Yearbook of International Sports Arbitration 2017 [1st ed.] 9789462653184, 9789462653191

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Yearbook of International Sports Arbitration 2017 Antoine Duval Antonio Rigozzi Editors

Yearbook of International Sports Arbitration Series 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

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.

More information about this series at http://www.springer.com/series/15757

Antoine Duval Antonio Rigozzi •

Editors

Yearbook of International Sports Arbitration 2017

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

Assistant Editor Erika Hasler Lévy Kaufmann-Kohler Geneva, Switzerland

Antonio Rigozzi Faculté de droit Université de Neuchâtel Neuchâtel, Switzerland

ISSN 2522-8501 ISSN 2522-851X (electronic) Yearbook of International Sports Arbitration ISBN 978-94-6265-318-4 ISBN 978-94-6265-319-1 (eBook) https://doi.org/10.1007/978-94-6265-319-1 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 2021 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

It gives me great pleasure to preface what is now the third volume in the YISA series. The collection of writings gathered in this volume, covering the year 2017 in international sports arbitration, is once again testament to the richness of our field of interest. The decisions commented in the following pages touch upon a range of important issues and topics, including the need for increased transparency in CAS arbitration; the scourges of match-fixing, state-sponsored doping and political interference in sports; the validity of FIFA’s ban of third-party ownership, in particular vis-à-vis EU law; the protection of minors under FIFA’s RSTP; the handling of ADRVs caused by incorrect medical advice; the criteria for admission as a member of UEFA, and the enforcement of CAS awards outside their country of origin, Switzerland. The contributing authors themselves hail from different backgrounds and represent a variety of sports law and arbitration-related professions. Indeed, and like its predecessors, this volume features papers written by academics, sports federations’ in-house lawyers and practitioners acting as sports counsel or arbitrators. As an avant-goût of this great deal of expertise, what follows is my short overview of the articles that my co-editor Antoine Duval and I are happy to bring to our readers with this volume. The opening piece represents in fact a leap two years into the future in relation to the contents of the remainder of the volume. We take the temporal licence of including it here in view of the overarching importance of the topic it deals with, and because today’s readers, even as they flip through the pages of a volume devoted to the year 2017, will be very much aware that the then anxiously awaited ruling of the ECtHR in the Pechstein v. Switzerland case has now been delivered. Antoine Duval argues that a correct reading of that ruling must now lead the CAS and its governing body, ICAS, to embrace transparency to a significantly greater extent than is their current (and longstanding) practice. In the author’s view, the CAS’s function as the exclusive adjudicator of transnational sports disputes and the non-consensual basis of its jurisdiction can only continue to exist if it can claim the v

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legitimacy that comes from full compliance with the due process requirements of Article 6(1) ECHR, including publicity of its institutional governance, process and decisions. Needless to say that the Pechstein ruling and its impact on international sports arbitration will be examined further in the 2018 volume of the YISA. David McArdle’s contribution raises certain sensitive issues surrounding the award rendered in the doping dispute opposing the Belarus Canoe Association and members of the Belarusian men’s canoe and kayak team to the International Canoe Federation (ICF). This was one of the many cases involving Meldonium that arose in the period after the substance was added for the first time to WADA’s prohibited list in 2016. While the fact that WADA had put a special transitory regime in place for that substance was relevant to the Panel’s decision, the more important aspect of the ruling is the fact that it annulled the sanction imposed by the ICF in breach of its own statutes and of the principle of legality. While the author agrees with the Panel’s analysis and ruling, zooming out from this particular dispute, he deplores both the current state of sports and anti-doping governance under the notoriously oppressive Belarusian regime and the SGB’s seeming indifference to that domestic situation. Antoine Duval examines the CAS award that rejected Belgian club’s RFC Seraing’s challenge against the third party ownership (TPO) ban implemented by FIFA in 2015. This award is noteworthy for being one of the relatively few instances where a CAS Panel has conducted a thorough analysis of the disputed issues under EU law, specifically under the rules governing free movement rights and competition law. Giving effect to a principle enshrined in Article 19 of the Swiss Private International Law Act, the Panel determined that the relevant EU law provisions should be taken into account in its decision, in addition to the applicable Swiss law and FIFA regulations, in view of their status as overriding mandatory rules with a close connection to the subject matter of the dispute. As we now know, RFC Seraing went on to challenge the CAS award before the Swiss Supreme Court, arguing, inter alia, that the CAS lacks independence vis-à-vis FIFA. The Swiss Supreme Court decision, rendered in February 2018, is highly interesting and will also be covered in the next volume of the YISA. Cem Kalelioğlu discusses the award rendered in the joint CAS appeal proceedings brought by Turkish football powerhouses Trabzonspor and Fenerbahce against each other and UEFA. In the aftermath of the match-fixing scandal that marked Turkey’s Süper Lig Championship in 2010/2011, spawning numerous claims and related proceedings in disciplinary and criminal fora, the CAS Panel in this case was called to interpret UEFA’s regulations on the exact disclosures to be made, in relation to such proceedings, by clubs applying to participate in subsequent UEFA Europa League Competitions. The award also dealt with the jurisdictional question of whether the parent company and majority shareholder of Fenerbahce could rely on the arbitration clause in the UEFA Statutes, to which only the club was subject, in order to substitute itself for the club as the appellant before the CAS. The decision is commendable for its clear exposition of the theory of Durchgriff (piercing the corporate veil) under Swiss law.

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Serhat Yilmaz’s article on the Real Madrid v. FIFA award, revolving around the requirements for the transfer and first registration of minors examines, step by step, the Sole Arbitrator’s decision in ruling over FIFA’s claim that Real Madrid had breached one or more of Articles 19, 19bis, 9 and 5 RSTP in connection with several players. The award provides helpful clarifications on the scope of application of some of these provisions, in particular with regard to minors under the age of 12, and on the proper construction of the concept of “organized football” and of the term “registration” in the RSTP. As is well known, cases similar to Real Madrid’s were heard before and after it, with regard to FC Barcelona (in 2014) and Atlético Madrid (later in 2017), respectively. As noted by the author, of these three, Real Madrid is the only club that was able to persuade the CAS that there were grounds to reduce the sanctions originally imposed on it by FIFA. The CAS award in the appeal brought by FIS against Norwegian cross-country skier Therese Johaug’s case resulted from an inadvertent anti-doping rule violation for using, upon her doctor’s recommendation, a lip cream containing a prohibited substance. Trond Solvang and Nina Lauber-Thommesen offer an insightful reading of the (majority) award, which extended Ms Johaug’s period of ineligibility, causing her to miss the 2018 Winter Olympics. The central issue was the correct assessment of the athlete’s degree of fault, but the authors argue that a more in-depth analysis would have been warranted with regard to the (connected) questions whether a delegation of anti-doping responsibilities should be permitted, whether it had effectively taken place, and if so, what the bearing of such delegation on the athlete’s degree of fault should be. The authors also express the view the award is a missed opportunity to engage with an athlete’s argument that the principle of proportionality should inform the application of sanctions under the WADA Code. More on this in the next issue of the YISA, in connection with the Guerrero case. Benoît Keane’s study of the award dealing with the Jersey Football Association’s application for UEFA membership sets the scene by summarizing the key precedents in admission disputes, namely the cases relating to Gibraltar’s applications for UEFA and FIFA membership and Kosovo’s application for UEFA membership. The author highlights how not only the wording of the relevant rules but also the CAS’s analysis of such rules have evolved over the years. Ultimately, both FIFA and UEFA have revised their statutes so as to incorporate the public international law definition of a country as the basis for their admission requirements, abandoning the earlier, more specific and sport-oriented definitions they used. While reliance on political reality as a starting point has the advantage of clarifying things, the difficulties in, then, satisfactorily dealing with “shifting” and/or sensitive political realities should not be overlooked, as illustrated by the very recent CAS appeal brought by the Palestinian FA against FIFA in connection with Israeli clubs based in disputed West Bank territories. Again, affaire(s) à suivre. The encounter of CAS awards with domestic laws in the context of recognition and enforcement proceedings outside Switzerland has, in 2017 again, yielded interesting jurisprudence. Audrey Cech and Carlos Schneider draw our readers’ attention to a decision that went relatively unnoticed, possibly because it is in

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Spanish. This is the ruling of the Audiencia Nacional in the case brought by runner and steeplechase specialist Marta Dominguez against her country’s Ministry of Education Culture and Sports’ decision to strip her of elite athlete status as a consequence of the three-year doping ban she had received from CAS. The court found that the CAS award could not be given effect in Spain without first being recognized by the competent authorities in accordance with Spanish law. By the same token, the court clarified which authority is the competent one, within the Spanish system, with regard to CAS awards rendered in doping cases. The immediate result of the Audiencia Nacional’s decision, however, was that Marta Dominguez had to be reinstated as a deportista de alto nivel in Spain and could thus again take advantage of the benefits attached to that status, notwithstanding her conviction for doping. In the last chapter, continuing what can now be considered a tradition, Erika Hasler and Yann Hafner summarize the decisions rendered over the year 2017 by the Swiss Federal Tribunal (SFT) in cases involving CAS awards. As most readers of this publication will know, the SFT plays a crucial role in the functioning of the CAS, given that it has exclusive jurisdiction to hear applications for the annulment or revision of CAS awards. This year’s digest of SFT case law covers a number of interesting decisions, including the Court’s ruling on ex-UEFA President Michel Platini’s challenge against the award that banned him from all football-related activities for 4 years. Neuchâtel, Switzerland May 2020

Antonio Rigozzi

Contents

Part I

General Articles

Time to Go Public? The Need for Transparency at the Court of Arbitration for Sport . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Antoine Duval Doping and Human Rights in Pariah States . . . . . . . . . . . . . . . . . . . . . . David McArdle Part II

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Commentaries of CAS Awards

CAS 2016/A/4490, RFC Seraing v. Fédération Internationale de Football Association (FIFA), Award of 9 March 2017 . . . . . . . . . . . . Antoine Duval CAS 2015/A/4345, Trabzonspor Sportif Yatirim A.S. v. UEFA & CAS 2015/A/4347, Fenerbahce SK v. Trabzonspor A.S. and UEFA, Award of 13 April 2017 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Cem Kalelioğlu CAS 2016/A/4785 Real Madrid Club de Fútbol v. FIFA, Award of 3 May 2017 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Serhat Yilmaz CAS 2017/A/5015, International Ski Federation (FIS) v. Therese Johaug and The Norwegian Olympic and Paralympic Committee and Confederation of Sports (NIF), and CAS 2017/A/5110, Therese Johaug v. The Norwegian Olympic and Paralympic Committee and Confederation of Sports (NIF), Award of 21 August 2017 . . . . . . . . Trond Solvang and Nina Lauber-Thommesen

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CAS 2016/A/4787, Jersey Football Association (JFA) v. Union of European Football Associations (UEFA), Award of 28 September 2017 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 Benoît Keane Part III

Sports Arbitration and National Courts

Chamber for Contentious Administrative Proceedings of the Audiencia Nacional, Sixth Section, Marta Dominguez v. Minister for Education, Culture and Sport, 21 June 2017 . . . . . . . . . . . 133 Audrey Cech and Carlos Schneider Sports Arbitration Cases Before the Swiss Federal Tribunal in 2017—A Digest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147 Erika Hasler and Yann Hafner

Part I

General Articles

Time to Go Public? The Need for Transparency at the Court of Arbitration for Sport Antoine Duval

Contents 1 2

Introduction.......................................................................................................................... The Context: The Public Backlash Against Confidentiality in Arbitration ....................... 2.1 Confidentiality as a Hallmark of Arbitration ............................................................. 2.2 Heeding the Call for Transparency in International Arbitration ............................... 2.2.1 The Slow Turn to Transparency in International Commercial Arbitration ...................................................................................................... 2.2.2 The Pressing Urge for Transparency in Investment Arbitration .................. 3 Acknowledging the Publicness of Forced CAS Arbitration: Taking Stock of the Pechstein Decision of the ECtHR ....................................................................................................... 3.1 CAS (Appeal) Arbitration as Forced Arbitration ...................................................... 3.2 CAS Arbitration and Compliance with Article 6(1) ECHR...................................... 4 Time to Go Public: Tackling the Transparency Deficits of the CAS................................ 4.1 ‘Hear, Hear’…the ECtHR: The Duty to Open CAS Hearings to the Public ........... 4.1.1 The ECtHR’s Jurisprudence on the Publicity of Hearings........................... 4.1.2 CAS’s Compliance with the ECtHR Jurisprudence on Publicity of Hearings..................................................................................................... 4.2 Publish or Perish: Time for the Systematic Publication of CAS Appeal Awards ........................................................................................................................ 4.2.1 The ECtHR’s Jurisprudence on the Publicity of Judgments ........................ 4.2.2 The Missing Third: The CAS’s Erratic and Incomplete Publication of Appeal Awards.......................................................................................... 4.3 Tackling the Opacity of the ICAS ............................................................................. 5 Conclusion ........................................................................................................................... References ..................................................................................................................................

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A. Duval (&) T.M.C. Asser Instituut, The Hague, The Netherlands e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2019 A. Duval and A. Rigozzi (eds.), Yearbook of International Sports Arbitration 2017 https://doi.org/10.1007/15757_2019_29

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Abstract Has the time come for the Court of Arbitration for Sport to go public? This article argues that after the Pechstein decision of the European Court of Human Rights, CAS appeal arbitration must be understood as forced arbitration and therefore must fully comply with the due process guarantees enshrined in Article 6 (1) ECHR. In particular, this entails a strong duty of transparency with regard to the hearings at the CAS and the publication of its awards. This duty is of particular importance since the rationale for supporting the validity of CAS arbitration, if not grounded in the consent of the parties, must be traced back to the public interest in providing for the equality before the (sports) law of international athletes. Thus, the legitimacy and existence of the CAS is linked to its public function, which ought to be matched with the procedural strings usually attached to judicial institutions. In short, if it is to avoid lengthy and costly challenges to its awards, going public is an urgent necessity for the CAS.







Keywords Transparency Court of Arbitration for Sport Pechstein hearing European Convention on Human Rights Lex sportiva








Public

1 Introduction Without publicity all other checks are insufficient: in comparison with publicity, all other checks are of small account.1

The CAS has become what it was originally designed to be: a ‘Supreme Court of World Sport’.2 There are very few high profile international sporting disputes that escape its jurisdiction.3 As sports gained in prominence in the second half of the twentieth century, so did its economic impact and social prestige, and with societal relevance came also an increasing juridification of traditionally informal processes of decision-making and dispute resolution.4 The rapidly growing popularity of the CAS is a direct institutional consequence of this evolution. It is nowadays the beating judicial heart of a transnational regime governing international sports.5 Nowhere is this more evident than in the anti-doping context, as Article 13.2.1 of the WADA Code endows the CAS with the ultimate competence to review anti-doping decisions involving international-level athletes. As its name betrays, the CAS is originally rooted in arbitration law. It was conceived as an arbitral tribunal and was recognized as such by the SFT in its 1

Bentham (1843, p. 355). This is a much-rehearsed expression, usually attributed to former IOC President Juan-Antonio Samarranch, in the literature on the CAS. See Foster (2006a, p. 13) or Maclaren (2010, p. 306). 3 Recently, the decision of the CAS in the Caster Semenya case led to a massive public debate. See the award at CAS 2018/O/5794, Mokgadi Caster Semenya v. International Association of Athletics Federations, Award of 30 April 2019. 4 Foster (2006b). 5 On this transnational regime, see Latty (2007); Casini (2010); Duval (2013). 2

Time to Go Public? The Need for Transparency …

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famous Gundel decision back in 1993.6 Yet, as we will discuss further below, it is also a very unusual one. The CAS panels take decisions affecting the whole range of sporting actors and in particular professional athletes. Arbitrators decide on sporting life or death and can by the stroke of a pen end a career through a doping ban or saddle a football player (or her club) with a considerable debt. The CAS acts also as an administrative and constitutional court that adjudicates on who is to govern the SGBs and how. These decisions have distributive effects for the individuals and institutions involved and directly influence the policies of the SGBs. Such transnational judicial power raises necessarily the acute question of the legitimacy of the CAS.7 If the CAS is taking distributive decisions affecting people and institutions, often without them having the choice to consent to its jurisdiction, then it needs to do so in a way that secures fundamental procedural guarantees.8 This issue was at the heart of the recent decision of the ECtHR in the joint Pechstein and Mutu ruling (hereinafter referred to as the Pechstein ruling).9 The present article reflects in particular on its important push for more transparency in CAS proceedings.10 Indeed, if the CAS is functionally comparable to a court then it must also be equally accountable to the general public. While transparency is rarely deemed a sufficient condition for accountability and democratic legitimacy,11 it is almost always considered a necessary step towards it.12 As will be touched upon in the first section of this article, this call for transparency at the CAS is part of a wider shift away from the entrenched confidentiality of arbitration. This shift is premised on the recognition that arbitral bodies are not only affecting the disputing parties but are exercising a form of judicial governance and impacting on the public interest. I will then show in the second section that the emphasis of the ECtHR on transparency and publicity is linked to the recognition of

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SFT 119 II 271. For a comparable questioning with regard to international courts, see Venzke and von Bogdandy (2014). 8 See Cernic (2012). 9 ECtHR, Mutu and Pechstein v. Switzerland, 40575/10 and 67474/10, 2 October 2018. 10 A push immediately noted by some commentators, see Nick Di Marco, The right to a fair hearing in sports’ cases: lessons from the ECtHR’s decision in Mutu & Pechstein, 15 October 2018. https:// www.lawinsport.com/content/articles/item/the-right-to-a-fair-hearing-in-sports-cases-lessonsfrom-the-ecthr-s-decision-in-mutu-pechstein. Accessed 1 November 2019, and Edith Wagner, Putting an end to forced arbitration behind closed doors: the need for a public hearing before the Court of Arbitration for Sport, 8 November 2018. https://blogdroiteuropeen.com/2018/11/08/ putting-an-end-to-forced-arbitration-behind-closed-doors-the-need-for-a-public-hearing-before-thecourt-of-arbitration-for-sport-by-edith-wagner/. Accessed 1 November 2019. 11 For a relatively skeptical view on the virtues of transparency, see Baume and Papadopoulos (2015). For an even more critical perspective, see Bianchi (2013). 12 See Peters (2015, p. 8) [“Transparency is obviously a conditio sine qua non for the informed consent of the governed. It is critical for uncovering abuses and defending interests. Transparency can arguably alleviate the ‘democratic deficit’ of global governance. But transparency in itself does not bring about democracy—it is solely a precondition for democratic procedures.”]. More generally on transparency, see Peters (2013). 7

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the non-consensual foundation of the jurisdiction of the CAS in appeal cases, before highlighting, in the third section, the various transparency deficits plaguing the CAS and suggesting pragmatic fixes to tackle them.

2 The Context: The Public Backlash Against Confidentiality in Arbitration The academic and public debates on transparency and/or publicity in arbitration are not limited to the context of the CAS. While the attractiveness of arbitration is often premised on its reliance on confidentiality and its reputation as behind-closed-door justice, there have been strong calls for greater transparency in particular in investment arbitration but also in international commercial arbitration.

2.1

Confidentiality as a Hallmark of Arbitration

The baseline of international (commercial or investment) arbitration is confidentiality. It is also one of its main selling points.13 The essence of arbitration is to allow for the resolution of a specific dispute between two parties who consent to taking their case out of the courts. Consequently, corporations can avoid the potential costs, in terms of reputation, of washing their dirty laundry in public and can preserve the possibility of future cooperation. In investment arbitration, states (and in particular their governments) are also interested in keeping the details of a particular instance out of the public eye, in order to limit the political consequences of a particular decision, which might translate into a heavy load on the public purse. The privacy of arbitration is thus very much entrenched in its private raison d’être and reflected in its operation. In fact, the overwhelming majority of arbitral proceedings are unfolding in private, and the existence of many of them will never even be known to the public. During the proceedings interventions by interested third parties are also seldom tolerated. Furthermore, arbitral awards are in general not publicly available. Nonetheless, some arbitral institutions are providing summaries of a limited amount

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In the 2018 International Arbitration Survey conducted by White and Case and Queen Mary University London, 36% of the respondents considered confidentiality and privacy one of the three most valuable characteristics of international arbitration. See 2018 International Arbitration Survey: The Evolution of International Arbitration. https://www.whitecase.com/sites/whitecase/ files/files/download/publications/qmul-international-arbitration-survey-2018-19.pdf. Accessed 1 November 2019.

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of carefully edited awards,14 and others, in particular in the context of investment arbitration, are publishing awards more systematically.15 In general, it is therefore extremely difficult for the public, journalists or academics to assist to arbitral proceedings and access their outcomes. This lack of publicity is in recent years, especially with regard to investment arbitration, at the heart of a public backlash that has led to a progressive opening of arbitration.

2.2

Heeding the Call for Transparency in International Arbitration

The idea of arbitrators deciding of the financial fate of a country (and its people) in a closed hotel meeting room dominates the critical imaginary of the public backlash against trade agreements (in particular the infamous Transatlantic Trade and Investment Partnership and the Comprehensive Economic and Trade Agreement) and has led to a noticeable improvement in the transparency of investment arbitration in recent years.16 Furthermore, this trend towards transparency has not been without effects on international commercial arbitration.

2.2.1

The Slow Turn to Transparency in International Commercial Arbitration

In most instances, international commercial arbitration involves two relatively big private companies doing business on a transnational scale. Accordingly, it can be difficult to argue that there is a compelling public interest for the case to be resolved publicly and the final award to be made accessible beyond the parties to a particular dispute. And yet, some have argued precisely that there is a strong case in favour of making international commercial arbitration more accessible to the wider public.17 It might be true that “it remains the mainstream view that ICA cannot do without [confidentiality]”18 or that “States and arbitral institutions are reluctant to require greater publication of awards for fear that parties will take their business 14

For example, the International Chamber of Commerce’s Digital Library provides to its paying subscribers access to extracts of 644 awards (on 20 September 2019), available at https://library. iccwbo.org/dr.htm?AGENT=ICC_HQ&AGENT=ICC_HQ. Accessed 1 November 2019. 15 To date the International Centre for Settlement of Investment Disputes’s database includes 167 published awards (on 20 September 2019) out of 332 awards issued. 16 The Stop ISDS alliance of over 200 organisations against Investor State Dispute Settlement is currently spearheading this fight in Europe. See Stop ISDS Alliance. https://stopisds.org/alliance/. Accessed 1 November 2019. 17 See Buys (2003), Rogers (2006) and the many authors cited in Karton (2012, p. 447). For a recent forceful call for greater transparency, see Stone Sweet and Grisel (2017). 18 Stone Sweet and Grisel (2017, p. 228).

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elsewhere”,19 yet heterodox voices are advocating greater transparency for an ensemble of complementary reasons. First, publishing awards would be a way to ensure the emergence of a relatively stable jurisprudence on which businesses could rely to increase the predictability of their commercial activities.20 Second, publishing information on arbitrators and their awards is likely to reinforce their legitimacy.21 Third, greater transparency in international commercial arbitration can incentivize arbitrators to render better awards, more likely to survive a potential public policy challenge in national courts.22 This relatively moderate push for transparency in international commercial arbitration has had some concrete effects. An increasing number of arbitral institutions have started to publish, in redacted forms, a sample of their awards.23 However, this limited transparency comes at a steep price and is primarily aimed at the primary consumers of arbitration (corporations and their legal counsels); it hardly matches the publicity given to decisions of national courts. The urge for transparency was, however, much more pressing and transformative in the context of investment arbitration.

2.2.2

The Pressing Urge for Transparency in Investment Arbitration

Investment arbitration has been in the eye of the cyclone lately. Civil society organizations have mounted successful public campaigns to challenge the use of arbitration in investor-state disputes. They have vehemently denounced the lack of publicity of arbitral panels despite the fact that the cases handled raise strong public interests, insofar as they involve the public purse and the regulatory capacity of states. This so-called “backlash” against investment arbitration is perceived as a threat to its legitimacy and led to intense academic soul-searching and the

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Karton (2012, p. 448). See Karton (2012, p. 463) [“Publication of international arbitral awards would promote the systemic interest of consistency, especially since international arbitration lacks the harmonising benefits of appellate courts and universally-applicable laws.”] and Ruscalla (2015, p. 12) [“Confidentiality, transparency and the establishment of a system of binding precedent are strictly connected. In fact, where decisions are not publicly available, precedents cannot develop”]; Pislevik (2018) [“[…] precedent is inherently associated with a minimum level of award publication, as the former cannot develop effectively without the latter”]. 21 Karton (2012, p. 462) [“Since dispute resolution systems have an interest in being perceived as fair in both process and outcome, they must be as transparent as possible, including by making known (at least to the parties) the reasons for judgments. Exceptions to the maxim ‘justice must be seen to be done’ should be limited because transparency is the most important means by which a system can demonstrate its legitimacy. Not all transparent systems are legitimate, but opaque systems are necessarily suspect.”]. 22 Stone Sweet and Grisel (2017, p. 239). 23 For example, the digital library of the International Chamber of Commerce includes extracts from 635 (on 14 October 2019) ICC arbitral awards published in the Bulletin from 1990 to date. 20

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disbursement of considerable reformist energy in the past few years.24 In this context, substantial criticism has been directed at the confidential nature of investment arbitration, which triggered numerous procedural reforms and institutional innovations aimed at enhancing the transparency of the arbitral process.25 In fact, confidentiality in investment arbitration “is virtually no longer defended”.26 Most prominently, in 2014, the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration (UNCITRAL Transparency Rules) entered into force and were complemented by the Mauritius Convention on Transparency.27 The UNCITRAL Transparency Rules were previously endorsed by a Resolution of the United Nations General Assembly in 2013.28 They apply to investor-state arbitration ‘initiated under the UNCITRAL Arbitration Rules pursuant to a treaty providing for the protection of investments or investors (“treaty”) concluded on or after 1 April 2014 unless the Parties to the treaty have agreed otherwise’.29 Amongst others, they provide for the following transparency requirements: • The publication of information at the commencement of arbitral proceedings, including the name of the disputing parties, the economic sector involved and the treaty under which the claim is being made (Article 2) • The publication of a number of documents (Article 3), including: – The notice of arbitration, the response to the notice, the statement of claim, the statement of defence and any further written statements or submissions by the parties; – A table listing all exhibits to the submissions and to expert reports and witness statements; – Written submissions by non-disputing parties; – The orders, decisions and awards of the arbitral tribunal; – If requested, the expert reports and witness statements. • The participation under strict conditions of third parties to the proceedings (Article 4) • The publicity of hearings and their facilitation through specific logistical arrangements, such as video links (Article 6) • The introduction of a publicly accessible repository of published information (Article 8)

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Waibel et al. (2010). As well as a massive scholarly production, see amongst many others: Mourre (2006), Boisson de Chazournes and Baruti (2015), Maupin (2013), Malintoppi and Limbasan (2015). 26 Stone Sweet and Grisel (2017, p. 228). 27 See in general Shirlow (2016). 28 Resolution adopted by the General Assembly on 16 December 2013 [on the report of the Sixth Committee (A/68/462)] 68/109. United Nations Commission on International Trade Law Rules on Transparency in Treaty-based Investor-State Arbitration and Arbitration Rules (as revised in 2010, with new article 1, paragraph 4, as adopted in 2013). 29 Article 1(1) UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration. 25

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The UNCITRAL Transparency Rules are touted as the ‘dawn of a new era’ of greater transparency in investment arbitration.30 Such a change would have been difficult to imagine a few decades ago and is most likely reflecting the intense mobilization of civil society on this question. Nonetheless, it is important to relativize its immediate effects, given that as of this day only a limited number of investment treaties have integrated the UNCITRAL Transparency Rules.31 In other words, while the rules might have deep structural effects in the future, they do not impact on-going cases and disputes subjected to pre-existing investment treaties. Yet, their relevance has been reinforced by the reference to the UNCITRAL Transparency Rules in Article 8.36 of the Comprehensive Economic and Trade Agreement between the European Union and Canada (CETA), which provides for their application in disputes based on the ISDS chapter of the CETA. Similarly, the EU negotiating directives32 for a Convention establishing a multilateral court for the settlement of investment disputes provide at paragraph 13 that: ‘Proceedings before the multilateral court should be conducted in a transparent manner, including the possibility of submitting third party interventions, similar to or utilising the rules and standards provided for within the UNCITRAL Rules on Transparency for treaty-based investor-state arbitration.’ These examples illustrate that the longing for transparency in CAS arbitration is part of a more general public concern with the confidential nature of international arbitration. In this regard, the specificity of CAS arbitration lies in its forced nature, which as recognized by the ECtHR in its Pechstein ruling calls in any event for a stricter standard of publicity.

3 Acknowledging the Publicness of Forced CAS Arbitration: Taking Stock of the Pechstein Decision of the ECtHR Confidentiality of arbitration is certainly easier to justify when private parties freely consent to taking their disputes out of courts. In fact, it is the consensual nature of arbitration that has led the ECtHR to recognize a partial waiver of the application of the due process requirements enshrined in Article 6(1) ECHR.33 However, when arbitration is primarily of public interest (as when it affects directly the public purse) 30

See Shirlow (2016). The list of investment treaties to which the Rules apply is regularly updated at https://uncitral.un. org/en/texts/arbitration/conventions/foreign_arbitral_awards/status. Accessed 1 November 2019. 32 Council of the European Union, Negotiating directives for a Convention establishing a multilateral court for the settlement of investment disputes, 12981/17 ADD 1, 20 March 2018. http://data.consilium.europa.eu/doc/document/ST-12981-2017-ADD-1-DCL-1/en/pdf. Accessed 1 November 2019. 33 On the interaction between arbitration and the ECHR, see: Landrove (2006), McDonald (2003), Samuel (2004), Jaksic (2007). 31

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or when it is imposed to one of the parties (through monopoly power or public regulations), a lack of publicity becomes unsurprisingly more difficult to tolerate. Thus, the ECtHR’s decision to recognize in its Pechstein decision that CAS arbitration, at least in its appeal format, is forced arbitration, logically leads to the imposition of the strict publicity requirements enshrined in Article 6(1) ECHR.

3.1

CAS (Appeal) Arbitration as Forced Arbitration

Claudia Pechstein is a speed-skater embroiled in a longstanding dispute with the CAS due to its decision to confirm a doping sanction issued by the International Skating Union (ISU) against her.34 Pechstein unsuccessfully appealed in 2010 the CAS award to the Swiss Federal Tribunal and then attacked Switzerland before the ECtHR for failing to comply with Article 6(1) ECHR.35 At the same time, she initiated proceedings against the ISU in front of the German courts, leading to an unfavourable decision of the German Bundesgerichtshof (BGH) and a pending recourse at the Bundesverfassungsgericht.36 As argued elsewhere, the case has proven a fruitful entry point to discuss the foundations of CAS arbitration.37 Indeed, Pechstein directly questioned the legitimacy of the CAS as she denied having freely consented to arbitration and targeted its lack of structural independence. While the BGH sided with the CAS in recognizing the validity of her consent to arbitration (though it did acknowledge that this consent was guided by a third party, e.g. ‘fremdbestimmt’),38 the ECtHR provided a different, arguably more realistic,39 assessment. In its judgment, the ECtHR recognized that Pechstein’s “only choice […] 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.”40 Thus, “[h]aving regard to the restriction that non-acceptance of the arbitration clause would have entailed for her

34

CAS 2009/A/1912 & 1913, Claudia Pechstein and Deutsche Eisschnellauf Gemeinschaft e.V. v. International Skating Union, Award of 25 November 2009 and SFT 4A_612/2009, decision of 10 February 2010. 35 For a short summary of the history of the case, see ECtHR, Mutu and Pechstein v. Switzerland, 40575/10 and 67474/10, 2 October 2018, paras 18–25. 36 See Bundesgerichtshof, Az. KZR 6/15, Claudia Pechstein v. International Skating Union, 7 June 2016. 37 Duval (2017). 38 Bundesgerichtshof, Az. KZR 6/15, Claudia Pechstein v. International Skating Union, 7 June 2016, para. II.3.c)bb)(1). 39 For a critical perspective on the surrealist nature of the BGH’s judgment, see Antoine Duval, The BGH’s Pechstein Decision: A Surrealist Ruling, 8 June 2016. https://www.asser.nl/SportsLaw/Blog/ post/the-bgh-s-pechstein-decision-a-surrealist-ruling. Accessed 1 November 2019. 40 ECtHR, Mutu and Pechstein v. Switzerland, 40575/10 and 67474/10, 2 October 2018, para. 113.

