requirements, the SFT dismissed its argument based on Article 190(2)(d) PILA. For this reason, as well as those summarized in Sects. 2.1.1 and 2.5.2, the SFT dismissed RFC Seraing’s application. 2.4.2

SFT 4A_478/2017, Decision of 2 May 2018

Underlying Facts, Proceedings and Decision(s) The Belarus Taekwondo Federation (the BTF) decided not to sanction a taekwondo athlete (the Athlete) who tested positive for meldonium, a non-specified prohibited substance. WADA appealed this decision before the CAS. At first, the BTF and the Athlete instructed the same counsel and filed a common reply to WADA’s statement of appeal. Subsequently, the Athlete appointed a separate counsel and amended his prayer for relief to state that, if a ban was to be imposed on him, it should start from the date of the anti-doping control, rather than the date of the award (as previously indicated in the reply to the statement of appeal). By award dated 20 July 2017, the Sole Arbitrator banned the Athlete for a period of four years, minus the provisional suspension already served, and ordered the disqualification of all his results between 13 July 2016 and 11 August 2016 (the Award). The Sole Arbitrator’s ruling specified that the ban was to start from the date of the Award.

Annulment Action and SFT Decision The Athlete sought the annulment of the Award on the ground that the Sole Arbitrator had violated his right to be heard on three accounts. First, the Athlete contended that the Sole Arbitrator had failed to rule on his request to submit an amended prayer for relief following the appointment of his new counsel. The SFT held that the Sole Arbitrator had duly considered the amended prayers for relief, save for one (see below). Second, the Athlete argued that the Sole Arbitrator did not address the (non-)performance enhancing nature of the prohibited substance at

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stake. The SFT dismissed the plea, having found that the Sole Arbitrator had duly considered the arguments presented by the Athlete in writing or at the hearing. Third and last, the Athlete argued that the Sole Arbitrator had disregarded his request, in his amended prayers for relief, that the dies a quo of any ban as may be imposed on him should start from the date of his doping control, rather than the date of the Award. The SFT found that the Sole Arbitrator had failed to take into account the Athlete’s amended prayers for relief on this point, violating his right to be heard. For this reason, the Athlete’s application for annulment was partially upheld and the case referred back to the Sole Arbitrator for a new decision on the dies a quo of the Athlete’s ban. 2.4.3

SFT 4A_170/2017 and 4A_194/2017, Decisions of 22 May 2018

Underlying Facts, Proceedings and Decision(s) The facts of this case have been summarized in Sect. 2.2.3.

Annulment Action and SFT Decision In addition to its complaints under Articles 190(2)(b) and 190(2)(e) PILA (see Sects. 2.2.3 and 2.5.3), the Club argued that the Sole Arbitrator had violated its right to be heard by failing to consider the 21-day time limit for appeal stipulated in the operative part of the decision of the Chamber dated 12 November 2015, which was also mentioned in the FECAFOOT Statutes as then in force, and applied in a previous CAS award involving FECAFOOT. The SFT acknowledged the reference to the 21-day time limit in the Chamber’s decision and the other documents relied upon by the Club, but dismissed the plea on the ground that the Club had failed to prove that it had duly adduced those specific facts during the CAS proceedings and that it had drawn the Sole Arbitrator’s attention to those facts in connection with the question of the computation of the time limit for appeal. It is for this reason that the relevant facts were not set out in the Award, and, for the same reason, they could not be taken into account by the SFT in its review of the Award. For these reasons and those summarized in Sects. 2.2.3 and 2.5.3, the Club’s application for annulment was dismissed. 2.4.4

SFT 4A_502/2017, Decision of 25 June 2018

Underlying Facts, Proceedings and Decision(s) By award dated 11 July 2017, the CAS dismissed the appeal brought by a professional football player (the Player) against a decision rendered by the FIFA DRC in a dispute between him and an Egyptian football club (the Club). In the same

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award, the CAS partially upheld the appeal brought by the Club against the same decision, in a matter where the Player and a Saudi football club were the respondents, reducing the amount owed to the Player in salary arrears to USD 254,000, and confirming the indemnity of USD 650,000 due by the Club to the Player for breach of contract without just cause (the Award).

Annulment Action and SFT Decision The Club sought the annulment of the Award on two grounds, namely that it violated its right to be heard and public policy (on this latter ground see Sect. 2.5.4). In short, the Club complained that, in calculating salary arrears, the CAS Panel did not account for a past USD 35,000 payment made to the Player, all the while accepting the existence of other (undisputed) payments to the local tax authorities. The SFT considered that the argument concerned the Panel’s assessment of the evidence, which falls outside the SFT’s scope of review in annulment proceedings, noting also that there was no relevant connection between the different payments referenced by the Club. Additionally, the Club argued that the CAS Panel had failed to reduce the amount owed to the Player based on its internal rules. Again, the SFT found that the Club’s argument amounted to an inadmissible request for review of the Panel’s assessment of the evidence. For these reasons and those summarized in Sect. 2.5.4, the Club’s application for annulment was dismissed. 2.4.5

SFT 4A_578/2017, Decision of 20 July 2018

Underlying Facts, Proceedings and Decision(s) A professional player from Romania (the Player) unilaterally terminated his contract with an Israeli club (the Club) for just cause, and brought a claim against the Club before the CAS. The Player requested the Sole Arbitrator to confirm the validity of the termination and to order the Club to pay a penalty of EUR 18,600 for overdue payables, as well as EUR 800,000 for damages. The Club, which had filed for bankruptcy in the meantime, submitted a counterclaim. It requested that the Player be ordered to reimburse EUR 54,119 (i.e. the difference between the amount owed to the Player and the sum credited to his bank account the day following the termination of the contract, via four bank transfers) and to pay EUR 620,000 in damages. In his award dated 11 September 2017, the Sole Arbitrator partially upheld the Player’s claim and ordered the Club to pay the penalty of EUR 18,600, while dismissing all other prayers for relief. The Sole Arbitrator found that the Club had prepared a check for the Player to collect, which he did not, and that only thereafter the Club had proceeded to deposit the check on the Player’s bank account. The Sole Arbitrator concluded that the Player had acted in bad faith by failing to collect the check and terminating the contract (the Award).

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Annulment Action and SFT Decision The Player sought the annulment of the Award on the ground that the Sole Arbitrator had violated his right to be heard. Specifically, the Player argued that the Sole Arbitrator had made two factual errors, both of which had affected the outcome of the case: the amount the Sole Arbitrator had noted in relation to the check was incorrect, and he had also incorrectly found that the Club had deposited the check on the Player’s bank account, when in reality it had made use of four bank transfers to wire the money. Interestingly, the CAS and the Sole Arbitrator acknowledged the mistakes (as typographical errors) in their observations filed on the application for annulment, but the Sole Arbitrator clarified those mistakes had no bearing on his consideration of the parties’ arguments and his legal reasoning, and thus on the outcome of the case as set out in the Award. The SFT recalled its longstanding case law to the effect that a mistake by the tribunal amounts to a violation of the right to be heard only if it precludes the applicant from fully presenting its arguments and submitting any evidence as may be necessary on a question that is material to the outcome of the case. The SFT found that the Player had not shown this was the case here, in particular because the two factual elements raised in his application for annulment had not been addressed as a necessary element for resolving the dispute in the CAS proceedings. Accordingly, the application for annulment was dismissed. 2.4.6

SFT 4A_114/2018, Decision of 14 August 2018

Underlying Facts, Proceedings and Decision(s) A Russian football club (the Club) and a Bulgarian player (the Player) entered into an employment contract, including two additional covenants, on 31 August 2015. Following an amendment and various exchanges of correspondence, the Club confirmed the existence of a binding agreement with the Player on 30 December 2015. Further, the Club invited the Player to attend a training camp in Cyprus starting on 14 January 2016. On the following day, the Player underwent a medical examination and additional exchanges between the parties took place. Ultimately, the Club informed the Player that it would not sign him due to the applicable quotas of foreign players. In a letter dated 18 January 2016, the Player nonetheless offered his services to the Club and requested that the contract be signed and his work permit delivered by no later than 19 January 2016, failing which he would understand that the Club was no longer interested in his services and had terminated the employment agreement without just cause. The Player issued a confirmation letter after the expiry of the aforementioned deadline. On 21 March 2016, the Player filed a claim with the FIFA Dispute Resolution Chamber (the DRC). The DRC partially upheld his claim and ordered the Club to pay him EUR 28,179, plus interest. The CAS dismissed an appeal by the Player and confirmed the DRC decision (the Award).

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Annulment Action and SFT Decision The Player sought the annulment of the Award on the ground that the Panel had violated his right to be heard. The SFT observed that the Panel had examined whether it had been opportune for the Player to anticipate the Club’s failure to execute the employment contract, and had considered the Player’s position to be premature in this respect, especially because the next transfer window was to start only one week after the training camp in Cyprus. The Player argued that the CAS Panel disregarded some of the arguments supporting his position. However, the SFT found that these arguments had been implicitly dealt with by the Panel, highlighting the fact that the Award expressly stated that the Panel’s decision was based on “the totality of factual circumstances”. Accordingly, the Player’s application for annulment was dismissed. 2.4.7

SFT 4A_238/2018, Decision of 12 September 2018

Underlying Facts, Proceedings and Decision(s) Club A (the Club) sought to appeal a decision by the Single Judge of the FIFA PSC in a dispute against a coach (the Coach). The Club filed its statement of appeal, by facsimile and electronic mail, with the CAS Court Office, within the 21-day time limit stipulated in Article R49 CAS Code (2017 Edition). Notwithstanding Article R31(3)’s requirement that hard copies of the statement of appeal be filed “within the first subsequent business day of the relevant time limit”, the Club only filed them 13 days after the expiry of the time limit for appeal, i.e. together with its appeal brief, indicating that this was due to “an unfortunate mistake of Counsel’s secretariat”. The CAS Court Office, acting via the CAS Deputy Secretary General, invited the Coach to comment on the late filing, in particular to state if he had any objection to the opening of proceedings, which he confirmed to have for this exact reason. Accordingly, the CAS Deputy Secretary General informed the Club that the CAS Court Office would not commence the arbitration.

Annulment Action and SFT Decision The Club sought the annulment of the decision of the CAS Deputy Secretary General on two grounds, namely that it violated its right to be heard and public policy (on this latter ground see Sect. 2.5.5). The Club contended that the CAS Deputy Secretary General’s decision precluded it from requesting leave for the late filing of the hard copies of the statement of appeal. The SFT noted that the Club had spontaneously explained the reason for the late filing (“an unfortunate mistake of Counsel’s secretariat”) and, as such, the CAS had not deprived it from the opportunity to explain why it did not file within the applicable deadline. On this

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basis, and for the reasons summarized in Sect. 2.5.5, the Club’s application for annulment was dismissed. 2.4.8

SFT 4A_284/2018, Decision of 17 October 2018

Underlying Facts, Proceedings and Decision(s) The facts of this case have been summarized in Sect. 2.3.4.

Annulment Action and SFT Decision In addition to his complaint under Article 190(2)(c) PILA, Mr. Wiking sought the annulment of the Award on the ground that the CAS had violated his right to be heard and to equal treatment. Specifically, he argued that the Panel failed to take into account the applicable provisions of French law, notably with regard to the recognition of the power of attorney signed by the current President of IFAF, but also with respect to the possibility for Mr. Wiking to withdraw his resignation, and the effect of decisions made under duress. Similarly, he asserted that the Panel did not consider some of his arguments in interpreting past declarations and exchanges with the Executive Board. The SFT observed that Mr. Wiking was relying on the ground for annulment under Article 190(2)(d) PILA to criticize the way in which the CAS had interpreted and applied the relevant rules, which is not permissible. For these reasons and those summarized in Sect. 2.3.4, the application for the annulment of the Award was dismissed. 2.4.9

SFT 4A_382/2018, Decision of 15 January 2019

Underlying Facts, Proceedings and Decision(s) Subsequent to the publication, on 9 December 2016, of a second report prepared by Prof. McLaren for WADA, which revealed the existence of a vast Russian state-sponsored doping scheme deployed during the XXVII Olympic Winter Games held in Sochi in 2014 (the Games), the International Olympic Committee (IOC) initiated proceedings against several athletes, including Alexander Legkov (the Athlete), seeking to establish, on an individual basis, a violation of the IOC Anti-Doping Rules applicable at the Games (IOC ADR). In a decision issued on 1 November 2017, the IOC Disciplinary Commission decided inter alia to invalidate the results obtained by the Athlete at the Games, order the withdrawal of his two medals, and to declare him ineligible for future editions of the Summer and Winter Olympics. Following the decision to consolidate several proceedings involving Russian athletes, including Alexander Legkov, an ad hoc process was established by the CAS to hear appeals against decisions passed by the IOC

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Disciplinary Commission. The Russian athletes and the Athlete filed a joint appeal brief, addressing their common situation, together with separate appeal briefs to address their individual situations specifically. Joint sessions and deliberations of CAS Panels were also permitted. In April 2016, the CAS upheld the Athlete’s appeal and cleared him of any violation of the IOC ADR. In the Award, the CAS Panel expressly stated that it had made no determination as to the existence, scope or operations of the alleged Russian state-sponsored doping scheme, and that it “did not consider it possible to conclude that the existence of a general doping and cover-up scheme, even if established, would inexorably lead to a conclusion the Athlete committed the [violations] alleged by the IOC”.

Annulment Action and SFT Decision The IOC sought, for the first time ever, the annulment of a CAS award, alleging a violation of its right to be heard. The IOC contended that the CAS Panel had disregarded its right to be heard on two accounts, namely by failing to examine some of its essential allegations and arguments in the arbitration, in particular the argument that the very nature of the Russian state-sponsored doping scheme was to cover the involvement of individual athletes, and by relying on unforeseeable grounds in taking its decision (the so-called “surprise effect”). The SFT noted that the CAS Panel had not failed to examine such arguments, but having considered them, had adopted a different approach from that of the IOC Disciplinary Commission, with all related legal consequences. The SFT further observed that, given the IOC’s knowledge of, and level of involvement in, this high-stakes matter, and the fact that it was assisted by specialist counsel in the dispute, it could not really plausibly rely on the surprise-effect argument in this instance. Accordingly, the IOC’s complaint that its right to be heard had been violated was dismissed. 2.4.10

SFT 4A_424/2018, Decision of 29 January 2019

Underlying Facts, Proceedings and Decision(s) In February 2017, tennis player A. (the Player) tested positive for letrozole, a prohibited substance. In August 2017, the ITF’s Independent Tribunal sanctioned the Player with a two-month ban, from 3 August to 2 October 2017. The Player and the relevant National Anti-Doping Agency (the NADO) appealed the decision to the CAS. In the meantime, the Player resumed her activities. At the CAS hearing, the Player and the NADO discussed the starting point of the period of suspension, should the ban imposed on the Player exceed three months. By a decision issued on 8 June 2018, the CAS banned the Player for a period of ten months, starting on that day, minus the two months already served and ordered the disqualification of all her results between 16 February 2017 and 6 June 2017.