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professional life, it cannot be asserted that she had accepted that clause freely and unequivocally.”41 This inference reflects accurately the limited choice faced by professional athletes when they are asked to sign licenses or entry forms that include or refer to a CAS arbitration clause. In most sporting contexts, if they wish to practice their sport professionally, and not in their ‘garden’ as acknowledged by the SFT,42 they will have to submit to the contractual exigencies of the SGBs and therefore accept to be subjected to CAS arbitration. Since the SFT itself had recognized in 2007 that “it is obvious that the waiver of appeal, signed by an athlete, will in general not be grounded in free consent”,43 it is difficult to understand how it could be otherwise with the arbitration clause.44 Hence, the ECtHR’s conclusion that “the acceptance of CAS jurisdiction by [Pechstein] must be regarded as “compulsory” arbitration within the meaning of its case-law”45 seems well founded in inferring from the imbalance of power between SGBs and athletes the lack of freedom of the latter in choosing to submit to arbitration. This conclusion problematizes the issue of the foundation of the judicial power of the CAS. If CAS jurisdiction is not grounded on the consent of the parties or a direct delegation of power by states, what legitimizes its right to authoritatively decide sporting disputes? Based on a review of the literature and case law, I have suggested elsewhere that three alternative foundations are often advanced to justify the authority of the CAS: efficiency, proximity and equality.46 I believe the most attractive source of legitimation for its jurisdiction is the necessity to preserve equality between participants to international sporting competitions. In a transnational social context, equality before the law cannot be achieved through the parallel jurisdictions of national courts. Instead, there is a true need for a designated transnational judicial institution to exercise an exclusive competence over transnational sporting disputes in order to provide a level legal playing field for athletes involved in international competitions. However, such a post-consensual foundation for CAS arbitration remains doctrinally problematic. Indeed, it constitutes a break with the dogma that one can renounce her access to national courts only voluntarily. Yet, this doctrinal hurdle has not stopped national courts from

41

Ibid., para. 114. “Mis dans l'alternative de se soumettre à une juridiction arbitrale ou de pratiquer son sport “dans son jardin” (FRANÇOIS KNOEPFLER/PHILIPPE SCHWEIZER, Arbitrage international, p. 137 in fine), en regardant les compétitions “à la télévision” (RIGOZZI, op. cit., n. 1509 et le premier auteur cité), l’athlète qui souhaite affronter de véritables concurrents ou qui doit le faire parce que c'est là son unique source de revenus (prix en argent ou en nature, recettes publicitaires, etc.) sera contraint, dans les faits, d'opter, nolens volens, pour le premier terme de cette alternative.” SFT 133 III 235, 243–244, para. 4.3.2.2. 43 “[I]l est évident que la renonciation à recourir contre une sentence à venir, lorsqu'elle émane d'un athlète, ne sera généralement pas le fait d'une volonté librement exprimée.” SFT 133 III 235, 244, para. 4.3.2.2 [my translation]. 44 This issue was anticipated by some commentators, see Besson (2006, p. 398). 45 ECtHR, Mutu and Pechstein v. Switzerland, 40575/10 and 67474/10, 2 October 2018, para. 115. 46 Duval (2017). 42

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being pragmatic enough to tolerate a privately mandated arbitration on the basis that it is necessary to secure such a level playing field.47 While the Swiss and German courts had done so by denying against all evidence the lack of valid consensual basis for the CAS, the ECtHR decided to simply bypass the question of the alternative foundations of the CAS and simply assumed that the CAS “had the appearance of a “tribunal established by law” within the meaning of Article 6 § 1”.48 However, for the ECtHR, tolerance of post-consensual arbitration in the sporting context comes with strict procedural strings attached. Mainly, the CAS has to fully comply (e.g. like any national court) with the due process guarantees enshrined in Article 6(1) ECHR.

3.2

CAS Arbitration and Compliance with Article 6(1) ECHR

The ECtHR in its decision was unwavering, “[t]he arbitration proceedings therefore had to afford the safeguards secured by Article 6 § 1 of the Convention”.49 This is a critical finding with potentially far-reaching consequences for the way CAS operates. The ECtHR has developed a rich case law interpreting Article 6(1) ECHR.50 In particular, it has stringently scrutinized the independence and impartiality of judicial institutions. While this could be seen as a problematic matter with regard to the CAS, the ECtHR decided that “there are insufficient grounds for it to reject the settled case-law of the [SFT] to the effect that the system of the list of arbitrators meets the constitutional requirements of independence and impartiality applicable to arbitral tribunals, and that the CAS, when operating as an appellate body external to international federations, is similar to a judicial authority independent of the parties”.51 Critically unpacking this finding is beyond the scope of the present Thus, the ECtHR recognized: “Recourse to a single and specialised international arbitral tribunal facilitates a certain procedural uniformity and strengthens legal certainty […]”, ECtHR, Mutu and Pechstein v. Switzerland, 40575/10 and 67474/10, 2 October 2018, para. 98. Even more clearly, the BGH found that “it is generally recognised that especially in the area of international sports, arbitration agreements in favour of a specific arbitral tribunal are necessary in order to assure a uniform approach with regard to the rules in sports law. Specifically in the field of doping, the uniform application of the anti-doping rules of the federation and the WADC is absolutely necessary in order to enable fair international sporting competition of the athletes.” Federal Supreme Court of Justice (BGH): Pechstein v. International Skating Union, English Translation (Schieds VZ (2016), 268), at 275. 48 ECtHR, Mutu and Pechstein v. Switzerland, 40575/10 and 67474/10, 2 October 2018, para. 149. 49 Ibid., para. 115. 50 For a general overview of the EctHR’s case law, see the Guide on Article 6 of the European Convention on Human Rights, Right to a fair trial (civil limb), August 2019. https://www.echr.coe. int/Documents/Guide_Art_6_ENG.pdf. Accessed 1 November 2019. For a general scholarly introduction on Article 6 ECHR, see Schabas (2015, pp. 264–327) and Lemmens (2014). 51 ECtHR, Mutu and Pechstein v. Switzerland, 40575/10 and 67474/10, 2 October 2018, para. 157. 47

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article, but one can refer to the comprehensively argued dissent by two ECtHR judges (including the Swiss judge) to safely conclude that this part of the decision seems bound to be revisited in a not so distant future.52 More importantly in the context of the present argument, Article 6(1) ECHR entails also a strong publicity duty, which in the eyes of the ECtHR was not complied with by the CAS in the Pechstein proceedings.53 The Court determined that the CAS should have organized a public hearing as Pechstein had expressly requested one. Indeed, the ruling pointed out that “the questions arising in the impugned proceedings—as to whether it was justified for [Pechstein] to have been penalised for doping, and for the resolution of which the CAS heard testimony from numerous experts—rendered it necessary to hold a hearing under public scrutiny”.54 In addition, the Court noted in support of its finding that “the facts were disputed and the sanction imposed on the applicant carried a degree of stigma and was likely to adversely affect her professional honour and reputation”.55 The ECtHR concluded that the CAS infringed Article 6(1) ECHR by denying Pechstein a public hearing and that Switzerland was therefore in contravention with the ECHR and liable to pay compensation to Pechstein. This ruling opens the door to a multiplicity of challenges based on the ECHR against the CAS in national courts and potentially at a later stage at the ECtHR. With regard to transparency, it is only a first step as other transparency deficits of the CAS will necessarily also come under critical scrutiny in the near future.

4 Time to Go Public: Tackling the Transparency Deficits of the CAS While the CAS has sometimes been portrayed as a relatively transparent arbitral institution, especially measured against commercial arbitration,56 it remains quite opaque when compared to public courts. In particular, this lack of publicity affects the way CAS is administered, the way CAS arbitrations are conducted and the accessibility of CAS decisions.

52

See the dissenting opinion under ECtHR, Mutu and Pechstein v. Switzerland, 40575/10 and 67474/10, 2 October 2018 by Judges Keller and Serghides, at paras 5–17. 53 ECtHR, Mutu and Pechstein v. Switzerland, 40575/10 and 67474/10, paras 175–184. 54 Ibid., para 182. 55 Ibid. 56 Noting the relatively high publication rate of CAS awards, see Schultz (2011, p. 79).

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15

‘Hear, Hear’…the ECtHR: The Duty to Open CAS Hearings to the Public

By rendering the administration of justice visible, a public hearing contributes to the achievement of the aim of Article 6 §1, namely a fair trial.57 Publicity is the very soul of justice […] It keeps the judge himself, while trying, under trial.58

The Pechstein decision has unambiguously concluded that Article 6(1) ECHR calls for public hearings at the CAS.59 This is certainly true in appeal procedures involving disciplinary cases, which come almost always with hotly disputed factual issues as well as professional stigma. Yet, until very recently CAS hearings, even in disciplinary cases, were held behind closed doors with no possibility for the general public or even interested parties to participate unless both parties to the dispute had consented to it.60 This state of play was not compatible with the ECtHR’s case law on the publicity of hearings, and the CAS has introduced some changes coming closer to complying with the ECHR.

4.1.1

The ECtHR’s Jurisprudence on the Publicity of Hearings

In general, the publicity of judicial hearings is a principle that is consistently and strictly upheld by the ECtHR.61 A public hearing must be “genuinely accessible”.62 For example, accessibility is threatened where the hearing is held in a venue with restricted access, when only the participants to the case are allowed to be present, or where the place and date of the hearing is not publicly available.63 More specifically, it is said “litigants have a right to a public hearing because this protects them against the administration of justice in secret with no public scrutiny”.64 This “entitlement” to a public hearing is strict for a court of first and only instance,65 unless there are exceptional circumstances justifying dispensing from such a

57

ECtHR, Malhous v. the Czech Republic [GC], 33071/96, 12 July 2001, para. 55. Bentham cited in Resnik (2011, p. 63). 59 The need for public hearings was already argued in Cernic (2012, p. 276). 60 Over the more than 30 years of operation of the CAS, a public hearing occurred only once in the case CAS 98/211, B. v. Fédération Internationale de Natation (FINA), Award of 7 June 1999. 61 For a review of the ECtHR’s case law on the publicity of hearings, see the Guide on Article 6 of the European Convention on Human Rights, Right to a fair trial (civil limb), August 2019, pp. 72– 77, available at https://www.echr.coe.int/Documents/Guide_Art_6_ENG.pdf. 62 Schabas (2015, p. 289). 63 ECtHR, Luchaninova v. Ukraine, 16347/02, 9 June 2011, para. 56. 64 Ibid., para. 70. 65 ECtHR, Fredin v. Sweden (no. 2), 18928/91, February 1994, paras 21–22; ECtHR, Allan Jacobsson v. Sweden (no. 2), 16970/90, 19 February 1998, para. 46; ECtHR, Göç v. Turkey [GC], 365909/97, 11 July 2002, para. 47. 58

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hearing. Second or third instance courts might dispense with a hearing if they are dealing only with questions of law.66 Furthermore, the absence of a public hearing at first instance can be healed before an appellate court, on the condition that it has full jurisdiction (such as the CAS) to review the case.67 Importantly, with regard to the CAS, in the context of disciplinary proceedings, the ECtHR has found that “dispensing with a public hearing should be an exceptional measure and should be duly justified in the light of Convention institutions’ case-law”.68 The disputes decided by the CAS on appeal are often of a disciplinary nature. In theory, an individual can waive her right to a public hearing, such as through an arbitration clause providing for the confidentiality of the procedure. However, such a waiver must be given of her own free will and unequivocally.69 The latter are exactly the conditions that were found wanting by the ECtHR in the Pechstein case and which more generally are not applicable to CAS appeal arbitration. 4.1.2

CAS’s Compliance with the ECtHR Jurisprudence on Publicity of Hearings

In the wake of the Pechstein decision, a CAS press release announced: “ICAS has already envisaged the possibility of having public hearings at its newer and much larger future premises at the Palais de Beaulieu in Lausanne”.70 Quickly thereafter the CAS Code was amended to include a new version of Article R57 CAS Code on hearings: – 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.71

66

ECtHR, Helmers v. Sweden, 11826/85, 29 October 1991, para. 36, but contrast paras. 38–39; ECtHR, Salomonsson v. Sweden, 38978/97, 12 November 2002, para. 36. 67 ECtHR, Ramos Nunes de Carvalho e Sá v. Portugal [GC], 55391/13, 57728/13 and 74041/13, 6 November 2018, para. 192 and case-law references therein. 68 Ibid., para. 210. 69 ECtHR, Albert and Le Compte v. Belgium, 7299/75 and 7496/76, 10 February 1983, para. 35. 70 Court of Arbitration for Sport, Statement on the decision made by the European Court of Human Rights (ECHR) in the case between Claudia Pechstein/Adrian Mutu and Switzerland, 2 October 2018. https://www.tas-cas.org/fileadmin/user_upload/Media_Release_Mutu_Pechstein_ECHR.pdf. Accessed 1 November 2019. 71 This version of the CAS Code came into force in January 2019. The previous version of R57 read simply: “At the hearing, the proceedings take place in camera, unless the parties agree otherwise.”

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The CAS has recently announced that it will hold the first public hearing grounded on this provision in the Sun Yang case.72 This rule change is a first step towards compliance with the ECtHR’s Pechstein ruling. Yet, there are many uncertainties with regard to the interpretation by the CAS panels of the scope of this provision (e.g. which disputes will be considered disciplinary?) and of the exceptions recognized to the principle of publicity (e.g. when is a public hearing prejudicing the interests of justice?). Three specific aspects of the new Article R57 CAS Code are potentially clashing with the ECtHR’s case law on the publicity of hearings. First, the right to a public hearing under the ECtHR’s case law is not limited to disciplinary cases; it is just stricter in these instances. Even in disputes involving primarily commercial matters, such as contractual cases, a hearing must be held if a waiver to a public hearing is not freely consented to or is equivocal (such as in Mutu’s situation in the ECtHR’s Pechstein decision). Second, much will depend on how the CAS panels will interpret the exceptions listed in Article R57 CAS Code. The ECtHR has adopted a strict interpretation of the exceptions enshrined in Article 6(1) ECHR and reproduced under R57 CAS Code.73 Thus, for example, “the mere presence of classified information in the case file does not automatically imply a need to close a trial to the public”.74 Instead, “courts must consider whether such exclusion is necessary in the specific circumstances in order to protect a public interest, and must confine the measure to what is strictly necessary in order to attain the objective pursued”.75 In such a situation, the CAS would have to “contemplate taking measures to counterbalance the effects of the lack of a public hearing, for instance by restricting access to certain documents only or holding just some of the sessions in camera”.76 Third, first instance disciplinary bodies of SGBs usually lack independence in the sense of Article 6(1) ECHR, hence they cannot provide for a fair public hearing. Thus, the last alternative of R57 CAS Code seems to run contrary to Article 6(1) ECHR by precluding the access to a public hearing before the only ‘independent’ tribunal (assuming that the CAS is independent) with the power to review in full the first instance decisions. If, however, this alternative is applicable only to first instance arbitral procedures (such as those conducted by the CAS Anti-Doping Division) then it is more likely to satisfy the jurisprudence of the ECtHR. In any event, as the CAS is reviewing appeal cases de novo, a private reassessment of the facts would also contradict the case law of the ECtHR. In short, to be on the safe side, the CAS should adopt a wide understanding of the right to a public hearing under R57 CAS Code and a strict reading of any exceptions to it. A different approach would expose its awards to challenges in national courts (and later at the ECtHR), as disgruntled parties would

72

Court of Arbitration for Sport, The hearing in the CAS arbitration procedure between WADA, Sun Yang and FINA to be held in public, 20 August 2019. https://www.tas-cas.org/fileadmin/user_ upload/CAS_Media_Release_6148_Hearing_15.11.19.pdf. Accessed 1 November 2019. 73 Schabas (2015, p. 290). 74 ECtHR, Belashev v. Russia, 28617/03, 4 December 2008, para. 83. 75 ECtHR, Nikolova and Vandova v. Bulgaria, 20688/04, 17 December 2013, para. 74. 76 Ibid., para. 75.

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argue that the CAS failed to abide with the Pechstein decision by denying them their right to a public hearing. In the future, the CAS might also be asked to provide for public hearings not only when the claimant requests it, but also when the cases are of a broader public interest, especially when they are of a quasi-criminal nature (e.g. disciplinary cases linked to doping or the governance of sports, such as the cases against Sepp Blatter or Michel Platini). If they are denied entrance, for example in cases in which Article R57 CAS Code is not invoked by the appellant, it is possible that we will see journalists starting legal actions before the Swiss courts to request access to CAS hearings. These cases could in particular be based on Article 10 ECHR, protecting the right of access to information of journalists. Even though Article 10 is in theory opposable only to the state, one must take into account that the ECtHR has recognized in its Pechstein judgment that the CAS is not an arbitral tribunal grounded in the private consent of the parties. Thus, the ECtHR would have in such a case to decide whether the CAS should be qualified as functionally equivalent to a public body for the purpose of Article 10 ECHR.77 This is for now a wholly hypothetical legal construction, but in light of the high public interest in sports cases, it is far from excluded that it will be tested in the coming years. Finally, it is at this point in time unsure whether the claimants in sporting disputes will systematically request public hearings. Some might be wary of the damages caused to their image by a public hearing over their alleged involvement in a doping case or a match-fixing ring. Yet, it is also likely that others will see some benefits in forcing SGBs to discuss their policies and practices in the open, under the scrutiny of the media. This might even constitute an interesting litigation strategy to get the SGBs to settle a case if they fear a public backlash over the disclosure of certain documents or internal practices or even to lay the ground for later challenges against CAS awards if a public hearing is denied without serious reasons. From the CAS’s own perspective, public hearings will be an opportunity to entrench its transnational authority in the mind of the public, to showcase the quality of its judicial work and to reinforce its position as a counter-power to the SGBs.78

4.2

Publish or Perish: Time for the Systematic Publication of CAS Appeal Awards

The publicity of judicial decisions aims to ensure scrutiny of the judiciary by the public and constitutes a basic safeguard against arbitrariness79

Peters argued analogically that “functionally public power should be accompanied by accountability; and transparency and freedom of information is a vehicle to bring this about”, see Peters (2013, p. 541). 78 The trust-enhancing effect of judicial transparency is supported by field experiments conducted by social scientists, see Grimmelikhuijsen and Klijn (2015). 79 ECtHR, Raza v. Bulgaria, 31465/08, 11 February 2010, para. 53. 77

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Another important immediate consequence of the Pechstein decision concerns the publication of CAS awards. Indeed, the ECtHR’s jurisprudence on Article 6(1) ECHR provides also that judgments shall be pronounced publicly, which has been interpreted by the Strasbourg Court as a duty to make judgments publicly available, yet with regard to appeal awards, the publication practices of the CAS are erratic and incomplete.

4.2.1

The ECtHR’s Jurisprudence on the Publicity of Judgments

Article 6(1) of the ECHR, calling for judgments to be pronounced publicly, has been understood widely as allowing also for “other means of rendering a judgment public”.80 In particular, the ECtHR recognized that the requirement of a public pronouncement is met when the full text of the judgment is made available to everyone.81 Moreover, even in child residence cases, which raise issues connected to the protection of the privacy of the child concerned, the ECtHR found that giving persons who established a legal interest in the case access to the file and publishing decisions of special interest (mostly of the appellate courts or the Supreme Court) did not suffice to comply with the publicity requirements of Article 6(1) ECHR.82 In general, if the reasons that would have made it possible to understand why an applicant’s claims are rejected are inaccessible to the public, the object pursued by Article 6(1) ECHR is not achieved.83 This is in particular the case when the judgment is available only to the participants to the proceedings.84 After the Pechstein decision, the CAS will have to fully comply with this case law and thus will need to systematically publish the awards rendered under the appeal procedure.

4.2.2

The Missing Third: The CAS’s Erratic and Incomplete Publication of Appeal Awards

Currently, although the CAS is publishing a substantial share of its awards (much greater than the share published in international commercial arbitration), its publication practice remains erratic and piecemeal. Based on Article R59 of the current version of the CAS Code, “[t]he award, a summary and/or a press release setting forth the results of the proceedings shall be made public by CAS, unless both parties agree that they should remain confidential”. In practice, “CAS sends a letter to both parties referring to the content of Article R59 in fine, and unless both parties respond to such letter requesting confidentiality, CAS considers that it is entitled to

80

ECtHR, Moser v. Austria, 12643/02, 21 September 2006, para. 101. ECtHR, Pretto and Others v. Italy, 7984/77, 8 December 1983, paras 27–28. 82 ECtHR, Moser v. Austria, 12643/02, 21 September 2006, paras 102–03. 83 ECtHR, Ryakib Biryukov v. Russia, 14810/02, 17 January 2008, para. 45. 84 Ibid., para. 42. 81

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Table 1 Estimated range of the share of CAS appeal awards (in cases lodged between 2010 and 2014) available on the CAS database Year

Appeals lodged

Appeal awards published

Share of appeal awards published (optimistic scenario) (%)

Share of appeal awards published (pessimistic scenario) (%)

2010 2011 2012 2013 2014

244 294 301 349 349

78 116 127 157 156

49 62 76 83 68

37 45 53 63 50

publish the award”.85 Thus, the parties can in theory oppose the publication of an award, but it is also important to note that even when the parties do not oppose the publication, the CAS administration feels currently only “entitled” and not obliged to publish the award. This sense of entitlement is certainly reflected in its erratic publication policies. In recent years, the CAS released two to three times a year a batch of CAS awards, including relatively old decisions that for whatever reason were not published until then.86 Hence, the CAS administration exercises considerable discretion with regard to the awards released and to the timing of the publication. Even more troublesome are the many awards that remain unpublished. A precise assessment of the share of appeal awards released in its database by the CAS is impossible to provide, as the CAS fails to publish the number of (appeal) awards issued on a yearly basis (it releases only the number of appeal cases lodged).87 Yet, as evidenced by the table above (Table 1), it is possible to determine a realistic range of the share of appeal awards published by the CAS based on the limited data available.88

85

Mavromati and Reeb (2015), R59, para. 78, p. 589. For example, the latest batch released at the time of writing (October 2019), which is available under new decisions in the CAS database and was uploaded mid-September 2019, included one award decided in 2016 and many decisions rendered in 2017. 87 See the latest CAS statistics: Court of Arbitration for Sport, Statistics. https://www.tas-cas.org/ fileadmin/user_upload/CAS_statistics_2016_pdf. Accessed 1 November 2019. 88 I have decided to focus on CAS awards linked to proceedings started between 2010 and 2014 because the available CAS statistics stop in 2016 and some of the CAS proceedings initiated in 2015 and 2016 were still potentially pending at the time of publication of these statistics. While the CAS statistics distinguish between the number of proceedings that concluded with an award and those that did not, they do not provide a breakdown of the numbers depending on the procedure followed (i.e. whether the awards were rendered in ordinary, ad hoc or appeal proceedings), two extreme scenarios were therefore devised. On the one hand, the optimistic scenario assumes that all the ordinary and ad hoc proceedings started in a particular year concluded with an award, thus the share of appeal awards published is calculated based on the smallest possible number of CAS appeal proceedings having led to awards and is therefore the highest possible. On the other, the pessimistic scenario assumes that all the awards rendered based on proceedings started in a particular year were appeal awards, thus the share of appeal awards published is calculated based on the highest possible number of CAS appeal proceedings having led to awards and is therefore 86

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Far from the habitual assumption that the CAS publishes almost all its appeal awards, we can evidence based on the limited data available that a high share (between 17% and 63% depending on the year and the scenario) of relatively recent awards are still unavailable in the CAS database and therefore to the parties involved in CAS proceedings and the general public. Johan Lindholm, who recently published an empirical analysis of the CAS, worked on a dataset including 830 awards (collected from the CAS database and other sources) from its inception to the end of 2014, representing approximately 31% of all CAS decisions issued during this period.89 This relatively low share compared to our findings can be explained by the fact that Lindholm considered both ordinary and appeal awards (appeal awards are much more likely to be published), that our study comes a year later (the CAS had since then the opportunity to release more awards) and that his longer timeframe covers periods during which the CAS was probably more secretive than today. In general, we can safely conclude that the CAS publishes only a limited number of its appeal awards (in recent years based on the results presented in the table above we seem to have reached a publication share approximating on average two third of the awards). For our purposes it is irrelevant whether the parties or the CAS administration held up the publication of the awards, in any event an incomplete publication of CAS appeal awards does not comply with Article 6(1) ECHR. This situation could lead to challenges before the SFT and, if the SFT resists censoring the CAS on this question, later at the ECtHR. Moreover, any unpublished appeal award might also face complications if it is challenged in national courts by creative litigators. Indeed, the ECtHR’s Pechstein judgment could be invoked to oppose the recognition of an award on the basis that it does not comply with the publicity requirement enshrined in Article 6(1) ECHR and therefore with international public policy. While CAS announced some changes with regard to the publicity of its hearings, it did not do so regarding the publication of its awards. Addressing this issue could be easily done through an amendment of Article R59 CAS Code, which could read: “the award shall be made public by CAS at the latest 15 days after it was communicated to the parties”. This would entail a professionalization and streamlining of the CAS administration in order to release the awards on a regular basis into the CAS database. Finally, it is also in the interest of the CAS to systematize the publication of appeal awards, as it “would help both to create and to legitimise transnational [sports] law by making it more coherent and accessible, and less open to the criticism that it is arbitrary”.90 Instead, currently the lex sportiva (like the lex mercatoria for Karton) is “kept secret from the very analysis required to make it

the lowest possible. The number of appeal awards published for each year was extracted from the CAS database on 10 September 2019. 89 Lindholm (2019, p. 18). 90 Karton (2012, p. 464).

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consistent and legitimate”.91 The systematic publication of CAS appeal awards is not only in the interest of the parties and of the general public, it is also a vital move to ensure the legitimacy of the CAS as the supreme court of world sport.

4.3

Tackling the Opacity of the ICAS

The last section of this chapter will deal with an issue that is not directly covered by Article 6(1) ECHR but would fall better under the right to information enshrined in Article 10 ECHR: the transparency of the CAS administration (and in particular of ICAS).92 While major international courts, such as the CJEU,93 ECtHR94 or the International Court of Justice95 regularly report on their judicial activities, the CAS has never published an annual report providing specific information on its operations, including its financial results, detailed statistics on its annual productivity, major decisions by the ICAS or even just the size of its staff. Only scattered sources of information are available on these questions through rare press releases of the CAS, incomplete statistics provided on its website96 or indirect disclosure in proceedings before the SFT.97 The CAS does publish a bi-annual bulletin, but it contains mainly general articles on sports arbitration and curated excerpts of CAS awards deemed important by the CAS administration.98 Formally, the ICAS is not obligated to provide any information to the public, as it is not a public body but a Swiss foundation. Yet, as stated by the Pechstein decision of the ECtHR, the CAS has “the appearance of a “tribunal established by law”” which is supposed to be delivering a global public good—a level playing field for international sporting

91

Ibid. For Peters “to function effectively as a vehicle for global transparency, the human right to information must be opposable to actors other than States”, see Peters (2013, p. 591). 93 Court of Justice of the European Union, Annual Report. https://curia.europa.eu/jcms/jcms/Jo2_ 7000/en/. Accessed 1 November 2019. 94 European Court of Human Rights, Annual Report 2018. https://www.echr.coe.int/Pages/home. aspx?p=court/annualreports&c. Accessed 1 November 2019. 95 International Court of Justice, Annual Reports. https://www.icj-cij.org/en/annual-reports. Accessed 1 November 2019. 96 The latest bare bone statistics date back to 2017 and are available at Court of Arbitration for Sport, Statistics. https://www.tas-cas.org/en/general-information/statistics.html. Accessed 1 November 2019. 97 See for example SFT 4A_260/2017, decision of 20 February 2018, para. 3.3.3. On this aspect of the decision, see G. Palermo and A. Sokolovskaya, Independence of CAS vis-à-vis its Funders and Repeat Users of its Services, 25 May 2018. http://arbitrationblog.kluwerarbitration.com/2018/05/ 25/independence-cas-vis-vis-funders-repeat-users-services/. Accessed 1 November 2019. 98 The CAS bulletins are available at Court for Arbitration for Sport, CAS Bulletin. https://www. tas-cas.org/en/bulletin/cas-bulletin.html. Accessed 1 November 2019. 92

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justice—and calls therefore for the application of public standards of transparency and access to information.99 In particular, increasing transparency is crucial at the level of the ICAS. As noted by the ECtHR in the Pechstein case, the ICAS’s independence is not unproblematic. Indeed, the Court highlighted that the ICAS members were almost all nominated by the SGBs and that this revealed 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”.100 The appearance of capture is troubling, and the dissenting judges in the Pechstein ruling have concluded that the link between the SGBs and ICAS is in fact “worrying”.101 This worry is necessarily reinforced by the fact that the ICAS remains a black box, its meetings are held behind closed doors and no official minutes of the discussions held are published. Releasing these minutes would not only be a step towards public accountability, it could also help alleviate (depending on the content of the opinions raised and decisions made) some of the suspicions regarding the independence of ICAS. The ICAS should also consider opening up its meetings to the interested public, in particular the media. Similarly, all key ICAS decisions (such as those rendered by the Membership Commission, Challenge Commission and Legal Aid Commission) should be publicly available.102 Finally, if amendments to the CAS Code are envisaged, it seems appropriate to organize a prior public consultation on the changes considered necessary by the ICAS. These changes would go a long way towards subjecting the administration of the CAS to transparency standards ensuring its public accountability.

5 Conclusion Almost 35 years after its inception, the CAS has reached maturity and become the ‘Supreme Court of World Sport’. Its main purpose was always to take sporting disputes out of courts to avoid a ‘total disruption’103 of the transnational regulatory authority exercised by the SGBs. Yet, while the CAS was certainly an improvement in terms of due process rights vis-à-vis the internal dispute resolution bodies of the SGBs, it remains problematic to treat it like a traditional arbitral tribunal. Indeed, as finally acknowledged by the ECtHR in 2018, its jurisdiction is not based on free consent but imposed through the monopoly power of the SGBs. As recognized by the For Peters a “reasonable measurement of global transparency might require that international actors maintain websites, and publish the legal acts they produce, their budget, and annual activity reports”, see Peters (2013, p. 548). 100 ECtHR, Mutu and Pechstein v. Switzerland, 40575/10 and 67474/10, 2 October 2018, para. 154. 101 Ibid., para. 11. 102 On these commissions, see article S7 CAS Code. 103 Paulsson (1993, p. 362). 99

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ECtHR, the CAS must therefore be treated analogically to a public court and subjected to full compliance with the due process rights enshrined in Article 6(1) ECHR. In particular, and this has been the core focus of this article, it entails that the CAS has to abide by strict standards of transparency. These standards mandate that the CAS hearings be held in public and that its awards (as well as any other decisions) be publicly released promptly after being rendered. The striving for transparency at the CAS should extend to its management body, the ICAS, which should provide minutes and open up its process of decision-making to public scrutiny. We are living in times in which public functions, especially when they have a transnational character, are being increasingly exercised by formally private bodies. This creates a gap between the nature of the authority exercised and the procedural duties these private bodies face when exercising it. The SGBs and the CAS are central players in the global governance of international sports; they rule over those that wish to enter their competitions like a functional sovereign. This authority, however, is not boundless, especially national, European and international courts are in a position to impose some checks, as the ECtHR did in the Pechstein case. In this regard, it is essential to move away from the private law paradigm in order to capture the fundamentally public function of the SGBs. Hence, the CAS should not be subjected to the due process standard applicable in the context of international commercial arbitration, but to those that are applied to public courts. This is a conclusion shared by Alec Stone Sweet and Florian Grisel, who theorized the shift towards judicialization of international (in particular commercial and investment) arbitration.104 With regard to transparency, this leads them to conclude that international arbitral tribunals “should be held to the transparency requirements of courts”.105 They suggest that if arbitration “does not embrace enhanced transparency, then the domestic courts in pro-arbitration states should review important awards more robustly”.106 Such “compensatory transparency” is needed “to compensate for transparency losses that are side-effects of globalization and privatization”.107 In this regard, it is essential to understand that the publicity of justice is fundamental to democratic deliberation in the national and transnational public sphere. Inspired by the spirit of the work of Bentham, Resnik has dedicated much of her recent work to the link between publicity of the judicial process and democracy, as well as to the risks related to the increasing privatization of dispute resolution.108 Her key point at the heart of this article is that “public processes of courts give meaning to democratic aspirations that locate sovereignty in the people, constrain government actors, and insist on the equality of treatment under law”.109

104

Stone Sweet and Grisel (2017). Identifying a similar transformation of international arbitration into “a system of governance”, see Schill (2015, p. 111). 105 Stone Sweet and Grisel (2017), p. 229. 106 Ibid., p. 239. 107 Peters (2013, p. 542). 108 See amongst many articles: Resnik (2011), Resnik (2015), Resnik (2014), Resnik (2013). 109 Resnik (2011, p. 52).

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Thus, “courts—and the discussions that their processes produce—are one avenue through which private persons come together to form a public, assuming an identity as participants acting within a political and social order”.110 Only open court proceedings enable “people to watch, debate, develop, contest, and materialize the exercise of both public and private power”.111 Furthermore, judicial proceedings “provide a unique service in that they create distinctive opportunities to gain knowledge”.112 Fulfilling these functions requires that “the term ‘court’ retain its contemporary meaning […] as an obligatorily open institution”.113 Translating Resnik’s insights to the world of sports and CAS arbitration, one must first note that the transnational regulation of international sports is currently embodying post-democratic governance. SGBs lack any kind of democratic legitimacy or even just basic responsiveness to the main actors affected by their regulations and decisions: the athletes. Their powers, be they legislative or executive, are met with the relatively weak and extremely opaque checks provided by the CAS. Forcing the CAS to go public is not simply a technical change that will enhance the quality of its decision-making, it is a political one that will contribute to the democratization of the lex sportiva through its publicization. Consequently, it will reinforce the position of the CAS as a true counter-power subjected to the critical scrutiny of a highly interested global public, as evidenced by the intense debates triggered recently by the Semenya case. In addition, these changes will also empower the transnational public to scrutinise the governance activities of the SGBs,114 as their previously private and deeply inaccessible administrative and political practices will start to be discussed in open court. The Pechstein decision, while it might appear to the untrained eye as a vindication of the CAS and the current governance of sports, contains the seed of the long overdue publicization and democratization of the lex sportiva. It is high time for the CAS to “institutionalize democracy’s claim to impose constraints”115 on the SGBs’ executive power. Such a change is less about the legitimacy of the CAS taken in isolation but rather a ‘precondition’116 for the

110 Ibid., p. 54. For a similar point, see Hale (2008, p. 85) [“First, transparency mechanisms institutionalize public discourse. The act of disclosure begins a dialogue between the discloser and interested parties.”] and Peters (2013, p. 565) [“Transparency (like publicity) gives citizens not only the opportunity to decide for themselves on the merits of the reasoning that led to the policy, but also improves their chances of understanding the reasoning that led to the policy; if not, citizens ‘remain disconnected’.”]. 111 Ibid., p. 54. 112 Ibid., p. 56. Similarly, Peters finds that transparency “helps to alleviate (even if it can never completely rectify) the information asymmetry between ‘agent’ and ‘principal’”, Peters (2013, p. 567). 113 Resnik (2013, p. 78). 114 Hale (2008, p. 89). 115 Resnik (2011, p. 62). 116 As pointed out by Peters: “Transparency in itself does not bring about democracy—it is solely a precondition for democratic procedures”. Peters (2013, p. 566).

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democratic legitimacy of the transnational regime currently governing international sports.

References Baume S, Papadopoulos Y (2015) Transparency: From Bentham’s inventory of virtuous effects to contemporary evidence-based skepticism. Critical Review of International Social and Political Philosophy 21:169–192 Bentham J (1843) Rationale of Judicial Evidence. The Works of Jeremy Bentham. William Tait, Edinburgh Besson S (2006) Arbitration and Human Rights. ASA Bulletin 24:395–416 Bianchi A (2013) On Power and Illusion: The Concept of Transparency in International Law. In: Bianchi A, Peters A (eds) Transparency in International Law. Cambridge University Press, pp. 1–19 Boisson de Chazournes L, Baruti R (2015) Transparency in Investor-State Arbitration: An Incremental Approach. BCDR International Arbitration Review 2:59–76 Buys CG (2003) The tensions between confidentiality and transparency in international arbitration. The American Review of International Arbitration 14:121–138 Casini L (2010) Diritto globale dello sport. Giuffré, Milan Cernic J L (2012) Fair Trial Guarantees before the Court of Arbitration for Sport. Human Rights and International Legal Discourse 6:259–283 Duval A (2013) Lex sportiva: A playground for transnational law. European Law Journal 19:822–842 Duval A (2017) Not in My Name! Claudia Pechstein and the Post-Consensual Foundations of the Court of Arbitration for Sport. Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2017–01 Foster K (2006) Lex Sportiva and Lex Ludica: the Court Of Arbitration for Sport’s Jurisprudence. Entertainment and Sports Law Journal 3:1–15 Foster K (2006) The juridification of sport. In: Greenfield S, Osborn G (eds) Readings in Law and Popular Culture. Routledge, pp. 155–181 Grimmelikhuijsen S, Klijn A (2015) The effects of judicial transparency on public trust: Evidence from a field experiment. Public Administration 93:995–1011 Hale T (2008) Transparency, Accountability, and Global Governance. Global Governance 14:73–94 Jaksic A (2007) Procedural Guarantees of Human Rights in Arbitration Proceedings: A Still Unsettled Problem? Journal of International Arbitration 24: 159–172 Karton J (2012) A Conflict of Interests: Seeking a Way Forward on Publication of International Arbitral Awards. Arbitration International 28:447–486 Landrove J C (2006) European Convention on Human Rights’ Impact on Consensual Arbitration – An État des Lieux of Strasbourg Case-Law and of a Problematic Swiss Law Feature. In: Besson S, Hottelier M, Werro F (eds) Human Rights at the Center. Schulthess, pp. 73–101 Latty F (2007) La lex sportiva: Recherche sur le droit transnational. Martinus Nijhoff Publishers Lemmens P (2014) The right to a fair trial and its multiple manifestations: Article 6(1) ECHR. In: Brems E, Gerards J (eds) Shaping Rights in the ECHR: The Role of the European Court of Human Rights in Determining the Scope of Human Rights. Cambridge University Press, pp. 294–314 Lindholm J (2019) The Court of Arbitration for Sport and Its Jurisprudence: An Empirical Inquiry into Lex Sportiva. T.M.C. Asser Press, The Hague MacLaren R (2010) Twenty-Five Years of the Court of Arbitration for Sport: A look in the rear-view mirror. Marquette Sports Law Review 20:305

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Malintoppi L, Limbasan N (2015) Living in Glass Houses? The Debate on Transparency in International Investment Arbitration. BCDR International Arbitration Review 2:31–58 Maupin J (2013) Transparency in International Investment Law: The Good, the Bad and the Murky. In: Bianchi A, Peters A (eds) Transparency in International Law. Cambridge University Press, pp. 142–171 Mavromati D, Reeb M (2015) The Code of the Court of Arbitration for Sport: Commentary, Cases and Materials. Kluwer Law International McDonald N (2003) More Harm than Good? Human Rights Considerations in International Commercial Arbitration. Journal of International Arbitration 20:523–538 Mourre A (2006) Are Amici Curiae the Proper Response to the Public’s Concerns on Transparency in Investment Arbitration? The Law and Practice of International Courts and Tribunals 5:257–271 Paulsson J (1993) Arbitration of International Sports Disputes. Arbitration International 9:359–370 Peters A (2013) Towards Transparency as a Global Norm. In: Bianchi A, Peters A (eds) Transparency in International Law. Cambridge University Press, pp. 534–607 Peters A (2015) The Transparency Turn of International Law. The Chinese Journal of Global Governance (2015) 1:3–15 Pislevik S (2018) Precedent and development of law: Is it time for greater transparency in International Commercial Arbitration? Arbitration International 34:241–260 Resnik J (2011) Bring Back Bentham: “Open Courts,” “Terror Trials,” and Public Sphere(s). Law & Ethics of Human Rights 5:4–69 Resnik J (2013) The Democracy in Courts: Jeremy Bentham, ‘Publicity’, and the Privatization of Process in the Twenty-First Century. NoFo 10:77–119 Resnik J (2014) The Contingency of Openness in Courts: Changing the Experiences and Logics of the Public’s Role in Court-Based ADR. Nevada Law Journal 15:1631–1688 Resnik J (2015) Diffusing Disputes: The Public in the Private of Arbitration, the Private in Courts, and the Erasure of Rights. Yale Law Journal 124:2808–2943 Rogers C A (2006) Transparency in International Commercial Arbitration. University of Kansas Law Review 54:1301 Ruscalla G (2015) Transparency in International Arbitration: Any (Concrete) Need to Codify the Standard? Groningen Journal of International Law 3:1–26 Samuel A (2004) Arbitration, Alternative Dispute Resolution Generally and the European Convention on Human Rights: An Anglo-Centric View. Journal of International Arbitration 21:413–438 Schabas W A (2015) The European Convention on Human Rights: A Commentary. Oxford University Press Schill S W (2015) Conceptions of Legitimacy of International Arbitration. In: Caron D D, Schill S W, Cohen Smutny A, Triantafilou E E (eds) Practising Virtue: Inside International Arbitration. Oxford University Press, pp. 106–124 Schultz T (2011) Concept of Law in Transnational Arbitral Legal Orders and Some of Its Consequences. Journal of International Dispute Settlement 2:59–85 Shirlow E (2016) Dawn of a new era? The UNCITRAL Rules and UN Convention on Transparency in Treaty-Based Investor-State Arbitration. ICSID Review 31:622–654 Stone Sweet A, Grisel F (2017) The Evolution of International Arbitration: Judicialization, Governance, Legitimacy. Oxford University Press Venzke I, von Bogdandy A (2014) In Whose Name? A Public Law Theory of International Adjudication. Oxford University Press Waibel M, Kaushal A, Chung K-H, Balchin C (2010) The Backlash against Investment Arbitration. Wolters Kluwer

Doping and Human Rights in Pariah States David McArdle

Contents 1 Facts and Procedure of the Case......................................................................................... 2 The Decision........................................................................................................................ 3 State Actors, Convention Obligations and Anti-doping..................................................... 4 Back in the USSR ............................................................................................................... 5 Towards a New Perspective on Sport, Doping and Human Rights................................... 6 Conclusion: Taking Rights Seriously?................................................................................ References ..................................................................................................................................

30 34 38 41 45 48 49

Abstract On first reading, case 2016/A/4708 Belarus Canoe Association and Belarusian Senior Men’s Canoe and Kayak Team Members v International Canoe Federation, award of 23 January 2017 (hereafter BCA v ICF) raises three familiar, deceptively simple, themes in anti-doping. Namely, the potential role of national criminal authorities in doping investigations; the relationship between those authorities and international sporting stakeholders; and the importance of those stakeholders adhering to their own rules when pursuing anti-doping allegations. This chapter addresses those aspects in detail, but the case has a significance that goes beyond anti-doping. Specifically, BCA v ICF raises wider issues about anti-doping actors whose obligations under the WADA regime cannot be easily reconciled with their reliance on governments that use sports as a tool for cronyism and furthering political agendas. Such is the case in Belarus, where the relationship between a supposedly independent national anti-doping authority and an ignoble

CAS 2016/A/4708, Belarus Canoe Association and Belarusian Senior Men’s Canoe and Kayak Team Members v International Canoe Federation, Award of 23 January 2017. D. McArdle (&) School of Law, Stirling University, Stirling, Scotland, UK e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2019 A. Duval and A. Rigozzi (eds.), Yearbook of International Sports Arbitration 2017 https://doi.org/10.1007/15757_2019_28

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and unhappy regime appears uncomfortably close. These concerns are compounded by sports federations which are only too happy to let Europe’s last dictatorship host their international events. Keywords Doping


Tribunals
Independence
Belarus
Human rights

1 Facts and Procedure of the Case On 12 April 2016, French police and customs officials raided the training camp of the Belarus Canoe and Kayak team at Le Temple-sur-Lot, some 130 km south-east of Bordeaux. Various substances, medications and materials that could be used for blood transfusions were confiscated, along with 16 capsules of Mildronate (a brand name for meldonium) which were found in the room of the head coach of the women’s kayak team. Seventeen athletes underwent doping controls and five of the men’s teams urine samples tested positive for meldonium—which is used principally in the treatment of angina and other heart diseases but which “has been used by athletes in order to avoid damage to their heart after intense sport exercise.”1 The French authorities did not pursue the matter, choosing instead to pass their findings to the authorities in Belarus. On 15 June, the Belarus Canoe Association (BCA) notified the International Canoe Federation (ICF) that the positive tests for meldonium were to be treated as anti-doping rule violations (hereafter ADRVs), and the national anti-doping organisation (hereafter the NADO) had been notified of this in accordance with Article 14.1.2 of the WADA code. However, the BCA went on to state: Due to the fact that WADA issued a Notice to Stakeholders regarding meldonium as well as guidance regarding the results management process, NADO Belarus with assistance of the Belarus Canoe Association conduct(ed) its own investigation regarding…the meldonium cases.2

The BCA further reported that “all five athletes had established they had used meldonium prior to 1 January 2016…the concentration of meldonium in four samples causing such pre-investigation anti-doping check is below 1000 ng/ml,

1

CAS 2016/A/4708, Belarus Canoe Association and Belarusian Senior Men’s Canoe and Kayak Team Members v International Canoe Federation, Award of 23 January 2017, para. 52. The challenges posed by meldonium use and its treatment under the WADA Code has been extensively covered and need not detain us here, but see WADC Commentary, Meldonium and Moral Fault: Five Lessons Learned from the Sharapova ITF Tribunal Decision, 10 June 2016. http://wadccommentary.com/2016/06/. Accessed 30 April 2019. See also WADC Commentary, The Significance of Maria Sharapova’s Fault, 30 September 2016. http://wadc-commentary.com/ sharapova_cas/. Accessed 30 April 2019. 2 Ibid.

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which means that results management may be stayed” in accordance with WADA’s meldonium notice to stakeholders.3 The stakeholder notice (which of course is no longer valid) had been released by WADA on 13 April 2016,4 the day after the raid by the French authorities. It provided that, in cases where an athlete who was tested after 1 March 2016 claimed to have used meldonium before 1 January 2016, a urinary concentration of below 1000 ng/ml could lead to a finding of no fault in the absence of evidence that it was used after that date. On 11 July, the ICF wrote to the BCA referencing the 30 June letter and said the matter would be discussed at an emergency meeting of the ICF Executive Board in two days’ time. It noted that under ICF anti-doping rules misleading or hiding information, or being found to be in breach of those rules could lead to sanctions on athletes, federations or officials and the imposition of financial penalties. While accepting that athletes who returned values for meldonium under 1000 ng/ml would normally be regarded as ‘clean’ under the WADA notice, it emphasised that there was an exception “where other evidence could be applied to those cases.” With that in mind, it said that the French criminal authorities had provided “concrete information and indications that your athletes and officials have offences regarding doping irregularities (and) misuse of medication,” and advised that the ICF was now pursuing its own case regarding violations of the anti-doping rules.5 Put another way, the ICF believed the additional evidence provided by the French authorities meant the initial finding of ‘no fault’ was unsatisfactory and had to be reviewed. The BCA was given 24 hours to respond, which it did robustly. In addition to raising general complaints about their treatment at the hands of the French, it noted that no subsequent action was taken by the criminal or anti-doping authorities, stated the coach who had the meldonium possessed it for his own purposes—to treat a longstanding heart condition—and said the transfusion equipment that was found in the raid was “intended for emergency use only.”6 The BCA acknowledged that customs rules had been broken by its members transporting meldonium into France but said it would appeal to the CAS if the ICF’s Executive Committee imposed sanctions. It also revealed that it had been in text contact with the ICF’s Chief Executive prior to its emergency meeting. Upon hearing of the BCA’s intention to appeal, he had stated that “with these threats you will be aware that we will request even stronger penalties should we win or find more evidence.”7

3

CAS 2016/A/4708, Belarus Canoe Association and Belarusian Senior Men’s Canoe and Kayak Team Members v International Canoe Federation, Award of 23 January 2017, para. 7. 4 WADA, Notice—Meldonium, 30 June 2016. https://www.wada-ama.org/sites/default/files/ resources/files/2016-06-30-meldonium_notice.pdf. Accessed 30 April 2019. 5 CAS 2016/A/4708, Belarus Canoe Association and Belarusian Senior Men’s Canoe and Kayak Team Members v International Canoe Federation, Award of 23 January 2017, para. 10. 6 Ibid. 7 Ibid., para. 14.

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On 15 July, the ICF Executive Committee said all the athletes’ urine samples were consistent with meldonium being ingested after 1 January 2016 and that the possession of the meldonium tablets was an ADRV under Rule 2.6.2 of its anti-doping rules (possession of a prohibited substance or method). Possession of transfusion equipment and needles likewise amounted to a violation of Rule 2.6.2 and the possession of other substances, notably Actovegin (calf serum, which facilitates blood doping and under the WADA Code cannot be used as an intravenous infusion or injection of more than 100 ml every 12 h) and Cytoflavin (which is used in the treatment of concussion and ‘mild’ brain injury but is not restricted at all), “indicate the intent or actual doping processes being carried out by these athletes.”8 Rather than sanction individuals, the Executive Committee imposed a one-year ban on the men’s kayak and canoe teams in their entirety, ostensibly invoking Article 12.3 of the ICF anti-doping rules to take ‘additional disciplinary action’ on the ground that 4 or more ADRVs had occurred in a 12-month period. The teams’ places at the Rio Olympics were withdrawn, mandatory anti-doping training and at least three doping tests of all athletes over a 12-month period were imposed.9 True to its word, the BCA appealed to the CAS and asked that the decision be stayed and the hearing expedited so that, if successful, their athletes could compete at Rio. In its haste the BCA made significant errors which culminated in that request being rejected “because the appellants referred only to the criterion of irreparable harm but not also to the criteria of the likelihood of success and of the balance of interest.”10 Rule 37 of the 2016 CAS Code of Sports-Related Arbitration11 (which was the version in force at the time of the hearing) states that the panel chair “shall consider” all three of those elements in considering requests for provisional and conservatory measures. The BCA had thus erred by not addressing all three aspects and the request for a stay had been “clearly incomplete.”12 The case was heard in November 2016, and it is immediately apparent that the ICF’s handling of the matter was fundamentally flawed. An initial, although not ultimately fatal, difficulty was that Article 42 of the ICF Statutes defines the disciplinary measures that can be imposed by the Executive Committee—namely, caution, reprimand and exclusion of some or all members of a national federation from competition—while suspensions fall within the competence of the Board of Directors.13 While the ICF contended that a ‘suspension’ could be meaningfully 8

Ibid., para. 15. Ibid. 10 Ibid., para. 20. 11 2016 CAS Code, available at https://www.tas-cas.org/fileadmin/user_upload/Code_2016_final_ en_pdf. Accessed 30 April 2019. The same requirement existed in R37 of the 2017 CAS Code, and it remains in the current (2019) version: https://www.tas-cas.org/fileadmin/user_upload/Code_ 2019_en_pdf. Accessed 30 April 2019. 12 Ibid., para. 81. 13 Art. 42 ICF Statutes. https://federations.canoeicf.com/sites/default/files/icf_statutes_2015_with_ changes.pdf. Accessed 30 April 2019. 9

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distinguished from an ‘exclusion’, the BCA argued that the two were different and the Executive Committee did not have the competence to impose the former. Alternatively, if it did have competence the Executive Committee had acted ultra vires because the potential sanctions had not been clearly defined: they were not based on proper rules and regulations, they were not predictable and there was no clear connection between the behaviour and the sanction.14 Further, the BCA argued that the ICF could not impose ‘additional’ measures under Article 12.3 of the anti-doping rules because there had been no initial sanctions imposed under Articles 12.1 or 12.2.15 It also argued that the WADA Code and the ICF rules (which reflect the Code’s terms) had been breached by the failures in the testing, analysis, investigation and results management processes and accordingly there had been no fair hearing. In fact, there had been no hearing at all because the whole process had been handled by the ICF secretary general and its lawyers rather than by a properly-constituted anti-doping panel, and they had relied exclusively upon “vague information” provided by the French authorities. Nine of the athletes impacted by the team ban had not even been at the training camp, and the BCA said there were no grounds for sanctioning the team doctors, coaches and other members of the entourage.16 In response, the ICF said that Article 42 of its Statutes gave its Executive Committee the authority to render a decision and use of the word ‘suspension’ rather than ‘exclusion’ was not decisive; the focus should be “not on the words used but on the effect of the appealed decision.”17 The decision’s consequence was not the blanket suspension of the BCA from all canoeing activities, but to prevent the senior men’s canoe and kayak teams from participating in international events. This, said the ICF, is exactly what Article 42(c) envisaged, and “even if the rules may be improved they are understandable and clear on their face.”18 That being so, there was no need for the Executive Committee to impose disciplinary measures under Articles 12.1 (withholding funding) or 12.2 (reimbursement of costs) of the Anti-Doping rules before ‘additional measures’ could be applied under Article 12.3. It sufficed that its own hearing had determined that four or more offences had been committed over a 12-month period.

14

CAS 2016/A/4708, Belarus Canoe Association and Belarusian Senior Men’s Canoe and Kayak Team Members v International Canoe Federation, Award of 23 January 2017, para. 28. 15 Article 12.3 of the Anti-Doping Rules provides (in salient part) 12.3 The ICF may elect to take additional disciplinary actions against national federations with respect to recognition, eligibility…and fines based on the following: 12.3.1 Four or more violations committed by athletes or other persons affiliated with a national federation within a twelve-month period in testing conducted by the ICF or anti-doping organisations other than the national federation or its national anti-doping organisation. 16 CAS 2016/A/4708, Belarus Canoe Association and Belarusian Senior Men’s Canoe and Kayak Team Members v International Canoe Federation, Award of 23 January 2017, para. 28. 17 Ibid., para. 30. 18 Ibid.

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On that point, the ICF argued that “the mere presence of a prohibited substance is an anti-doping violation” even though four of the five positive tests had apparently returned meldonium levels below the WADA threshold. It said the BCA’s explanation that the meldonium was for the personal use of a team coach was not credible “in view of so many athletes found with this substance at the training camp.” Additionally, the fact that meldonium had been ‘prescribed’ by a team doctor with a background in paediatric medicine rather than by the coach’s personal physician, the argument that Actovegin was for a female athlete who had recently been diagnosed with a myocardial dystrophy, and the assertion that the transfusion systems were for ‘emergency use’ were given short shrift. “The ICF considers it established that members of the BCA connected to the senior men’s teams committed further anti-doping violations” in addition to the five positive tests. Article 12.3.1 had thus been properly applied by the Executive Committee, which “could have and might in future impose a suspension of the BCA’s membership for up to four years.”19 The ICF acknowledged that the decision to impose ‘additional sanctions’ had not been preceded by the imposition of any sanctions on anyone, but it contended that there had been no violation of procedural rights because the French National Anti-Doping Organisation, not the ICF, had been responsible for testing and results management. Further, Article 12 of the Anti-Doping rules “does not grant any hearing or procedural rights to the athletes and their entourage,” and “the athletes have not been punished as a direct consequence of their individual anti-doping violations, but because of their affiliation to the BCA’s banned team.”20 The fact that the BCA had admitted anti-doping violations on the part of individual athletes in its letter of 15 June was also significant in encouraging the Executive Committee to proceed, as was “the refusal of the BCA to acknowledge any (institutional) wrongdoing.”21

2 The Decision The CAS had to consider two principal points. First, whether the ICF Executive Committee had been entitled to impose the ‘suspension’; and second, if the answer to the first point was ‘yes’, whether the Executive Committee had violated its own rules and the procedural rights of the appellants in the process of doing so. On addressing the first point, the CAS confirmed that Article 12.3 of the ICF Anti-Doping Rules did not specify which body was entitled to impose the various potential sanctions.22 However, Article 42 of the ICF Statutes was clearer:

19

Ibid. Ibid. 21 Ibid. 22 Art. 12.3 ICF Anti-Doping Rules. https://www.canoeicf.com/sites/default/files/icf_anti-doping_ rules_based_upon_the_2015_revised_wada_code_0.pdf. Accessed 30 April 2019. 20

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exclusion of “some or all members of a national federation” from participation in competitions and the imposition of cautions, reprimands and fines were decisions of the Executive Committee; suspension was a decision for the Board of Directors while expulsion required a vote of two-thirds of the ICF Congress.23 The Panel agreed with the ICF that the one-year suspension of “the senior men’s canoe and kayak teams including coaches, medical staff and entourage for all international competitions” was not actually a suspension but an exclusion: A suspension may be decided by the ICF Board of Directors, a (partial) exclusion by the ICF Executive Committee…The Panel follows the arguments of the (ICF) in that the Executive Board erred in choosing the word ‘suspension’ but, in fact, wanted to apply and applied the measure of ‘exclusion’ and thus – in principle – used the competence applied to it by Article 42 of the ICF Statutes.24

The decision to exclude had not erroneously referred to any of the grounds for ‘suspension’ laid down in Article 42.2, and in the absence of evidence to the contrary ‘suspension’ must be taken to have its generally-accepted meaning within sports federations—namely, that “use of all membership rights by the respective national federation or individual shall be prohibited for a certain period of time.”25 To that extent, the appellants were unsuccessful in arguing that the ‘suspension’ had been imposed by the wrong body. But the Federation’s difficulty with the second point proved insurmountable. To recap, Article 12.3 of the ICF Anti-Doping Rules established that it could only take ‘additional’ measures with respect to recognition, eligibility and fines if one of the four Article 12.3 sub-clauses were engaged. In this regard, the Federation contended that Article 12.3.1, the ‘four offences in twelve months’ clause, had been operational. However, the CAS pointed out that 12.3.1 requires “testing conducted by the ICF or anti-doping organisations other than the national federation or its national anti-doping organisation.” There had been no testing in compliance with that requirement (in part for reasons explored below) and, taken together, the unsatisfactory establishing of the facts and the absence of an anti-doping decision rendered by a competent body meant the Executive Committee’s decision had been “premature.”26 In any event, exclusions under Article 12.3 could be imposed only against “all officials” of the national federation. The ICF could not use Article 12.3 as a means of sanctioning officials or athletes in some, but not all, disciplines which came under that federation’s authority. The Panels’ comments on the ‘unsatisfactory establishment of the facts’ merit closer scrutiny. First, on the burden facing the ICF with respect of meldonium use, it stated as follows:

23

CAS 2016/A/4708, Belarus Canoe Association and Belarusian Senior Men’s Canoe and Kayak Team Members v International Canoe Federation, Award of 23 January 2017, paras 42–44. 24 Ibid., para. 44. 25 Ibid., para. 45. 26 Ibid., para. 48.

36

D. McArdle Having not been provided with evidence by the ICF to its comfortable satisfaction that the BCA athletes took meldonium after 1 January 2016, the Panel holds that there was no anti-doping rule violation as to meldonium. The reference to the WADA notice of 30 June does not exculpate the ICF from its obligation under Article 3.1 ICF ADR to demonstrate to the Panels’ comfortable satisfaction…that the prohibited substance entered the body of the athletes after 1 January 2016.

In contrast, “the athletes fulfilled their obligation under Article 2.1.1. ICF ADR to make sure that no prohibited substance entered their body after 1 January 2016.”27 However, purporting to place the burden on the athletes in this way cannot be reconciled with the WADA Notice, which allowed for no-fault findings “in the absence of evidence that meldonium was used after 1 January 2016”28 but makes no comment about athletes bearing the burden. The case thus shows the difficulty in establishing to comfortable satisfaction that readings which were under the threshold were still a consequence of using meldonium after 1 January. That difficulty is also evident from the Panel’s holding that that the failure to establish meldonium use after the cut-off date applied also to the one athlete whose meldonium levels were above the threshold.29 Perhaps the key factor in the Panel decision was the testimony of Professor Ivar Kalvins, the inventor of meldonium, who discussed the ‘slow phase’ of its excretion. The existence of a ‘slow phase’ further muddies the waters on meldonium use and prohibition because it “can last for many months as the body tries to recapture (the ‘escaping’ meldonium)” and the rate of excretion can be increased depending on weight loss, food consumption, the length of meldonium use and so forth.30 The Panel also referred to a recent scientific study which suggested that “all athletes who showed any concentration of meldonium had a genetic mutation.” While it was not persuaded by the argument that the Chernobyl disaster could have contributed to the athletes’ excretion rates, the additional complexity provided by the concept of ‘slow excretion’ meant it was satisfied that the ICF had failed to prove “the intake of meldonium by the five BCA athletes after January 2016.”31 Neither was the Panel comfortably satisfied that the coach’s assertion that he had the meldonium for his own use was a lie. He had advanced an argument of sorts for his possessing it, and “there is no obligation for a therapeutic use exemption for coaches under the WADA Code or the ICF ADR.”32 So the sport’s anti-doping rules had not been violated even though the explanation might strike a casual observer as improbable. The Panel also found the explanation that the ‘transfusion kits’ were for use in emergencies only and taken to training sessions but never to 27

Ibid., para. 54. WADA, Notice—Meldonium, 30 June 2016. https://www.wada-ama.org/sites/default/files/ resources/files/2016-06-30-meldonium_notice.pdf. Accessed 30 April 2019. 29 CAS 2016/A/4708, Belarus Canoe Association and Belarusian Senior Men’s Canoe and Kayak Team Members v International Canoe Federation, Award of 23 January 2017, para. 54. 30 Ibid., para. 52. 31 Ibid., para. 53. 32 Ibid., para. 55. 28

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competitions was “plausible and consistent” although the French authorities had found over 230 syringes in the course of its investigation,33 so they were clearly planning for the possibility of a devastatingly widespread and immediate need for them. Again, the ICF had failed to establish to comfortable satisfaction that the kits served the aims of prohibited methods, however. “The fact that (other experts) did not see a need for an emergency kit and never used such kit does not convince the Panel that (the team doctor), bound to a different legislation and medical culture, possessed such equipment” for illegitimate medical use.34 The Panel then considered the ICF’s contention that the mere presence of a prohibited substance in an athlete’s body was an ADRV and there was no requirement for the Executive Committee to have first imposed sanctions under Article 12.1 or on individual athletes before it could utilise Article 12.3.35 It said, unsurprisingly:36 The Panel finds that to follow such arguments would empty the competence of the ICF doping control panel, circumvent the system of distribution of powers laid down by the ICF Statutes and Anti-Doping Regulations and deprive the individual persons concerned of all procedural guarantees laid down by the WADA Code and implemented properly for the ICF by the ICF Anti-Doping Rules.