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Annulment Action and SFT Decision The Player sought the annulment of the CAS award on the ground that the Panel had violated her right to be heard. Specifically, the Player complained that the CAS Panel decided not to backdate her ban and took into consideration events that occurred after the hearing (i.e. her sporting progression on the WTA rankings and prizes accrued following the expiration of the two-month ban) in order to do so. At the outset, the SFT questioned the existence of an actual interest on the part of the Player to challenge the award because she did not request a stay of the ban or challenged it, including its length. The SFT observed that the CAS Panel had examined Article 10.10.3 of the Tennis Anti-Doping Programme (TADP), which deals with the dies a quo of a ban. Under the (TADP), the adjudicating body has wide discretion to backdate a ban, provided than no more than half of the ban is backdated. In the instant case, the CAS Panel proceeded to list the pros and cons of a backdated ban before concluding against it, especially having regard to the sporting consequences for the Player (all her points and prizes accrued until the communication of the award would have been forfeited, including those collected after the hearing). The SFT did agree with the Player that the CAS Panel had violated her right to be heard by taking into consideration facts which occurred after the hearing. That being said, the SFT also noted that the backdating of a ban is a discretionary power of the relevant adjudicating body and that, at the time of the hearing, the Player could not anticipate her future results. Accordingly, the Player was not in a position to demonstrate how the violation of her right to be heard affected the outcome of her case. The application for annulment was dismissed. 2.4.11

SFT 4A_318/2018, Decision of 4 March 2019

Underlying Facts, Proceedings and Decision(s) The facts of this case have been summarized in Sect. 2.1.2.

Annulment Action and SFT Decision The Player contended, inter alia, that the CAS Panel had violated his right to be heard by failing to duly consider relevant elements, which had been put forward in an expert report and could demonstrate that the tea he had consumed had been contaminated, as well as an exchange of correspondence which purportedly established that he could not have been served a coca-leaves tea by mistake, contrary to the Panel’s conclusion. The SFT found these arguments to be inadmissible as they amounted to a challenge of the Panel’s factual findings and assessment of the evidence, which cannot be reviewed in annulment proceedings under Article 190(2) PILA. The Player also invoked the so-called surprise effect, arguing that, by ruling that it was bound by the WADC and that the proportionality principle did not

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allow it to reduce the Player’s ban below the mandated one year minimum, the Panel had relied on legal considerations that could not be anticipated by the Parties, and on which they had not been given an opportunity to be heard. The SFT recalled that, in accordance with the iura novit cura maxim and its own case law, a violation of the Parties’ right to be heard on the ground of an allegedly surprising application of the law can only be admitted very restrictively, so as to avoid undue attempts to question the merits of arbitrators’ decisions. In the instant case, the relevance and application of the principle of proportionality vis-à-vis the sanctions prescribed by the WADC had been front and center in the dispute and of the Parties’ opposing arguments throughout the case, starting before the FIFA judicial bodies, so that the Player could not plausibly argue that the Panel’s reasoning in the Award, which followed WADA’s position and the CAS’s existing and well-known jurisprudence, was surprising in any way. For these reasons and those summarized under Sects. 2.1.2 and 2.5.8, the SFT denied the Player’s application. 2.4.12

SFT 4A_556/2018, Decision of 5 March 2019

Underlying Facts, Proceedings and Decision(s) A Brazilian player (the Player) was sanctioned by the FIFA DC for his failure to comply with a CAS award. On 10 July 2018, the Player appealed the FIFA DC’s decision to the CAS and, at the same time, requested a 15-day extension of the time limit to file his appeal brief. The CAS denied the request for extension and referred the Player to Articles R31 and R51 CAS Code (2017 Edition) regarding the number of copies of the submission that would need to be forwarded to the CAS Court Office, the fact that such copies would need to be couriered, and the consequences in case of non-compliance with those provisions (i.e. withdrawal of the appeal). The Player filed his appeal brief within the set deadline by facsimile, but not by courier. The Player’s attorney acknowledged an error in this regard and blamed his secretariat for it. On 10 September 2018, the Deputy President of the Appeals Arbitration Division issued a Termination Order and closed the proceedings, indicating that the Player’s appeal was deemed withdrawn based on Articles R31 and R51 CAS Code.

Annulment Action and SFT Decision The Player sought the annulment of the Termination Order on the ground that the CAS’s decision to terminate the proceedings violated his right to be heard and public policy. According to the Player, the Deputy President of the Appeals Arbitration Division had not duly examined his arguments before issuing the Termination Order. Having reviewed the contents of Articles R31 and R51 CAS Code, the SFT found that the CAS had expressly informed the Player of the consequences of a failure to comply with these provisions. The SFT considered that the Deputy President of the Appeals Arbitration Division had implicitly rejected the

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Player’s arguments and, as such, had rightfully issued the Termination Order. On this basis, and for the reasons summarized in Sect. 2.5.9, the Player’s application for annulment was dismissed. 2.4.13

SFT 4A_54/2019, Decision of 11 April 2019

Underlying Facts, Proceedings and Decision(s) Following a decision by the FIFA PSC ordering an English club (the Club) to pay the sum of GPB 4,198,000 plus interest to an Argentinian player (the Player), the Club filed an appeal to the CAS. On 28 September 2018, the CAS opened proceedings and drew the attention of the Club to Articles R31 and R51 CAS Code (2017 Edition). The time limit to file the appeal brief was 13 November 2018. The Club contended that it had sent the appeal brief by email and courier within the applicable time limit but could not provide evidence to that effect regarding the submission by courier. On 6 December 2018, the President of the Appeals Arbitration Division issued a Termination Order and closed the proceedings based on Articles R31 and R51 CAS Code.

Annulment Action and SFT Decision The Club sought the annulment of the award on two grounds, namely that it violated its right to be heard and public policy (on this latter ground see Sect. 2.5.10). The Club argued mainly that the CAS had the possibility to extend the deadline to submit hard copies of the appeal brief, thus allowing the Club to remedy its failure to comply with the relevant time limit. The SFT dismissed the argument on the ground that the CAS could not extend the deadline sua sponte and, in the case at hand, the Club had not made a request to that effect. The Club also complained that no public hearing was held by the CAS. The SFT noted that there was no record of a request for a public hearing during the proceedings. For these reasons and those summarized in Sect. 2.5.10, the Club’s application for annulment was dismissed. 2.4.14

SFT 4A_540/2018 (ATF 145 III 266), Decision of 7 May 2019

Underlying Facts, Proceedings and Decision(s) In October 2015, the FIFA Adjudicatory Chamber of the Independent Ethics Committee (FIFA Adjudicatory Chamber) provisionally suspended Mr. Jérôme Valcke (a former FIFA Secretary General) in connection with a series of alleged breaches of the FIFA Ethics Code (FEC). Mr. Valcke was also accused of failing to cooperate with the FIFA investigation. On 10 February 2016, having found that

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Mr. Valcke had committed several breaches of the FEC, the FIFA Adjudicatory Chamber banned him from all football-related activities at the national and international level for 12 years, and fined him CHF 100,000. In June 2016, the FIFA Appeal Committee (FIFA AC) reduced Mr. Valcke’s ban from 12 to 10 years, but upheld the remainder of the Adjudicatory Chamber’s decision. Mr. Valcke then appealed against the FIFA AC’s decision before the CAS. In the CAS proceedings, Mr. Valcke’s counsel signed, without reservations, the Panel’s Order of Procedure, which stipulated that “the provisions of Chapter 12 [PILA] shall apply, to the exclusion of any other procedural law”. Having heard the case, the CAS Panel dismissed Mr. Valcke’s appeal (the Award).

Annulment Action and SFT Decision Mr. Valcke sought the annulment of the Award relying on the ground of a violation of his right to be heard under Article 393(d) of the Swiss Code of Civil Procedure (CCP), the Act governing domestic arbitration proceedings seated in Switzerland. Mr. Valcke argued that the CAS Panel had failed to render a decision on the domestic or international nature of the arbitration proceedings, which materially affects the remedies available against the award, such as the possibility to rely on the ground of arbitrariness (available under Article 393(e) CCP, but not under Article 190(2) PILA). FIFA objected to the admissibility of the application for annulment, arguing inter alia that, in accordance with 353(2) CCP, Mr. Valcke had validly opted out from the domestic arbitration regime and into Chapter 12 PILA, with all related legal consequences. The SFT found that the signature of the Order of Procedure by counsel to Mr. Valcke constituted a valid choice of law and that, since the standard reference to Chapter 12 PILA in the Order was not the result of an error, it was binding upon the parties. The SFT noted that the question whether the proceedings before the CAS are domestic or international in nature is irrelevant at the arbitral stage, because the two regimes are very similar and arbitral tribunals need not indicate the legal remedies available to the parties; it also recalled that the SFT reviews this (admissibility) question ex officio in any event. While Mr. Valcke’s reference to the incorrect governing law in the application for annulment did not render his entire application inadmissible, but limited the scope of the remedies available to him, the SFT found that his right to be heard (a ground that is also available under Article 190(2)(d) PILA) had not been violated by the CAS Panel’s decision not to make a final determination on the domestic or international nature of the proceedings, given that the question of the legal regime governing the arbitration is inconsequential for the conduct of the arbitration itself. For this reason and those summarized in Sect. 2.5.11, Mr. Valcke’s application for annulment was dismissed.

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SFT 4A_494/2018, Decision of 25 June 2019

Underlying Facts, Proceedings and Decision(s) A consulting company (the Company) and the South American Football Confederation (CONMEBOL) had entered into an agreement for the sale of the right to market the use of static advertisement during the 2011 to 2014 editions of the Copa Sudamericana. The agreement also provided for a priority right, allowing for exclusive negotiations to take place between the Company and CONMEBOL to obtain the same rights in connection with future editions of the Copa. In June and July 2015, the Company acquired those rights for the 2015, 2016 and 2017 editions of the Copa Sudamericana. Following investigations conducted in the United States, Switzerland and other countries, senior officials of CONMEBOL were indicted or arrested on corruption charges. In May 2016, the Company sought to terminate the agreement, alleging that the image and reputation of CONMEBOL had been tarnished by the criminal and disciplinary proceedings directed against its senior officials by law enforcement authorities and FIFA. CONMEBOL opposed the early unilateral termination of the agreement and, in turn, requested the payment of USD 3,300,000, corresponding to the first outstanding instalment for the 2016 edition of the Copa Sudamericana. Later, CONMEBOL filed a claim with the CAS, seeking compensation in the amount of USD 10,000,000, plus interest, and USD 3,300,000, plus interest. In response, the Company filed a counterclaim for USD 10,000,000 and, subsidiarily, USD 7,909,778 for lost profits and USD 10,395,280 for incurred losses. On 13 June 2018, the CAS partially granted CONMEBOL’s claim, ordering the Company to pay USD 10,000,000, plus interest to CONMEBOL, and dismissing the counterclaim (the Award).

Annulment Action and SFT Decision The Company sought the annulment of the Award alleging a breach of the notion of clausula rebus sic stantibus in violation of both its right to be heard and public policy. In the context of the right to be heard, the Company argued that the CAS Panel did not consider a series of arrests and warrants against senior officials of CONMEBOL that took place between the months of October and December 2015. The Company argued that these events were critical to the assessment of the application of clausula rebus sic stantibus. The SFT found that the CAS Panel had identified the date of the renewal of the agreement as the relevant point in time to assess the risks accepted by the Company. Accordingly, any and all subsequent events, such as new arrests or warrants, were simply the materialization of foreseeable risks. For these reasons and those summarized in Sect. 2.5.12, the Company’s application for annulment was dismissed.

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SFT 4A_268/2019, Decision of 17 October 2019

Underlying Facts, Proceedings and Decision(s) The facts of this case have been summarized in Sect. 2.2.6.

Annulment Action and SFT Decision In addition to his complaint under Article 190(2)(b) PILA, the Player sought the annulment of the award on the ground that the CAS had violated his right to be heard. Specifically, the Player argued the CAS could not deny jurisdiction without violating his right to be heard, as the denial would bar him from submitting his claims to an independent tribunal. The SFT found that the Panel had declined jurisdiction after having considered all relevant arguments brought forward by the Player, in a manner consistent with the SFT’s jurisprudence. For these reasons and those summarized in Sect. 2.2.6, the application for the annulment of the award was dismissed. 2.4.17

SFT 4A_536/2018, Decision of 16 March 2020

Underlying Facts, Proceedings and Decision(s) A football club (the Club) and a German agent (the Agent) entered into an agency agreement (the Agreement) for the purpose of assisting the Club with the signature of a minor as player (the Player). The FIFA RSTP caps the duration of professional contracts for minor players to three years. In view of this, the parties opted to break down the future employment relationship in two segments: a first contract running from 1 July 2015 to 30 June 2017 (the First Contract) and a second covering the period from 1 July 2017 until 2020 at least (the Second Contract). The Second Contract was to be signed around 29 November 2014, i.e. when the Player would turn 18. The Agreement provided for a total commission in the amount of EUR 800,000, to be paid in two equal instalments corresponding to the First and Second Contract. The Agreement also provided for a percentage (i.e. 10% net) for the Agent on future transfers. The First Contract was signed on 24 April 2014. The Agent then received a first commission in the amount of EUR 400,000 for assisting the Club with the signature of the Player. In this regard, the Agent expressly acknowledged not to have rendered any services to the Club past the signature of the First Contract. On 28 November 2014, the Player informed the Club that he had no intention to honor their initial arrangement and sign the Second Contract. The Agent requested the payment of the second instalment, which the Club refused to do. In April 2015, the Club signed the Player for the period from 1 July 2017 to 30 June 2021 (the Third Contract). In June 2015, the Agent filed a claim against the Club and requested the payment of the second instalment, plus interest, and

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declaratory relief recognizing his right to a commission on future transfers. On 28 September 2016, the CAS dismissed the claim on the ground that there was no link between the services rendered by the Agent and the signature of the Third Contract (the First Award). In addition the CAS held that the conditions for granting declaratory relief were not met in the present case. In January 2017, the Club transferred the Player to another club for the sum of EUR 29,015,323. Based on this transfer and the Agreement, the Agent filed a second claim against the Club, requesting the payment of EUR 2,960,000, plus interest. In an award dated 30 July 2018 (the Second Award), the CAS ordered the Club to pay the Agent the sum of EUR 2,861,532.20, plus interest.