The role of an ICF doping control panel might become limited to rubber-stamping decisions taken by the Executive Committee, but it would also “lead to disaster” if a panel were to subsequently investigate and find there had been no individual ADRV after the Executive Committee had decided there was and had imposed sanctions. The Panel’s decision on the merits was entirely proper, but its comment at this stage that the establishing of “independent judicial bodies” to replace political bodies deciding on ADRVs was “one of the essential achievements of the WADA Code”37 does not withstand scrutiny given the wider, political, issues of the case that are discussed below. Prior to the CAS’ inception in 1984 and WADA’s creation in 1999, appeals against sports’ decisions on ADRVs usually fell within the jurisdiction of domestic civil courts,38 and this inevitably gave rise to the challenges that have been widely-documented and led to proposals for reform. Indeed, the CAS website notes that “at the beginning of the 1980s, the regular increase in the number of international sports-related disputes and the absence of any independent authority specialising in sports-related problems and authorised to pronounce

33

Ibid., para. 57. Ibid., para. 59. The Award actually speaks of “legitimate medical use” but it is clear from the context that ‘legitimate’ was used in error. 35 Ibid., para. 62. 36 Ibid., para. 63. 37 Ibid., para. 65. 38 See for example the English cases of Modahl v British Athletic Federation [2001] EWCA Civ 1447 (12 October 2001); Korda v International Tennis Federation, The Times (4 February 1999); Gasser v Stinson (1988) CH-88_G_2191. 34

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binding decisions led the top sports organisations to reflect on the question of sports dispute resolution.”39 CAS’ creation was a response to the cost and complexity of litigation and the inevitability of different outcomes arising in different jurisdictions as a result of genuine “judicial bodies” carrying out their proper functions. The case reminds us that sports dispute resolution is susceptible to political interference notwithstanding the undoubted benefits it brings because national anti-doping agencies are not always truly ‘independent’ and there is the potential for improper influence. It was absolutely right that the appealed decision was “fully cancelled”40 but the argument that these tribunals are ‘judicial bodies’ should be approached with caution for reasons that the rest of this chapter explores. The German Federal Court of Justice’s ruling in DESG and ISU v Pechstein41 is a useful explanation of why the CAS can be properly regarded as ‘independent’ and might be perceived as a ‘judicial body’, but neither the CAS nor the international federations can have oversight of all the decisions taken by national anti-doping bodies, and the wider sports law and policy community needs to be vigilant when confronted with decisions that seem tainted by political interference. BCA v ICF is a paradigm example of this because further investigation of Belarus’ anti-doping apparatus confirms it is not independent of the state either in fact or in law. To the contrary, it is a tool of government which has the clear potential to serve the wider political aims of an oppressive regime rather than the goal of clean sport.

3 State Actors, Convention Obligations and Anti-doping In many, perhaps most, countries the anti-doping agency’s reliance on state funds does not fatally compromise its integrity because it is sufficiently at arms’ length from government and transparent in its operations. It allows athletes and other stakeholders a high degree of confidence in its independence or,42 failing that, the opportunity to offer informed criticism about its links with the state should its de facto independence come into question.

39

CAS, History of the CAS. http://www.tas-cas.org/en/general-information/history-of-the-cas.html. Accessed 30 April 2019. 40 CAS 2016/A/4708, Belarus Canoe Association and Belarusian Senior Men’s Canoe and Kayak Team Members v International Canoe Federation, Award of 23 January 2017, para. 81. 41 Judgment of 7 June 2016, KZR 6/15, English translation available at https://www.tas-cas.org/ fileadmin/user_upload/Pechstein_ISU_translation_ENG_final.pdf. Accessed 13 May 2019. 42 Department of Culture, Media and Sport, Tailored Review of UK Anti-Doping, January 2018. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/ 677496/Tailored_Review_of_UK_Anti-Doping_-_Final_Version_for_Publication_.pdf; Philip Clemo, Funding, Independence and Effectiveness. Key Points from the Government’s Tailored Review of Anti-Doping, 27 June 2018. https://www.lawinsport.com/topics/articles/item/fundingindependence-and-effectiveness-key-points-from-the-government-s-tailored-review-of-uk-antidoping. Accessed 30 April 2019.

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Other than funding the work of anti-doping actors, states’ contributions derive not from the WADA Code directly but from national laws, which invariably have their origins in the two international anti-doping instruments, the Council of Europe Convention43 (which pre-dates the WADA Code) and the UNESCO Convention (which post-dates it). The nature and extent of state parties’ legal obligation rests on whether those instruments’ provisions have been incorporated into national law or otherwise form the basis of anti-doping policy in accordance with Article 6 of the UNESCO Convention and Article 1 of the Council of Europe Convention. In addition, states ratifying the Council of Europe Convention commit themselves to participating in the monitoring processes established by Articles 10 and 11. The national reports that are part of that monitoring process provide both a mechanism for scrutinising their independence and an insight into what is actually happening in those countries, representing an examination of ‘law on the ground’ as opposed to ‘law in the books’, to adopt the language of legal consciousness.44 They are particularly pertinent here because they show how concerns which pre-date the BCF case still have implications that go beyond the world of drugs and sports and ought not to be considered in isolation. The Council of Europe Convention calls upon signatory states to “undertake, within the limits of their respective Constitutional provisions” the steps necessary to comply with it and to “co-ordinate the policies and actions of their government departments and other public agencies concerned with combatting doping.”45 France, the first state actor involved in this case, ratified the Convention in 1991 by means of the Ratification Act 19-1144 and has since passed a number of acts, decrees and implementing orders designed to give effect to it. The National Anti-Doping Agency is now the key authority. It is arms-length from government although dependent on it for funding, and there have always been important roles for state actors including the customs bodies and national police authorities.46 The raid at Le Temple-sur-Lot is a particularly robust example of a state having laws and policies that reflect its obligations under Article 4(1) to adopt measures to control the movement, possession, importation, distribution and sale of doping agents and methods—and of those instruments being accompanied by a political willingness to use them. Horta et al.’s Report into French compliance with the Convention explained how the French Public Health Code lays down extensive criminal sanctions for doping-related offences and gives various organs the authority to carry out raids to facilitate compliance.47 The Police Judicaire, acting under the authority of the Criminal Code, ordinarily carries out the role while

43

ETS 135, 16 November 1989; Ed 2005/Convention Anti-Doping Rev. Hertogh and Kurkchiyan (2016). 45 ETS 135, 16 November 1989; Ed 2005/Convention Anti-Doping Rev. Art. 1, 3. 46 Horta et al., Project on the Compliance with Commitments: Commitments by France with the Anti-Doping Convention, 26 August 2004. https://rm.coe.int/project-on-compliance-withcommitments-respect-by-france-of-the-anti-d/168073ac52. Accessed 30 April 2019. 47 Ibid., p. 6. 44

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overseen by a judicial authority, and “seizures may be made if authorisation is given by the President of the Regional Court or by a specially-delegated member of the court.”48 This is precisely what happened with the Belarus paddle athletes. It is also notable that Council of Europe Convention Article 8(2)(c) requests state parties “to initiate bilateral and multilateral co-operation between their appropriate agencies, authorities and organisations in order to achieve, at the international level as well, the purposes set out in Article 4.1.” France and Belarus had signed a bilateral agreement in December 1995,49 four years before WADA was created, and the global growth of such agreements around that time “constituted, in effect, public recognition by governments of both the ineffectiveness of IOC policy and the need for governments to introduce more effective anti-doping policy.”50 WADA has since commended bilateral agreements as part of “developed NADOs’…responsibility to assist NADOs in the process of their development”51 and its 2014 guidelines suggested that they could “generate a wide range of benefits including establishing international benchmarks for best practice, sharing solutions of practical issues, building anti-doping competence and professionalism, improving quality management and improving information exchange…. Suggested foci for collaboration include how to initiate cooperation with national sports organisations, how to establish a NADO and how to develop an annual doping control programme.”52 Perhaps the French passed their evidence to the Belarusian authorities in this spirit of bilateralism and cooperation, or perhaps they did not think the time and resources required to pursue it was merited. Or maybe they simply wanted to emphasise that they possessed both the legal basis and the political will to raid other countries’ training camps if they wished, without particularly caring what happened next. At the end of their Report into French compliance, Horta et al concluded, “we must hope…that the signing of a global Convention under the auspices of UNESCO will lead to a more widespread use of the foundations laid by the Council of Europe Convention.”53 That Convention,54 signed in October 2005, sought to “promote the prevention of and the fight against doping in sport, with a view to its elimination.”55 As with the Council of Europe Convention, it requires state parties

48

Ibid., p. 18. Ibid., p. 34. 50 Hanstad and Houlihan (2015). 51 Ibid. 52 Ibid., discussing WADA/Anti-Doping Norway, International NADO Cooperation Projects: A Guideline with Templates for NADO-to-NADO Partnerships, 2014. https://onad-monaco.mc/wpcontent/uploads/2015/09/WADA-Guidelines-International-NADO-Cooperation-EN.pdf. Accessed 30 April 2019. 53 Horta et al., Project on the Compliance with Commitments: Commitments by France with the Anti-Doping Convention, 26 August 2004. https://rm.coe.int/project-on-compliance-withcommitments-respect-by-france-of-the-anti-d/168073ac52. Accessed 30 April 2019. 54 UNESCO (2005) ‘International Convention Against Doping in Sport’ ED.2005/Convention Anti-Doping Rev Paris: UNESCO. 55 Ibid., Art. 1. 49

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to “adopt appropriate measures at the national and international level” to encourage all forms of international cooperation aimed at protecting athletes and ethics, and to foster cooperation with WADA in particular. There are thus in place two international Conventions which have very similar provisions. Both have been signed and ratified by France and Belarus, both countries have been the subject of compliance reports under the Council of Europe Convention, and both countries participate in the biannual conference of parties to the UNESCO Convention.56 That is where the similarities end.

4 Back in the USSR The Monitoring Group for the Council of Europe Convention visited Belarus in November 2014, shortly after the country’s new National Law on Physical Culture and Sports came into force, and its Report was submitted a year later.57 Signatory states are required to submit an auto-evaluation report on compliance with the Convention prior to visits from the Monitoring Group and these also provide a rich source of evidence. In compiling theirs, the authorities in Belarus said this new law was in conformity with the WADA Code and WADA international standards58 and said that the NADO “ensures all stages of doping control, except laboratory analysis and appeal review”59 as required under Article 3 of the Convention. On concluding its own inquiry, the Evaluation Team declared that Belarus was “only partially” fulfilling the political commitment expected under Article 1 because the national law did not define the obligations of government departments and public bodies with regard to anti-doping. It recommended reform so that “the obligations of the NADO, the country’s sports organisations and the government departments and public bodies…be defined.” It also called on Belarus to ratify the Additional Protocol on mutual recognition of doping controls, which in principle allows WADA to conduct out-of-competition tests in the signatories’ territory—although one imagines that very exceptional circumstances would have to arise before WADA is persuaded to use its limited resources to do this. In any event, Belarus ratified the

56

For the report on the 2017 Conference, see UNESCO, Conference of Parties to the International Convention Against Doping in Sport, 2017. http://unesdoc.unesco.org/images/0025/002599/ 259976E.pdf. Accessed 30 April 2019. 57 Council of Europe, Respect by Belarus of the Anti-Doping Convention, 12 November 2015. https://rm.coe.int/project-on-compliance-with-commitments-respect-by-belarus-of-the-anti-/ 168073acb6. Accessed 30 April 2019. 58 Ibid., p. 5. 59 Ibid., p. 6.

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Additional Protocol in December 201660 and there was testing of its athletes’ samples at accredited laboratories after June of that year in the run-up to the Rio Olympics,61 but the Evaluation Team had other reservations. These included the national law’s over-broad definition of “athlete” as “any person getting sports training on a chosen sport” which created an “unduly heavy obligation” to control purely casual participants when the priority should be “on the (elite) level of sportsmen and sportswomen where doping is known to exist.”62 It was especially concerned that the NADO was not at arm’s length from the state but was clearly a governmental organisation, presciently noting that this “raises concerns about the independence of…its operations and decision-making processes” given that the NADO relied exclusively on the state for the funding of testing, education and all other functions. It recommended that the NADO “should have sufficient budget and administrative/operational autonomy to conduct testing and its other core activities, and this should be reflected in, and secured by, legislation” which would remove the possibility of government pressure and conflicts of interest.63 Perhaps matters have got worse since the Evaluation Team’s visit, but in light of BCA v ICF its anti-doping framework cannot currently be regarded as ‘independent’ of the state. Other concerns about the state’s role in anti-doping arose from the Evaluation Team’s comments on the advanced state of Belarus’ pharmaceutical industry and the government’s links to it. It discovered that “currently, 28 pharmaceutical companies operate in Belarus, producing medicines for the Belarusian market and for export to many other countries, and the pharmaceutical industry is regulated by the Ministry of Health, which has responsibility for overseeing the industry’s work”64 as well as controlling its anti-doping efforts. Co-operation between the pharmaceutical industry and anti-doping authorities is an important aspect of the Council of Europe’s anti-doping strategy,65 but there was an implicit concern about the symbiotic relationship between the industry and government. Given what is known about individuals who have roles in the industry, government and sport (as explored below), the concern that this relationship might impact anti-doping 60 Liam Morgan, Belarus Joins Signatories of Council of Europe’s Additional Protocol to the Anti-Doping Convention, 10 December 2016. https://www.insidethegames.biz/articles/1044685/ belarus-join-signatories-of-council-of-europes-additional-protocol-to-the-anti-doping-convention. Accessed 19 October 2018. Accessed 30 April 2019. 61 Belarusian Athletes Tested At WADA-Accredited Laboratories Ahead of Rio, 27 June 2016. https://www.belarus.by/en/government/events/belarusian-olympians-tested-in-wada-accreditedlaboratories-ahead-of-rio_i_0000042008.html. Accessed 30 April 2019. 62 Council of Europe, Respect by Belarus of the Anti-Doping Convention, 12 November 2015. https://rm.coe.int/project-on-compliance-with-commitments-respect-by-belarus-of-the-anti-/ 168073acb6, p. 17. Accessed 30 April 2019. 63 Ibid., pp. 19–20. 64 Ibid., p. 20. 65 Gabriella Battaini-Dragoni, Introductory Remarks at ‘The Pharmaceutical Industry and the Fight against Doping’ International Conference, 12 September 2012. https://www.wada-ama.org/sites/ default/files/resources/files/Paris_Conf_Nov2012_proceedings_v2.pdf, p. 8. Accessed 13 May 2019.

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activities is by no means fanciful. There were also considerable delays in the sharing of data between government agencies, customs and police authorities and the NADO, which seemed to be last in the queue for the receipt of information. Additionally, although the NADO’s draft 2015 rules allowed it and other anti-doping organisations to carry out reciprocal testing of athletes within their jurisdiction, “there are no official agreements in place between the Belarusian authorities or the sport organisations of Belarus and other national anti-doping organisations or international federations for the testing of athletes from Belarus when training in other countries.”66 The Evaluation Team said that those draft rules could not come into force until WADA had approved them, so the 2014 rules had to remain in force and these were not WADA compliant because they did not meet the approved definition of ‘doping’ or adhere to the WADA sanctions regime. It said that “the Belarusian authorities are strongly advised to solve this issue as a matter of urgency.”67 There were also significant concerns about the laboratory used in Belarus for sample analysis. It had been accredited domestically for the purposes of ISO/IEC 17025, which is the international standard applicable to all laboratories that carry out tests and calibrations,68 but that accrediting body was not a full member of the International Laboratory Accreditation System as required by WADA’s International Standard for Laboratories.69 In 2013, WADA decided not to approve any more laboratories in Europe, and although in 2014 the Belarus laboratory had sought approval for the purposes of the athlete biological passport, this was rejected on the ground that “much remains to be done in sample collection capacity development and consolidation of NADO activities” before WADA could consider any accreditation requests.70 Its limited accreditation by the non-compliant national registering body did not extend to a range of banned products including ‘threshold’ substances, it was not accredited for the detection of erythropoietin or human growth hormone and it was never going to receive accreditation without being awarded ‘probationary’ status first. The NADO’s use of a non-accredited laboratory thus “constitutes a non-conformity with the provisions of the (Council of Europe) Convention and an element of non-compliance with the Code” and the Evaluation Team recommended that it should cease sending samples to the Belarus laboratory

66

Council of Europe, Respect by Belarus of the Anti-Doping Convention, 12 November 2015. https://rm.coe.int/project-on-compliance-with-commitments-respect-by-belarus-of-the-anti-/16807 3acb6, p. 22. Accessed 30 April 2019. 67 Ibid., p. 23. 68 As amended in 2017, see International Organization for Standardization, General requirements for the competence of testing and calibration laboratories, 2005. https://www.iso.org/standard/ 39883.html. Accessed 30 April 2019. 69 WADA, International Standard for Laboratories, 2 June 2016. https://www.wada-ama.org/en/ resources/laboratories/international-standard-for-laboratories-isl. Accessed 30 April 2019. 70 Council of Europe, Respect by Belarus of the Anti-Doping Convention, 12 November 2015. https://rm.coe.int/project-on-compliance-with-commitments-respect-by-belarus-of-the-anti-/1680 73acb6, p. 25. Accessed 30 April 2019.

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—which implicitly meant it would start sending them to Russia, which seems to be no solution at all.71 It advised that it should put more effort into developing the NADO and laid down a series of steps the laboratory would have to take “in case” it ever gained probationary status. This would culminate in ISO/IEC 17025 accreditation by an international authority rather than the questionable national one.72 This all reinforces the inescapable conclusion that the authorities in Belarus could not have properly tested the paddle athletes’ samples without sending them to Russia or, perhaps, Germany. All that is known for sure is that five of the samples taken from seventeen athletes by the French authorities on 12 April 2016 tested positive for meldonium. Beyond that, the evidence was scant and self-serving in favour of a regime that makes no provision for members of the disciplinary tribunals to be independent of the NADO, where national federations have the power to review tribunals’ decisions before they were confirmed and where there is no right to a fair hearing, to be represented by counsel or to present evidence as guaranteed by the Convention.73 The Evaluation Team warned that the failures “exposes Belarus to concerns that its national anti-doping programme could be used to supervise doping as opposed to deterring and detecting it.”74 Belarus replied that it was “working towards cooperation” with UK anti-doping and while this had certainly been the case in 2013, there is no subsequent mention of that relationship on the UKAD website.75 Undaunted, the Evaluation Team encouraged it to pursue that relationship and to work more closely with the Monitoring Group and with other countries, in order to help address its concluding concern: The Belarus national anti-doping programme is too isolated from the anti-doping programme of other major sporting countries. This limits access of the NADA to anti-doping innovation and best practices. (It) has little experience with non-analytical ADRVs (such as those committed by a coach or sport doctor).76

Although it felt the political commitments had been met, the Report concluded that “Belarus has not yet satisfactorily fulfilled the Anti-Doping requirements under the Convention.”77 It should be noted, however, that as of the 2017 biannual 71

Radio Free Europe, WADA to Gain Access to Russian Laboratory This Week, 7 January 2019. https://www.rferl.org/a/world-anti-doping-agency-to-gain-access-to-russian-laboratory-this-week/ 29696148.html. Accessed 30 April 2019. 72 Council of Europe, Respect by Belarus of the Anti-Doping Convention, 12 November 2015. https://rm.coe.int/project-on-compliance-with-commitments-respect-by-belarus-of-the-anti-/ 168073acb6, p. 26. Accessed 30 April 2019. 73 Ibid., p. 32. 74 Ibid., p. 36. 75 Ibid., p. 38; UKAD, UK Anti-Doping to Work in Partnership with Belarus National Anti-Doping Organisation, 28 May 2013. https://www.ukad.org.uk/news/article/uk-anti-doping-to-work-inpartnership-with-belarus-nado. Accessed 30 April 2019. 76 Council of Europe, Respect by Belarus of the Anti-Doping Convention, 12 November 2015. https://rm.coe.int/project-on-compliance-with-commitments-respect-by-belarus-of-the-anti-/ 168073acb6, p. 37. Accessed 30 April 2019. 77 Ibid., p. 38.

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meeting it was not in the list of states deemed non-compliant with the UNESCO Convention.78 This merely raises questions about the utility of the Convention’s monitoring arrangements rather than assuaging any concerns about Belarus, and perhaps the next evaluation will address some of those worries; but for the reasons outlined below, future analysis of doping in the country ought to be informed by considerations that go far beyond sport. Once one understands the political background, the deficiencies in the system come as no surprise.

5 Towards a New Perspective on Sport, Doping and Human Rights In 2004 the European Union Council, mindful of the rigged elections, the disappearance of political opponents, the endemic corruption and the steady erosion of human rights in Belarus since Alexander Lukashenka became President in 1994,79 adopted the first of numerous Common Positions to prevent the passage through the member states of government officials and other persons it deems responsible for human rights abuse and corrupt practices.80 This was significant because Lukashenka, who is also the President of the National Olympic Committee, was denied a visa to attend London 2012 as a consequence of those measures.81 Thereafter, a host of other Common Positions and Regulations placed further restrictions on, and froze the assets of, people close to his regime. This is relevant because “sport under Lukashenka has been hugely important to national prestige”82 and the relationship is symbiotic. Chelsea FC Chairman Roman

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UNESCO, Conference of Parties to the International Convention against Doping in Sport, 10 November 2017. http://unesdoc.unesco.org/images/0026/002601/260167E.pdf. Accessed 30 April 2019. 79 Freedom House, Timeline: Twenty Years of Human Rights Abuses in Belarus, 2014. https:// freedomhouse.org/fair-play-beyond-sports/timeline-20-years-human-rights-abuses-belarus. Accessed 30 April 2019. ‘Lukashenka’ is the Belarusian spelling of the President’s name while ‘Lukashenko’ is the Russian. The former is used throughout, except where necessary in URLs. 80 Council of the European Union, Council Common Position 2004/661/CFSP Concerning Restrictive Measures against Certain Officials of Belarus, 24 September 2004. https://eur-lex. europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32004E0661&from=EN; Council of the European Union, Council Common Position 2004/848/CFSP Amending 2004/661/CFSP, 13 December 2004. https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX: 32004E0848&from=EN; Council of the European Union, Council Common Position 2006/276/ CFSP Concerning Restrictive Measures against Certain Officials of Belarus, 10 April 2006. https:// eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32006E0276&from=en. Accessed 30 April 2019. 81 LA Times, Belarus Leader denied entry to Britain for Olympics or Otherwise, 25 July 2012. https://latimesblogs.latimes.com/world_now/2012/07/belarus-president-alexander-Lukashenkoolympic-europe-visa.html. Accessed 30 April 2019. 82 Wilson (2011, p. 205).

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Abramovich has invested heavily in its energy and pharmaceutical industries,83 Champions League sponsor Gazprom was given 50% of the national energy supplier between 2007 and 2010 in murky circumstances84 and the Kremlin recently depicted the two Presidents playing together in an ice hockey match that their side diplomatically won 16–1.85 This was a welcome seal of Russian approval for Lukashenka given that the countries’ relationship is often soured by energy wars. One of the Common Positions mentioned above, Decision 2012/36/CFSP,86 froze the funds of Yury Chyzh, a Belarusian oligarch whose business empire had given financial support to the regime in return for lucrative government contracts in the gas and oil industries. Chyzh has held several prominent sporting positions, including Chairman of the Belarus Wrestling Federation and President of Dinamo Minsk Football Club. He is known as ‘Lukashenka’s Wallet.’87 One of Chyzh’s other business interests, TriplePharm, is part of the extensive pharmaceutical industry documented by the Monitoring Group. In Dinamo Minsk v Council88 and Chyzh v Council,89 the application of the Common Position to the club and to Chyzh personally were annulled because the procedure had violated the EU Charter of Fundamental Rights Article 47 and the principle that “the statement of reasons for an act… must identify not only the legal basis of that measure but also the actual and specific reasons why the Council considers, in the exercise of its discretion, that the measure must be adopted in respect of the person concerned.”90 This has allowed the club to participate in every Europa League season since 2012 and to make millions in prize money even though it never reaches the later stages, but Chyzh is not the only friend of Lukashenka to have extensive sporting interests. “Functionaries of the government, heads of security structures, and business elites from the circle of Lukashenka also serve as heads of sports federations. Chief executives of football clubs are also recruited from the regional political elites and managers of state businesses. Sponsorship of football clubs is carried out by municipalities and regional budgets, by state enterprises and business.”91 Every recent UN Treaty Committee report has noted significant human rights violations

83

Belsat, Roman Abramovich to Invest in Belarusian Plant, 12 March 2016. https://belsat.eu/en/ news/roman-abramovich-to-invest-in-belarusian-plant/. Accessed 13 May 2019. 84 Wilson (2011, p. 38). 85 Kremlin, Vladimir Putin and Viktor Lukashenka Took Part in an Ice Hockey Game, 15 February 2019. http://en.kremlin.ru/events/president/news/59845. Accessed 13 May 2019. 86 Council of the European Union, Council Decision2012/36/CFSP Amending Council Decision 2010/639/CFSP, 23 January 2012. https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L: 2012:019:0031:0032:EN:PDF. Accessed 30 April 2019. 87 Vadzim Bylina, Belarusian Ultras and the Regime, 29 January 2013. https://belarusdigest.com/ story/belarusian-ultras-and-the-regime/. Accessed 30 April 2019. 88 General Court, T-275/12 Dynamo Minsk v The Council, ECLI:EU:T:2015:747. 89 General Court, T-276/12 Chyzh v The Council, ECLI:EU:T:2015:748. 90 General Court, T-275/12 Dynamo Minsk v The Council, ECLI:EU:T:2015:747, para. 88. 91 Vadzim Bylina, Belarusian Ultras and the Regime, 29 January 2013. https://belarusdigest.com/ story/belarusian-ultras-and-the-regime/. Accessed 30 April 2019.

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by the regime and its associates,92 but the relationship between sports and the regime goes beyond individuals in Belarus with their snouts in the trough: a host of international federations are also tucking in contentedly. Belarus is the only European country to use the death penalty.93 It ranks 155th out of 180 countries for press freedom—thus placing it slightly above Iraq but below eSwatini, formerly Swaziland.94 In 2018 the UN Human Rights Council appointed a new special rapporteur for the country and extended her mandate in the light of her predecessor detailing “a purposefully repressive legal framework, aggravated by regularly recurring, centrally planned violent crackdowns on peaceful demonstrators, nongovernmental organizations (NGOs), political opponents, human rights activists and independent media workers.”95 In the late 1990s over thirty political opponents and journalists were murdered or simply disappeared,96 and in 2017 after several years of relative calm over 150 journalists and human rights activists were arbitrarily detained, 60 foreign journalists arrested, three bloggers were charged with the criminal offence of “sowing social discord between Russia and Belarus,” and new anti-LGBT laws were passed. Human Rights Watch has also noted that “European governments and institutions continue to strengthen relations with Belarus despite a lack of tangible rights improvements” and stated that the country “has a long record of human rights abuses and violations of media freedoms connected with major sports events.” This goes some way to explaining why the rise in event-hosting has coincided with a new clampdown on human rights since Lukashenka won the rigged 2015 Presidential election with an improbable 83.4% of the vote.97 In 2017, this country with a population of under ten million hosted more than seventy world- or Europe-wide events in sports including fencing, skiing, wrestling, judo, track cycling, speedskating, taekwondo, table-tennis and powerlifting.98 In 2018 it hosted 75 events in more than thirty

92

United Nations Office of Human Rights, Belarus Homepage, 2018. https://www.ohchr.org/en/ countries/enacaregion/pages/byindex.aspx. Accessed 30 April 2019. 93 Hugo Bachega, Belarus: The Secret Executions in Europe’s ‘Last Dictatorship’, 15 May 2018. https://www.bbc.co.uk/news/world-europe-43799280. Accessed 30 April 2019. 94 According to Reporters without Borders, World Press Freedom Index, 2018. https://rsf.org/en/ ranking. Accessed 30 April 2019. 95 Viasna, Miklos Haraszti to Present His Last report on Belarus, 31 January 2018. http://spring96. org/en/news/90135. Accessed 30 April 2019. 96 Wilson (2011, p. 190). 97 BBC, Belarus Vote: Lukashenka Re-elected President by a Landslide, 12 October 2015. https:// www.bbc.co.uk/news/world-europe-34499387. Accessed 14 May 2019; Human Rights Watch, Belarus: Events of 2017. www.hrw.org/world-report/2018/country-chapters/belarus. Accessed 30 April 2019. 98 Belarusian Telegraph Agency, Belarus to host over 70 international sports events in 2017, 20 December 2016. https://eng.belta.by/sport/view/belarus-to-host-over-70-international-sportsevents-in-2017-97361-2016/. Accessed 30 April 2019.

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sports and in 2019 the number topped 100 for the first time.99 In addition to these individual events, Minsk will host the June 2019 European Games, having been awarded them by the European Olympic Committee in 2016.100 The EOC has been assured that the media will have “free access” to the Games,101 but in a country where journalists are regularly imprisoned, the President has a personal fortune of over $11 billion102 and political opponents vanish, that rather misses the point.

6 Conclusion: Taking Rights Seriously? There are legitimate arguments that sports’ engagement in countries with despotic regimes can perhaps be a force for good,103 and there is some evidence of the EOC asking awkward questions as the Games approach.104 But the President has also said that Belarus athletes are “obliged” to do well at the competition and that children, the elderly and those with disabilities should be “invited…to ensure the stands are full.” Concerns about whether Belarus has a laboratory capable of testing for meldonium or whether the sports media can accurately report who wins the beach soccer are irrelevant if they are not placed in this wider context. Similarly, if Belarus has improved its anti-doping procedures one might reasonably expect evidence of this in the European Games, but one also worries about how national athletes will respond to pressure from a populist despot who says that “the people are tired of waiting for results.”105 Whether international actors have the inclination, the resources and the opportunity to closely enquire into what their new best friends

99

Sports Events to Be Held in Belarus in 2018. http://india.mfa.gov.by/uploademb/india/2017/ sports_calendar_2018.pdf. Accessed 30 April 2019; Belarusian Telegraph Agency, Belarus to Host 100 Sporting Events in 2019, 18 December 2018. https://eng.belta.by/sport/view/belarus-tohost-100-international-sport-events-in-2019-117442-2018/. Accessed 30 April 2019. 100 James Ellingworth, Belarusian capital Minsk Awarded 2019 European Games, 21 October 2016. https://apnews.com/4bbf3e727ec7425b9c979c04d16cbac5. Accessed 30 April 2019; Denmark and Norway voted against the decision, while Germany and Great Britain were among five who abstained: Michael Pavitt, Germany to Send Team to Minsk 2019 After Opting Against Boycott Over Human Rights Concerns, 18 February 2019. https://www.insidethegames.biz/ articles/1075721/germany-to-send-team-to-minsk-2019-after-opting-against-boycott-over-humanrights-concerns. Accessed 30 April 2019. 101 Ibid. 102 Wilson (2011, p. 243). 103 Turley (2016). 104 Dan Palmer, Kocijancic Meets With Belarus Prime Minister as Minsk 2019 Looms Closer, 8 February 2019. https://www.insidethegames.biz/articles/1075286/kocijancic-meets-with-belarusprime-minister-as-minsk-2019-looms-closer. Accessed 30 April 2019. 105 James Diamond, Belarus President Piles Pressure on Home Athletes Before Minsk 2019 European Games, 5 January 2019. https://www.insidethegames.biz/articles/1073903/belaruspresident-piles-pressure-on-home-athletes-before-minsk-2019-european-games. Accessed 13 May 2019.

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in Minsk are up to remains to be seen, but one should not expect too much because thus far the overtures of sports organisations have not come with strings attached. WADA, the Convention Monitoring Group and those countries who have signed bilateral arrangements might be able to influence the anti-doping landscape, while perhaps the news media, event sponsors and those National Olympic Committees who considered boycotting Minsk 2019 can work behind the scenes on the wider human rights issues, but the two should operate in tandem. Human rights groups and academics also have a role to play. To conclude by returning to the case, the ICF was probably trying to do the right thing but acted hastily when confronted by a national federation and a national anti-doping agency which inspired little confidence. If one accepts Prof Kalvin’s assertion that meldonium “is very safe and has very mild side-effects, there were less (sic) than 90 serious events,”106 one is once again left wondering why it is banned at all and it is possible that meldonium will be allowed out-of-competition in a few short years. If that happens the decision in BCA v ICF will still be important, for it sheds light on a particularly grubby aspect of sport in a country that too often flies under the radar and provides a window on a world far beyond anti-doping. Unwittingly, the kayakers and canoeists of Belarus, and the coach with the bag of meldonium, have done the sport and human rights community a considerable service. Acknowledgments Thanks to the editors, to Marjolaine Viret and to Catherine Ordway for their comments on an earlier draft, but the errors are mine alone.

References Hanstad D, Houlihan B (2015) Strengthening Global Anti-Doping Policy Through Bilateral Collaboration: the Example of Norway and China. International Journal of Sport Policy and Politics 7(Issue 4) 587–604. Hertogh M, Kurkchiyan M (2016) ‘When Politics Come Into Play, Law is No Longer Law’: Images of Collective Legal Consciousness in the UK, Poland and Bulgaria. International Journal of Law in Context 12 (Issue 4) 404–419. Turley T (2016) When the ‘Escape’ Ends. Responsibility of the IOC and FIFA at the Intersection of Sport Law and Human Rights. Notre Dame Journal of International and Comparative Law 6 (Issue 1) 145–165. Wilson A (2011) Belarus: The Last European Dictatorship, Yale University Press.

106

CAS 2016/A/4708, Belarus Canoe Association and Belarusian Senior Men’s Canoe and Kayak Team Members v International Canoe Federation, Award of 23 January 2017, para. 52.

Part II

Commentaries of CAS Awards

CAS 2016/A/4490, RFC Seraing v. Fédération Internationale de Football Association (FIFA), Award of 9 March 2017 Antoine Duval

Contents 1 2

Facts and Procedure of the Case......................................................................................... The Decision........................................................................................................................ 2.1 The Applicability of EU Law to the Dispute ............................................................ 2.2 The Compatibility of FIFA’s TPO Ban with EU Law.............................................. 2.2.1 The Legitimacy of the Objectives of the FIFA TPO Ban............................ 2.2.2 The Proportionality of the FIFA TPO Ban................................................... 3 Conclusion: The Dying Battle Against FIFA’s TPO Ban.................................................. References ..................................................................................................................................

54 56 56 58 58 59 62 64

Abstract FIFA’s ban on third-party ownership (TPO) in 2015 was met with numerous attempts to overturn it. In this context, RFC Seraing’s choice to ignore the ban and enter into a TPO contract with Doyen Sports was likely meant to trigger a FIFA sanction in order to open the way for a challenge against the ban at the CAS. Unfortunately for Seraing (and Doyen Sports), the CAS decision did not conclude that FIFA’s ban was unlawful, and instead found that it complied with both EU law and Swiss law. The award confirms CAS’s increasing disposition to engage in EU law analysis and seems to guarantee at least the short-term viability of FIFA’s TPO ban. Nonetheless, it is unlikely to suffice to put the question of the ban’s legality to rest, as only a decision by the CJEU could provide such legal certainty. Keywords Third-party ownership Competition law Proportionality





FIFA
RSTP
Transfer system
EU law


A. Duval (&) T.M.C. Asser Instituut, The Hague, The Netherlands e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2019 A. Duval and A. Rigozzi (eds.), Yearbook of International Sports Arbitration 2017 https://doi.org/10.1007/15757_2019_30

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1 Facts and Procedure of the Case On 30 January 2015, RFC Seraing and Doyen Sports Investment Limited (hereinafter ‘Doyen’) entered into a third-party ownership (TPO) contract, officially titled: “Cooperation Agreement” (the Contract). The Contract stipulated that the economic rights of three RFC Seraing players would be transferred to Doyen in exchange for the payment of 300,000 EUR in three instalments, the last of which would be paid in February 2016. In effect, the Contract meant that Doyen would own 30% of the designated players’ economic value. FIFA TMS GmbH (FIFA TMS) became aware of the Contract and requested RFC Seraing to submit a copy thereof via the Belgian Football Association (URBSFA). In addition, FIFA TMS also requested a copy of each agreement RFC Seraing had concluded with a third party and every TPO agreement with Doyen. RFC Seraing cooperated and sent a copy of the signed Contract on 4 June 2015. On 2 July 2015, the Secretariat of FIFA’s Disciplinary Committee (the Secretariat) decided to open a disciplinary procedure, through the URBSFA, against RFC Seraing for the violation of Article 18bis and Article 18ter of the Regulations on the Status and Transfer of Players (RSTP). Simultaneously, on 9 July 2015, RFC Seraing made a request through the TMS in order to sign a Portuguese player, X, who was a free agent. While RFC Seraing concluded an employment contract with player X, RFC Seraing also concluded an ‘Agreement on the participation of economic rights’ (ERPA) with Doyen. The ERPA also referred to a ‘Partnership Agreement’. The ERPA stipulated that RFC Seraing would sell 25% of the economic rights over player X to Doyen for 50,000 EUR. Both the employment contract and the ERPA were uploaded to the TMS. On 10 July 2015, FIFA TMS decided to open an investigation concerning the transfer of player X and requested RFC Seraing to provide it with a copy of all the TPO agreements and any other contract the player could have concluded with a third party. Furthermore, it requested a copy of the Partnership Agreement referred to in the ERPA. RFC Seraing responded to the request on the same day and provided the requested copies. By 21 July 2015, the Secretariat extended its investigation to include a violation of Article 18bis and Article 18ter of the RSTP concerning these two contracts. RFC Seraing was asked to submit its position, and by 3 August 2015 the club was informed that its case would be submitted to the FIFA Disciplinary Committee (FIFA DC) on 4 September 2015. Despite a request from RFC Seraing to suspend the proceedings, the FIFA DC went ahead and delivered its decision on 4 September 2015. The FIFA DC ruled that: • RFC Seraing had violated Article 18bis RSTP by concluding a contract that permitted a third party to acquire the ability to influence the independence and policy of the club in the context of a player’s transfer.

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• RFC Seraing had violated Article 18ter RSTP by concluding an agreement with a third party in which that third party would be entitled to certain rights in relation to the future transfer of player X. • RFC Seraing was prohibited from registering players, on the national and international level, for the duration of four complete and consecutive registration periods. • RFC Seraing was to pay a fine of 150,000 CHF in the 30 days following the decision. The FIFA DC decision was notified to RFC Seraing on 27 November 2015 and the club promptly announced that it would challenge it before the FIFA Appeals Committee. On 7 January 2016, the FIFA Appeals Committee upheld the FIFA DC’s decision and ordered RFC Seraing to pay 3,000 CHF in fees. RFC Seraing was informed of the FIFA Appeals Committee’s decision on 22 February 2016, and filed an appeal against it with the Court of Arbitration for Sport (CAS) on 9 March 2016. In its prayers for relief before the CAS, RFC Seraing sought an order for the immediate stay of the FIFA Appeals Committee’s decision and that the Panel issue an award: • Finding that the sanctions imposed by the contested decision were unlawful due to the illegality of the provisions upon which they were based; • Confirming that, in any case, in view of the prohibition from registering players imposed with the original [FIFA DC] decision (confirmed by the decision under appeal), the prohibition would only start from the first day of the first transfer period covered by the prohibition; • Only alternatively and subsidiarily, finding that the sanctions imposed by the contested decision (150,000 CHF and the prohibition from recruiting for four periods of registration) were grossly disproportionate, and substituting them with sanctions that meet the requirement of proportionality; • Finding that the Respondent should bear the costs of the proceedings and awarding the Appellant with a sum, to be determined ex aequo et bono, to compensate it for the defence costs sustained. By 12 April 2016, the CAS informed the parties of the Panel’s decision that the enforcement of the decision under appeal was to be stayed until the notification of its award. FIFA submitted its answer to RFC Seraing’s appeal on 18 April 2016. In its prayers for relief, FIFA asked the CAS Panel to reject all of RFC Seraing’s arguments and, accordingly, to: • Dismiss the club’s appeal; • Confirm the appealed decision; • Order RFC Seraing to bear the entirety of the costs of the arbitration and of FIFA’s costs. RFC Seraing also attempted to obtain a decision staying the CAS proceedings until other procedures concerning TPO, which were pending before the European

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Commission, the Belgian courts and the Swiss Federal Tribunal (SFT) had been completed and the corresponding decisions had been published. This request was denied by the CAS Panel, which rendered its award, upholding FIFA’s TPO ban, on 9 March 2017.

2 The Decision As the jurisdiction of the CAS in this matter was not contested, the main question was which law(s) governed the merits of the dispute, i.e. the validity of FIFA’s TPO ban. Due to the history of RFC Seraing’s principal lawyer, Jean-Louis Dupont, who was also one of Jean-Luc Bosman’s lawyers, it comes as no surprise that much of the award is devoted to examining the compatibility of the ban with EU law. In the past, as I have argued elsewhere, the CAS has been rather reluctant to apply EU law rigorously.1 Therefore, this case is a great opportunity to assess whether the CAS has changed its attitude in this regard.

2.1

The Applicability of EU Law to the Dispute

The first important question to determine for the Panel was whether EU law would be applicable to the case. As just noted, the CAS has had difficulties, in the past, in dealing with EU law questions. Besides its relatively old award in AEK Athens and SK Slavia Prague v. Union of European Football Associations (UEFA),2 few CAS decisions seriously engaged with EU law questions.3 Yet, after the Bosman4 and Meca-Medina5 rulings of the CJEU, it was relatively risky for the CAS to do so, as EU internal market law was clearly recognised by the Luxembourg Court as fully applicable to the regulations of SGBs. Denying this and/or engaging in poor EU law reasoning could lead to challenges against CAS awards at a later stage, as exemplified by the SV Wilhelmshaven saga.6

1

Duval (2015). CAS 98/200, AEK Athens and SK Slavia Prague v. Union of European Football Associations (UEFA), Award of 20 August 1999. 3 For a critical overview of this question, see Duval (2015). 4 CJEU, C-415/93, Union royale belge des sociétés de football association ASBL v. Jean-Marc Bosman, Royal club liégeois SA v. Jean-Marc Bosman and others and Union des associations européennes de football (UEFA) v. Jean-Marc Bosman, ECLI:EU:C:1995:463. 5 CJEU, C-519/04, David Meca-Medina and Igor Majcen v. Commission of the European Communities, ECLI:EU:C:2006:492. 6 Oberlandesgericht Bremen, 2 U 67/14, SV Wilhelmshaven v. Norddeutscher Fußball-Verband e. V, 30 December 2014. See my commentary, Duval (2016). 2

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The RFC Seraing award clearly affirms that EU law is applicable to the case because it constitutes a “mandatory provision of foreign law” within the meaning of Article 19 of the Swiss Federal Act on Private International Law (PILA).7 In accordance with this provision, mandatory rules of foreign law must be taken into account by a Swiss-seated tribunal, even if they do not form part of the lex causae, if three cumulative conditions are met: i. Such rules belong to a special category of norms which need to be applied irrespective of the law applicable to the merits of the case; ii. There is a close connection between the subject matter of the dispute and the territory where the mandatory rules are in force; iii. In view of Swiss legal theory and practice, the mandatory rules must aim to protect legitimate interests and crucial values and their application must lead to a decision which is appropriate.8 In the present case, the CAS Panel considered that the three cumulative conditions just mentioned were fulfilled because: i. EU competition law and the EU provisions on the fundamental freedoms are largely regarded as pertaining to the category of mandatory rules by the courts within the EU and by scholars. ii. The close connections between (a) the territory on which EU competition law and EU provisions on fundamental freedoms are in force and (b) the subject matter of the dispute result from the fact that the challenge against the legality of the RSTP-mandated TPO ban had an obvious impact on the EU territory. Indeed, the RSTP aims to regulate the activity of football clubs, many of which are European. Furthermore, the appealed decision affected the participation of RFC Seraing to competitions taking place on European soil. iii. Finally, the Swiss legal system shares the interests and values protected by EU law, specifically by the EU competition rules and EU fundamental freedoms.9 After the Galatasaray10 award in 2016, this part of the decision is an authoritative restatement of what appears to be consolidating as a stable jurisprudence of CAS panels with regard to the application of EU law when invoked against decisions and regulations of the SGBs. In theory, EU law could thus become a potent

TAS 2016/A/4490, RFC Seraing c. FIFA, Award of 9 March 2017, para. 73: “La Formation arbitrale considère que le droit de l’Union Européenne («droit de l’UE»), dont notamment les dispositions des traités en matière de liberté de circulation et de droit de la concurrence, doivent être prises en compte par la Formation arbitrale, dans la mesure où elles constituent des dispositions impératives du droit étranger au sens de l’article 19 de la Loi fédérale sur le droit international privé du 18 Décembre 1987 («LDIP»).” 8 This English translation is taken from CAS 2016/A/4492, Galatasaray v. UEFA, Award of 3 October 2016, para. 43. See also, with further references, Rigozzi and Hasler (2018), para. 31. 9 TAS 2016/A/4490, RFC Seraing c. FIFA, Award of 9 March 2017, para. 76. 10 CAS 2016/A/4492, Galatasaray v. UEFA, Award of 3 October 2016. See my commentary, Duval (2017). 7

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tool to challenge the status quo before the CAS.11 This, as RFC Seraing has learned in the present instance, does not mean that the SGBs’ rules will automatically be found incompatible with EU law. Instead, it merely subjects them to a duty of justification and proportionality, which will be assessed on a case-by-case basis.12

2.2

The Compatibility of FIFA’s TPO Ban with EU Law

The core of the CAS award is devoted to assessing the compatibility of the TPO ban with EU law. In doing so, the CAS rightly considered that the conditions regarding the compatibility of the private regulations of an SGB with EU free movement rights and competition rules overlap with regard to the key test: the proportionality analysis.

2.2.1

The Legitimacy of the Objectives of the FIFA TPO Ban

The Panel’s assessment focused firstly, and given the outcome mainly, on a possible disproportionate restriction of the free movement of capital guaranteed under Article 63 TFEU. As a starting point, the Panel decided to assume that this provision applies horizontally, e.g. is also invokable against a private regulator like FIFA. In reality, this is still largely territory and the CJEU has yet to take a clear stand on this question.13 However, the CAS decided to be better safe than sorry and, thus, followed a maximalist interpretation of the scope of application of Article 63 TFEU for the purposes of its decision. It is uncontested that Articles 18bis and 18ter RSTP constitute a restriction to the free movement of capital within the EU.14 Yet, as emphasized by the Panel, a restriction does not entail an automatic incompatibility with EU law. Instead, the restrictive effect might be justified by a legitimate objective and compatible with EU law, if the rule or measure is a proportionate means to attain that objective. In the present case, FIFA invoked a number of potential legitimate objectives underlying the TPO ban: • The preservation of contractual stability; • The preservation of the independence and autonomy of clubs in the management of their recruitment policy;

11

See van Rompuy (2015). See crucially CJEU, C-519/04, David Meca-Medina and Igor Majcen v. Commission of the European Communities, ECLI:EU:C:2006:492, para. 42. 13 Going much deeper into the doctrinal discussion on this point, see Lindholm (2016). 14 TAS 2016/A/4490, RFC Seraing c. FIFA, Award of 9 March 2017, para. 97. 12

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• The securing of the integrity of football and the preservation of the loyalty and equity of competitions; • The prevention of conflicts of interests and the securing of transparency in the transfer market.15 Those objectives remained uncontested by RFC Seraing, and the Panel concluded that they could be deemed legitimate in the sense of the CJEU’s jurisprudence.16 Instead, RFC Seraing tried to argue that FIFA’s ‘real’ objective in adopting the TPO ban was to ensure that clubs would be able to monopolize the financial streams generated by the transfer of players.17 Yet, the club failed to provide the necessary evidence to convince the Panel, which insisted that TPO had caused many commentators, institutions and football organisations to voice intense worries to which the objectives invoked by FIFA are a response.18 Additionally, the Panel considered “that [the] practice [of TPO] gives way to numerous risks, in particular: risks linked to the opacity of investors escaping the control of football organizations and who are able to freely sell-on their investment; risks of a restriction of the economic freedom and rights of players, through the influencing with a speculative interest of their transfer; risks of conflicts of interests, or even of rigging or manipulation of games, contrary to the integrity of competitions, as the same investor can have TPO deals with multiple clubs involved in the same competition; risks linked to the ethics of sport because the objective pursued by investors is purely a financial and speculative one, to the detriment of sportive and moral considerations”.19 Hence, the arbitrators endorsed the legitimacy of FIFA’s objectives in adopting the TPO ban.

2.2.2

The Proportionality of the FIFA TPO Ban

The key question is then whether the TPO ban can be deemed a proportionate means to attain FIFA’s legitimate objectives. It is at this most crucial stage of the evaluation of the compatibility with EU law that a number of academic commentators have denied the ban’s proportionality.20 Similarly, it is this critical part of the CAS award that will be most likely scrutinized and attacked in follow-up cases before national or European courts. It is important to note that SGBs have never failed in front of the CJEU because they were lacking a legitimate objective, but rather because their regulations were not considered adequate or necessary to attain this objective. This stage of the analysis entails political considerations and a comparative evaluation of the policy alternatives available to tackle a specific 15

Ibid., para. 101. Ibid., paras 102–104. 17 Ibid., paras 105–106. 18 Ibid., para. 107. 19 Ibid., para. 108. 20 See Lindholm (2016) and Egger (2016). 16

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problem, including an examination of their feasibility. In other words, it is not sufficient to claim that you can think in the abstract of a less restrictive alternative, there is a need to factually demonstrate that this less restrictive alternative is a credible candidate to attain the legitimate objective. This is obviously quite a difficult task for a lawyer, as it implies mobilizing interdisciplinary insights on the effectiveness of a particular regulation and its alternatives. Furthermore, procedural considerations connected to the rulemaking process that led to a particular decision or regulation will come into play. If a sporting rule has been devised via an inclusive legislative procedure and finds broad support amongst the affected actors, then it will in turn be more likely to be deemed proportionate. Instead, if a rule is the result of a secretive, exclusive and undemocratic procedure, then it will be easier to challenge its proportionality. Thus, both substantial (effects-based) and procedural (legitimacy-based) considerations are key to evaluating the proportionality of the TPO ban. In its award, the Panel insisted first that the TPO ban had limited effects on the freedom to invest in football. Indeed, it found that investors were not barred from investing in clubs or financing specific operations (such as transfers); the ban was devised only to exclude certain types or modalities of investing.21 On the procedural/legislative side, the Panel noted that the ban had been introduced after a broad consultation and on the basis of numerous, albeit unpublished, expert reports.22 An altogether positive assessment of the adoption process could be contested, especially since FIFA did not release the expert reports, which were therefore not subjected to public scrutiny. Be that as it may, the Panel also took note of the relatively long experimentation conducted with a lighter measure (Article 18bis RSTP), which proved inefficient to control the widespread recourse to TPO.23 The question from the Panel’s perspective was then whether RFC Seraing would be able to come up with a credible less restrictive alternative to rein in the anarchic use of TPO in football. The Belgian club claimed that FIFA’s legitimate objectives could have been attained through regulation and measures improving transparency24 However, the arbitrators noted that RFC Seraing failed to specify the alternative measures it envisaged.25 Instead, the Panel sided with FIFA’s argument that it lacks the capacity and jurisdiction to properly police investors, which are not subjected contractually to its disciplinary power.26 In such a context, the Panel found that the risks of conflicts of interests stemming from TPO contracts could not 21

TAS 2016/A/4490, RFC Seraing c. FIFA, Award of 9 March 2017, paras 109–112. It refers to “une phase significative d’étude, de consultation, de travaux et discussions à laquelle ont participle de nombreux interlocuteurs”, at Ibid., para. 113. 23 Ibid., para. 114. 24 Ibid., para. 116. 25 Ibid. 26 “La FIFA ne peut pas contrôler les intérêts de personnes qui ne lui sont pas affiliées, ni les contrats qui sont conclus à l'occasion ou à la suite de transferts par d’autres personnes que les clubs, joueurs et agents et dont la déclaration est obligatoire via le TMS.” Ibid., para. 117. 22

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be properly controlled by FIFA and the national federations, and the alternative measures proposed by RFC Seraing were bound to fail.27 Finally, the Panel also referred to the previously existing bans in France, England and Poland, insisting that FIFA was also aiming at harmonizing the rules applicable to the transfer market in Europe to avoid potential discriminations.28 Hence, the arbitrators concluded that FIFA’s TPO ban was a proportionate restriction of the effect of Article 63 TFEU, and therefore compatible with free movement rights under EU law. Regarding the compatibility of the ban with EU competition law, RFC Seraing argued that it constituted an unlawful restriction of free competition under Article 101 TFEU and an abuse of dominant position under Article 102 TFEU. The CAS deemed FIFA an association of undertakings for the purpose of Article 101 TFEU and recognized that the TPO ban affected trade between Member States.29 However, the arbitrators emphasized that RFC Seraing bore the burden of proving that the ban constituted, by virtue of its object or effects, a restriction of free competition within the internal market.30 In that regard, the CAS referred to the CJEU’s analytical framework developed in the Wouters31 case.32 The Panel concluded, referring to its earlier analysis and findings, that the FIFA ban had legitimate objectives and was necessary to attain those objectives, therefore it did not constitute a restriction in the sense of Article 101(1) TFEU. As far as the abuse of dominant position is concerned, after criticizing the lack of serious economic analysis in RFC Seraing’s arguments, the Panel simply reiterated its previous findings regarding the legitimate objectives and proportionality of the ban.33 The CAS swiftly rejected all the other arguments raised by RFC Seraing on the basis of the EU Charter of Fundamental Rights,34 the European Convention on Human Rights,35 and Swiss law.36 Nonetheless, it did find that the sanctions imposed on RFC Seraing by the FIFA DC were too stringent in light of the principle of proportionality and reduced them by bringing RFC Seraing’s transfer ban down to three windows and fixing the fine at CHF 150,000.

27

Ibid., para. 118. Ibid., para. 120. 29 Ibid., para. 135. 30 Ibid., para. 137. 31 CJEU, C-309/99, J. C. J. Wouters, J. W. Savelbergh and Price Waterhouse Belastingadviseurs BV v. Algemene Raad van de Nederlandse Orde van Advocaten, intervener: Raad van de Balies van de Europese Gemeenschap, ECLI:EU:C:2002:98. 32 TAS 2016/A/4490, RFC Seraing c. FIFA, Award of 9 March 2017, para. 138. 33 Ibid., para. 143. 34 Ibid., paras 145–148. 35 Ibid., paras 149–151. 36 Ibid., paras 152–161. 28

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3 Conclusion: The Dying Battle Against FIFA’s TPO Ban The CAS award was ultimately appealed by RFC Seraing before the SFT. The club was challenging the independence of the CAS vis-à-vis FIFA and the compatibility of the award with Swiss substantive public policy insofar as the latter would include EU competition law and free movement rights. In its decision, the SFT rejected both RFC Seraing’s challenge regarding CAS’s lack of independence and its argument that the TPO ban was incompatible with EU competition law.37 RFC Seraing’s legal crusade against the TPO ban is still alive in Belgium, where the club managed to obtain a partial victory in front of the Brussels Appeal Court in September 2018, as the Court allowed the case to proceed, based on its finding that there was no valid CAS arbitration clause between FIFA and RFC Seraing.38 Nonetheless, the club is still far from having prevailed on substance, and any final decision on the compatibility of the TPO ban with EU law will in all likelihood have to be taken by the CJEU, through the preliminary reference procedure. In case a preliminary reference finally lands in the docket of the Luxembourg Court, the questions that the CJEU would have to answer would be very similar to those dealt with by the CAS in the present award. Indeed, as it has done in prior free movement and competition law cases involving sports, the CJEU would allow some space for justifications and conduct a proportionality test.39 However, this test might be more challenging for FIFA than the one conducted by the CAS, as it will most likely entail a shift in the burden of proof. Where CAS assumed that it was the Appellant’s (i.e., RFC Seraing’s) duty to demonstrate that the FIFA TPO ban would be disproportionate, which led it to allocate the burden of suggesting a credible regulatory alternative to the club, the CJEU would direct the duty of justification towards FIFA. Nonetheless, there are still many good arguments that in my view would strongly support the proportionality of the ban.40 In particular, it has become clear after the revelations of the football leaks media investigations that the football transfer market is rife with instances of economic abuses, such as tax evasion, conflicts of interest, economic and mental pressuring of young players, human

37

SFT 4A_260/2017, Decision of 20 February 2018. On this decision, see Maisonneuve (2018). See in general Peiffer (2019) and for my own skeptical view of the importance of the decision, see Antoine Duval, Seraing vs. FIFA: Why the rumours of CAS’s death have been greatly exaggerated, 10 September 2018. https://www.asser.nl/SportsLaw/Blog/post/seraing-vs-fifa-whythe-rumours-of-cas-s-death-have-been-greatly-exaggerated. Accessed 6 November 2019. 39 See for example CJEU, C-519/04, David Meca-Medina and Igor Majcen v. Commission of the European Communities, ECLI:EU:C:2006:492 and CJEU, T-193/02, Laurent Piau v. Commission of the European Communities, ECLI:EU:T:2005:22. 40 Antoine Duval, Unpacking Doyen’s TPO Deals: In defence of the compatibility of FIFA’s TPO ban with EU law, 18 December 2015. http://www.asser.nl/SportsLaw/Blog/post/unpacking-doyens-tpo-deals-in-defence-of-the-compatibility-of-fifa-s-tpo-ban-with-eu-law. Accessed 6 November 2019. For arguments in the other direction, see Hall (2015) and de Mendonça (2018). 38

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trafficking and match-fixing.41 In this context, FIFA’s limited capacity to police the transfer market and to compel the production of certain documents by parties that are not under its direct contractual authority does support the need for a complete ban of TPO. Indeed, a ban remains easier to police than a more complex regulation, which would allow for many loopholes, making it difficult to monitor. Certainly, this has not put an end to the operation of the transfer system, which is in itself a source of many of the economic abuses mentioned above, but this fact alone does not constitute a good justification to allow TPO. Furthermore, the steady support of players through their union, FIFPro, in favor of the TPO ban will also militate for its legitimacy, as players are the primary affected party, and they have demonstrated a strong opposition to the use of TPO.42 The broader lesson of this TPO saga is that EU law is (at last) being taken a bit more seriously as a tool to challenge SGBs and their rules before the CAS. It becomes also clear that EU law is not blind to the regulatory function SGBs exercise. What EU law targets is the SGBs’ illegitimate, disproportionate, and abusive regulatory behaviour to the detriment of the affected actors. When invoking EU law, sports lawyers must be aware of the need to show concretely the disproportionate nature of the challenged rule or decision. In other words, a panel will not be swayed by simply pointing out a restrictive effect. What will be needed instead is an interdisciplinary engagement with the economic and social effects of a regulation as well as with the legislative process underlying its drafting, adoption and enactment. In turn, SGBs must also be able to advance good justifications for the rationality and legitimacy of their regulations. In the end, the difficulties that FIFA faces in regulating the transfer system might call for a deep reform and greater involvement by the EU in the regulation of European football. In particular, it is probably time for criminal authorities at the EU level to control much more actively the financial activities linked to transfers. A comprehensive rethink of the transfer system could also limit the opportunities for clubs to speculate on players as they would on financial assets. In this regard, the football family could certainly devise an alternative mechanism to ensure that the movements of players are not linked with important financial rewards.

41

On the football leaks investigative project, see European Investigative Collaborations, Football Leaks Continue. https://eic.network/projects/football-leaks-continues. Accessed 6 November 2019. 42 FIFPro, the main players’ union, has supported the TPO ban since the beginning. See FIFPro, FIFPro versus Third Party Ownership, 28 March 2014. https://fifpro.org/news/fifpro-versus-thirdparty-ownership/en/. Accessed 6 November 2019. See also the recent chapter by the current FIFPro Secretary General strongly supporting the TPO ban, Baer-Hoffmann (2016).