Annulment Action and SFT Decision The Club sought the annulment of the Second Award on two grounds, namely that it violated its right to be heard and procedural public policy (on this latter ground see Sect. 2.5.13). The Club complained that the CAS Panel did not consider the arguments and declarations made by its counsel and witnesses at the hearing. The SFT rejected the argument, finding that the Club was, in reality, criticizing the manner in which the CAS Panel had assessed the evidence and interpreted the Agreement, which is not subject to review in annulment proceedings under Article 190(2) PILA. On this basis, and for the reasons summarized in Sect. 2.5.13, the Club’s application for annulment was dismissed. 2.4.18

SFT 4A_422/2019, Decision of 21 April 2020

Underlying Facts, Proceedings and Decision(s) In May 2016, the Russian rower A. (the Rower) tested positive for trimetazidine, a non-specified prohibited substance. The Rower was provisionally suspended on 16 June 2016 and, at the same time, notified of his right to request the analysis of the B-sample. The Rower exercised his right and the B-sample was analyzed at the Lausanne Anti-Doping Laboratory (the Laboratory) on 30 June 2016. The B-sample confirmed the presence of trimetazidine. By a decision issued on 26 June 2019, the CAS confirmed the decision of the Russian Anti-Doping Agency banning the Rower for a period of four years, starting on the day of the provisional suspension, and ordered the disqualification of all the results he had achieved between 17 May 2016 and 16 June 2016 (the Award).

Annulment Action and SFT Decision The Rower sought the annulment of the Award on the ground that the CAS Panel had violated his right to be heard by relying on false information provided by the

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Laboratory. Specifically, the Rower argued that the Laboratory incited him and his expert to leave the Laboratory before the start of the analysis of the B-sample. Based on the Award, the SFT observed that the Panel had found that the Rower and his expert had indeed left the Laboratory prior to the re-test but had done so knowing that the analysis would then be conducted in their absence, and without objecting thereto. The Rower also complained that the CAS Panel did not account for his explanations regarding how the prohibited substance had entered his body. The SFT found that, as was apparent from the Award, the explanations provided by the Rower before the CAS were not relevant or substantiated enough to prove the alleged case of contamination. In light of the foregoing considerations, the application was dismissed. 2.4.19

SFT 4A_548/2019 and 4A_550/2019, Decisions of 29 April 2020

Underlying Facts, Proceedings and Decision(s) The African Football Confederation (the CAF) disqualified the Fédération Guinéenne de Football from the 2019 Africa U17 Cup of Nations (the Competition) having found that Guinea fielded two ineligible players against Senegal during a group stage match. In a ruling dated 12 May 2019, the CAF Disciplinary Committee (CAF DC) decided inter alia to disqualify Guinea from the Competition, to annul its qualification to the 2019 FIFA U17 World Cup, and to suspend the players in question for a period of two years. On 20 June 2019, the Executive Committee confirmed (with one exception) the decision of the CAF DC and determined that Senegal would replace Guinea in the 2019 FIFA U17 World Cup. On 23 June 2019, the CAF Appeal Committee confirmed the decision of the CAF DC in its entirety. The Fédération Guinéenne de Football and the players (the Appellants) filed joint appeals before the CAS against the decision of the Executive Committee dated 20 June 2019 and the decision of the CAF Appeal Committee dated 23 June 2019 (the Decisions). On 4 October 2019, the CAS dismissed the appeals because the Appellants had failed to name the Fédération Sénégalaise de Football as a co-respondent in each of the proceedings (the Awards).

Annulment Action and SFT Decision The Fédération Guinéenne de Football and the players (the Applicants) sought the annulment of the Awards on the grounds that they violated their right to be heard and public policy (on this latter ground see Sect. 2.5.14). With regard to their right to be heard, the Applicants mainly complained that the CAS Panel had limited its decision to the issue of standing to be sued, without addressing the merits of the case. The SFT underscored that according to the CAS Panel, the Fédération Sénégalaise de Football (FSN) had to be involved in the CAS proceedings because it was, in part, directly or indirectly affected by the Decisions. The SFT then

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concluded that, given the Applicants’ failure to name the FSN as a respondent, the CAS Panel did not have to address the merits of the case and, as such, no violation of the right to be heard could be established. For these reasons and those summarized in Sect. 2.5.14, the Fédération Guinéenne de Football’s and the players’ applications for annulment were dismissed. 2.4.20

SFT 4A_462/2019, Decision of 29 July 2020

Underlying Facts, Proceedings and Decision(s) Allegations of match-fixing were raised against an Albanian football club, Klubi Sportiv Skënderbeu (the Club), and gave rise to investigations by UEFA. After it was established that several matches involving the Club had been manipulated, UEFA’s Ethics and Disciplinary Inspectors issued a (first) decision that excluded the Club from the then ongoing 2016/2017 UEFA Champions League. UEFA’s first instance decision was confirmed on appeal by a CAS panel. Following that award, the UEFA Ethics and Disciplinary Inspectors conducted new disciplinary proceedings against the Club in relation to the same match-fixing allegations, which resulted in a second decision, suspending the Club from any and all European competitions for the next 10 seasons and fining it for EUR 1 million. On appeal, a CAS Panel rejected the Club’s challenge against this second decision (the Award). The Club then sought the annulment of the Award before the SFT.

Annulment Action and SFT Decision The Club invoked a violation of its right to be heard, arguing that it had not been given access to the one of the main pieces of evidence on the file (related to the information and data of the Betting Fraud Detection System). Contrary to the Club’s view, the SFT found that the CAS Panel had considered that this information and data were not “decisive” for the outcome of the dispute. The SFT held that the Club had not established that the requested evidence “could have affected the outcome of the dispute”, and had not contested the fact that the data in question were confidential and sensitive, and belonged to a third party who was not a party to the proceedings. The Club further argued that the Panel had wrongly refused to examine evidence validly presented by it. The SFT held that the right to be heard is not violated by the mere fact that the arbitral tribunal refuses to examine evidence, in particular if (i) the evidence at issue is not capable of establishing the alleged fact, (ii) the fact to be proven has already been established, (iii) the fact is in any event irrelevant or (iv) the tribunal, by proceeding to an anticipated assessment of the evidence, comes to the conclusion that the result of the requested evidentiary measure would not change its opinion. Finally, the Club argued that the Panel had reversed the burden of proof by requiring the Club to prove that it had not manipulated certain matches. The SFT noted that the application of the rules on the

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burden of proof is not an issue pertaining to the parties’ right to be heard, and recalled that, since those rules are also not part of substantive public policy, their application cannot be reviewed by the SFT, including in disciplinary proceedings. For these reasons and those summarized in Sect. 2.5.16, the Club’s application for annulment was dismissed. 2.4.21

SFT 4A_486/2019 (ATF 146 III 358), Decision of 17 August 2020

Underlying Facts, Proceedings and Decision(s) In July 2011, the Turkish Football Federation (TFF) formally opened an investigation in relation to a large-scale match-fixing scheme during the 2010/2011 season. On 24 August 2011, the TFF decided to withdraw Fenerbahçe from the 2011/ 2012 UEFA Champions League. As a consequence, UEFA awarded Fenerbahçe’s vacant slot to Trabzonspor. The TFF then decided that, although some managers of Fenerbahçe were implicated in the scheme, it would not impose any sanctions on Fenerbahçe, because the match-fixing activities were not attributable to the club. Notwithstanding this, on 10 July 2013, the UEFA Appeals Body excluded Fenerbahçe from two consecutive UEFA club competitions. On 31 January 2014, Trabzonspor wrote to UEFA, requesting, inter alia, to be awarded the 2010/2011 Süper Lig title. UEFA rejected Trabzonspor’s request, based on UEFA’s lack of competence to intervene at the domestic level. This decision was confirmed by the CAS on appeal. In the meantime, Trabzonspor had also requested FIFA to intervene. By several subsequent decisions, FIFA informed the club that, based on Article 70(2) of the FIFA Disciplinary Code, “the FIFA Disciplinary Committee [was] not in a position to intervene in the present matter”. Trabzonspor filed an appeal to the CAS against these decisions, designating FIFA, the TFF and Fenerbahçe as respondents. The CAS Panel decided to bifurcate the proceedings in order to address, as preliminary matters, the TFF’s and Fenerbahçe’s procedural objections. By a partial award, the CAS ruled that Trabzonspor had no legal standing and thus the CAS would not be deciding the merits of the dispute (the Award). During the CAS proceedings, Trabzonspor also requested a public hearing; however, the Panel denied this request. Trabzonspor sought the annulment of the Award before the SFT.

Annulment Action and SFT Decision Trabzonspor invoked a violation of its right to be heard in connection with Article 75 of the Swiss Civil Code. It argued that, by limiting the arbitral proceedings to questions of admissibility and by subsequently denying Trabzonspor’s standing to sue, the CAS Panel had denied its right to a judicial review of a final decision issued

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by FIFA. In this regard, the SFT observed that the bifurcation of legal proceedings to allow the determination of preliminary issues related to the admissibility of an appeal prior to any decision on the merits of the case is not unusual and entirely appropriate, since it is based on the principle of procedural economy, which also applies before the civil state courts in accordance with Article 125(a) of the Swiss Civil Procedure Code. In any event, even if the CAS Panel had decided not to limit the proceedings to the issue of admissibility, Trabzonspor’s right to be heard would not have been violated if the Panel had not examined the merits of the case. Indeed, an arbitral tribunal may disregard arguments duly presented by the parties when the reasons adopted in the award make them irrelevant. For these reasons and those summarized in Sect. 2.5.17, Trabzonspor’s application for annulment was dismissed. 2.4.22

SFT 4A_248/2019 and 4A_398/2019 (ATF 147 III 49), Decisions of 25 August 2020

Underlying Facts, Proceedings and Decision(s) The facts of this case have been summarized in Sect. 2.1.4.

Annulment Action and SFT Decision Invoking Article 190(2)(d) PILA, ASA argued that the Panel had failed to decide whether the 1500 m and the mile disciplines were to be included in the “Restricted Events” by the DSD Regulations. Having examined the challenged Award in detail, the SFT concluded that the IAAF had provided a reasonable overall explanation as to how the list of “Restricted Events” had been inserted in the DSD Regulations, and that the Panel had properly examined this list and found that it was not contrary to the principle of proportionality. By doing so, the Panel had admitted, at least implicitly, that the 1500 m and mile disciplines could be reasonably included in the list of “Restricted Events”. Accordingly, there was no room for finding a violation of the right to be heard. For these reasons and those summarized in Sects. 2.1.4 and 2.5.18, the ASA’s and Caster Semenya’s applications for annulment were dismissed. 2.4.23

SFT 4A_62/2020, Decision of 30 September 2020

Underlying Facts, Proceedings and Decision(s) A professional football player (the Player) brought a claim against a club (the Club) in connection with the execution of a loan agreement. This agreement provided for the possibility that the Club would sign the Player after the expiry of the loan.

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Subsequently, the agreement was supplemented by an employment contract and a second contract providing for a sign-on fee, together with the applicable conditions. The Club did not exercise its option right to sign the Player. For his part, the Player requested the payment of the sign-on fee. The Club did not object but alleged that a cash flow problem prevented it from paying the Player. On 11 April 2019, the Single Judge of the FIFA PSC upheld the Player’s claim and ordered the Club to pay him USD 1,500,000. The CAS confirmed the Single Judge’s decision (the Award).

Annulment Action and SFT Decision The Club sought the annulment of the Award on the ground that the CAS Panel had violated its right to be heard on two accounts. First, the Club argued that the CAS Panel did not account for its argument that the sign-on fee was only due in case the option right was exercised. The SFT rejected this argument, noting that the CAS Panel had duly considered the Club’s position that the sign-on fee was not due, but had discarded this defense. Second, the Club complained that the CAS Panel relied on the in dubio contra proferentem principle to interpret the second contract against the Club. The SFT underscored that the Award showed that for the CAS Panel, the clear and common intent of the parties was the determinative element for its decision that the sign-on fee was due, not the fact that the Club had drafted the contract, which was merely mentioned by the Panel as an additional consideration for the purposes of its interpretation of the parties’ agreement. For these reasons, the Club’s application for annulment was dismissed. 2.4.24

SFT 4A_198/2020, Decision of 1 December 2020

Underlying Facts, Proceedings and Decision(s) The facts in this case have been summarized in Sect. 2.3.5.

Annulment Action and SFT Decision In addition to its complaint under Article 190(2)(c) PILA, Club A sought the annulment of the award on the ground that the CAS had violated its right to be heard. Similar to its previous claim, Club A maintained that the appeal brief ought to have been declared inadmissible because it was not signed. The SFT held that the CAS Panel had implicitly denied this prayer for relief in the chapter of the award where it discussed the admissibility of the claim and counterclaim of the parties, notably by stating that these complied with all the relevant requirements of Articles R48 and R51 CAS Code. The SFT also noted that the CAS Code does not require the appellant to sign the appeal brief, nor does it specify the consequences

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of a failure to sign. In this regard, the SFT added that, in accordance with its jurisprudence, if the absence of signature had been an issue for the CAS Panel, the arbitrators would have been under an obligation to provide the relevant party with an opportunity to remedy the defect (and that party would have undoubtedly taken the necessary steps to that end). For these reasons and those summarized in Sect. 2.3.5, Club A’s application for annulment was dismissed. 2.4.25

SFT 4A_384/2020, Decision of 10 December 2020

Underlying Facts, Proceedings and Decision(s) A professional football player (the Player) claimed to have entered into an employment agreement with Club B (the Club) for a two-year period, i.e. from 1 January 2017 to 31 December 2019 (the First Employment Agreement). The Club denied having concluded the First Employment Agreement. In October 2016, the Player signed with another club until 15 June 2017 (the Second Employment Agreement). The Second Employment Agreement ended effectively on 12 December 2016. The Player then insisted on the execution of the First Employment Agreement and, subsequently, brought a claim for damages against the Club, which was rejected by both the FIFA DRC and the CAS. In its Award, CAS Panel relied on Article 18(5) FIFA RSTP and the relevant commentary to conclude that the First Employment Agreement had automatically ended when the Second Employment Agreement was signed.

Annulment Action and SFT Decision The Player sought the annulment of the Award on the ground that the CAS Panel had violated his right to be heard on two accounts. The Player also challenged the authority of the CAS Secretary General (now CAS Director General) to file observations before the SFT on behalf of the CAS Panel,7 arguing in particular that there was no legal basis for him to do so. The SFT rejected the latter complaint by reference to its consistent line of decisions accepting that observations could be filed by the CAS Secretary General on behalf of CAS Panels. As to the alleged violations of the right to be heard, the Player invoked first the so-called “surprise effect” in relation with the application of both Article 18(5) FIFA RSTP and the official commentary to that provision. The SFT dismissed the applicant’s argument that the CAS Panel had relied on unforeseeable reasons to adjudicate the dispute, especially considering the fact that the Club had expressly referred to Article 18(5) FIFA RSTP and the corresponding commentary in its statement of defense, and the Player admitted that these were discussed at the hearing. In the second prong of his

7

See Hasler and Hafner (2016), pp. 368–369 and footnote n° 101.

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argument, the Player contended that the CAS Panel had failed to assess the real intent of the parties regarding the coexistence of the First Employment Agreement and the Second Employment Agreement. In particular, the Player argued that the CAS Panel did not account for the temporal scope of application of these agreements. The SFT noted that the CAS Panel had implicitly rejected the Player’s position by adopting the interpretation proposed by FIFA in the relevant commentary. In light of the foregoing considerations, the application was dismissed. 2.4.26

SFT 4A_478/2020, Decision of 29 December 2020

Underlying Facts, Proceedings and Decision(s) A professional football club (the Club) and UEFA entered into a Settlement Agreement in accordance with UEFA financial fair play. On 5 July 2019, the UEFA Club Financial Control Body (the CFCB) concluded that the Club had not complied with the Settlement Agreement, and decided that the Club should be excluded from one of the UEFA competitions for which the Club would qualify during the 2020/ 21 and 2021/22 seasons, unless three cumulative conditions were met by no later 15 October 2019 (the First Decision). In this regard, the third condition was that the Club ought not to have a deficit in excess of EUR 5,000,000 on 31 May 2019. The Club unsuccessfully appealed the First Decision before the CAS. On 14 May 2020, the CFCB held that the Club had not met the third condition and thus would be excluded from one of the UEFA competitions for which it would qualify in the 2020/21 and 2021/22 seasons (the Second Decision). On appeal, the CAS confirmed the Second Decision (the Award).

Annulment Action and SFT Decision The Club sought the annulment of the Award on the ground that the Sole Arbitrator had committed a breach of its right to be heard. According to the Club, the Sole Arbitrator had disregarded its submissions that a EUR 22,000,000 increase in its capital that had taken place in March 2019 was to be accounted for in examining its financial results as of 31 May 2019 and that, in case of doubt regarding the correct interpretation of the UEFA Club Licensing and Financial Fair Play Regulations and the First Decision, the Sole Arbitrator should have interpreted them against UEFA. The SFT denied the violation, noting that the Sole Arbitrator had summarized both of the Club’s arguments before discussing the non-admissibility of the EUR 22,000,000 increase in capital for the purposes of the calculation of the deficit, and had considered that neither the UEFA Club Licensing and Financial Fair Play Regulations nor the First Decision were ambiguous or otherwise required interpretation. Accordingly, the Club’s application for annulment was dismissed.

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Article 190(2)(e) PILA—Award Contravening Public Policy SFT 4A_508/2017, Decision of 29 January 2018

Underlying Facts, Proceedings and Decision(s) The facts of this case have been summarized in Sect. 2.3.1.

Annulment Action and SFT Decision Club A sough the annulment of the Award on the grounds of Articles 190(2)(c) and 190(2)(e) PILA (on the former ground, see Sect. 2.3.1). In particular, Club A argued that the Award violated substantive public policy because the CAS Panel had failed to adequately apply Article 163(3) CO, a mandatory provision of Swiss law. Club A further argued that the CAS Panel had also failed to apply Article 337c CO. Specifically, Club A contended that a contractual penalty in an amount of EUR 4,500,000 was excessive (“nahezu absurd”, i.e., almost absurd) because it corresponded to eighteen times the monthly salary of the Coach and obviously restricted the Club’s economic freedom. The SFT recalled its jurisprudence whereby mandatory rules such as Article 163(3) CO pertain to domestic public policy but are not necessarily covered by the annulment ground of Article 190(2)(e) PILA, which is only meant to address violations of international public policy. Under the latter provision, the SFT’s scope of review with regard to an award enforcing a contractual penalty is limited to the question whether, in casu, Club A was left to the mercy of the Coach, or if the economic freedom of Club A was abolished or restricted to such an extent that the foundations of its economic existence were put in jeopardy, i.e. if the penalty was excessive to the point of being spoliatory. In this instance, the SFT noted that Club A had failed to discharge its duty to prove that such was the case, and found that the CAS Panel had actually reduced the amount awarded to the Coach - even though Club A had failed to honor the terms of the Employment Agreement almost completely and practically since the beginning. Lastly, the SFT noted that the CAS Panel had found no imbalance in terms of economic power and business experience between the parties, who had freely negotiated the Employment Agreement. Regarding Article 337c CO, the SFT dismissed the plea on the ground that this provision applies in case of termination without just cause by the employer and not—as in the case at hand—termination for just cause by the employee. For these reasons and those summarized in Sect. 2.3.1, Club A’s application for annulment was dismissed.

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SFT 4A_260/2017 (ATF 144 III 120), Decision of 20 February 2018

Underlying Facts, Proceedings and Decision(s) The facts of this case have been summarized in Sect. 2.1.1.

Annulment Action and SFT Decision In a (third and) final line of argument based on the violation of public policy, RFC Seraing sought to challenge the SFT’s established jurisprudence (ATF 132 III 389) according to which the provisions of European competition law do not embody any of the “essential values” that form part of substantive public policy under Swiss law. This argument was found to be inadmissible, as it did not meet the substantiation requirements that apply in annulment actions before the SFT. Furthermore, the applicant contested the CAS Award based on Article 27(2) of the Swiss Civil Code. On this point, the SFT recalled that contractual restrictions of economic freedom are considered excessive under Article 27(2) SCC only if they “leav[e] the obliged party at the mercy of its co-contracting partner, eliminat[ing] its economic freedom or limit[ing] it to such an extent that the basis of its economic existence is endangered”. The SFT was of the opinion that these requirements were not met in RFC Seraing’s case, and, on this basis, it dismissed the argument. For this reason, as well as those summarized in Sects. 2.1.1 and 2.4.1, the SFT dismissed RFC Seraing’s application. 2.5.3

SFT 4A_170/2017 and 4A_194/2017, Decisions of 22 May 2018

Underlying Facts, Proceedings and Decision(s) The facts of this case have been summarized in Sect. 2.2.3.

Annulment Action and SFT Decision In addition to its complaint under Articles 190(2)(b) and 190(2)(d) PILA (see Sects. 2.2.3 and 2.4.3), the Club sought the annulment of the Award on the ground that the CAS had violated public policy in two ways. First, according to the Club, the principle of good faith obliged the Sole Arbitrator to take into account the 21-day time limit for appeal that was set out in the operative part of the decision of the Chamber dated 12 November 2015. The SFT found that this fact, i.e. the 21-day time limit, could not be raised at the annulment stage, given that Etoile Filante de Garoua had failed to prove that it had made the corresponding allegation in the CAS proceedings (see Sect. 2.4.3). In accordance with the rules governing

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annulment proceedings under Article 190 PILA, the SFT is bound by the factual findings in the Award. Furthermore, the SFT noted that the Club had relied on the Code of the Chamber to assert observance with the 21-day time limit to appeal the Chamber’s decision; it had not relied on the operative part of the decision itself. Second, the Club argued that the Award was discriminatory, as the Sole Arbitrator had adopted a position that was irreconcilable with a previous CAS award involving FECAFOOT. In that particular instance, FECAFOOT (as the appellant) had benefited from a 21-day time limit to appeal a decision of the Chamber. The SFT stressed that this argument pertained more properly to the annulment ground set out in Article 190(2)(d) PILA’s first limb, i.e. the guarantee of equal treatment of the parties, rather than procedural public policy, which is a subsidiary guarantee. In any event, the SFT held that, here too, it was bound by the Sole Arbitrator’s findings in the Award, which showed that the Club had failed to properly allege this circumstance in the arbitration (see Sect. 2.4.3). For this reason and those summarized in Sects. 2.2.3 and 2.4.3, the Club’s application for annulment was dismissed. 2.5.4

SFT 4A_502/2017, Decision of 25 June 2018

Underlying Facts, Proceedings and Decision(s) The facts of this case have been summarized in Sect. 2.4.4.

Annulment Action and SFT Decision In addition to its complaint of a violation of its right to be heard (Sect. 2.4.4), the Club also sought the annulment of the Award on the basis of a violation of substantive public policy, arguing that the Panel had failed to apply the principles of force majeure and pacta sunt servanda. Specifically, the Club contended that the cancellation of the national championship, following the events of Port Said (which caused more than 70 deaths), had adversely impacted its sources of revenue (e.g. sponsorship or ticketing) and, as such, constituted a case of force majeure. The SFT noted that the CAS Panel had not disregarded the force majeure argument. Rather, it had considered that there was no relevant connection between the events in Port Said and the Club’s failure to observe its contractual obligations towards the Player. The Club further argued that the CAS Panel had misinterpreted its contract with the Player. The SFT recalled that, in accordance with its longstanding jurisprudence, the arbitrators’ interpretation of the contract falls outside its scope of review, including by reference to the principle of pacta sunt servanda. For these reasons and those summarized in Sect. 2.4.4, the Club’s application for annulment was dismissed.

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SFT 4A_238/2018, Decision of 12 September 2018

Underlying Facts, Proceedings and Decision(s) The facts in this case have been summarized in Sect. 2.4.7.

Annulment Action and SFT Decision In addition to its complaint under Article 190(2)(d) PILA (see Sect. 2.4.7), the Club argued that the CAS Court Office had violated public policy by refusing to initiate arbitration proceedings. The Club submitted that the CAS Deputy Secretary General had made an unduly strict application of Article R31(3) CAS Code (2017 Edition) and, by not setting a new time limit for the filing of the statement of appeal, had acted with excessive formalism. The SFT underscored that the changes made to the CAS Code before the Club’s filing had not reduced the filing of a hard copy of the statement of appeal to a mere administrative formality, but were intended to take into account the global scope of operations of the CAS (including the fact that parties located in different parts of the world could effectively end up having less time to file an appeal), while also ensuring legal security and equality of treatment. Accordingly, the CAS Court Office had been correct in applying the requirement for hard copies of the statement of appeal to be filed by courier on the first business day after the expiry of the time limit in a strict manner. For these reasons and those summarized in Sect. 2.4.7, the application for annulment was dismissed. 2.5.6

SFT 4A_474/2018, Decision of 27 November 2018

Underlying Facts, Proceedings and Decision(s) Club Y brought a claim against Club X in connection with the execution of an agreement for the transfer of a player to Club Z. On 10 December 2013, the Single Judge of the FIFA PSC dismissed the claim. Club Y appealed the Single Judge’s decision before the CAS, which, in an award issued on 24 August 2015 (the First Award), upheld the appeal and ordered Club X to pay USD 1,500,000 to Club Y. The First Award also ordered Club X to pay USD 3,000 towards the legal fees and other expenses of Club Y, and allocated the arbitration costs between the parties (with Club X having to bear 90% of the said costs, and Club Y 10%). The SFT confirmed the First Award.8 On 6 April 2017, the Secretary of the FIFA DC opened disciplinary proceedings against Club X for failing to comply with the First Award.

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SFT 4A_510/2015, decision of 8 March 2016. See Hasler and Hafner (2016), pp. 397 and 405.

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Club X was sanctioned with a CHF 30,000 fine. It appealed against that decision before the CAS, which issued an award confirming the sanction (the Second Award).

Annulment Action and SFT Decision Club X sought the annulment of the Second Award on the basis that it contravened substantive public policy by violating the principles of good faith and the prohibition against the abuse of rights. According to Club X, the CAS asserted that it had a full power to review the facts under Article R57 CAS Code, but then unduly restricted its review in the case at hand. Specifically, Club X contended that the CAS did not consider certain partial payments made to Club Y. At the outset, the SFT noted that an unwarranted limitation, by the arbitrators, of their power of review may constitute a violation of the right to be heard, but does contravene public policy. The SFT found that the CAS had referred to the existence of the partial payments in the Second Award but had deemed them irrelevant, notably because even a partial failure to comply with the First Award justified a sanction. Second, Club X argued that the purpose of Article 64(1) of the FIFA Disciplinary Code is not to increase the financial burden of the defaulting party, where a failure to comply with a CAS award is the result of financial difficulties. Accordingly, the imposition of a fine in its case constituted a violation of the prohibition against the abuse of rights. The SFT held that the use of a legal mechanism to force compliance with decisions, such as the threat of a fine, does not constitute an abuse of rights, absent any demonstration that the sanction was used inappropriately. For these reasons, Club X’s application for annulment was dismissed. 2.5.7

SFT 4A_98/2018, Decision of 17 January 2019

Underlying Facts, Proceedings and Decision(s) On 25 March 2015, a professional football club (the Club) and a player’s agent (the Agent) entered into an agreement according to which the latter was entitled to receive a commission in the event of a further transfer of the player to a third club. In addition, the Club’s president personally guaranteed the payment of the agreed commission to the Agent. In June 2015, the player was transferred to a third club. The Agent filed a claim before the CAS, asserting that he did not receive the totality of the commission that had been agreed with the Club and its president. The CAS issued an Award upholding the Agent’s claim, and the Club and its president sought the annulment of the CAS Award before the SFT.

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Annulment Action and SFT Decision Before the SFT, the Applicants reiterated in substance the defensive arguments they had raised before the CAS, namely that the agreement with the Agent (i) was signed under duress and was thus null and void, (ii) should be analyzed under the applicable regulations of FIFA and of the Italian Football Federation (FIGC), and (iii) imposed a usurious interest rate. The SFT dismissed all of the Applicants’ arguments, finding that their renewed allegations of duress amounted to a(n) (inadmissible) challenge of the facts as established by the Panel and of the arbitrators’ legal interpretation of the agreement, and recalling that an erroneous determination of the law applicable to the merits of the dispute does not fall within the concept of public policy under Article 190(2)(e) PILA. Finally, the SFT pointed out that the Applicants had not properly substantiated their argument relating to the interest rate. Accordingly, the application for annulment was dismissed. 2.5.8

SFT 4A_318/2018, Decision of 4 March 2019

Underlying Facts, Proceedings and Decision(s) The facts of this case have been summarized in Sect. 2.1.2.

Annulment Action and SFT Decision In addition to his complaints that the CAS Panel had unduly limited its power of review and violated his right to be heard (Sects. 2.1.2 and 2.4.12), the Player argued that the Award contravened substantive public policy to the extent it violated his personality rights, and more specifically his right not to be subjected to excessive commitments under Article 27 SCC. According to the Player, the Panel had imposed an excessive and disproportionate sanction on him by applying the WADC mechanically and refusing to take into account the principle of proportionality. In this regard, the Player referred to the SFT’s decision in Matuzalem, arguing that the Award hindered him gravely in the exercise of his profession, especially given his advanced age, and had dealt a serious blow to his reputation; he further underscored that the harm inflicted on him by the Panel’s decision could hardly be justified by the fight against doping. The SFT referred to its decision in Platini (4A_600/2016, of 29 June 2017) to recall that, when reviewing disciplinary sanctions in the field of sports, where—similar to judges in criminal cases—the relevant authorities are endowed with considerable discretion in fixing the penalties for prohibited conduct, the Court can only intervene when those sanctions lead to manifestly unjust or iniquitous results. In light of these principles, the SFT found that it was not in a position to review the Panel’s decision, and that, in any event—bearing in mind that the anti-doping rule violation was not in itself contested—the Player’s arguments with regard to the harm inflicted by the sanction imposed on him were not

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corroborated by the factual record, including the fact that the Player had recently signed an employment contract with a new club. In the SFT’s view, the Player’s situation was not comparable with that of Matuzalem, who, under the relevant Award, was barred from paid employment as a footballer until he could pay 11 million EUR plus interest to his former club. For these reasons and those summarized under Sects. 2.1.2 and 2.4.12, the Player’s application for annulment was dismissed. 2.5.9

SFT 4A_556/2018, Decision of 5 March 2019

Underlying Facts, Proceedings and Decision(s) The facts of this case have been summarized in Sect. 2.4.12.