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References Baer-Hoffmann J (2016) Third-party ownership of football players: human beings or traded assets? In: Global Corruption Report: Sport, Transparency International, pp. 153–164 de Mendonça P H R (2018) Third-party ownership prohibition in football and European Union fundamental freedoms: CAS decision on RFC Seraing case. The International Sports Law Journal 18:39–45 Duval A (2015) The Court of Arbitration for Sport and EU Law: Chronicle of an Encounter. Maastricht Journal of European and Comparative Law 22:224–255 Duval A (2016) Oberlandesgericht Bremen, 2 U 67/14, SV Wilhelmshaven v. Norddeutscher Fußball-Verband e.V, 30 December 2014. In: Duval A, Rigozzi A (eds) Yearbook of International Sports Arbitration 2015. T.M.C. Asser Press, The Hague Duval A (2017) CAS 2016/A/4492, Galatasaray v. UEFA, Award of 3 October 2016. In: Duval A, Rigozzi A (eds) Yearbook of International Sports Arbitration 2016. T.M.C. Asser Press, The Hague Egger S (2016) Third-party Ownership of Players’ Economic Rights und Kartellrecht. In: Vieweg K (ed) Inspirationen des Sportrechts. Duncker & Humblot, Berlin, pp. 307–331 Hall T (2015) After the Ban: The Financial Landscape of International Soccer After Third-Party Ownership. Oregon Law Review 94:179–221 Lindholm J (2016) Can I please have a slice of Ronaldo? The legality of FIFA’s ban on third-party ownership under European Union law. The International Sports Law Journal 15:137–148 Maisonneuve M (2018) Chronique de jurisprudence arbitrale en matière sportive. Revue de l’arbitrage 2018 3:666–675 Peiffer C (2019) RFC Seraing & Doyen Sports v. FIFA: Changing the Rules of the Game in International Sports Arbitration? New York University Journal of International Law and Politics 51:1359–1375 Rigozzi A, Hasler E (2018) Article R58 CAS Code – Commentary. In: Arroyo M (ed) Arbitration in Switzerland – The Practitioner’s Guide, 2nd edn. Wolters Kluwer, Alphen aan den Rijn van Rompuy B (2015) The Role of EU Competition Law in Tackling Abuse of Regulatory Power by Sports Associations. Maastricht Journal of European and Comparative Law 22:179–208

CAS 2015/A/4345, Trabzonspor Sportif Yatirim A.S. v. UEFA & CAS 2015/A/ 4347, Fenerbahce SK v. Trabzonspor A.S. and UEFA, Award of 13 April 2017 Cem Kalelioğlu

Contents 1

Facts and Procedure of the Case......................................................................................... 1.1 The Parties in Dispute ................................................................................................ 1.2 The July 2011 Match-Fixing Scandal and Factual Background ............................... 1.3 Proceedings Before the UEFA CEDB and the UEFA Appeals Body...................... 1.4 Proceedings Before the CAS...................................................................................... 2 Issues in Dispute and the Panel’s Findings ........................................................................ 2.1 Issues in Dispute......................................................................................................... 2.2 The Panel’s Findings.................................................................................................. 3 Remarks on the Panel’s Findings ....................................................................................... 3.1 Specific Arbitration Clause by Reference and Corporate Veil Piercing in International Sports Arbitration ............................................................................. 3.2 A Third Party’s Standing to Appeal Under Article 62(2) of the UEFA Statutes........................................................................................................................ 3.3 Match-Fixing Allegations and UEFA Europa League Admission Form.................. References ..................................................................................................................................

66 67 67 68 69 70 70 71 74 74 77 80 81

Abstract The case under review is related to the July 2011 Turkish match-fixing scandal and could be described as the second wave of the Turkish match-fixing saga, after Fenerbahçe S.K. v UEFA in 2014. Unlike the first wave, the case pitched another Turkish club, Trabzonspor, not only against UEFA but also against its old rival Fenerbahçe S.K. in a hearing room in Lausanne, Switzerland. As will be discussed further, these complex appeal arbitration proceedings, besides being a landmark case for Turkish and European football, also had an important impact on

C. Kalelioğlu (&) Wilmer Cutler Pickering Hale & Dorr, London, UK e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2019 A. Duval and A. Rigozzi (eds.), Yearbook of International Sports Arbitration 2017 https://doi.org/10.1007/15757_2019_25

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UEFA’s match-fixing related legal framework. The arbitral proceedings involved highly complex, substantive and procedural issues such as: standing to appeal; corporate veil piercing; UEFA Admission Form and the notion of match-fixing. The importance of this case can be summarised as follows: first, prior to this case, UEFA rules and regulations were silent on what type of match-fixing proceedings should be mentioned by a football club when submitting its Admission Form for the UEFA Champions League or the UEFA Europa League. The Panel interpreted the relevant UEFA regulations at the time to only require parties to mention those match-fixing proceedings that were “currently” opened. This decision presumably led UEFA to immediately amend its rules and regulations in light of the findings of the Panel, which will be discussed in detail. Second, on the question of whether a parent company of a football club can appeal a UEFA decision involving that football club before the CAS, the Panel found that the parent company cannot appeal such a decision unless it can prove that it is sufficiently “affected” by it in accordance with UEFA rules and regulations. Third, in relation to the Swiss corporate veil piercing theory, Durchgriffshaftung, the Panel found that this can only apply in cases involving abuse of rights, and it can only be used to extend the arbitration agreement to a third party who is using the corporate veil to avoid liability. This case commentary will therefore discuss: (1) the facts and procedure of the case; (2) the issues in dispute and the Panel’s findings; and (3) the Author’s analysis of those findings.










Keywords Match-fixing CAS CAS appeals proceedings Arbitration clause by reference UEFA admission form Corporate veil piercing International sports arbitration Fenerbahce Trabzonspor UEFA



















1 Facts and Procedure of the Case The case under review arose in connection with the July 2011 match-fixing scandal, also commonly referred to by the Turkish media as the 3 July 2011 match-fixing prosecution (“3 Temmuz Şike Davasi”). The proceedings involve two rival Turkish football clubs competing in the Turkish Super League and their interconnected battle against UEFA. To analyse this complex arbitration accurately, this paper will discuss: (Sect. 1.1) the parties in dispute; (Sect. 1.2) the July 2011 match-fixing scandal and its factual background; (Sect. 1.3) proceedings before the UEFA Control, Ethics and Disciplinary Body (UEFA CEDB); and the UEFA Appeals Body; and finally (Sect. 1.4), appeal proceedings before the CAS.

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The Parties in Dispute

Trabzonspor Sportif Yatirim ve Futbol İşletmeciliği A.Ş. (Trabzonspor) is a professional football club established under Turkish law in the form of a joint stock company with its registered office in Trabzon, Turkey.1 Fenerbahçe Spor Kulübü (Fenerbahçe S.K.) is a sports club in the form of an association established under Turkish law and subject to the Law No. 5253 on Associations.2 Fenerbahçe S.K. owns 63% of stocks in Fenerbahçe Futbol A.Ş. (Fenerbahçe), which is a joint-venture company and a professional football club affiliated with the Turkish Football Federation (TFF). Thus, while Fenerbahçe is a direct member of TFF, Fenerbahçe S.K. is not. The Union of European Football Associations (UEFA) is an association established under Swiss law and the governing body of European football.

1.2

The July 2011 Match-Fixing Scandal and Factual Background

The Turkish Anti-Organized Crimes Division Directorate (‘Organize Suçlarla Mücadele Şube Müdürlüğü’) initiated operations on 3 July 2011 against football players, football club representatives and player agents for their alleged involvement in activities intended to influence the outcome of various matches in the 2010/ 2011 Turkish Super League season. Operations were initiated according to the newly enacted Law on Prevention of Violence and Disorder in Sports (‘Sporda Şiddet ve Düzensizliğin Önlenmesine Dair Kanun’).3 Article 11 of this statute provided that: “[A] person who provides a remuneration or other benefit to another person in order to influence the outcome of a particular sporting event shall be punished by imprisonment from five years to twelve years and by a judicial fine of up to twenty thousand days.”4

1

See Public Disclosure Platform, Trabzonspor Sportif Yatirim ve Futbol Isletmeciligi Ticaret A.Ş. https://www.kap.org.tr/en/sirket-bilgileri/ozet/1400-trabzonspor-sportif-yatirim-ve-futbolisletmeciligi-ticaret-a-s. Accessed 17 November 2018; CAS 2015/A/4345, Trabzonspor Sportif Yatirim A.S. v. UEFA & CAS 2015/A/4347, Fenerbahce SK v. Trabzonspor A.S. and UEFA, Award of 13 April 2017, para. 1. 2 See Law No. 5253 on Associations. 3 Law No. 6222 on Prevention of Violence and Disorder in Sports. 4 Law No. 6222 on Prevention of Violence and Disorder in Sports, Art. 11. Under Turkish criminal law, judicial fines are ordered by the courts, taking into account offenders’ economic circumstances and the number of days set forth by the relevant provision for a given offence. Statutes set out the number of days that is appropriate for a given offence, and the number of days is then multiplied by a sum between TRY 20 and TRY 100 per day depending on the economic circumstances of the offender. See Criminal Code, Art. 52; Law No. 5275 on Enforcement of Criminal and Security Measures, Art. 126.

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The special prosecutor conducting the operations arrested 61 individuals, including Fenerbahçe and Trabzonspor officials that were allegedly involved in activities that infringed Article 11 of the Law on Prevention of Violence and Disorder in Sports. On 2 July 2012, the 16th High Criminal Court of Istanbul decided that Fenerbahçe football club’s officials had illegally taken part in match-fixing.5 However, the court acquitted Mr. Sadri Şener and Mr. Zeki Mazlum of Trabzonspor who were allegedly involved in the match-fixing activities on behalf of Trabzonspor.6 Fenerbahçe won the 2010–2011 Turkish Super League (‘Süper Lig’) and qualified automatically for the group stage of the UEFA Champions League for the season 2011–2012. However, on 10 July 2013, the UEFA Appeals Body rendered the decision banning Fenerbahçe “from participating in the next two UEFA club competitions for which it would qualify,”7 which was ultimately confirmed by the CAS.8 There has been no sanction imposed by UEFA against Trabzonspor. Fenerbahçe S.K. took issue with this situation and filed a complaint with UEFA. The remainder of this chapter will analyse in greater detail the complex proceedings arising from Fenerbahçe S.K.’s complaint.

1.3

Proceedings Before the UEFA CEDB and the UEFA Appeals Body

On 18 June 2014, Fenerbahçe S.K. filed a complaint against Trabzonspor before the UEFA CEDB, requesting UEFA “[t]o declare Trabzonspor ineligible to participate in the 2014–2015 UEFA Europa League and to impose disciplinary sanctions against it.”9 On 17 July 2014, the UEFA CEDB appointed a UEFA Ethics and Disciplinary Inspector who in turn drafted a report advising the UEFA CEDB to find Fenerbahçe S.K.’s complaint inadmissible and to rule that: “[T]rabzonspor AS is found guilty of violating articles 11 and 12 of the 2013 UEFA Disciplinary Regulations and is therefore fined EUR 10,000.”10 On 11 December 2014, the UEFA CEDB issued its decision dismissing Fenerbahçe S.K.’s complaints and fining Trabzonspor EUR 10,000 for failing to

5 CAS 2015/A/4345, Trabzonspor Sportif Yatirim A.S. v. UEFA & CAS 2015/A/4347, Fenerbahce SK v. Trabzonspor A.S. and UEFA, Award of 13 April 2017, para. 12. 6 Ibid., para. 13. 7 CAS 2013/A/3256, Fenerbahce Spor Kulubu v. UEFA, Award of 11 April 2014, para. 68. 8 See CAS 2013/A/3256, Fenerbahce Spor Kulubu v. UEFA, Award of 11 April 2014. 9 CAS 2015/A/4345, Trabzonspor Sportif Yatirim A.S. v. UEFA & CAS 2015/A/4347, Fenerbahce SK v. Trabzonspor A.S. and UEFA, Award of 13 April 2017, para. 15. 10 Ibid.

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accurately complete the Admission Criteria Form for the UEFA Club Competitions 2014/2015.11 In particular, the UEFA CEDB found that: [E]ven if the match fixing claim forwarded by Fenerbahce SK cannot be definitively followed by a comfortable satisfaction standard of proof, it is uncontested that Trabzonspor AS did not disclose by means of the admission form … the information about those criminal proceeding and the disciplinary procedures conducted by the Turkish Football Federation authorities …12

Fenerbahçe S.K. and Trabzonspor both appealed the UEFA CEDB decision to the UEFA Appeals Body, and thus, their respective proceedings were consequently consolidated. On appeal, the UEFA Appeals Body dismissed Fenerbahçe S.K.’s appeal due to Fenerbahçe S.K. lacking the necessary standing to appeal as it was not a party ‘directly affected’ by the Decision of the UEFA CEDB.13 Likewise, the UEFA Appeals Body dismissed Trabzonspor’s appeal, holding as follows: “It is notorious that the President of Trabzonspor, Mr. Sadri Sener, and the security officer of the club, Mr. Zeki Mazlum, were both involved in investigations conducted by the Turkish prosecutors deriving in a criminal procedure before the 16th Criminal Court of Istanbul …. In the eyes of the Appeals Body, the above-mentioned facts clearly show that, even if the individuals of the club were finally acquitted by the 16th Criminal Court of Istanbul for match-fixing offences at domestic level, Trabzonspor, by means of various individuals (notably, its President), participated at national level in some way or other in serious criminal procedures based on alleged match fixing activities. Regardless of the outcome of the said criminal proceedings in Turkey, the UEFA Appeals body considers that this decidedly relevant information falls under the club’s obligation foreseen in Article 2.07 UEL Regulations in combination with Article 11 and 12 DR.”14

Hence, the UEFA Appeals Body upheld the UEFA CEDB decision.

1.4

Proceedings Before the CAS

On 18 December 2015, Trabzonspor and Fenerbahçe S.K. each individually appealed the UEFA Appeals Body’s decision before the CAS. Trabzonspor inter alia requested in its appeal to the CAS to set aside the UEFA Appeals Body’s decision and to declare that Trabzonspor did not fail to properly complete the Admission Form for the 2014/2015 UEFA Club Competitions. Trabzonspor’s appeal was registered by the CAS Court Office under the reference CAS 2015/A/4345.15

11

Ibid., Ibid., 13 Ibid., 14 Ibid., 15 Ibid., 12

para. para. para. para. para.

19. 25. 34. 35. 39.

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Fenerbahçe S.K. inter alia however, in a separate appeal, requested from the CAS to set aside the UEFA Appeals Body’s decision, to accept its complaint, and declare Trabzonspor ineligible to participate in the next UEFA competition to which it may qualify. Fenerbahçe S.K.’s appeal was registered by the CAS Court Office under the reference CAS 2015/A/4347.16 On 4 January 2016, the President of the CAS Appeals Arbitration Division decided to consolidate the proceedings upon the parties’ consent in accordance with Article R52 of the CAS Code.17 It is noteworthy that the consolidation decision stemmed from the fact that the appeals opposed the same parties and related to the same decision (i.e. the UEFA Appeals Body’s decision). On 2 March 2016, UEFA filed its replies to Trabzonspor and Fenerbahçe S.K.’s respective Appeal Briefs. UEFA mainly requested the CAS to dismiss Trabzonspor’s appeal and to declare Fenerbahce’s appeal inadmissible.18 On the same day, Trabzonspor also filed its reply to Fenerbahçe S.K.’s Appeal Brief and requested the CAS declare the appeal inadmissible. Consequently, Trabzonspor requested that the proceedings be bifurcated so as for the CAS to decide first on its jurisdiction, on Fenerbahçe S.K.’s standing to appeal and on the admissibility of its appeal.19 However, despite the bifurcation request, both parties were granted the opportunity to plead all arguments before the Panel, which was comprised of Mr. Jean-Philippe Rochat (Chairman), Mr. Philippe Sands Q.C. and Dr. Jan Räker.

2 Issues in Dispute and the Panel’s Findings 2.1

Issues in Dispute

Despite the consolidation of the proceedings, the Panel determined the issues in dispute in both matters (i.e. CAS 2015/A/4347 and CAS 2015/A/4345) separately as they were considered very distinct.

16

Ibid. Ibid., paras. 43–46; see CAS Code, Art. R52 (“Where a party files a statement of appeal in connection with a decision which is the subject of a pending appeal before CAS, the President of the Panel, or if she/he has not yet been appointed, the President of the Division, may decide, after inviting submissions from the parties, to consolidate the two procedures”). 18 CAS 2015/A/4345, Trabzonspor Sportif Yatirim A.S. v. UEFA & CAS 2015/A/4347, Fenerbahce SK v. Trabzonspor A.S. and UEFA, Award of 13 April 2017, para. 53. 19 Ibid., para. 51. 17

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CAS 2015/A/4347, Fenerbahce SK v. Trabzonspor A.S. and UEFA

According to the Panel, the main issues in dispute were: – Does the CAS have jurisdiction to adjudicate Fenerbahçe S.K.’s appeal …? – Does Fenerbahçe S.K. have standing to appeal …? – If the Panel concludes that it has jurisdiction … is the evidence on record sufficient to sanction Trabzonspor …? – May Fenerbahçe S.K. appeal the Appealed Decision with respect to the fine imposed on Trabzonspor in relation to way it filled out the 2014/2015 Admission Form for the UEFA Club Competitions?20

2.1.2

CAS 2015/A/4345, Trabzonspor Sportif Yatirim A.S. v. UEFA

The Panel identified the following main issues: – Should Trabzonspor have mentioned in the 2014/2015 Admission Form for the UEFA Club Competitions information relating to the proceedings opened in Turkey in relation to the 2010/2011 Turkish Super Lig? – If so, which sanction should be pronounced against Trabzonspor?21

2.2

The Panel’s Findings

To conduct a close analysis of the Panel’s findings in this paper, they will be discussed for CAS 2015/A/4347, Fenerbahce SK v. Trabzonspor A.S. and UEFA and for CAS 2015/A/4345, Trabzonspor Sportif Yatirim A.S. v. UEFA separately.

2.2.1

CAS 2015/A/4347, Fenerbahce SK v. Trabzonspor A.S. and UEFA

The Panel considered two issues with regard to Fenerbahçe S.K.’s appeal: (a) jurisdiction; and (b) Fenerbahçe S.K.’s standing to appeal.

20

Ibid., para. 68. Ibid.

21

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2.2.1.a Jurisdiction: Can an Arbitration Agreement Contained in the UEFA Statutes Substitute the Parent Company for Its Subsidiary that Is Subject to a Specific Arbitration Clause? Until 2011, Fenerbahçe S.K. had been a member of the Turkish Football Federation.22 However, in 2011, club representatives in an effort to transform the club into a more corporate structure created Fenerbahçe, which is a joint stock company established under Turkish law.23 Fenerbahçe was therefore registered with TFF and replaced Fenerbahçe S.K.24 However, Fenerbahçe S.K., at the time of the proceedings, held 63% of the shares in Fenerbahçe and it was therefore the majority shareholder of the joint stock company.25 The Panel had to review whether the arbitration clause, contained in Article 62 (1) of the UEFA Statutes, could bind a majority shareholder of the signatory.26 In its assessment, the Panel first noted that there was no ‘specific arbitration agreement’ in place that could bind Fenerbahçe S.K. to an appeal procedure as envisaged in Article R47 of the CAS Code. The Panel also found that Fenerbahçe S.K. was not a member of TFF which led the Panel to a prima facie conclusion that Fenerbahçe S.K. was not bound by the TFF statutes that require its members to comply with the UEFA Statutes which in turn include an arbitration clause in favor of the CAS.27 The Panel moved on to analyse the issue in light of Swiss law.28 It first noted that according to Article 53 of the Swiss Civil Code, Fenerbahçe S.K. and Fenerbahçe had separate legal personalities.29 The issue before the Panel was therefore, whether the Swiss legal theory on piercing the corporate veil

22

See CAS 2015/A/4345, Trabzonspor Sportif Yatirim A.S. v. UEFA & CAS 2015/A/4347, Fenerbahce SK v. Trabzonspor A.S. and UEFA, Award of 13 April 2017, para. 74. 23 See Turkish Commercial Registry Gazette, 5 July 2012, no. 8105, p. 1483; Devecioglu et al. (2012), pp. 35–42. 24 See Türkiye Futbol Federasyonu, Fenerbahçe A.S., 2018, http://www.tff.org/Default.aspx? pageID=28&kulupId=3592. Accessed 17 November 2018. 25 See CAS 2015/A/4345, Trabzonspor Sportif Yatirim A.S. v. UEFA & CAS 2015/A/4347, Fenerbahce SK v. Trabzonspor A.S. and UEFA, Award of 13 April 201, para. 74; see also Merkezi Kayıt İstanbul, FENERBAHÇE FUTBOL A.Ş. https://www.kap.org.tr/en/sirket-bilgileri/genel/ 4028e4a240e95dc90140ede7351a013d. Accessed 17 November 2018. 26 See UEFA Statutes, Art. 62(1) (“Any decision taken by a UEFA organ may be disputed exclusively before the CAS in its capacity as an appeals arbitration body, to the exclusion of any ordinary court or any other court of arbitration”). 27 CAS 2015/A/4345, Trabzonspor Sportif Yatirim A.S. v. UEFA & CAS 2015/A/4347, Fenerbahce SK v. Trabzonspor A.S. and UEFA, Award of 13 April 2017, para. 78; see Turkish Football Federation Statute, Art. 2(m), 11(b), 13(e). 28 See UEFA Statutes, Art. 64(1) (“These Statutes shall be governed in all respects by Swiss law”); see also CAS Code, Art. R58. 29 CAS 2015/A/4345, Trabzonspor Sportif Yatirim A.S. v. UEFA & CAS 2015/A/4347 Fenerbahce SK v. Trabzonspor A.S. and UEFA, Award of 13 April 2017, para. 81; see Swiss Civil Code, Art. 53 (“Legal persons may acquire all rights and assume all obligations…”).

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(‘Durchgriffshaftung’) could apply to extend an arbitration agreement to a majority shareholder of a company that is bound by an arbitration agreement. The Panel responded to this question in the negative and held that the theory of Durchgriffshaftung could only be used when there is an abuse of rights. According to the Panel, the theory is applicable: “For example, when a company was established for the sole purpose of avoiding contractual or statutory obligations … The theory of Durchgriff does not give rise to an extension of the arbitration agreement but rather to a substitution of one of the parties involved in concluding it.”30 The Panel concluded that in the present case there was no indication that there had been an abuse of rights to invoke the application of the corporate veil piercing theory. Hence, it refused the jurisdiction to adjudicate the matter 2015/A/4345.31

2.2.1.b Does Fenerbahçe S.K. Have Standing to Appeal? Although the Panel refused jurisdiction, it noted that Fenerbahçe S.K.’s appeal would also have been dismissed because of lack of standing to appeal. The Panel reasoned: As a mere shareholder of a professional football club, [Fenerbahçe S.K.] cannot be “directly affected” by the decision under review in the sense of Article 62(2) of the UEFA Statutes. Furthermore, Fenerbahce S.K. was not the addressee of the Decision challenged and was not directly affected by it; at least Fenerbahce S.K. did not establish how a modification or the annulment of the Appealed Decision would have a concrete factual or legal impact on Fenerbahce S.K.32

2.2.2

2015/A/4345, Trabzonspor Sportif Yatirim A.S. v. UEFA: Admission Form and Match-Fixing Allegations

In the above referenced matter, the Panel discussed whether Trabzonspor should have mentioned in the 2014/2015 Admission Form for the UEFA Club Competitions information relating to the proceedings opened in Turkey in relation to the 2010/2011 Turkish Super Lig. The Panel first considered Articles 11 and 12 of the UEFA Disciplinary Regulations and held that these provisions should be interpreted in light of their literal meaning and consistently with Swiss law.33 Having then examined these provisions the Panel held that: “The provisions under scrutiny cannot be interpreted in such a way as to require a reasonable reader (including a club)—which has

30

CAS 2015/A/4345, Trabzonspor Sportif Yatirim A.S. v. UEFA & CAS 2015/A/4347, Fenerbahce SK v. Trabzonspor A.S. and UEFA, Award of 13 April 2017, para. 81. 31 Ibid., paras. 82–83. 32 Ibid., para. 87. 33 Ibid., para. 99.

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always denied being implicated in match-fixing activities—to understand that it should have disclosed that some of its officials had been tried and acquitted in earlier proceedings …”34 The Panel then proceeded to analyse the meaning of Article 4.01(m) of the Regulations of the UEFA Europa League for the 2014/2015 Season which required a participant club “to inform the UEFA administration about any disciplinary procedure opened against the club and/or its players and/or its officials by its association and/or its professional league for allegedly arranging or influencing the outcome of a match at national level.”35 Having applied a literal interpretation, the Panel found that: “the provision would only require a club to disclose criminal proceedings currently ‘opened’ at the time of the competition at stake.”36 The Panel further noted that: “it may thus well be that UEFA’s intention is to require the clubs to disclose any past criminal proceedings, even if such proceedings have been terminated. However, the Panel finds that a club cannot reasonably understand of Article 4.01(m) that it must disclose such information.”37 The Panel therefore concluded that Trabzonspor did not fail to accurately complete the Admission Criteria Form for the UEFA Club Competitions 2014/2015 and consequently upheld Trabzonspor’s appeal.

3 Remarks on the Panel’s Findings This complex arbitration requires a close study to analyse the findings of the Panel and their impact on international sports arbitration and UEFA’s legal framework. To this end, this section will discuss: (Sect. 3.1) Arbitration clauses by reference and corporate veil piercing in international sports arbitration; (Sect. 3.2) a third party’s standing to appeal under Article 62(2) of the UEFA Statutes; and finally (Sect. 3.3), match-fixing allegations and the UEFA Admission Form.

3.1

Specific Arbitration Clause by Reference and Corporate Veil Piercing in International Sports Arbitration

Arbitration clauses by reference are an important feature of CAS appeal proceedings. The notion is explained by several authors as follows:

34

Ibid., para. 101. Regulations of the UEFA Europa League, 2014/2015 Season, Art. 4.01(m). 36 CAS 2015/A/4345, Trabzonspor Sportif Yatirim A.S. v. UEFA & CAS 2015/A/4347, Fenerbahce SK v. Trabzonspor A.S. and UEFA, Award of 13 April 2017, paras. 105–106. 37 Ibid., para. 108. 35

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In practice however, athletes do not formally adhere to the statutes of the IF (which contains the arbitration clause). The statutes of the club or of the NF of the athlete merely refer to the obligations included in the statutes of the IF. The arbitration clause by reference can be either specific or global: the former is a clause included in a pre-existing and distinct document, to which the parties to the arbitration agreement refer, and respects the conditions set in Article 178 paragraph 1 PILA. The latter merely refers to the document but not to the arbitral clause which is included in it …38

Although the above statement only mentions athletes, the same view is also applicable to the clubs that are member of national associations and in turn indirect members of governing bodies (i.e. FIFA, UEFA, etc.). Hence, as explained by the authors, an arbitration clause by reference can be specific (“renvoi spécifique”) or global (“renvoi global”) in nature. In the case under review, TFF’s Statutes contained a specific arbitration clause by reference in favor of CAS for its members. This stems from Article 11(b) of the TFF Statutes which requires all members of TFF to recognise an arbitration clause contained in UEFA’s statutes and regulations.39 As previously explained, as of 2011, Fenerbahçe S.K. ceased to be member of TFF and was replaced by Fenerbahçe. Hence, as noted by the Panel, the arbitration clause contained in the UEFA Statutes by reference of TFF’s Statute could only bind Fenerbahçe from the point of replacement.40 Accordingly, in the circumstances, the Panel had to go further and review whether the specific arbitration clause incorporated by reference which bound Fenerbahçe could also bind its parent legal entity, Fenerbahçe S.K., by virtue of the theory of corporate veil piercing. By virtue of the principle of privity, under most national laws, parties to an arbitration agreement are “the entities that formally executed, and expressly assumed the status of parties to, the underlying contract containing the arbitration clause.”41 However, many jurisdictions have applied different theories to extend an arbitration agreement to third parties. Hence, the extension of an arbitration clause 38

Reeb and Mavromati (2015), p. 36; see Rigozzi (2005), pp. 426–433; PILA, Art. 178(1); see also Berger and Kellerhals (2015), paras. 451–462; Born (2014), p. 690; Kaufmann-Kohler and Rigozzi (2015), paras. 3.91–3.96; Rigozzi and Hasler (2018), p. 1575 (“According to the well-established case law of the Swiss Federal Supreme Court concerning so-called ‘specific’ arbitration agreements by reference, it is generally accepted that a provision in the regulations of the sports-governing body that has issued the decision under appeal specifically referring to a CAS arbitration clause contained in the regulations of another governing body is sufficient to establish CAS jurisdiction: in such a case, the arbitration clause is deemed to have been validly incorporated in the regulations of the governing body that issued the decision”). 39 Turkish Football Federation Statute, Art. 11(b) (“A statement by the representatives of the applicant that [the applicant] will comply with all the statutes, regulations and decisions of FIFA, UEFA and TFF and that [the applicant] recognizes the jurisdiction of CAS/TAS as specified in their statutes and [the applicant] will ensure that its members, clubs, officials and footballers will comply with them”). 40 See CAS 2015/A/4345, Trabzonspor Sportif Yatirim A.S. v. UEFA & CAS 2015/A/4347 Fenerbahce SK v. Trabzonspor A.S. and UEFA, Award of 13 April 2017, para. 78. 41 Born (2014), p. 1410.

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to third parties may occur through the application of different theories under these jurisdictions; for example “[t]heories of agency, alter ego status (or veil piercing), ‘group of companies,’ estoppel, guarantor relations, third party beneficiary rights, succession, assignment, assumption.”42 The same is true in Switzerland; Swiss courts and legal doctrine have recognised the extension of an arbitration agreement to third parties under various legal theories.43 One of these theories, as analysed by the Panel, is the theory of piercing the corporate veil (‘Durchgriffshaftung’). The theory seems to have a limited application under Swiss law as it requires ‘a showing of abuse or fraud.’44 And the theory is linked to Article 2 of the Swiss Civil Code, recognising good faith.45 One CAS panel previously held the following on the application of this theory: To pierce the corporate veil a shareholder must have abusively used the company to defraud the law in one of the following manners: bad faith conduct evidencing an intention to evade contractual obligations, commingling of corporate and shareholders assets, under capitalization, or conducting business with lack of corporate formalities.46

In parallel with this view, leading Swiss arbitration scholars have noted that the theory is only applicable where there is an abuse of rights by the members of the legal entity in question: Nevertheless, it is well-established practice under Swiss law that, based on the principles of good faith, the independent status of a legal entity can be disregarded and the underlying economic reality be considered as decisive where the insistence on the separate existence of such legal entity would amount to an abuse of rights (‘piercing the corporate veil’ – Durchgriffshaftung). For example, a company established for sole purpose of frustrating the justified claims of third parties or in order to avoid contractual or statutory obligations is considered as an abuse of rights.47

To summarise, the Panel in the present case made important findings regarding the application of the theory of piercing the corporate veil in international sports arbitration. It appears from the decision that the theory requires the party alleging the extension of an arbitration agreement to a third party to show an abuse of rights. According to the Panel, the theory is applicable “when a company was established 42

Born (2014), p. 1406; see also Hanotiau (2006), para. 12. See SFT 4C.40/2003, Judgement of 19 May 2003 (“an arbitration clause is binding only on those parties which have entered into a contractual agreement to submit to arbitration, whether directly or indirectly through their representatives. Exceptions to this rule arise in cases of legal succession, retroactive approval of an arbitration clause or attempts to pierce the corporate veil of a legal entity in the case of abusive objections to the clause”); see also Kaufmann-Kohler and Rigozzi (2015), paras. 3.152–3.176; Born (2014), p. 1411. 44 Kaufmann-Kohler and Rigozzi (2015), para. 3.175. 45 Swiss Civil Code, Art. 2 (“Everyone is required to exercise their rights and perform their duties according to the rules of good faith”). 46 CAS 96/161, International Triathlon Union (ITU) v Pacific Sports Corp. Inc., Award of 4 August 1999, para. 5. 47 Berger and Kellerhals (2015), para. 571; see also Kaufmann-Kohler and Rigozzi (2015), para. 3.175. 43

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for the sole purpose of avoiding contractual or statutory obligations.”48 It appears from the decision that this theory is not applicable when a party is relying on it only to benefit from it. Rather, it may be applicable only against a party who is manifestly abusing the corporate veil.