Annulment Action and SFT Decision The Player sought the annulment of the Termination Order on the basis of a violation of procedural public policy. Specifically, the Player contended that the Deputy President of the Appeals Arbitration Division had engaged in a “mechanical” and excessively formalistic application of Articles R31 and R51 CAS Code (2017 Edition). The SFT referred to its precedents in this regard (holding that procedural rules need to be adhered to strictly). In the instant case, the SFT added that there was no reason for a different approach to the application of the regime governing the filing of the appeal brief (as opposed to that of the statement of appeal). For these reasons and those summarized in Sect. 2.4.12, the application for annulment was dismissed. 2.5.10

SFT 4A_54/2019, Decision of 11 April 2019

Underlying Facts, Proceedings and Decision(s) The facts of this case have been summarized in Sect. 2.4.13.

Annulment Action and SFT Decision For the third time in just over 6 months, the SFT had to rule on a claim that the CAS had acted with excessive formalism and, as such, contravened public policy within the meaning of Article 190(2)(e) PILA (see also 4A_238/2018, Decision of 12 September 2018, Sect. 2.5.5 and SFT 4A_556/2018, Decision of 5 March 2019, Sect. 2.5.9). In essence, the Club explained that its failure to file the appeal brief

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within the applicable time limit was due to a mistake on the part of its representative, and argued that the CAS ought to have granted it a grace period to remedy the situation. The SFT confirmed its previous jurisprudence, and for this reason and those summarized in Sect. 2.4.13 dismissed the application for annulment. 2.5.11

SFT 4A_540/2018 (ATF 145 III 266), Decision of 7 May 2019

Underlying Facts, Proceedings and Decision(s) The facts of this case have been summarized in Sect. 2.4.14.

Annulment Action and SFT Decision Mr. Valcke sought the annulment of the award on the ground that the CAS Panel had violated procedural and substantive public policy. First, Mr. Valcke argued that the principle nemo tenetur se ipsum accusare, which, in his view, forms part of procedural public policy and is incorporated in Article 6(1) ECHR and Article 14 UN Covenant II, shielded him from cooperating with the FIFA investigation because the results of the investigation could be shared with law enforcement authorities and, thus, jeopardize his legal position in criminal proceedings directed against him. The SFT acknowledged the importance of the question but emphasized that, in the instant case, the Award stated that Mr. Valcke had failed to substantiate his allegations to the effect that criminal proceedings were ongoing and with regard to the subject matter of such proceedings—findings which were now binding upon the SFT (Article 105(1) SCA). Accordingly, Mr. Valcke’s complaint before the SFT was inadmissible. Mr. Valcke also argued that the disciplinary sanction imposed on him (a 10-year ban from all football-related activities at the domestic and international levels and a CHF 100,000 fine) was excessive, especially considering his age and past dedication to the world of sports and football in particular. The SFT noted that heavily sanctioning a senior official of a sports organization for his actions, where these consisted of serious violations of the applicable rules, is not incompatible with substantive public policy per se. The SFT then distinguished Mr. Valcke’s case from that of the Brazilian football player Francelino da Silva Matuzalem,9 and rejected his arguments as ill-founded. For these reasons, as well as those summarized in Sect. 2.4.14, Mr. Valcke’s application for annulment was dismissed.

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SFT 4A_494/2018, Decision of 25 June 2019

Underlying Facts, Proceedings and Decision(s) The facts of this case have been summarized in Sect. 2.4.15.

Annulment Action and SFT Decision The Company sought the annulment of the award on the ground that CAS Panel had violated public policy by disregarding the events that took place between the months of October and December 2015. The Company relied once more, in this regard, on the concept of clausula rebus sic stantibus (see also Sect. 2.4.15). The SFT held that, in so doing, the Company was in reality criticizing the manner in which the CAS Panel had assessed the facts and applied the law, a complaint that is not covered by the public policy ground and cannot be raised in annulment proceedings under Article 190(2) PILA. Interestingly, the SFT noted that the clausula rebus sic stantibus constitutes an exception to the pacta sunt servanda principle, which forms part of the (restrictive) notion of public policy within the meaning of Article 190(2)(e) PILA. This may leave room for future challenges before the SFT based on the clausula rebus sic stantibus. In the instant case, the application for annulment was dismissed. 2.5.13

SFT 4A_536/2018, Decision of 16 March 2020

Underlying Facts, Proceedings and Decision(s) The facts in this case have been summarized in Sect. 2.4.17.

Annulment Action and SFT Decision In addition to its complaint under Article 190(2)(d) PILA, the Club argued that the CAS Panel had breached procedural public policy by failing to recognize that the First Award was res judicata. The Club argued that the Second Award held that it was sufficient for the Agent to be involved in the negotiation of the First Contract, whereas the First Award had required his involvement in both the First and Second Contract for him to be eligible to receive a commission under the Agreement. The SFT held that the First Award was final with regard to the payment of the second instalment, but did not preclude the Agent from filing new claims with regard to future transfers, should the relevant conditions be met. The SFT also underscored that the first and second CAS proceedings did not relate to identical claims, meaning that the res judicata effect of the First Award did not operate vis-à-

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vis the subject matter of the Second Award. For these reasons and those summarized in Sect. 2.4.17, the application for annulment was dismissed. 2.5.14

SFT 4A_548/2019 and 4A_550/2019, Decisions of 29 April 2020

Underlying Facts, Proceedings and Decision(s) The facts in this case have been summarized in Sect. 2.4.19.

Annulment Action and SFT Decision In addition to their complaint under Article 190(2)(d) PILA (see Sect. 2.4.19), the Applicants sought the annulment of the Awards on the ground that the CAS had violated procedural public policy. The Applicants argued that none of the CAF rules, the FIFA rules, or the CAS Code required them to list the Fédération Sénégalaise de Football as a co-respondent, and that the latter’s right to be heard could have been guaranteed by other means, such as referring the case back to the competent body of the CAF. The SFT rejected this argument on the ground that, in annulment proceedings under Article 190(2) PILA, it cannot review the application of the law by the CAS. For this reason and those summarized in Sect. 2.4.19, the Applicants’ applications for annulment were dismissed. 2.5.15

SFT 4A_70/2020, Decision of 18 June 2020

Underlying Facts, Proceedings and Decision(s) On 26 May 2017, a Players’ Agent (the Appellant) and a professional football player (the Player) entered into an exclusive agreement called “Mandate between Intermediary and Player” (the Mandate). The Mandate included a clause stating that the Appellant was entitled to receive a “commission amounting to 6% of the Player’s Basic Gross Income [including any signing-on fee and/or loyalty fee] as a result of any employment contract or playing contract with a club within the Territory negotiated or renegotiated and/or executed during the Term”. A dispute arose between the parties regarding payment of the Appellant’s commission. The CAS rendered an award (the Award) ordering the Player to pay the commission fees due to the Appellant in accordance with the Mandate.

Annulment Action and SFT Decision By invoking Article 190(2)(e) PILA, the Player claimed that the CAS Award contravened public policy as it contained a decision violating the rules of good faith

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and the principle of the prohibition of abuse of rights. At the outset, the SFT recalled the requirements for the proper and sufficient substantiation of the grounds for annulment, including public policy (Rügeprinzip), and found that the applicant had advanced only “theoretical considerations” without demonstrating precisely on which aspects the CAS Panel had disregarded the aforementioned principles. Therefore, the argument was declared inadmissible. The applicant further argued that the Award was incompatible with public policy based on the fact that the Panel had disregarded the principle of pacta sunt servanda. After recalling that the notion of contractual fidelity is given a specific and restrictive meaning in its case law, the SFT rejected the argument, having found that the Panel had decided not to take into account the relevant contractual clause solely for procedural reasons, which are unrelated to the notion of contractual fidelity as part of substantive public policy within the meaning of Article 190(2)(e) PILA. Accordingly, the Player’s application for annulment was dismissed. 2.5.16

SFT 4A_462/2019, Decision of 29 July 2020

Underlying Facts, Proceedings and Decision(s) The facts of this case have been summarized in Sect. 2.4.20.

Annulment Action and SFT Decision The Applicant Club (KS Skënderbeu) claimed that the CAS Award violated procedural public policy because the Panel had failed to comply with the ne bis in idem principle by sanctioning the club twice on the basis of the same facts. According to the SFT’s case law, the ne bis in idem principle is the “corollary” or the “negative aspect” of the res judicata effect and thus forms part of the notion of (procedural) public policy within the meaning of Article 190(2)(e) PILA. The SFT referred to a previous case (i.e. SFT 4A_314/2014, Decision of 24 November 2014), where it accepted that the exclusion of a club from the UEFA Champions League followed by a suspension from all European competitions for two sporting seasons did not contravene the ne bis in idem principle. Indeed, the proceedings underlying those two sanctions clearly pursued different objectives and were aimed at protecting different interests. Rebutting the applicant’s attempt to distinguish its case from that precedent, the SFT expressly confirmed that the exclusion from a competition for a limited period of time is mainly aimed at guaranteeing the integrity and proper conduct of the competition. This objective differs from that of the subsequent suspension (in this case, for the next ten sporting seasons) and the fine (in this case, amounting to 1 million Swiss francs) imposed on the applicant in the UEFA decision, as these measures are repressive in nature. Moreover, the SFT specifically endorsed the jurisprudence rendered by the European Court of Human Rights and considered that the criterion of the identity of the facts (“idem”) does not suffice to

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establish a violation of the ne bis in idem principle. It is still necessary to determine whether there are two separate proceedings (“bis”). In particular, this is not the case if there is a “sufficiently close substantive and temporal link” between the two proceedings. In the present case, the SFT accepted that there were sufficiently close links between the two phases of the same proceedings and that these were “two aspects of a single system”. For these reasons and those summarized in Sect. 2.4.20, Club’s application for annulment was dismissed. 2.5.17

SFT 4A_486/2019 (ATF 146 III 358), Decision of 17 August 2020

Underlying Facts, Proceedings and Decision(s) The facts of this case have been summarized in Sect. 2.4.21.

Annulment Action and SFT Decision Trabzonspor (the Applicant) argued that the Award contravened (procedural and substantive) public policy in three different ways. First, it argued that the arbitral tribunal had violated their right to a public hearing as guaranteed by Article 6(1) ECHR. The Applicant contended that a violation of Article 6(1) ECHR constituted a sui generis ground, in addition to the grounds for annulment provided for in Article 190(2) PILA. The SFT rejected this argument by recalling that a party wishing to challenge an arbitral award cannot directly invoke a violation of Article 6(1) ECHR and that the grounds for the annulment of international arbitral awards are set out exhaustively under Article 190(2) PILA. The SFT nevertheless conceded that “the principles of this provision may serve, where appropriate, to give concrete expression to the guarantees invoked on the basis of Article 190(2) PILA”. Thus, a violation of Article 6(1) ECHR does not, in and of itself, give rise to a breach of procedural public policy within the meaning of Article 190(2)(e) PILA; it is up to the applicant to demonstrate that the alleged violation of Article 6(1) ECHR would also constitute a violation of procedural public policy. In the present case, the applicants had failed to do so. In any event, the SFT stated that the procedural guarantees of Article 6(1) ECHR were “excluded from the outset”, insofar as the Applicant’s civil rights and obligations were not affected, since it was acting as a “mere whistleblower” and thus could not claim a right to request the opening of disciplinary proceedings against a competitor club. In a second argument, the Applicant submitted that the TFF and FIFA had acted in a manner that was contrary to good faith (Article 2(2) of the Swiss Civil Code), by deciding not to apply a number of rules that they had enacted in order to fight against sports manipulation, even though the offences committed by Fenerbahçe had been proven. By doing so, the TFF and FIFA had betrayed the applicant’s legitimate expectations. The SFT also rejected this argument by recalling that a violation of Article 2(2) of the Swiss

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Civil Code “does not per se render the award incompatible with substantive public policy”, and that in the present case the Applicant had not demonstrated that there was a violation so serious that it would render the award incompatible with procedural public policy. In a third and final argument, the Applicant argued that the award violated public policy because the Panel had decided not to sanction acts of corruption which had been fully established. In this respect, the SFT observed that the challenged award did not deal with the (substantive) issue of whether acts of bribery were actually committed, but only with the (preliminary) issue of whether the Applicant had standing to sue. For these reasons and those summarized in Sect. 2.4.21, Trabzonspor’s application for annulment was dismissed. 2.5.18

SFT 4A_248/2019 and 4A_398/2019 (ATF 147 III 49), Decisions of 25 August 2020

Underlying Facts, Proceedings and Decision(s) The facts of this case have been summarized in Sect. 2.1.4.

Annulment Action and SFT Decision In addition to her complaints based on Articles 190(2)(a) and 190(2)(d) PILA (Sects. 2.1.4 and 2.4.22), Caster Semenya argued that the challenged CAS Award violated substantive public policy in several respects. The SFT started by recalling that violations of the Swiss Federal Constitution and the ECHR are not among the annulment grounds enumerated exhaustively in Article 190(2) PILA. Hence, an application for annulment must be declared inadmissible if it merely seeks to establish that the award is contrary to constitutional or ECHR guarantees. However, the SFT noted that the principles underlying these instruments may be taken into account in interpreting the notion of public policy within the meaning of Article 190 (2)(e) PILA. Firstly, Semenya claimed that the challenged Award blatantly breached the prohibition of discrimination. According to the SFT’s case law, the prohibition against discrimination is indeed part of public policy, but only in ‘vertical’ relations, i.e. between individuals and state authorities. In this respect, the Applicant put forward “not without relevance” that the relationship between an athlete and his or her international sports federation (such as the IAAF) could be compared to that between a private individual and the State. The SFT further pointed out that the prohibition of discrimination does not proscribe any distinction based on one of the criteria enumerated in Article 8(2) of the Swiss Federal Constitution. Instead, it aims at forbidding inadmissible distinctions. In matters of gender equality, separate treatment could be justified if it is based on biological differences that categorically exclude identical treatment. In the present case, the SFT recognized that the

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examination conducted by the CAS Panel was “thorough” and “detailed”. The Panel had concluded that, although the rules governing qualification in the female category for athletes with differences in sexual development (the DSD Regulations) were prima facie discriminatory, they were necessary, reasonable and proportionate in order to ensure a fair competition. In light of this objective, which was recognized as legitimate, differentiation between males and females must be accepted and, therefore, it may be fair to refer to intrinsic biological factors rather than to the legal sex of the athlete in order to make this distinction. The CAS Panel held that testosterone is a “primary factor” in the physical advantages between these two categories. On the basis of the evidence presented by the parties and the various scientific experts during the arbitration proceedings, the CAS concluded that the androgen-sensitive “46 XY DSD” female athletes benefit from a significant competitive advantage, so that the DSD Regulations, while prima facie discriminatory, were reasonable and appropriate measures. The SFT specifically noted that the merits of the dispute were not governed by Swiss law and recalled that the factual conclusions (including those based on scientific evidence) reached by an arbitral tribunal can no longer be challenged before the SFT in annulment proceedings against the award. Therefore, the SFT accepted the necessity of the DSD Regulations. As for the principle of proportionality (stricto sensu), the SFT found that the analysis conducted by the CAS Panel was extensive and thorough. The SFT also highlighted the interests pursued by the DSD Regulations, among which sporting fairness, which can justify serious infringements of the rights of athletes. Furthermore, the SFT added that the contested Regulations did not only aim at protecting the fairness of competitions (IAAF’s own interest) but also the interests of the other female athletes who would be disadvantaged and deprived of chances of success when competing against 46 XY DSD athletes. In the second prong of her challenge based on substantive public policy, Caster Semenya complained of a violation of her personality rights consisting of an infringement of her fundamental rights such as the right to one’s physical integrity and identity, and of an interference with her private sphere and economic freedom. In particular, the Applicant argued that the imposition of an obligation to take oral contraceptives in order to lower her testosterone level below the regulatory limit constituted a violation of the very essence of her right to physical integrity. On this point, the SFT considered all the elements that were taken into account in the Panel’s analysis leading to the conclusion that the measure was proportionate. The SFT found that such a conclusion did not violate public policy. Thirdly and finally, the Applicant complained of a violation of her human dignity—which the SFT recognized as a principle that “unquestionably” falls within the concept of public policy. The SFT opined that in certain contexts, including that of competitive sport, it may be permissible for biological characteristics to trump a person’s legal sex or gender identity for the purposes of fairness and equality of opportunity. In this case, the use of birth control pills did not constitute a forced treatment for “46 XY DSD” female athletes, who still have the option of refusing to comply with the prescriptions. While conceding that a refusal to comply would inevitably result in the athlete’s exclusion from

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competitions, the SFT considered that such a consequence does not, in and of itself, infringe the human dignity of a person. For these reasons and those summarized in Sects. 2.1.4 and 2.4.22, Caster Semenya’s and ASA’s applications for annulment were dismissed. 2.5.19

SFT 4A_618/2019, Decision of 17 September 2020

Underlying Facts, Proceedings and Decision(s) The facts of this case have been summarized in Sect. 2.2.9.

Annulment Action and SFT Decision In addition to his complaint based on Article 190(2)(b) PILA (Sect. 2.2.9), the Applicant claimed that the decision issued by the first instance body of the national federation did not contain any indication on the available legal remedies and that the Sole Arbitrator had violated procedural public policy by failing to sanction such a procedural flaw. The SFT observed that it was “doubtful” that the absence of any indication as to the available legal remedies at the end of a decision could be included in the notion of procedural public policy. The SFT noted that when a decision lacks indications on the available legal remedies, the parties must be diligent and make the necessary inquiries, in particular when, as was the case here, the addressee of the decision is represented by qualified counsel. Furthermore, the SFT noted that, in this instance, the legal remedies available to the decision’s addressee were explicitly set out in the applicable regulations, so that the Applicant was in fact in a position to identify the competent authority for an appeal. For these reasons and those summarized in Sect. 2.2.9, the Player’s application for annulment was dismissed. 2.5.20

SFT 4A_416/2020, Decision of 4 November 2020

Underlying Facts, Proceedings and Decision(s) Following a decision of the Single Judge of the FIFA PSC dated 11 February 2020, Team A filed an appeal with the CAS against Club B. In its statement of appeal, Team A requested that the dispute be heard by a sole arbitrator. Club B objected to this request. Shortly thereafter, the CAS informed the parties that the dispute would be heard by a three-member panel, and invited Team A to appoint an arbitrator by no later than 14 May 2020, failing which the appeal would be deemed withdrawn in accordance with Article R36 CAS Code (2019 Edition). Team A appointed its arbitrator on 15 May 2020. On the same day, Club B argued that Team A’s

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appointment was belated and the appeal should thus be considered withdrawn. On 15 June 2020, the Deputy President of the Appeals Arbitration Division issued a Termination Order, closing the proceedings on the ground that Team A had failed to observe the applicable time limit for the appointment of its arbitrator.

Annulment Action and SFT Decision Team A sought the annulment of the Termination Order, arguing that it violated public policy on two accounts. First, according to Team A, the decision of the Deputy President of the Appeals Arbitration Division to terminate the proceedings was arbitrary because the procedure contemplated in Article R36 CAS Code applied only to scenarios in which the arbitrator had resigned, died, or had been challenged or revoked, but not to cases where a party failed to appoint an arbitrator. The SFT recalled that in accordance with its case law, an erroneous application of the arbitration rules does not constitute a violation of public policy, and that it is not its role, in annulment proceedings under Article 190(2) PILA, to review the application of procedural rules. Further, the SFT noted that Team A was made aware by the CAS that it would apply Article R36 CAS Code if the appointment was not made on time. Team A also argued that the CAS should have granted it a grace period to proceed with the appointment of its arbitrator, in line with Article R48 CAS Code, and that its failure to do so amounted to excessive formalism. As it had done in several other recent decisions relating to CAS proceedings (see 4A_238/2018, Decision of 12 September 2018, Sect. 2.5.5, SFT 4A_556/2018, Decision of 5 March 2019, Sect. 2.5.9, and SFT 4A_54/2019, Decision of 11 April 2019, Sect. 2.5.10), the SFT left open the question whether excessive formalism may in some cases rise to the level of a violation of procedural public policy, and recalled that the strict observance of the applicable procedural rules is fundamental for ensuring the equal treatment of all parties. In the case at hand, the SFT rejected Team A’s argument, having found that Team A acknowledged its delay in appointing the arbitrator and that it could have requested an extension of the time limit for the appointment, in accordance with Article R32 CAS Code, which it had failed to do. Accordingly, Team A’s application for annulment was dismissed.

2.6 2.6.1

Article 76 SCA—Locus Standi SFT 4A_426/2017, Decision of 17 April 2018

Underlying Facts, Proceedings and Decision(s) In September 2016, Etoile Filante de Garoua, a football club affiliated to the Fédération Camerounaise de Football (the Club and FECAFOOT, respectively),

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filed a request for FIFA to postpone all Group B—third round qualifiers to the 2018 FIFA World Cup Russia, in which Cameroon was due to participate, “until legality is restored within [FECAFOOT]”. The Club mainly contended that the President of FECAFOOT did not validly represent the association. In view of this, the Club feared that the team due to participate in the qualifiers would not be representative of Cameroon either. The FIFA Secretary General denied the request on the ground that this was an issue of national dimension for which FIFA lacks jurisdiction. On 6 October 2016, the Club filed an appeal with the CAS requesting inter alia the postponement/rescheduling of all the Group B matches in order to allow for a representative team to take part in the qualifiers. In an award dated 26 June 2017, the Sole Arbitrator dismissed the appeal for lack of jurisdiction ratione materiae (the Award).

Annulment Action and SFT Decision The Club sought to have the Award annulled inter alia on the ground that the Sole Arbitrator had violated Article 190(2)(b) PILA by incorrectly deciding that he did not have jurisdiction ratione materiae in the case at hand. The SFT held that the Club did not have an interest worthy of protection in requesting the annulment of the Award, as it had failed to establish a link between the purported lack of authority of the FECAFOOT President and the lack of representativeness of the team. Similarly, no other contestant had requested the disqualification of the team representing Cameroon in the qualifiers and the current stage of preparation of the 2018 FIFA World Cup Russia made it impossible to reschedule any postponed matches should the CAS grant the request. All in all, the arguments brought forward by the Club were only hypothetical in nature and, thus, did not suffice to establish the existence of a legally protected interest. For this reason, the Club’s application for annulment was declared inadmissible. 2.6.2

SFT 4A_560/2018, Decision of 16 November 2018

Underlying Facts, Proceedings and Decision(s) Peruvian professional football player José Paolo Guerrero Gonzales (the Player) was found guilty of a doping violation and, upon appeal before the FIFA Appeal Committee (FIFA AC), banned from football for 6 months. Both the Player and WADA appealed against the FIFA AC’s decision. In May 2018, CAS denied the Player’s appeal and partially upheld WADA’s, fixing the duration of his ban to 14 months (the Award). The Player sought the annulment of the CAS Award before the SFT (4A_318/2018, summarized in Sects. 2.1.2, 2.4.11 and 2.5.8), as did FIFA in a separate action filed in October 2018, the outcome of which is summarized here.

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Annulment Action and SFT Decision On the preliminary question of the admissibility of the application, the SFT recalled that, in accordance with Article 76(1) SCA, an applicant has standing to bring an action for annulment if (a) it has taken part, or has been prevented from taking part, in the underlying proceedings, and (b) is particularly affected by the decision sought to be annulled and has an interest worthy of protection in that decision’s partial or total annulment. To be worthy of protection, the applicant’s interest must still exist at the time when the challenge is to be decided, and the interest must be the applicant’s own, not that of a third party. In the SFT’s view, even if FIFA had the formal status of a respondent in the CAS proceedings, the only substantive prayers for relief submitted to and decided by the CAS Award were the Player’s and WADA’s. While it is true that FIFA’s final decision was amended by the Award, FIFA’s position in that configuration was the same as that of a lower court whose judgment had been annulled or reformed by a court of appeal, not that of a party in the proceedings. FIFA argued that its application for annulment was grounded in the general interest of obtaining a determination by the SFT (if only within the strict confines of arbitrariness or public policy) on a fundamental question pertaining to the principle of proportionality. The SFT dismissed the argument, noting that the desire of obtaining such a determination, understandable as it was, could not in itself confer to FIFA the standing to seek the annulment of the Award within the meaning of Article 76(1)(b) SCA. Accordingly, the SFT ruled that FIFA’s application was inadmissible. 2.6.3

SFT 4A_56/2018, Decision of 30 January 2019

Underlying Facts, Proceedings and Decision(s) Subsequent to the suspension of the Russian Paralympic Committee (RPC) by the International Paralympic Committee (IPC),10 227 Russian paralympic athletes requested the opportunity to participate in the 2016 Rio Paralympic Games (the Paralympic Games), which were due to be held between 7 to 18 September 2016, as neutral athletes. Absent a response from the IPC, on 31 August 2016, 34 of these athletes filed a request for arbitration with the CAS seeking, inter alia, a declaration that they were entitled to and could participate in the Paralympic Games, and thus that the IPC ought to enter them in the Games; they also requested expedited proceedings due to the time sensitivity of the matter. However, on the same day, the IPC informed the athletes that it did not intend to make use of its discretionary power based on the amended “Rio 2016 Paralympic Games – Qualification Guide, General IPC Regulations on Eligibility, IPC Membership” and denied their request for participation in the Games. The IPC objected to the conduct of expedited

10

See Hasler and Hafner (2020), pp. 156–157, 165 (SFT 4A_470/2016, decision of 3 April 2017).

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proceedings, with the result that the standard timetable had to be followed, and then argued before the CAS that the claim was moot given that the entire Paralympic Games would be over on 18 September 2016. The CAS declined to hear the case on the basis that no arbitration agreement existed between the parties (the Award).

Annulment Action and SFT Decision Twenty-eight of the thirty-four Russian paralympic athletes who participated in the CAS proceedings (the Applicants) sought the annulment of the Award on the ground that the Panel had erred in denying its jurisdiction. The SFT noted that the Applicants no longer had a current legitimate interest in the outcome of the case because their prayers for relief only referred to their participation in the Paralympic Games, which had ended on 18 September 2016, i.e. long before the Award was issued and the instant application was filed. The SFT also distinguished the situation of the Applicants from that of the RPC, highlighting that the suspension of the RPC extended until after the Paralympic Games, whereas the Applicants would have, in time, the opportunity to apply for admission in the 2020 Tokyo Paralympic Games. This line of reasoning also rendered moot any argument that the matter at hand present a question of principle. Finally, the SFT held that the Applicants’ intention to file a claim for damages did not operate to maintain a current legitimate interest within the meaning of Article 76 SCA. For these reasons, the application for annulment was declared inadmissible.

2.7 2.7.1

Article 77 SCA—Challengeable Decisions SFT 4A_146/2019, Decision of 6 June 2019

Underlying Facts, Proceedings and Decision(s) In February 2018, professional boxer A. tested positive for a prohibited substance and was provisionally suspended pending the disciplinary proceedings brought against him before NADO B.’s Independent Doping Hearing Panel (IDHP). Subsequently, NADO B. withdrew its complaint. As a result, the IDHP issued a decision finding that A. had not violated the anti-doping rules and annulling his provisional suspension. WADA appealed before the CAS against the IDHP’s decision, naming both A. and NADO B. as respondents. In its Statement of appeal, WADA requested that a three-member panel be appointed to hear the case, but reserved its right to request the appointment of a sole arbitrator in the event the respondents failed to pay their portion of the advance on costs. In January 2019, given that NADO B. had paid only part of its share of the advance of costs, and A. had not made any payment, the CAS advised the parties that it would proceed to appoint a sole arbitrator, having ascertained that WADA maintained its request to

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that effect. A. then objected to WADA’s request and submitted that a three-member panel should be appointed. In March 2019, the President of the CAS Appeals Division appointed a sole arbitrator, while the ICAS granted A.’s application for legal aid. A. sought to annul the CAS Appeal Division President’s decision appointing a sole arbitrator.

Annulment Action and SFT Decision The SFT recalled that in accordance with its case law, the decisions issued by private entities such as an institution’s governing or administering bodies on the challenge or the appointment of an arbitrator cannot form the object of an application for annulment under Article 190(2) PILA, as they are not arbitral awards. Such decisions can only be reviewed by the SFT in the context of an application for annulment brought against the first award issued by the arbitral tribunal in the disputed composition. In a 2013 decision (4A_282/2013 of 13 November 2013, relating to an arbitration conducted under the CAS ordinary proceedings), the SFT had hesitated to conclude that the same rule should apply to institutional decisions on the number of arbitrators, ultimately leaving the question unanswered. However, in a later decision (4A_546/2016 of 27 January 2017, relating to an arbitration conducted under the Swiss Rules), which the SFT confirmed in the instant case, it held that an administering institution’s decision to designate a sole arbitrator as opposed to a three-member panel cannot itself make the object of an application for annulment. In line with the other categories of institutional decisions relating to the tribunal’s composition, it can only be reviewed in the context of an application for annulment directed against the tribunal’s (first) subsequent award. Accordingly, A.’s application was declared inadmissible.

2.8

Article 121(a) SCA (By Analogy)—Revision on the Ground of Irregular Composition of the Tribunal or Lack of Impartiality and Independence

2.8.1

SFT 4A_318/2020 (ATF 147 III 65), Decision of 22 December 2020

Underlying Facts, Proceedings and Decision(s) The facts of this case have been summarized in Sect. 2.1.5.