3.2

A Third Party’s Standing to Appeal Under Article 62(2) of the UEFA Statutes

Under Swiss law, the question of standing to sue (“légitimation active”) and to be sued (“légitimation passive”) are reviewed as part of the merits and not admissibility of an appeal.49 Therefore, raising an objection to the jurisdiction because of lack of legal interest is not a sufficient basis to allow the CAS to refuse its jurisdiction. This is why, in the present case, the Panel indicated in its examination of the standing to appeal that “the question related to the standing to appeal of Fenerbahçe S.K., which is an issue linked to the merits of the case, does not need to be addressed any more.”50 As noted above, despite this finding, the Panel briefly examined whether Fenerbahçe S.K. could have standing to appeal if the Panel would have decided that it had jurisdiction to adjudicate the matter. In international sports arbitration, the question of whether a party has standing to appeal is primarily determined in the concerned international federation’s rules and regulations.51 However, according to CAS case law, any requirement in relation to the standing for appeal, as set forth in an international federation’s rules and regulations, cannot be more restrictive than the one set forth by Swiss statutory law.52 48

CAS 2015/A/4345, Trabzonspor Sportif Yatirim A.S. v. UEFA & CAS 2015/A/4347, Fenerbahce SK v. Trabzonspor A.S. and UEFA, Award of 13 April 2017, para. 81; see also SFT 113 II 31, para. 2c. 49 See SFT 4A_562/2015, decision of 9 December 2015, para. 4; see also SFT 128 III 50 (“Active or passive legitimation [standing to sue and standing to be sued] falls within the material basis of the action”); CAS 2015/A/4335, Genoa Cricket and FC SpA v NK Lokomativa Zagreb, Award of 13 May 2016, para. 45; Reeb and Mavromati (2015), Art. R27, para. 82; Rigozzi and Hasler (2018), p. 570 (“‘issues of ‘standing to appeal’, ‘standing to sue’ or ‘legal interest to act’ do not affect the jurisdiction of the arbitral tribunal and are not jurisdictional issues”). 50 See CAS 2015/A/4345, Trabzonspor Sportif Yatirim A.S. v. UEFA & CAS 2015/A/4347 Fenerbahce SK v. Trabzonspor A.S. and UEFA, Award of 13 April 2017, para. 86. 51 Girsberger and Voser (2016), p. 511. 52 See CAS 2008/A/1583, Sport Lisboa e Benfica Futebol SAD v. UEFA & FC Porto Futebol SAD & CAS 2008/A/1584 Vitória Sport Clube de Guimarães v. UEFA & FC Porto Futebol SAD, Award of 15 July 2008, para. 30 (“the Panel is of the opinion that the association’s legislator cannot make the group of persons, who have a right to appeal, smaller than the statutory model; for it is an indispensable essential part of the ordre public that an individual’s legal protection against measures by an association is guaranteed by an external instance that is independent from the association. Since it can be assumed that the association’s legislator wanted to comply with these (minimum) statutory requirements, this is also an argument for granting third parties the right to appeal if they are directly affected by the measure taken by the association”).

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It is therefore crucial to examine the requirements posed by Swiss statutory law and UEFA Statutes separately. Because the majority of international federations are associations established under Swiss law, the standing to appeal a decision of an international federation stems from Article 75 of the Swiss Civil Code, which provides that: “[A]ny member who has not consented to a resolution which infringes the law or the statutes of that association is legitimately entitled to challenge that resolution before the courts within one month of learning thereof.”53 Although this provision seems to allow only direct members to appeal an international federation’s decision before the CAS, Swiss legal doctrine and CAS case law follow a more relaxed approach and allow third parties to appeal an association’s decision under certain circumstances.54 Thus, to have a standing to appeal, the test applied by CAS Panels requires a party to show that: (i) it is sufficiently affected by the appealed decision; and (ii) it has a tangible interest of a financial or sporting nature at stake.55 Article 62(2) of the UEFA Statutes provides that: “Only parties directly affected by a decision may appeal to the CAS.”56 It is therefore clear that for a party to have standing to appeal under UEFA Statutes, it will have to show that it is ‘directly affected’ by the decision. It goes without saying that this provision neither contradicts Swiss statutory law nor legal doctrine. The provision is not concerned with the appellant’s status as a member or a third party. The only requirement that the provision sets for standing to be established is that the relevant party is ‘directly affected’ by the appealed decision. CAS panels have previously debated the intended interpretation of the meaning of ‘directly affected.’ For example, one Panel noted that: Where the third party is affected because he is a competitor of the addressee of the measure/decision taken by the association, – unless otherwise provided by the association’s rules and regulations – the third party does not have a right of appeal. Effects that ensure only from the competition are only indirect consequences of the association’s

53

Swiss Civil Code, Art. 75. See CAS 2013/A/3140, A. v Club Atletico de Madrid SAD and Real Federacion Espanola de Futbol and FIFA, Award of 10 October 2013, para. 8.7 (“The party having standing to sue in matters covered by Art. 75 is not only a member of the association which issued the decision; according to the Swiss case law (and legal doctrine), a legal person member of an association affiliated to the one issuing a decision (indirect member) has standing to sue when it is submitted to the regulations of the association that has issued the contested decision … This is exactly the situation of a player challenging a decision of FIFA.”); CAS 2008/A/1639, RDC Mallorca v The Football Association and Newcastle United, Award of 24 April 2009, para. 29; see also Girsberger and Voser (2016), p. 511. 55 See De La Rochefoucauld (2011), p. 13; see also CAS 2008/A/1674, Al-Hilal Al-Saudi Club v FIFA, Award of 12 December 2008, paras. 11 et seq. 56 UEFA Statutes, Art. 62(2). 54

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decision/measure. If, however, the association disposes in its measure/decision not only of the rights of the addressee, but also of those of the third party, the latter is directly affected with the consequence that the third party then also has a right of appeal.57

According to the above, Article 62(2) of the UEFA Statutes allows a party to appeal the UEFA’s decision under two circumstances: (i) where the appellant is the addressee of the measure imposed by UEFA; or (ii) when a third party “[i]s directly affected by the measure imposed by UEFA as opposed to ‘indirectly affected’ by it …”58 As to the question what would amount to being ‘directly affected’, the CAS Panels have provided important guidance. For example, one CAS Panel held that, in order for a third-party to have standing to appeal a decision involving its competitor’s match-fixing related proceedings, the appellant must show that it would replace its competitor to qualify in a competition organised by UEFA.59 Another CAS Panel held that a third party’s standing to appeal a decision is generally not accepted under Article 62(2) of the UEFA Statutes where the third party is solely a victim of the wrongful conduct of another party whose conduct was the subject-matter of the appealed decision.60 In the present case, to recall, one of Fenerbahçe S.K.’s requests for relief was to disallow Trabzonspor from participating in the UEFA competition for which it qualifies. However, in the concerned season (i.e. 2013/2014), Fenerbahçe finished first whereas Trabzonspor finished in fourth place.61 As noted above, although Fenerbahçe was directly qualified for the Champions League for the 2014/2015 season, it was banned from UEFA Competitions as a result of the 2011 match-fixing scandal.62 Hence, considering CAS case law, it was impossible that Fenerbahçe would replace Trabzonspor in the UEFA competitions concerned. Furthermore, even if the Panel accepted that Fenerbahçe S.K. was the victim of Trabzonspor’s wrongful conduct, Fenerbahçe S.K. would still not have standing to

57

CAS 2008/A/1583, Sport Lisboa e Benfica Futebol SAD v. UEFA & FC Porto Futebol SAD & CAS 2008/A/1584 Vitória Sport Clube de Guimarães v. UEFA & FC Porto Futebol SAD, Award of 15 July 2008, para. 31. 58 CAS 2015/A/3874, Football Association of Albania (FAA) v. Union des Associations Européennes de Football (UEFA) & Football Association of Serbia (FAS), Award of 10 July 2015, para. 177. 59 CAS 2015/A/4151 Panathinaikos FC v. Union des Associations Européennes de Football (UEFA) & Olympiakos FC, Award of 26 November 2015, paras. 134–149. 60 See CAS 2015/A/3874, Football Association of Albania (FAA) v. Union des Associations Européennes de Football (UEFA) & Football Association of Serbia (FAS), Award of 10 July 2015; Rigozzi and Hasler (2018), p. 1578. 61 Türkiye Futbol Federasyonu, 2013–2014 Sezonu. http://www.tff.org/default.aspx?pageID=1274. Accessed 17 November 2018. 62 See CAS 2013/A/3256, Fenerbahçe Spor Kulübü v. UEFA, Award of 11 April 2014.

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appeal as this fact alone does not directly confer standing to appeal as held in Football Association of Albania v. UEFA & Football Association of Serbia.63

3.3

Match-Fixing Allegations and UEFA Europa League Admission Form

Under the UEFA rules and regulations, clubs are required to submit an Admission Form before participating in the European competitions organised by UEFA. By virtue of the decision under review, CAS made an important finding on Article 4.01 (m) of the UEFA Regulations of the UEFA Europa League for the 2014/2015 season. It interpreted Article 4.01(m) to the extent that it only requires a club to disclose criminal proceedings that are currently ‘opened.’ Therefore, the provision excluded any criminal proceedings in which the club officials had already been acquitted. Regarding the sanction that can be imposed by UEFA in the event of improper completion of the Admission Form, one CAS panel previously held that: “The Admission Form itself neither states that an improper completion would lead to disciplinary proceedings being initiated by UEFA … unless regulated differently, not confessing to an offence in an Admission Form cannot be sanctioned as a distinct offence …”64 Until the case under review, it was unclear what sanction could be imposed by UEFA in case of improper completion of the Admission Form and which criminal or disciplinary proceedings clubs must mention when filling out the form. Hence, the Turkish match-fixing saga—including the decision under review and the previously mentioned Fenerbahce S.K. v. UEFA case—presumably led UEFA to amend the UEFA Champions League and Europa League regulations. For example, Article 4.01(h) of the UEFA Regulations of the Europa League for the 2018/2019 Season now requires clubs when completing the Admission Form to: “inform UEFA about any and all proceedings before disciplinary bodies or state courts implicating the outcome of a match at national or international level, whether or not the club or its officials have been acquitted.”65 It is therefore now clear that not only proceedings that are still open but any proceedings before disciplinary bodies or state courts related to match-fixing allegations must be mentioned in the

63

It is also noteworthy that the Panel also refused Fenerbahçe S.K’s argument that its legitimate interest to appeal derives from its interest in being treated equally by UEFA as far as the match-fixing proceedings are concerned. See CAS 2015/A/4345, Trabzonspor Sportif Yatirim A.S. v. UEFA & CAS 2015/A/4347, Fenerbahce SK v. Trabzonspor A.S. and UEFA, Award of 13 April 2017, para. 87. 64 CAS 2013/A/3256, Fenerbahce Spor Kulubu v. UEFA, Award of 11 April 2014, para. 215. 65 UEFA Regulations of the Europa League, 2018/2019 Season, Art. 4.01(h).

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admission form regardless of whether the concerned club and/or officials were acquitted.66 One could therefore conclude that this second wave case of the Turkish match-fixing saga had an important impact on European football and likely led UEFA to amend its legal framework in line with the Panel’s findings. However, even after the amendments, it remains unclear how UEFA will consider match-fixing related proceedings at the national or international level and protect the reputation of European football while at the same time respecting a fundamental human right: the presumption of innocence.

References Berger B, Kellerhals F (2015) International and Domestic Arbitration in Switzerland, 3rd edn. Hart. Born G (2014) International Commercial Arbitration, 2nd edn. Kluwer Law International. De La Rochefoucauld E (2011) Standing to Sue, A Procedural Issue Before the CAS. CAS Bulletin. Devecioglu S, Emre Karakaya Y, Coban B et al. (2012) Turkiye’de Spor Kuluplerinin Sirketlesmeye Yonelimlerinin Degerlendirilmesi. Beden Egitimi ve Spor Bilimleri Dergisi 10 (2) 35–42. Girsberger D, Voser N (2016) International Arbitration: Comparative and Swiss perspectives, 3rd edn. Kluwer Law International. Hanotiau B (2006) Complex Arbitrations: Multiparty, Multicontract, Multi-Issue and Class Actions, vol. 14. International Arbitration Law Library. Kaufmann-Kohler G, Rigozzi A (2015) International Arbitration. Law and Practice in Switzerland. Oxford University Press. Reeb M, Mavromati D (2015) The Code of the Court of Arbitration for Sport: Commentary, Cases and Materials, Kluwer Law International. Rigozzi A (2005) L’arbitrage international en matière de sport. Bruylant. Rigozzi A, Hasler E (2018) Arbitration in Switzerland: The Practitioner’s Guide, 2nd edn. Wolters Kluwer.

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It is however unclear what the exact disciplinary charge would be in case of a failure of not mentioning the said proceedings in the Admission Form. The current regulations in place only provide that in case of a failure of “other admission criteria,” (which includes not mentioning the said proceedings in the Admission Form) “the UEFA General Secretary refers the case to the UEFA Control, Ethics and Disciplinary Body, which decides without delay upon the admission in accordance with the UEFA Disciplinary Regulations.” To date, neither the UEFA CEDB nor the CAS has had the opportunity to review what disciplinary charge would be appropriate for not mentioning “all proceedings before disciplinary bodies or state courts implicating the outcome of a match at national or international level [that a club’s] officials have been acquitted.” See UEFA Regulations of the Europa League, 2018/2019 Season, Art. 4.07.

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Cem Kalelioğlu is an Associate in the international arbitration practice group of Wilmer Cutler Pickering Hale & Dorr in London and a Ph.D. candidate at the Université Paris Nanterre (Centre de Droit International de Nanterre). The Author would like to thank Ms. Olga Braeuer, Counsel at Wilmer Cutler Pickering Hale & Dorr for her invaluable feedback. The views expressed in this commentary and any mistakes are the Author’s alone.

CAS 2016/A/4785 Real Madrid Club de Fútbol v. FIFA, Award of 3 May 2017 Serhat Yilmaz

Contents 1 2

3

Facts and Procedure of the Case......................................................................................... The Reasoning of the CAS ................................................................................................. 2.1 Clarifying the Applicability of Article 19 RSTP to Minors Under the Age of 12............................................................................................................................ 2.2 The Compatibility of Minors’ Participation in Football Tournaments and Extended Trials at a Club with the RSTP .......................................................... 2.3 The Validity of Temporary Licenses (‘License in Deposit’ and ‘Provisional Authorisation’) for Minors Under the RSTP ............................................................. 2.4 The Compatibility of Minors’ Registrations with the Regional Association with Article 5 RSTP................................................................................................... 2.5 Distinguishing Between Reporting of Minors in the Academies Under Article 19bis and the Registration of Minors with Associations Under Article 5 RSTP ................................................................................................ 2.6 Reduction of FIFA’s Sanctions on the Club.............................................................. Conclusion ...........................................................................................................................

84 87 87 88 90 92

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Abstract This commentary examines the decision of the CAS on appeal of the decisions by the FIFA disciplinary bodies regarding the infringements of FIFA’s Regulations on the Status and Transfer of Players (RSTP) by Real Madrid in dealing with minors. The legal reasoning of the Sole Arbitrator in the case provides clarity about some of the key regulatory concepts of the RSTP including, but not limited to, the distinction between the registration and the reporting of minors in an academy, the meaning of organised football, the nature of tournaments and extended trials, and the function of temporary licenses in the registration process of players. Overall, the case is particularly important due to the analysis of concurrent and multiple violations of the RSTP by Real Madrid. It therefore offers a more holistic understanding of the regulatory regime for the protection of minors by S. Yilmaz (&) School of Sports, Exercise and Health Sciences, Loughborough University, Leicestershire LE11 3TU, UK e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2019 A. Duval and A. Rigozzi (eds.), Yearbook of International Sports Arbitration 2017 https://doi.org/10.1007/15757_2019_24

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FIFA by providing a valuable insight into the operation and interrelatedness of specific provisions (Articles 19, 19bis, 9, and 5) of the regulatory framework at the national level.













Keywords Minors FIFA RSTP International transfer certificate Player registration Organised football Football trials Football tournaments Temporary license Academy
















1 Facts and Procedure of the Case1 In October 2013, the Department of Integrity and Compliance of Transfer Matching System GmbH (FIFA TMS) became aware of potential breaches by Real Madrid Club de Fútbol (hereafter referred as ‘Real Madrid’) of the FIFA Regulations on Status and Transfer of Players (RSTP), in particular regarding to specific provisions of Articles 19, 19bis, 5, and 9. Consequently, on 11 November 2014, the FIFA Disciplinary Committee commenced its preliminary investigation of the Club concerning several minors, who either internationally transferred to or had their first registration with the Club as non-Spanish nationals, with a view to establish whether the Club had actually committed any regulatory violations. A total of 70 registrations of minors during the period from 2008 to 2014 were investigated. Amongst them, there were eight players in specific situations.2 Four of those players (Players 2, 3, 4, 24) were actually under the age of 12 at the time of their respective transfer or first registration with the Club. Two players (Players 22 and 23) had trained and attended trials at the Club, including playing for different football tournaments, but never registered with the Club. Another two players (Players 38 and 39) had licenses issued by the Federación Futbol de Madrid (hereafter referred as ‘FFM’), a regional association with an authority to regulate and administer football in Madrid.3 Player 38 was issued with an FFM license ‘in deposit’ and Player 39 had temporary and provisional authorisations from the FFM to play for the Club. On top of these eight minors, a total of 33 minors4 were registered with the FFM as the regional association but never directly registered with the Spanish national association, the Real Federación Española de Fútbol (hereafter referred as ‘RFEF’). Finally, 37 minors5 attended the Cantera, the academy of Real Madrid, yet were never directly reported to the RFEF. 1

CAS 2016/A/4785, Real Madrid Club de Fútbol v. FIFA, Award of 3 May 2017. In the case file, these players were Player 2, 3, 4, 22, 23, 24, 38 and 39. For the sake of clarity, these players will be referenced with the same numbers as in the case file. 3 The Spanish football governance system also has some peculiarities that is highlighted in the case and for details, see CAS 2016/A/4785, Real Madrid Club de Fútbol v. FIFA, Award of 3 May 2017, para. 36(d). 4 They are Players 1, 3–14, 16–24, 31, 37, 39, 56, 57, 58, 59, 61, 63, 68, and 70. 5 They are Players 1–24, 27, 31, 37, 38, 39, 40, 58, 59, 61, 63, 66, 68, and 70. 2

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Whilst the investigation by the FIFA Disciplinary Committee into the transfer and the first registration of minors by the Club was taking place, Real Madrid contacted the RFEF to seek confirmation regarding the necessity of an approval by the sub-committee of FIFA Players’ Status Committee (hereafter referred as ‘FIFA Subcommittee’6) for the registration of players under the age of 12. On 10 March 2014, the RFEF wrote to the Club to advise that “children under 12 years of age do not need the approval of the FIFA Subcommittee for minors which means that it is the autonomous federations themselves that register those players without further action”.7 It was upon the receipt of the RFEF’s confirmation that Real Madrid had registered Player 24, who was under the age of 12, with the FFM without seeking any form of approval from the RFEF and the FIFA Subcommittee. Following the communication with the Club, on 10 April 2014, the RFEF also wrote to FIFA to clarify the scope of Article 19 RSTP, especially whether the approval of the FIFA Subcommittee was needed for U-12 players. In its response on 17 April 2014, FIFA confirmed to the RFEF that the approval of the FIFA Subcommittee was not required for the transfer or the first registration of players under the age of 12. Yet, it emphasised the responsibility of national associations to ensure that the well-being of players under the age of 12 is not under threat.8 More importantly, on 23 January 2015, FIFA notified all national associations via a circular letter, Circular no. 1468, about the amendments to the RSTP which were to come into effect on 1 March 2015. First, FIFA had reduced the age limits for the need for an International Transfer Certificate (ITC) from 12 to 10 years old by amending Article 9(4) of the RSTP. Second, FIFA also clarified that any international transfer or first registration of minors aged 10 or above was subject to the approval of the FIFA Subcommittee whilst for any player under the age of 10 neither the ITC or the approval of the Subcommittee were required. Nevertheless, in the case of a transfer or first registration of any player under the age of 10, FIFA emphasised that it is the responsibility of national associations to verify and ensure that the requirements of Article 19 RSTP are fully satisfied.9 After the FIFA Circular, the RFEF also issued two circular letters notifying Spanish regional associations and clubs about the changes introduced by FIFA. On 27 March 2015, the FIFA Disciplinary Committee notified Real Madrid about the launch of disciplinary proceedings against the Club in connection with possible violations of the RSTP. On 14 January 2016, Real Madrid was served with the decision of the Disciplinary Committee outlining concurrent and multiple 6

In 2009, FIFA established a sub-committee appointed by its Players’ Status Committee as a new supervisory body for the international transfer of minors under its regulatory regime for the protection of minors. The sub-committee is responsible for the examination of every international transfer and every first registration of minors in football. Procedurally, the approval of the Sub-Committee is required in order for the process of a transfer to commence and the registration of a player to take place. 7 CAS 2016/A/4785, Real Madrid Club de Fútbol v. FIFA, Award of 3 May 2017, para. 6. 8 Ibid., para. 8. 9 CAS 2016/A/4785, Real Madrid Club de Fútbol v. FIFA, Award of 3 May 2017, para. 10.

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violations of the RSTP by the Club. According to the Committee, Real Madrid had breached Article 19(1) RSTP in the international transfers of four minors (Players 2, 4, 24, 38) and Article 19(3) RSTP in the first registrations of four non-national minors (3, 22, 23, 39), since the Club failed to satisfy any of the exceptions of Article 19(2) RSTP, as required for any international transfer or first registration of minors to take place. The Club was also found to have breached Article 19(4) RSTP in conjunction with Annexes 2 and 3 in relation to the international transfers or first registrations of four minors (Players 22, 23, 38, 39) due to its failure to seek the approval of the FIFA Subcommittee and to utilise the FIFA TMS in the process.10 Furthermore, in the international transfer of one minor (Player 38), the registration of the player was actioned without the receipt of the ITC from the Player’s former association, hence infringing Article 9(1) RSTP, which requires the obtention of the ITC prior to the registration of a player with a new club. Real Madrid also violated Article 5(1) RSTP in the transfer of 33 minors because it registered them with the FFM, the regional association, rather than directly with the RFEF, the national association, and Article 19bis in relation to 38 minors due to failing to report them directly to the RFEF.11 As a result, Real Madrid was sanctioned with a registration ban, nationally and internationally, for two entire and consecutive transfer windows, fined CHF 360,000, issued a reprimand, and given 90 days to rectify the situation of minors at the Club.12 On 25 January 2016, Real Madrid appealed against the decision and requested the FIFA Appeals Committee to set it aside which the Appeals Committee refused to do on 8 April 2016. Real Madrid initiated proceedings before the CAS on 14 September 2016.13 First, the Club made a request for the stay of execution in accordance with Article R37 of the Code of Sport-related Arbitration (hereafter referred as ‘the CAS Code’) which was granted on 16 September 2016.14 Then, in accordance with Article R47 of the CAS Code, Real Madrid commenced the appeal proceedings on 27 September 2016. The Parties did not dispute the jurisdiction of the CAS and agreed to submit the case to a sole arbitrator rather than a panel of arbitrators. On 14 December 2016, a hearing took place at the CAS headquarters, and on 20 December 2016 the Sole Arbitrator issued the operative part of the Award. The reasoned award was then rendered on 3 May 2017.

10 For further details on the TMS, see Thatcher Adam, Your Guide to FIFA’s Transfer Matching System, 22 May 2014, https://www.lawinsport.com/topics/articles/regulation-a-governance/item/ your-guide-to-fifa-s-transfer-matching-system. Accessed 10 November 2018. 11 CAS 2016/A/4785, Real Madrid Club de Fútbol v. FIFA, Award of 3 May 2017, para. 13. 12 Ibid., para. 14. 13 The FIFA Appeal Committee rendered operative parts of the decision on 8 April 2016, but the grounds of decision were not issued until 8 September 2016 hence the delay in bringing proceedings before the CAS. 14 CAS 2016/A/4785, Real Madrid Club de Fútbol v. FIFA, Award of 3 May 2017, para. 19.

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2 The Reasoning of the CAS 2.1

Clarifying the Applicability of Article 19 RSTP to Minors Under the Age of 12

The first fundamental issue dealt with by the Sole Arbitrator was to determine the applicability of Article 19 RSTP to minors under the age of 12. In other words, the issue to resolve was to establish whether the requirements of Article 19, in particular the fulfilment of one of the three exceptions of Article 19(2) of the RSTP for the transfer or the first registration of a minor also applied to U-12 players. If the applicability of Article 19 was confirmed, the question then was what procedural steps were required from Real Madrid to enable the RFEF to verify the conformity with Article 19(2) of the registration of the U-12 players in question (Players 2, 3, 4, 24). Real Madrid disputed the applicability of Article 19 to players under the age of 12. It relied on the lack of requirement of an ITC for the U-12 players within Article 9(4) of the RSTP to argue that the regulatory regime of Article 19 did not apply U-12 players at the time of their registration. Therefore, the Club also claimed that the approval of neither the RFEF nor the FIFA Subcommittee was needed for the registration of the U-12 players and that the correct procedure was actually followed by obtaining the FFM licenses for each of the players. Moreover, in the view of Real Madrid, its understanding about the inapplicability of the Article 19 to U-12 players was also confirmed in the RFEF’s communication on 14 March 2014, which confirmed that U-12 players could be registered by the regional association “with no further action”.15 The Club stressed the ambiguity of the rules and pointed out that Circular no. 1468 was the first attempt by FIFA not only to reduce the age limit, from 12 to 10 years old, for the purposes of the ITC requirements, but also to bring clarity about the application of Article 19 to players under the age limit required for the obtention of an ITC. FIFA, on the other hand, argued about a difference between the age requirements for the duty to obtain an ITC under Article 9, which is in essence an administrative requirement to sanction an international transfer, and the regulatory regime of Article 19 RSTP, which fundamentally aims to protect young players in football. Hence, in the view of FIFA, the lack of ITC requirement for U-12 players under the RSTP does not affect in any way the applicability of Article 19 to minors. The governing body also stressed that the objective of its communication on 23 January 2015 was to reduce the age limit for the purpose of the duty to obtain an ITC; however, the Circular had never intended in any way to imply that U-12 players were previously exempt from the application of Article 19 RSTP.16 In considering and clarifying the applicability of Article 19 to U-12 players, the Sole Arbitrator was not satisfied with FIFA’s argument and therefore ruled that the

15

Ibid., para. 36(b). Ibid., para. 38(b).

16

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Real Madrid had not committed violations of the RSTP in relation to four players who were under the age of 12 at the time of their registrations with the Club.17 In reaching his decision, the Sole Arbitrator also considered that there was an ambiguity concerning the application of Article 19 to U-12 players and criticised FIFA because of its failure to rectify that ambiguity about the practical effect of the rules. FIFA specifically failed to provide clarity to the matter, especially when it was presented with an opportunity to do so on 10 April 2014 upon receipt of the RFEF’s request for clarification. In fact, the Sole Arbitrator interpreted the FIFA Circular no. 1468 as a substantive rule change to the regulatory regime for the protection of minors in which for the first time FIFA explicitly underscored the responsibility, as from March 2015, of national associations to verify the applicability of the exceptions provided under Article 19(2) RSTP in relation to the registration of U-12 players.18 In this context, the two circulars issued by the RFEF following FIFA’s Circular were considered to be a turning point, as the Spanish governing body clearly assumed responsibility to apply Article 19 to players under the age of 12 only from then onwards. According to the Sole Arbitrator, the written statement provided by the Head of Legal at the RFEF was also a confirmation that prior to FIFA Circular no. 1468, the understanding of the RFEF had always been that no authorisation was needed either from the FIFA Subcommittee or from the RFEF in order to register U-12 players.19 Moreover, the Sole Arbitrator relied also on a past CAS award, the Vada I case,20 in which FIFA failed to apply its regulatory regime to the younger brother of Valentin Vada, who was 5 years old and registered with the same clubs as his brother who was 15. In the opinion of the Sole Arbitrator, this amounted to FIFA admitting the inapplicability of Article 19 to minors under the age of 12.21 As a result, the Sole Arbitrator concluded that it was clear that Article 19 was not applicable to U-12 players until the rule change in March 2015 and Real Madrid was therefore not infringing the FIFA rules with regard to four players.

2.2

The Compatibility of Minors’ Participation in Football Tournaments and Extended Trials at a Club with the RSTP

The second important issue to be considered by the Sole Arbitrator was to determine whether football tournaments constitute ‘organised football’ and extended trial periods can be considered ‘a registration’ for the purposes of the RSTP. Indeed, two players (Players 22, 23) had never been registered with Real Madrid but 17

Ibid., para. 60. Ibid., para. 60. 19 Ibid., para. 55. 20 CAS 2011/A/2494, FC Girondins de Bordeaux v. FIFA, Award of 17 May 2011. 21 CAS 2016/A/4785, Real Madrid Club de Fútbol v. FIFA, Award of 3 May 2017, para. 55. 18

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participated in trials for extended periods and played a number of regional tournaments for the Club.22 FIFA decided that those tournaments amounted to organised football, for which, to be able to participate as players a registration is required. To register them properly, for what would have been their first registration as per Article 19(3) due to the players being non-Spanish nationals and never previously registered with a club, Real Madrid should have sought the approval of the FIFA Subcommittee following the procedure prescribed under Article 19(4) and Annexes 2 and 3 to the RSTP. The Subcommittee would then have verified whether one of the exceptions of Article 19(2) of the RSTP was satisfied before the first registration of the players could take place. Hence, FIFA concluded that the Club had violated Article 19. In addition, FIFA also considered trials by the Club as a way to circumvent its obligations under Article 19 due to the extended nature of those trials and argued that they amount to ‘registration’ for the purposes of the RSTP.23 Real Madrid, on the other hand, argued that the two minors were not registered with the Club because they had never participated in organised football. Hence, the Club denied that it was obliged to follow the regulatory requirements of Article 19 RSTP, because both players were outside the remits of the provision.24

2.2.1

Do Football Tournaments Constitute ‘Organised Football’?

The Sole Arbitrator did not accept FIFA’s arguments regarding the nature of the football tournaments in which the two minors had participated. In the view of the Sole Arbitrator, these tournaments were not organised football. This finding was based on the lack of evidence provided by FIFA regarding the authorisation of the tournaments and the actual participation of the players in them. In fact, the Sole Arbitrator noted that the RSTP defines ‘organised football’ as “association football organised under the auspices of FIFA, the confederations and the associations, or authorised by them”.25 In line with the definition, the Sole Arbitrator emphasised the importance of evidencing the existence of authorisation by one of the bodies mentioned under the definition of the RSTP. Nevertheless, the Sole Arbitrator also noted that an organiser’s failure to comply with the duty to request an authorisation for a tournament does not automatically exclude the tournament from the scope of organised football.26 In this case, FIFA failed to evidence not only that the tournaments in question were actually organised or authorised by the FFM, the RFEF or FIFA, but also that the organisers of those tournaments had violated their obligations to seek authorisation.27 The only tournament that was undisputedly deemed

22

Ibid., Ibid., 24 Ibid., 25 Ibid., 26 Ibid., 27 Ibid., 23

para. para. para. para. para. para.