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Application for Revision and SFT Decision On the basis of Article 121(a) FSCA, Sun Yang argued that he discovered that the President of the Panel (Mr. Franco Frattini) had repeatedly made unacceptable comments about Chinese people on his personal Twitter account. In this regard, the SFT accepted that the discovery, after the expiry of the time limit for appeal, of a ground for challenging an arbitrator may constitute a valid ground to request the revision of the award, provided that the applicant could not have discovered the ground for challenge during the arbitral proceedings by exercising the diligence required by the circumstances. As a first line of defense, WADA argued that the Athlete’s request for revision was based on evidence that was subsequent to the CAS award (i.e. an article published on the web on 15 May 2020), through which he sought to establish facts that occurred before the CAS proceedings (i.e. the Tweets posted by the President of the Panel between 2018 and 2019). For this reason, WADA asked that the Athlete’s request for revision be declared inadmissible. The SFT disagreed with WADA’s argument and, on the contrary, considered that the basis for the Athlete’s request for revision was the series of tweets published by the arbitrator before the award. In a second line of argument, WADA complained that the Athlete could have discovered the ground for challenge against the President of the Panel already during the arbitration proceedings by showing “a little bit of diligence”. In this regard, it is generally admitted that a request for revision based on an arbitrator’s lack of impartiality can only be granted with respect to a ground for challenge that the party (i) had not already discovered during the arbitration proceedings or (ii) could not reasonably have discovered by exercising the care required by the circumstances. This is indeed a corollary of the principle of good faith, which prevents a party from keeping an argument “in reserve” in order to invoke it at a later stage, in the event of an unfavorable outcome of the dispute. The SFT’s case law imposes on the parties a “duty of curiosity” as to the existence of a possible ground for challenge against an arbitrator. According to the SFT, this duty of curiosity implies that the parties must pro-actively conduct “investigations”, in particular on the internet (for example, on the CAS’s and a lawyer’s firm’s websites); however, the duty of curiosity cannot be unlimited, meaning that a party is not obliged to consult and verify all the information that is freely available on the web. A party must carry out the research that appears necessary in view of the circumstances, in particular by means of a search engine (in this case on Google). The SFT also did not exclude that the duty of curiosity can be extended “within certain limits at least” to searches on various social media. Applying these principles to the present case, the SFT accepted that, at least theoretically, the Athlete could have had access to the disputed tweets during the arbitration proceedings and therefore could have raised a challenge against the arbitrator at that stage. However, in the absence of any other circumstances that could alert him to the existence of a potential risk of bias of the arbitrator, the Athlete was not required to examine the arbitrator’s past twitter feed, where the impugned tweets, most of which were published well before the opening of the arbitration, had appeared. In its third and final line of argument, WADA further

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contended that the facts discovered by the Athlete were not such as to question the arbitrator’s impartiality. On this point, after having recalled its own case law, the SFT specifically referred to the Mutu and Pechstein v. Switzerland decision of the European Court of Human Rights. According to the SFT, the impartiality of the arbitrator is generally defined as the absence of prejudice or bias and is assessed not only from a subjective point of view (by focusing on the personal conviction of the arbitrator), but also from an objective point of view (by looking at whether the tribunal offers the necessary guarantees of impartiality). According to the famous maxim, “justice must not only be done: it must also be seen to be done. Furthermore, the SFT also referred to the “IBA Guidelines on Conflicts of Interest in International Arbitration”. Based on all of that, the SFT had that the arbitrator had severely criticized the consumption of dog meat (in particular during a festival in China) and denounced some Chinese nationals who were guilty, in the arbitrator’s view, of torturing animals. In the SFT’s opinion, what appeared problematic in this case was not the cause defended by the arbitrator, but rather the derogatory and offensive terms he used in his tweets (such as, for example, “yellow face”). Indeed, although these terms were directed specifically at persons identified as being guilty of torturing animals and the arbitrator himself subsequently acknowledged that they “exceeded his thoughts”, they were objectively of such a nature as to raise legitimate doubts about the arbitrator’s impartiality vis-à-vis Chinese nationals in general. For these reasons, the request for revision filed by the Athlete was admitted, and the challenged arbitrator was disqualified by the SFT.

2.9

2.9.1

Article 123(2)(a) SCA—Revision—Discovery of New Facts or Evidence SFT 4A_662/2018, Decision of 14 May 2019

Underlying Facts, Proceedings and Decision(s) In July 2011, football clubs A. and B. (Club A. and Club B.) agreed on the transfer of Player D. from Club A. to Club B. for a fee of EUR 5 million. The transfer agreement between these two clubs (TA1) also contained a clause whereby Club B. undertook to pay Club A. half of the transfer fee it would obtain in the event D. was subsequently transferred to a third club. In June 2014, D. was transferred from Club B. to football club C. (Club C.) for a fee of EUR 6 million (TA2). Prior to D.’s transfer to Club C., Club B. had also concluded agreements for the transfer of three other players to Club C. In correspondence exchanged between the clubs, Club A. accused Club B. of having manipulated the TA2, by simulating the three earlier transfers of other players to cover the balance of the actual amount it had negotiated for D.’s transfer to Club C., which, according to Club A., was much higher that the EUR 6 million stipulated in TA2. Club B. denied having manipulated any of the

Sports Arbitration Cases Before the Swiss Federal Tribunal …

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agreements. Club A. then requested that Club B. pay EUR 3 million (50% of EUR 6 million) in accordance with TA1, reserving further claims. Club B. paid the EUR 3 million in January 2015. Club A. filed a request for arbitration with the CAS, seeking an award ordering Club B. to pay an additional fee of EUR 3.5 million, in reliance of the alleged simulation of the transfer agreements for players other than D., which, according to Club A. had the sole purpose of concealing the fact that Club C. had actually paid Club B. EUR 13 million (EUR 6 million “officially” and EUR 7 million “covertly”) for Player D. In an award issued in December 2016 (the Award), the CAS Panel denied Club A.’s claims, finding in particular that the claimant had failed to prove its contentions.

Application for Revision and SFT Decision In December 2018, Club A. filed an application for the revision of the Award, on the ground that it had discovered new facts and probative evidence within the meaning of Article 123(2)(a) SCA, i.e. such that, if taken into account, they would lead the arbitral tribunal to a different decision. In support of its application, Club A. submitted five press articles published on 18 September 2018 and an e-mail dated 9 June 2014, which was reproduced in those articles and allegedly revealed the plot to conceal the actual amount of the transfer fee paid by Club C. to Club B. for Player D. The SFT recalled that evidence adduced in support of an application under Article 123(2)(a) SCA must have existed at the time the award was rendered, and the adducing party must demonstrate that it was unable to discover and submit such evidence in the course of the arbitration. On this basis, the SFT held that the news articles published in September 2018 were inadmissible, given that they had not existed when the Award was issued. With respect to the e-mail dated 9 June 2014, the SFT took note of the fact that Club B. disputed its authenticity, and found that there were credible indications that it had been forged. By reference to Article 178 CCP and in line with the reasoning followed by the CAS Panel, the SFT held that Club A. bore the burden of proving the impugned e-mail’s authenticity, which Club A. had failed to do. As such, the email could not be relied upon as probative evidence within the meaning of Article 123(2)(a) SCA. Accordingly, the SFT denied Club A.’s application for the revision of the Award. 2.9.2

SFT 4A_597/2019, Decision of 17 March 2020

Underlying Facts, Proceedings and Decision(s) In an award rendered in 2017, a CAS Panel sanctioned Italian race-walker Alex Schwazer with an 8-year ban for anti-doping rule violations (the Award). On 4 December 2019, Mr. Schwazer filed an application for revision against the Award, reasserting a theory he had already presented in the CAS proceedings, namely that his urine samples had been manipulated to produce the adverse analytical results.

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In his application for revision, the Athlete relied on an expert report that had been produced in the criminal proceedings brought against him in Italy for the anti-doping violations established in the Award. According to Mr. Schwazer, the expert report’s finding that his sample displayed anomalous DNA concentrations confirmed his sabotage theory.

Application for Revision and SFT Decision The Athlete’s application for revision was based on the ground set out in Article 123(2) SCA, namely the discovery of relevant facts or conclusive evidence after the issuance of the award, which the applicant had not been in a position to adduce in the arbitration proceedings. In accordance with Article 124(1) SCA, an application for revision based on Article 123(2) SCA must be filed within 90 days from the discovery of the ground for revision. The SFT expressed reservations as to the timeliness of the Athlete’s request for revision, but left that point open, observing that the application had to be denied on the merits in any event. In this regard, noting that the expert report invoked by Mr. Schwazer had been prepared and produced in the framework of the Italian criminal proceedings, i.e., well after the arbitration, the SFT held that the Athlete’s application did not comply with Article 123(2) SCA’s requirement that the conclusive evidence relied upon in requesting an award’s revision must have existed before the award was rendered. In addition, the SFT found that the Athlete had failed to explain why he could not have adduced the same (or the same type of) evidence in the course of the arbitration. In particular, the SFT was unpersuaded by the Athlete’s argument that, at the time, he no longer had access to the sample, and thus was not in a position to have it examined by an expert, and that the expedited nature of the CAS proceedings had precluded him from adducing further evidence. With regard to the latter point, the SFT underscored that the parties themselves, including the Athlete, had opted for the arbitration to be conducted in an expedited manner. The SFT observed that the (exceptional) remedy of revision cannot be used, ex post, to address the impact on the outcome of the case of the procedural constraints that result from the parties’ own choice of having the dispute resolved on an expedited basis. For these reasons, the application for revision was denied.

2.10

Article 338 CCP—Request for Enforcement

2.10.1

SFT 4A_543/2019, Decision of 30 April 2020

Underlying Facts, Proceedings and Decision(s) A few months after the SFT denied FIM’s application for annulment (see Sects. 2.2.4 and 2.3.3), the KMSC filed an application for the enforcement of the Award

Sports Arbitration Cases Before the Swiss Federal Tribunal …

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with the competent judge in the Swiss Canton of Vaud (i.e., the Juge de paix of the Lausanne district). By an order issued in October 2018, the Juge de paix enjoined FIM to carry out the Award and to render its decision on the KMSC’s application for membership by 1 December 2018, failing which it would be subject to a CHF 500—penalty for each day of delay. FIM unsuccessfully challenged this decision before the competent cantonal court of appeal. In February 2019, the KMSC filed a new application for enforcement with the Juge de paix, arguing that FIM had failed to comply with the judge’s earlier order. In a ruling rendered in July 2019, the Juge de paix found that, on 23 November 2018, FIM had set a 5-day time limit for the KMSC to submit any new elements in support of its membership application, and that on 29 November 2018, the FIM’s Board of Directors had decided to reject the KMSC’s application. Hence, the Juge de paix found that the Award had been duly enforced, and dismissed the KMSC’s new application. The KMSC appealed against the Juge de paix’s ruling, and then filed an application for annulment, before the SFT, against the Cantonal Court of Appeal’s judgment rejecting its appeal.

Annulment Action and SFT Decision The KMSC argued that the time limit imparted by FIM for the KMSC to submit new elements in support of its application was too short and had not allowed it to exercise its right to be heard in line with the CAS’s directions in the Award. The SFT noted that the KMSC’s application had been pending for several years, meaning that the parties’ arguments and respective positions ought, by then, to have been well-known on both sides, and that, given the Juge de paix’s first ruling, which had fixed a time limit for FIM to issue a decision on the application by 1 December 2018, the KMSC had had ample time and sufficient advance notice to prepare its final submission (regardless of the appeal filed by FIM, which did not stay the effect of the Juge de paix’s ruling). Having found that the decision issued by the FIM’s Board of Directors complied with the FIM Statutes and the CAS Award, and thus that FIM had duly carried out the order contained in the Award, the SFT denied the KMSC’s application. Table 1 lists the grounds for annulment invoked in each of the applications for annulment filed during the period under review, and the outcome of each application. It also provides references to the publications where the decisions discussed in Sect. 2 are reproduced and/or commented.11

11

The data included in the table was up to date as of 30 September 2022.

4A_384/2020

4A_198/2020

1 December 2020

A. FC v. B. FC, C. & D

A. v. FC B

Sun Yang v. AMA & FINA

4A_318/2020 147 III 65

10 December 2020

A. A.S. v. UEFA

4A_478/2020

29 December 2020 22 December 2020

Parties

Case no.

Date

F

F

F

F

Language

https://www. swissarbitrationdecisions. com/decisions https://www.swlegal. com/en/insights/blogacd-overview/ (28 January 2021) ASA Bulletin 39: 736– 759 https://www.swlegal. com/en/insights/blogacd-overview/ (22 January 2021) ASA Bulletin 39: 493– 493 https://www.swlegal. com/en/insights/blogacd-overview/ (28 January 2021) ASA Bulletin 39: 455– 460

ASA Bulletin 39: 952– 958

Sourcesa (including summaries and translations)

Table 1 Grounds for annulment invoked between 29 December 2020–22 January 2018 and outcomes thereof

Article 190 (2)(c) PILA Article 190 (2)(d) PILA

Article 190 (2)(d) PILA

Article 190 (2)(a) PILA 121(a) SCA

Article 190 (2)(d) PILA

Grounds on which annulment/ revision was soughtb

(continued)

Dismissed

Dismissed

Upheld

Dismissed

Outcome

376 Y. Hafner et al.

A. Federation v. B. Federation

A. [Caster Semenya] v. IAAF & Athletics South Africa ASA + Athletics South Africa ASA v. IAAF & A

4A_62/2020

4A_618/2019

4A_290/2020

4A_248/ 2019 + 4A_398/ 2019 147 III 49

30 September 2020

17 September 2020

26 August 2020 25 August 2020

A. v. Hellenic National Council for Combating Doping (ESKAN)

A. FC v. B

A. v. B

4A_416/2020

4 November 2020

Parties

Case no.

Date

Table 1 (continued)

F

D

F

F

F

Language

https://www.swlegal. com/en/insights/blogacd-overview/ (1 October 2020) ASA Bulletin 39: 890– 899

https://www.swlegal. com/en/insights/blogacd-overview/ (7 January 2021) ASA Bulletin 39: 208–214 https://www.swlegal. com/en/insights/blogacd-overview/ (20 November 2020) ASA Bulletin 39: 493– 493 https://www.swlegal. com/en/insights/blogacd-overview/ (20 November 2020) ASA Bulletin 40: 165– 173 N/A

Sourcesa (including summaries and translations)

Article 190 (2)(a) PILA Article 190 (2)(d) PILA Article 190 (2)(e) PILA

N/A

Article 190 (2)(b) PILA Article 190 (2)(e) PILA

Article 190 (2)(d) PILA

Article 190 (2)(e) PILA

Grounds on which annulment/ revision was soughtb

(continued)

Dismissed

Inadmissible

Dismissed

Dismissed

Dismissed

Outcome

Sports Arbitration Cases Before the Swiss Federal Tribunal … 377

4A_70/2020

4A_543/2019

4A_160/2020

30 April 2020

30 April 2020

KS Skënderbeu v. UEFA

4A_462/2019

18 June 2020

A. v. B

4A_202/2020

5 August 2020 29 July 2020

FC A. Limited Liability Company v. UEFA

Kuwait Motor Sports Club v. Fédération Internationale de Motocyclisme

A. c/o D. v. B

A. A.S., B. A.S. & V. [Trabzonspor] v. Turkish Football Federation (TFF), C. A.S., W. [Fenerbahçe] & FIFA

4A_486/2019 146 III 358

17 August 2020

Parties

Case no.

Date

Table 1 (continued)

D

F

F

F

F

F

Language

https://www.swlegal. com/en/insights/blogacd-overview/ (17 September 2020) ASA Bulletin 40: 174– 194 ASA Bulletin 38: 995– 997 https://www. swissarbitrationdecisions. com/decisions https://www.swlegal. com/en/insights/blogacd-overview/ (1 October 2020) https://www.swlegal. com/en/insights/blogacd-overview/ (27 August 2020) ASA Bulletin 38: 710– 718 https://www. swissarbitrationdecisions. com/decisions N/A

Sourcesa (including summaries and translations)

N/A

N/A

Article 190 (2)(d) PILA* Article 190 (2)(e) PILA

Article 190 (2)(e) PILA Article 190 (2)(d) PILA

N/A

Article 190 (2)(e) PILA Article 190 (2)(d) PILA

Grounds on which annulment/ revision was soughtb

(continued)

Inadmissible

Dismissed

Dismissed

Dismissed

Inadmissible

Dismissed

Outcome

378 Y. Hafner et al.

Case no.

4A_548/ 2019 + 4A_550/ 2019

4A_422/2019

4A_597/2019

4A_536/2018

Date

29 April 2020

21 April 2020

17 March 2020

16 March 2020

Table 1 (continued)

Club A. v. Z

A. [Alex Schwazer] v. IAAF, NADO Italia, FIDAL & WADA

A. v. RUSADA, AMA & Fédération Internationale des Sociétés d’Aviron (FISA)

Fédération A., B. & C. v. Confédération D

Parties

F

I

F

F

Language

https://www. swissarbitrationdecisions. com/decisions https://www.swlegal. com/en/insights/blogacd-overview/ (06 August 2020) https://www. swissarbitrationdecisions. com/decision ASA Bulletin 40: 163– 164 https://www.swlegal. com/en/insights/blogacd-overview/ (25 May 2020) ASA Bulletin 38: 464– 468 https://www. swissarbitrationdecisions. com/decisions https://www.swlegal. com/en/insights/blogacd-overview/ (4 June 2020)

Sourcesa (including summaries and translations)

Article 190 (2)(e) PILA Article 190 (2)(d) PILA

Article 123 (2)(a) SCA

Article 190 (2)(d) PILA

Article 190 (2)(d) PILA Article 190 (2)(e) PILA

Grounds on which annulment/ revision was soughtb

(continued)

Dismissed

Dismissed

Dismissed

Dismissed

Outcome

Sports Arbitration Cases Before the Swiss Federal Tribunal … 379

Case no.

4A_287/2019

4A_413/2019

4A_268/2019

Date

6 January 2020

28 October 2019

17 October 2019

Table 1 (continued)

A. v. B. & Fédération Algérienne de Football

A. [Sun Yang] v. AMA & FINA

A. [Sun Yang] v. AMA & FINA

Parties

F

F

F

Language

https://www. swissarbitrationdecisions. com/decisions https://www.swlegal. com/en/insights/blogacd-overview/ (5 March 2020) ASA Bulletin 38: 212– 223 https://www. swissarbitrationdecisions. com/decisions https://www.swlegal. com/en/insights/blogacd-overview/ (12 December 2019) ASA Bulletin 38: 204– 211 https://www. swissarbitrationdecisions. com/decisions https://www.swlegal. com/en/insights/blogacd-overview/ (12 December 2019) ASA Bulletin 40: 155– 162

Sourcesa (including summaries and translations)

Article 190 (2)(b) PILA Article 190 (2)(d) PILA

Article 190 (2)(b) PILA Article 190 (2)(d) PILA*

Article 190 (2)(b) PILA Article 190 (2)(a) PILA

Grounds on which annulment/ revision was soughtb

(continued)

Dismissed

Inadmissible

Inadmissible

Outcome

380 Y. Hafner et al.

X. v. Confederación Sudamericana de Fútbol (CONMEBOL)

4A_494/2018

4A_146/2019

X. v. Z

4A_234/2019

6 June 2019

A. v. B. & FIFA

4A_272/2019

4 September 2019 9 July 2019 25 June 2019

A. v. AMA & B

A. [Sun Yang] v. AMA & FINA

4A _265/2019

25 September 2019

Parties

Case no.

Date

Table 1 (continued)

F

F

F

F

F

Language

https://www.swlegal. com/en/insights/blogacd-overview/ (28 August 2019) ASA Bulletin 37: 704– 715 https://www. swissarbitrationdecisions. com/decisions https://www.swlegal. com/en/insights/blogacd-overview/ (18 July 2020)

https://www. swissarbitrationdecisions. com/decisions N/A

N/A

Sourcesa (including summaries and translations)

N/A

Article 190 (2)(d) PILA Article 190 (2)(e) PILA

N/A

Article 190 (2)(b) PILA

N/A

Grounds on which annulment/ revision was soughtb

(continued)

Inadmissible

Dismissed

Inadmissible

Application became moot, was struck from the roll with costs Inadmissible

Outcome

Sports Arbitration Cases Before the Swiss Federal Tribunal … 381

Case no.

4A_662/2018

4A_540/2018 ATF 145 III 266

4A_54/2019

4A_556/2018

Date

14 May 2019

7 May 2019

11 April 2019

5 March 2019

Table 1 (continued)

A. v. B. & FIFA

FC. A. v. B

Jérôme Valcke v. FIFA

FC. A. v. FC B

Parties

F

D

F

D

Language

https://www.swlegal. com/en/insights/blogacd-overview/ (27 June 2019) ASA Bulletin 38: 99–107 https://www. swissarbitrationdecisions. com/decisions https://www.swlegal. com/en/insights/blogacd-overview/ (27 June 2019) https://www.swlegal. com/en/insights/blogacd-overview/ (13 June 2019) ASA Bulletin 37: 732– 740 https://www.swlegal. com/en/insights/blogacd-overview/ (9 April 2019) ASA Bulletin 37: 462– 475

Sourcesa (including summaries and translations)

Article 190 (2)(d) PILA Article 190 (2)(c) PILA Article 190 (2)(e) PILA

Article 190 (2)(d) PILA Article 190 (2)(e) PILA

Article 190 (2)(d) PILA Article 190 (2)(e) PILA

Article 123 (2)(a) SCA

Grounds on which annulment/ revision was soughtb

(continued)

Dismissed

Dismissed

Dismissed

Dismissed

Outcome

382 Y. Hafner et al.

Case no.

4A_318/2018

4A_56/2018

4A_424/2018

4A_98/2018

Date

4 March 2019

30 January 2019

29 January 2019

17 January 2019

Table 1 (continued)

A. S.p.A. & B. v. C

A. v. International Tennis Federation (ITF) & B

1.–28. v. Comité International Paralympique

José Paolo Guerrero Gonzales v. FIFA & AMA

Parties

I

F

F

F

Language

https://www.swlegal. com/en/insights/blogacd-overview/ (18 April 2019) ASA Bulletin 39: 404– 418 https://www.swlegal. com/en/insights/blogacd-overview/ (15 March 2019) ASA Bulletin 39: 429– 434 https://www.swlegal. com/en/insights/blogacd-overview/ (4 April 2019) ASA Bulletin 37: 451– 461 N/A

Sourcesa (including summaries and translations)

Article 190 (2)(c) PILA* Article 190 (2)(d) PILA* Article 190 (2)(e) PILA

Article 190 (2)(d) PILA

Article 190 (2)(d) PILA Article 190 (2)(a) PILA Article 190 (2)(e) PILA N/A

Grounds on which annulment/ revision was soughtb

(continued)

Dismissed

Dismissed

Inadmissible

Dismissed

Outcome

Sports Arbitration Cases Before the Swiss Federal Tribunal … 383

A. v. International Federation of American Football (IFAF), USA Football, Football Canada, Japanese American Football, Panamanian Federation of American Football & B Club A. v. B

4A_284/2018

4A_238/2018

FIFA v. X. [José Paolo Guerrero] & AMA

4A_560/2018

12 September 2018

X v. FIFA

4A_474/2018

27 November 2018 16 November 2018 17 October 2018

Comité international Olympique v. X

4A_382/2018

15 January 2019

Parties

Case no.

Date

Table 1 (continued)

F

D

F

F

F

Language

https://www.swlegal. com/en/insights/blogacd-overview/ (28 January 2019) ASA Bulletin 38: 719– 725

https://www. swissarbitrationdecisions. com/decisions https://www.swlegal. com/en/insights/blogacd-overview/ (23 November 2018)

https://www. swissarbitrationdecisions. com/decisions https://www.swlegal. com/en/insights/blogacd-overview/ (15 March 2019) ASA Bulletin 39: 152– 155 N/A

Sourcesa (including summaries and translations)

Article 190 (2)(d) PILA Article 190 (2)(e) PILA

Article 190 (2)(c) PILA Article 190 (2)(d) PILA

N/A

Article 190 (2)(e) PILA

Article 190 (2)(d) PILA

Grounds on which annulment/ revision was soughtb

(continued)

Dismissed

Dismissed

Inadmissible

Dismissed

Dismissed

Outcome

384 Y. Hafner et al.

Case no.

4A_114/2018

4A_578/2017

4A_502/2017

4A_314/2017

Date

14 August 2018

20 July 2018

25 June 2018

28 May 2018

Table 1 (continued)

Fédération Internationale de Motocyclisme v. Kuwait Motor Sports Club

X. Club v. A. & Z. Club

X. v. Z. Ltd

A. V. FC B

Parties

F

F

F

D

Language

https://www. swissarbitrationdecisions. com/decisions https://www.swlegal. com/en/insights/blogacd-overview/ (6 September 2018) ASA Bulletin 36: 936– 955 https://www. swissarbitrationdecisions. com/decisions https://www.swlegal. com/en/insights/blogacd-overview/ (9 August 2018) https://www. swissarbitrationdecisions. com/decisions https://www.swlegal. com/en/insights/blogacd-overview/ (6 July 2018) ASA Bulletin 36: 738– 755

Sourcesa (including summaries and translations)

Article 190 (2)(b) PILA Article 190 (2)(c) PILA

Article 190 (2)(d) PILA Article 190 (2)(e) PILA

Article 190 (2)(d) PILA

Article 190 (2)(d) PILA

Grounds on which annulment/ revision was soughtb

(continued)

Dismissed

Dismissed

Dismissed

Dismissed

Outcome

Sports Arbitration Cases Before the Swiss Federal Tribunal … 385

Case no.

4A_170/2017 + 4A_194/2017

4A_478/2017

4A_426/2017

4F_8/2018

Date

22 May 2018

2 May 2018

17 April 2018

14 March 2018

Table 1 (continued)

A. v. Club B

L. v. FIFA

X. v. AMA & Fédération biélorusse de taekwondo

Club L v. Fédération Camerounaise de Football (FECAFOOT) + FECAFOOT v. Club L

Parties

F

F

F

F

Language

https://www.swlegal. com/en/insights/blogacd-overview/ (14 June 2018) ASA Bulletin 40: 195– 205 https://www.swlegal. com/en/insights/blogacd-overview/ (14 June 2018) ASA Bulletin 38: 764– 771 ASA Bulletin 38: 469– 473

https://www.swlegal. com/en/insights/blogacd-overview/ (9 July 2018)

Sourcesa (including summaries and translations)

N/A

N/A

Article 190 (2)(d) PILA Article 190 (2)(b) PILA Article 190 (2)(e) PILA + Article 190 (2)(c) PILA Article 190 (2)(d) PILA

Grounds on which annulment/ revision was soughtb

(continued)

Inadmissible

Inadmissible

Partially Upheld

1. Club L.’s application: dismissed 2. FECAFOOT’s application: inadmissible

Outcome

386 Y. Hafner et al.

4A_508/2017

A. v. IAAF

4A_490/2017

29 January 2018

A. v. B

4A_30/2018

8 February 2018 2 February 2018

Club A. v. B

X. [RFC Seraing] v. FIFA

4A_260/2017 144 III 120

20 February 2018

Parties

Case no.

Date

Table 1 (continued)

D

D

D

F

Language

https://www. swissarbitrationdecisions. com/decisions https://www.swlegal. com/en/insights/blogacd-overview/ (14 March 2018) ASA Bulletin 36: 406– 428 ASA Bulletin 36: 1040– 1040 https://www.swlegal. com/en/insights/blogacd-overview/ (9 May 2018) ASA Bulletin 37: 408– 420 https://www.swlegal. com/en/insights/blogacd-overview/ (27 March 2018) ASA Bulletin 37: 375– 383

Sourcesa (including summaries and translations)

Article 190 (2)(c) PILA Article 190 (2)(e) PILA

Article 190 (2)(b) PILA

N/A

Article 190 (2)(a) PILA Article 190 (2)(d) PILA Article 190 (2)(e) PILA

Grounds on which annulment/ revision was soughtb

(continued)

Dismissed

Dismissed

Inadmissible

Dismissed

Outcome

Sports Arbitration Cases Before the Swiss Federal Tribunal … 387

4A_432/2017

22 January 2018

A. v. B

Parties

D

Language

https://www. swissarbitrationdecisions. com/decisions https://www.swlegal. com/en/insights/blogacd-overview/ (8 March 2018) ASA Bulletin 37: 189– 196

Sourcesa (including summaries and translations)

Article 190 (2)(b) PILA

Grounds on which annulment/ revision was soughtb Upheld

Outcome

Source The authors a The sources mentioned in this table are those available in addition to the principal source, being the SFT’s website (http://www.bger.ch/fr/index/juridiction/ jurisdiction-inherit-template/jurisdiction-recht.htm), where all the decisions summarized in this digest can be accessed b Where a ground is marked with an *, the SFT’s discussion (consisting of a very brief dismissal) of that ground has not been summarized

Case no.

Date

Table 1 (continued)

388 Y. Hafner et al.

Sports Arbitration Cases Before the Swiss Federal Tribunal …

389

Disclaimer Any views expressed by the authors in this digest are their own and do not necessarily reflect those of their employers.

References Hasler E, Hafner Y (2016) Sports Arbitration Cases Before the Swiss Federal Tribunal in 2015—A Digest. In: Duval A, Rigozzi A (eds) Yearbook of International Sports Arbitration 2016. TMC Asser Press, The Hague, pp. 349–386 Hasler E, Hafner Y (2020) Sports Arbitration Cases Before the Swiss Federal Tribunal in 2017—A Digest. In: Duval A, Rigozzi A (eds) Yearbook of International Sports Arbitration 2020. TMC Asser Press, The Hague, pp. 147–178