36(d). 38(c). 36(c). 68. 68. 69.

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part of organised football by the Parties was the Coca Cola Tournament in which only Player 22 participated. Yet, in this case, FIFA failed to convincingly prove that Player 22 was physically involved in the tournament. In sum, the Sole Arbitrator relied on the wording of the RSTP to establish what a party would need to demonstrate, namely an authorisation or the organiser’s failure to seek authorisation, to argue that a tournament is to be considered as organised football under the RSTP.

2.2.2

Do the Extended Trials of Players Constitute ‘Registration’ for the Purpose of the RSTP?

The Sole Arbitrator also rejected FIFA’s argument that remaining continuously at Real Madrid through repeated trials constituted a first registration under the RSTP.28 However, once again, the finding was based on the lack of evidence adduced by FIFA to support its assertion that the trials amounted to the first registrations of the players in question. In proving such de facto registrations, the Sole Arbitrator particularly emphasised the necessity to take into account previous similar cases and to illustrate consistent past applications by FIFA and the CAS to that effect. This was something that FIFA failed to provide evidence for and subsequently to prove. Additionally, the Sole Arbitrator noted the regrettable absence of a specific FIFA rule imposing clear time limits on the trial period for minor players.29 In light of the above considerations, the Sole Arbitrator ruled that Real Madrid did not actually violate Article 19 RSTP regarding Players 22 and 23.30

2.3

The Validity of Temporary Licenses (‘License in Deposit’ and ‘Provisional Authorisation’) for Minors Under the RSTP

The next issues tackled by the Sole Arbitrator concerned the temporary licenses issued by the FFM for Players 38 and 39 in anticipation of the FIFA Subcommittee approvals for both Players and the receipt of the ITC for Player 38. It is important to note that Player 38 was the subject of an international transfer from an EU country and the Club relied upon Article 19(2)b’s exception, which was eventually approved by the FIFA Subcommittee. Thus, the ITC under Article 9(1) RSTP was also needed for the registration of the international transfer at the new association, in this case the RFEF. Player 39, on the other hand, was the subject of a first

28

Ibid., para. 72. Ibid. 30 Ibid., para. 73. 29

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registration based on the so-called five-year rule,31 i.e. the Player had resided in Spain at least five years prior to the application to the FIFA Subcommittee, which was also eventually approved. However, while the approvals from FIFA were pending, temporary licenses were used to allow the players to integrate the Club and participate in games. Real Madrid contested that the license in deposit for Player 38 was used and that the Player participated in organised football. Moreover, it claimed that the provisional authorisations given by the FFM for Player 39 followed the regional association’s verification of the applicability of the five-year rule exception.32 To the contrary, FIFA held that the registration and/or inclusion of players in a new club could only take place after approval by the FIFA Subcommittee and the issuance of an ITC.33 The Sole Arbitrator ruled that Real Madrid had violated the specific provision of Article 19 in relation to both Players and the ITC requirement of Article 9(1) RSTP with regard to Player 38.34 In the Sole Arbitrator’s view, both ‘license in deposit’ and ‘provisional authorisation’ were not regulated by the RSTP,35 and Real Madrid actually abused this gap to register both minors by circumventing its obligations under the rules.36 In practice, the Sole Arbitrator considered the ‘license in deposit’ and the ‘provisional authorisation’ as actual registrations (albeit in deposit and provisional) of players for the purposes of the RSTP. Despite the regulatory gap affecting the two contractual mechanisms, the Sole Arbitrator deemed that the rules under the RSTP were clear about the necessity to obtain the FIFA Subcommittee’s approval before an international transfer or a first registration of a minor. Additionally, before the request of the ITC for an international transfer of a minor, the approval of the Subcommittee is clearly needed under Article 19(4) and the ITC is required prior to registering the international transfer under Article 9(1) RSTP.37 Based on this reasoning the Sole Arbitrator found that Real Madrid had violated the FIFA rules in provisionally registering Players 38 and 39.

The five-year rule, which came into effect on 1 June 2016, allows the first registration of a minor with a club in a country that the player is not a national of but in which he has continuously lived for at least five years immediately prior to the intended first registration. For details, see FIFA, Circular No. 1542, 1 June 2016. http://resources.fifa.com/mm/document/affederation/ administration/02/79/97/47/circularno.1542-amendmentstotheregulationsonthestatutsandtransferof players_neutral.pdf. Accessed 14 October 2018. 32 CAS 2016/A/4785, Real Madrid Club de Fútbol v. FIFA, Award of 3 May 2017, para. 36(c). 33 Ibid., para. 38(c). 34 Ibid., para. 80. 35 Ibid., paras. 77, 79. 36 Ibid., para. 101. 37 Ibid., para. 78. 31

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The Compatibility of Minors’ Registrations with the Regional Association with Article 5 RSTP

The next analysis undertaken by the Sole Arbitrator was in relation to the exclusive registration of 33 minors with the FFM, which in FIFA’s view violated Article 5(1) RSTP. More specifically, FIFA emphasised that players become eligible to participate in organised football only after their registration with an association recognised under the RSTP and that association in Spain is the RFEF, an actual member of FIFA, not the FFM. In effect, FIFA was not satisfied that the mere registration of minors with the regional association fulfilled Article 5(1) RSTP’s requirements. Accordingly, FIFA did not recognise the authority of the FFM for registering players in Spain for the purposes of the RSTP.38 Real Madrid, by contrast, argued its innocence by relying upon the peculiarities of the Spanish governance system of football, established under Spanish law. In particular, Spain’s regional associations are given an exclusive authority to issue licenses and register players for their participation in regional competitions only. For this reason, the Club was registering players with the FFM, and it was the FFM’s responsibility to communicate the registration of the players to the RFEF.39 In analysing this issue, the Sole Arbitrator aimed to clarify two aspects which, from a regulatory perspective, were at the heart of the matter: which association enjoys authority to register players under the RSTP and whether the FFM’s notification of the players’ registrations to the RFEF satisfies the registration requirement of Article 5. The Sole Arbitrator firstly confirmed that the term ‘association’ for the purposes of the RSTP refers to national associations, in this case the RFEF, and thus accepted FIFA’s argument around the sole authority of the RFEF in the registration of players in Spain for the purposes of the RSTP. Despite acknowledging the FFM’s competences under the Spanish football governance system, the Sole Arbitrator also noted that regional associations are not members of FIFA.40 Therefore, the registration of the players with the FFM in essence was not sufficient to fulfil the registration obligations under Article 5 RSTP. Nonetheless, the Sole Arbitrator clarified the nature of the obligation under Article 5 RSTP which is deemed to be strictly about the necessity of registration, i.e. that ‘player must be registered at an association’, but not about the manner/form of registration.41 Thus, as a specific form for the registration was not provided in the RSTP, the Sole Arbitrator considered the communications made by the FFM to the RFEF concerning the registration of minors as sufficiently amounting to a registration under the Article 5(1) RSTP. This is an important distinction made by the Sole Arbitrator concerning the registration requirement of a player. The evidence concerning such

38

Ibid., Ibid., 40 Ibid., 41 Ibid., 39

para. para. para. para.

38(d). 36(d). 85. 90.

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communication about the registration of 31 players to the RFEF from the FFM was available in the case. Consequently, the Sole Arbitrator ruled that Real Madrid did not violate Article 5(1) of the RSTP in relation to all 33 players in question.42

2.5

Distinguishing Between Reporting of Minors in the Academies Under Article 19bis and the Registration of Minors with Associations Under Article 5 RSTP

A final issue that the Sole Arbitrator dealt with was in relation to the reporting obligation of clubs concerning players attending their academies under Article 19bis of the RSTP. FIFA found Real Madrid guilty of infringing Article 19bis by failing to report to the RFEF 37 minors who were attending its academy, the Cantera.43 Real Madrid, however, disputed the finding by arguing that first, the Cantera was not an academy as defined by the RSTP, and second, the registration of the players with the FFM, who then also communicated those registrations to the RFEF, was actually an effective way of reporting given that the national federation became fully aware of the minors’ presence at the Club and since Article 19bis(1) does not specify any form/method of reporting.44 The Sole Arbitrator tackled this issue by, firstly, considering the nature of the Cantera in order to determine whether it is actually an academy for the purposes of the RSTP. Secondly, whether the registrations of the FFM and actual communications to the RFEF in fact constitute reporting within the meaning of Article 19bis of the RSTP. With regard to the first point, the Sole Arbitrator referred to the definition of academy provided under the RSTP, which read “an organisation or an independent legal entity whose primary, long-term objective is to provide players with long-term training through the provision of the necessary training facilities and infrastructure”.45 Based on the definition, it was not difficult for the Sole Arbitrator to establish that the Cantera is an academy because it possesses its own training facilities with the primary objective of providing long-term training for young players. Additionally, the official website of Real Madrid was also referring to the Cantera as an academy. Therefore, it was beyond doubt that the Cantera was an academy in line with the definition by the RSTP.46 Moving onto the second point, the Sole Arbitrator distinguished between the registration and the reporting of

42

CAS 2016/A/4785, Real Madrid Club de Fútbol v. FIFA, Award of 3 May 2017, para. 93. Ibid., para. 38(e). 44 Ibid., para. 36(e). 45 Ibid., para. 94. 46 Ibid., para. 99. 43

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players. By relying on the analysis of the CAS Panel in the FC Barcelona case,47 the Sole Arbitrator stressed that the obligation of reporting imposed under Article 19bis is actually a different obligation from the one concerning the registration of the players under Article 5 RSTP. This distinction derives from the rationale behind Article 19bis, which is about protecting minors who are not always registered with a club but still train and play in the academy of the club. The reporting obligation under Article 19bis RSTP therefore aims to gather information about the attendance in academies regardless of whether minors have been registered with the relevant association or not, so that the protection afforded under the RSTP for minors is extended to them.48 Therefore, although accepting the fact that there is no prescribed form of reporting under Article 19bis, the Club’s registration of the players in question with the FFM was not considered sufficient to comply with the reporting obligations under the regulations.49 Hence, the Sole Arbitrator ruled that Real Madrid violated Article 19bis RSTP.50

2.6

Reduction of FIFA’s Sanctions on the Club

In analysing the appropriateness of the sanctions, the Sole Arbitrator underlined the importance of taking into account “all relevant factors in the case and the degree of the offender’s guilt” in accordance with the FIFA Disciplinary Code.51 This approach meant that each offence committed by the Club was taken into consideration to determine the appropriate sanction. In this connection, the Sole Arbitrator acknowledged that Real Madrid had committed fewer infractions than the FIFA originally concluded.52 Therefore, the sanctions of the Club needed to be reduced to reflect the level of non-compliance. Consequently, the Sole Arbitrator reduced the transfer ban to one season and the fine to CHF 240,000.53

47

CAS 2014/A/3793, Fútbol Club Barcelona v. Fédération Internationale de Football Association (FIFA), Award of 24 April 2015. 48 CAS 2016/A/4785, Real Madrid Club de Fútbol v. FIFA, Award of 3 May 2017, para. 10. 49 Ibid., para. 101. 50 Ibid., para. 102. 51 Ibid., para. 105. 52 Ibid., para. 107. 53 Ibid., para. 109.

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3 Conclusion In conclusion, this is an important decision that deals with concurrent and multiple violations of the RSTP by Real Madrid concerning the international transfer and the first registration of minors. It offers a more holistic understanding of the regulatory regime for the protection of minors by FIFA in providing a valuable insight into the operation and interrelatedness of specific provisions of the RSTP (Articles 19, 19bis, 9, and 5). The Sole Arbitrator thus clarified the scope of applicability of the RSTP’s regulatory framework to all minors. The analysis also brings greater clarity to the notions of organised football and registration. Finally, the Sole Arbitrator made a clear distinction between registration and reporting obligations concerning minors under the RSTP.

CAS 2017/A/5015, International Ski Federation (FIS) v. Therese Johaug and The Norwegian Olympic and Paralympic Committee and Confederation of Sports (NIF), and CAS 2017/A/5110, Therese Johaug v. The Norwegian Olympic and Paralympic Committee and Confederation of Sports (NIF), Award of 21 August 2017 Trond Solvang and Nina Lauber-Thommesen

Contents 1 2

3

4

Introduction.......................................................................................................................... Background.......................................................................................................................... 2.1 Facts and Procedure ................................................................................................... 2.2 The Parties’ Submissions Before the CAS ................................................................ Commentary......................................................................................................................... 3.1 “No Fault or Negligence” .......................................................................................... 3.2 “No Significant Fault or Negligence” ........................................................................ 3.3 Principle of Proportionality ........................................................................................ 3.4 ‘Hidden’ Dissent......................................................................................................... Concluding Remarks ...........................................................................................................

98 99 99 102 104 104 111 113 115 116

T. Solvang (&) Faculty of Law, Scandinavian Institute of Maritime Law, University of Oslo, Oslo, Norway e-mail: [email protected] N. Lauber-Thommesen LL.M, Lévy Kaufmann-Kohler, Geneva, Switzerland e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2019 A. Duval and A. Rigozzi (eds.), Yearbook of International Sports Arbitration 2017 https://doi.org/10.1007/15757_2019_23

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Abstract This case commentary examines the CAS Award in FIS v. Johaug, with particular focus on the Panel’s reasoning in relation to the notions of “No Fault or Negligence” under Article 10.4 of the WADA Code, “degree of fault” for the purposes of Article 10.5.2 of the WADA Code (“No Significant Fault or Negligence”), reliance on medical advice and the concept of delegation of anti-doping responsibility.










Keywords Johaug Doping No fault or negligence No significant fault or negligence Degree of fault (“level of fault”) Cilic test Medical advice Delegation of anti-doping responsibility













1 Introduction This commentary concerns the case of a very successful Norwegian cross-country skier, Ms. Therese Johaug, who, upon medical advice, used a lip cream containing a prohibited substance, which led to an anti-doping rule violation (“ADRV”).1 From the outset, it is important to note that it was not disputed that the ADRV was the result of “inadvertence” and that Ms. Johaug had “no intention to cheat”.2 The main issues before the CAS Panel were (i) the appropriate “degree of fault” (“level of fault”) to attribute to Ms. Johaug, including the question if she bore “No Fault or Negligence” for the purposes of Article 10.4 of the WADA Code, and (ii) the appropriate sanction to impose on Ms. Johaug.3 The majority of the Panel found that Ms. Johaug had shown a “normal degree of fault”4 and determined that a period of ineligibility of 18 months was appropriate in view of the circumstances.5 The Award of 21 August 2017 (as is customary in CAS awards and in line with Article R59 CAS Code) does not set out the minority’s reasons and determinations. The Panel also addressed briefly NIF’s standing as party to an appeal against a decision made by its adjudicating body, the NIF Adjudication Committee (the “Adjudication Committee”). In this regard, the Panel confirmed CAS jurisprudence according to which an appeal may be brought against a National Federation (here

1

CAS 2017/A/5015 & 5010, FIS v. Therese Johaug & NIF, Award of 21 August 2017, paras. 2, 5 and 6–14. 2 Ibid., para. 206. 3 Ibid., para. 175. 4 Notably within the range of “No Significant Fault or Negligence” under Art. 10.5.2 of the 2015 World Anti-Doping Code (the “WADA Code”, sometimes also referred to as “WADC”). 5 CAS 2017/A/5015 & 5010, FIS v. Therese Johaug & NIF, Award of 21 August 2017, paras. 208 and 231.

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NIF) for a decision made by another body that acted on its behalf (here the Adjudication Committee).6 Finally, the Panel addressed, obiter and “for consideration on future examination of the right to file a cross-appeal under Article 13.2.4 of the WADA Code”, the admissibility of Ms. Johaug’s cross-appeal against NIF. The background for this was that Ms. Johaug’s time limit to appeal the Adjudication Committee’s decision expired before the corresponding time limit for the FIS to appeal the same. Ms. Johaug chose not to appeal the decision (which imposed a period of ineligibility of 13 months). However, when the FIS appealed (claiming a longer period of ineligibility than the 13 months), Ms. Johaug submitted a cross-appeal (claiming a more favourable outcome than the 13 months). Since the majority of the Panel found in favour of the FIS (imposing a period of ineligibility of 18 months), Ms. Johaug’s cross-appeal became moot. The Panel noted obiter that the procedural rules governing time limits for cross-appeals were unclear and stated, in particular, that “it may be pertinent to consider the implications of this provision’s exact wording”— in order to clarify this point in future cases.7

2 Background 2.1

Facts and Procedure

At the end of August 2016, at a training camp in Seiser Alm, Italy, Ms. Johaug sustained sunstroke. Among her symptoms were fever and severe burns on her lips. Due to the severity of her symptoms, Ms. Johaug called the team doctor, Dr. Fredrik Bendiksen, for help. Dr. Bendiksen arrived in Italy a few days later, on 1 September 2016.8 In Italy, Dr. Bendiksen visited a local pharmacy, as he did not have with him the pharmaceutical product he needed to treat the burns on Ms. Johaug’s lips. Dr. Bendiksen purchased two over-the-counter pharmaceutical products (creams): Keratoplastica and Trofodermin.9 6

Ibid., paras. 60 and 61, referring in particular to CAS 2013/A/3115, World Anti-Doping Agency (WADA) v. Rebecca Mekonnen and The Norwegian Olympic and Paralympic Committee (NOPC), and CAS 2013/A/3116, World Anti-Doping Agency (WADA) v. Lasse Sundell and The Norwegian Olympic and Paralympic Committee (NOPC), Award of 9 December 2013, para. 108. The question is in itself interesting: NIF submitted that since the Adjudication Committee was an independent body, with no rights of instruction by NIF in cases under the Committee’s jurisdiction, it would be inappropriate to compel NIF to appear as a party before the CAS. The Panel did not, however, go into the substance of this argument but confined itself to reference to previous case law. 7 CAS 2017/A/5015 & 5010, FIS v. Therese Johaug & NIF, Award of 21 August 2017, paras. 235– 237. 8 Ibid., paras. 6 and 7. 9 Ibid.

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Dr. Bendiksen explained to the Panel that he noticed, at the time, that Trofodermin contained the antibiotic neomycin and the substance Clostebol. He stressed, however, that he did not identify Clostebol as a prohibited substance.10 Dr. Bendiksen gave the Keratoplastica cream to Ms. Johaug. The following day, 4 September 2016, he noticed that Ms. Johaug’s lips had not improved and provided Ms. Johaug with the Trofodermin cream.11 It was not disputed that Ms. Johaug, at that point in time, asked Dr. Bendiksen whether the Trofodermin cream was safe to use and that Dr. Bendiksen assured her that it was “clean”.12 It was also not disputed that Ms. Johaug proceeded to use the Trofodermin cream, in reliance on Dr. Bendiksen’s advice, without making further enquiries into its properties, ingredients and status in relation to applicable anti-doping rules.13 For the same reason she did not inspect the packaging and insert that came with the cream and failed to notice that the box carried a doping warning.14 On 16 September 2016, Ms. Johaug underwent an unannounced doping control test conducted by the Norwegian Anti-Doping Agency. She provided samples of blood and urine and declared on the Doping Control Form that she had used the cream Trofodermin in the last seven days.15 On 30 September 2016, the results of Ms. Johaug’s A sample showed the presence of Clostebol metabolite which is a prohibited substance on the World Anti-Doping Agency’s (“WADA”) list of prohibited substances for 2016 (the “Prohibited List”). The results of the A sample were confirmed by the B sample on 6 October 2016.16 On 18 October 2016, the Prosecution Committee of Anti-Doping Norway imposed a two-month provisional suspension on Ms. Johaug. The provisional suspension was extended by an additional two months on 12 December 2016.17 On 25 and 26 January 2017, the NIF Adjudication Committee held a hearing in Oslo, Norway, during which several witnesses were heard, including Ms. Johaug and Dr. Bendiksen. This hearing was open to the public, including the examinations of Ms. Johaug and Dr. Bendiksen. On the merits of her case, Ms. Johaug argued that she bore “No Fault or Negligence” because she had relied on the advice of a 10

Ibid., para. 8. Ibid., para. 9. 12 Ibid. Part of the background appears to be that Dr. Bendiksen was under considerable personal stress at the time and thus failed to conduct prudent checks. He subsequently took responsibility for the mistake by i.a. resigning from his position as a team doctor—ibid., paras. 110–112. 13 CAS 2017/A/5015 & 5010, FIS v. Therese Johaug & NIF, Award of 21 August 2017, para. 10. 14 Ibid. 15 Ibid., para. 13. 16 Ibid., paras. 12 and 14. Clostebol is listed on the Prohibited List Group S1 (Anabolic Agents) and is prohibited at all times, in and out of competition, see https://www.wada-ama.org/sites/ default/files/resources/files/wada-2016-prohibited-list-en.pdf, p. 2. 17 CAS 2017/A/5015 & 5010, FIS v. Therese Johaug & NIF, Award of 21 August 2017, paras. 15 and 16. 11

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highly respected and competent team doctor (who turned out to be mistaken). In the alternative and in view of the fact that Clostebol is a non-Specified Substance on the Prohibited List with a minimum period of ineligibility of 12 months in case of Non-Significant Fault or Negligence,18 Ms. Johaug argued that the principle of proportionality would, in the circumstances, justify the setting aside of the said minimum rule of 12 months, so that the appropriate sanction would be “far less than a year”. For its part, Anti-Doping Norway requested that Ms. Johaug be sanctioned with a period of ineligibility of 14 months.19 On 10 February 2017, the NIF Adjudication Committee issued its decision rendering Ms. Johaug ineligible for a period of 13 months as from 18 October 2016.20 The Adjudication Committee found that Ms. Johaug had not exercised a sufficient degree of care to meet the requirements of “No Fault or Negligence” under the WADA Code.21 The Adjudication Committee did, however, find that there were significant mitigating circumstances. Namely that as a starting point, an athlete should be entitled to rely on the advice of medical experts, and that in the present case it was “hardly imaginable” for Ms. Johaug that Dr. Bendiksen would make a mistake, as it turned out he did. The Adjudication Committee hence considered that Ms. Johaug’s degree of fault was light and placed her in the lower bracket of the WADA Code’s minimum period of ineligibility (starting at 12 months), by declaring her ineligible for 13 months.22 The Adjudication Committee did not entertain Ms. Johaug’s argument that the principle of proportionality should lead to the setting aside of the WADA Code’s minimum period of 12 months.23

18

Article 10.5.2 of the WADA Code. CAS 2017/A/5015 & 5010, FIS v. Therese Johaug & NIF, Award of 21 August 2017, paras. 17 and 27. 20 Ibid., paras. 18 and 28. 21 Meaning that Art. 10.4 of the WADA Code, which provides the basis for the elimination of the period of ineligibility where the athlete has shown “No Fault or Negligence”, did not apply and that Ms. Johaug’s degree of fault rather fell under the scope of Art. 10.5.2 of the WADA Code (“No Significant Fault or Negligence”). 22 CAS 2017/A/5015 & 5010, FIS v. Therese Johaug & NIF, Award of 21 August 2017, paras. 26 and 27. 23 The only comments made by the Adjudication Committee in that respect were to the effect that if an otherwise applicable period of ineligibility were to be in the region of 16 months, with the consequence that Ms. Johaug would lose the opportunity to participate in the Olympic Winter Games of 2018, then the principle of proportionality might come into play—a comment the authors of this commentary find to be unfortunate in view of the clear comments to the WADA Code (Appendix 1) stating that the sporting schedule of the athlete is irrelevant when assessing the length of the sanction; only the degree of fault is to be taken into account. See, however, the discussion in Sect. 3.3 below. 19

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On 6 March 2017, FIS appealed the NIF Adjudication Committee’s decision before the CAS.24 On 27 April 2017, Ms. Johaug also appealed the NIF Adjudication Committee’s decision before the CAS.25 The following day, 28 April 2017, Ms. Johaug filed her answer to FIS’ appeal.26 On 29 May 2017, FIS filed “Comments” to Ms. Johaug’s cross-appeal.27 On 6 June 2017, the CAS held a hearing in Lausanne, Switzerland, during which Ms. Johaug and Dr. Bendiksen were heard as witnesses.28 In contrast to the hearing before the NIF Adjudicating Committee, this hearing was closed to the public.

2.2

The Parties’ Submissions Before the CAS

Ms. Johaug’s primary claim before the Panel was that she bore “No Fault or Negligence”29 and that the period of ineligibility imposed on her had to be “eliminated”.30 The crux of Ms. Johaug’s submissions was that she had done what could be reasonably expected of her in consulting with and relying on the advice of her team doctor, Dr. Bendiksen, who is a medical professional, renowned for his expertise and experience in anti-doping matters. More specifically, Ms. Johaug argued that, by acting on the advice of an “expert in anti-doping”, she had discharged her anti-doping responsibilities and exercised a sufficient “level of care” in view of the circumstances and compared to the “risk perceived”.31 Further to this point, Ms. Johaug also argued that she was “permitted to delegate elements of her anti-doping obligations”.32 Ms. Johaug stressed that it could not be held against her that Dr. Bendiksen failed to provide the quality advice one would normally expect and that the “degree of risk that should have been perceived” in relation to an ointment to be used to treat sore lips and provided by Dr. Bendiksen was “close to nil”.33 Ms. Johaug also noted that she was “contractually bound” to follow Dr. Bendiksen’s advice and underscored that her case was “highly unusual” because she had done “precisely as she was required” when she consulted

24

CAS 2017/A/5015 & 5010, FIS v. Therese Johaug & NIF, Award of 21 August 2017, para. 29. The cross-appeal, see Sect. 1 above. 26 CAS 2017/A/5015 & 5010, FIS v. Therese Johaug & NIF, Award of 21 August 2017, para. 42. 27 Ibid., para. 45. 28 Ibid., paras. 47 and 50. 29 Article 10.4 of the WADA Code. 30 CAS 2017/A/5015 & 5010, FIS v. Therese Johaug & NIF, Award of 21 August 2017, para. 150. 31 Ibid., in particular paras. 125 and 130. 32 Ibid., paras 119. 33 Ibid., paras. 126 and 127. 25

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Dr. Bendiksen and that her unfortunate situation arose “precisely, and paradoxically” because she had done what was required.34 Finally, Ms. Johaug stressed that she was in a “very poor state” at the time of the ADRV and that she was “ordinarily very cautious” with respect to her anti-doping obligations.35 In support of her position of no fault, Ms. Johaug relied in particular on an Advisory Opinion issued by the CAS on 21 April 2006 following requests by FIFA and WADA to clarify the admissibility of the WADA Code’s rules on the imposition of sanctions under Swiss law.36 The Advisory Opinion states, among other things, the following: The WADC imposes on the athlete a duty of utmost caution to avoid that a prohibited substance enters his or her body (…). The Panel underlines that this standard is rigorous, and must be rigorous, especially in the interest of all other competitors in a fair competition. However, the Panel reminds the sanctioning bodies that the endeavours to defeat doping should not lead to unrealistic and impractical expectations the athletes have to come up with. Thus, the Panel cannot exclude that under particular circumstances, certain examples listed in the comment to Art. 10.5.2 of the WADC as cases of ‘no significant fault or negligence’ may reasonably be judged as cases of ‘no fault or negligence.’37

In view of Ms. Johaug’s submissions, the point appears to be that the regime under the WADA Code is flexible and allows a case-by-case assessment of each athlete’s fault in view of the particular circumstances. In the alternative, Ms. Johaug requested that the Panel apply the “principle of proportionality” and “eliminate” or “significantly reduce” the sanction imposed on her, i.e. that the period of ineligibility be set below the minimum 12 months as provided for in Article 10.5.2 WADA Code.38 The further reasoning here was that there was an apparent inconsistency in the WADA Code: it was incompatible with the principle of proportionality that the same degree of (light) fault when taking a Specified Substance and a non-Specified Substance respectively, would lead to a 12 months difference in the sanctioning period. According to Ms. Johaug, this difference was based on an “artificial separation” between the two categories of substances.39 In the further alternative, Ms. Johaug invoked Article 10.5.2 of the WADA Code40 and requested that the sanction, in view of the circumstances, be limited to a maximum of 12 months.41

34

Ibid., paras. 105, 125, 128 and 141. Ibid., paras. 125, 126, 128 and 129. 36 Ibid., para. 131 referring to CAS 2005/C/976 and 986, FIFA and WADA, Advisory Opinion of 21 April 2006. 37 Ibid., para. 73. 38 CAS 2017/A/5015 & 5010, FIS v. Therese Johaug & NIF, Award of 21 August 2017, para. 150. 39 Ibid., para. 149. 40 “No Significant Fault or Negligence”, see supra notes 21 and 23 and accompanying text. 41 CAS 2017/A/5015 & 5010, FIS v. Therese Johaug & NIF, Award of 21 August 2017, para. 150. 35

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On its side, FIS requested that the period of ineligibility imposed on Ms. Johaug be “reasonably … extended”.42 The essence of FIS’ submissions before the Panel was that it is an athlete’s “primary duty of care” to examine the packaging of a pharmaceutical product and to “doublecheck” with a physician “if the information refers to a prohibited substance”.43 FIS stressed that, in Italy, Trofodermin boxes are marked with “clear doping warning pictograms” and hence that “[e]verybody” could have understood that Trofodermin contained a prohibited substance.44 FIS disputed that the involvement of Dr. Bendiksen could discharge Ms. Johaug from her “personal duty” to check whether the pharmaceutical product contained a prohibited substance. More specifically, FIS argued that the “duty of care to avoid doping” is “personal” and “remained with Ms. Johaug at all times”. FIS further noted that an athlete’s duty of care to avoid doping may include a duty to consult physicians about relevant risks but that such a duty would only be one of several precautions to take.45 In view of the circumstances, FIS submitted that Ms. Johaug bore a “normal degree of fault”46 and that a period of ineligibility of 16–20 months would be appropriate.47 FIS did not specifically address Ms. Johaug’s arguments relating to the principle of proportionality. Ms. Johaug submitted that Swiss law applied to the dispute, which was not disputed by the other parties.48

3 Commentary 3.1 3.1.1

“No Fault or Negligence” Ms. Johaug’s Fault

As mentioned, Ms. Johaug’s primary contention before the Panel was that she bore “No Fault or Negligence” within the meaning of Article 10.4 of the WADA Code.49 This provision reads as follows:

42

Ibid., paras. 95 and 98. Ibid., para. 96. 44 Ibid., para. 97. 45 Ibid., in particular paras. 155 and 162. 46 Within the range of “No Significant Fault or Negligence” under Art. 10.5.2 of the WADA Code. 47 CAS 2017/A/5015 & 5010, FIS v. Therese Johaug & NIF, Award of 21 August 2017, paras. 171 and 174. 48 Ibid., paras. 62–65. 49 Ibid., paras. 122 ff. and 150. 43

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If an Athlete or other Person establishes in an individual case that he or she bears No Fault or Negligence, then the otherwise applicable period of Ineligibility shall be eliminated.

The notion of “No Fault or Negligence” is defined as follows in Appendix 1 to the WADA Code: No Fault or Negligence: The Athlete or other Person’s establishing that he or she did not know or suspect, and could not reasonably have known or suspected even with the exercise of utmost caution, that he or she had Used or been administered the Prohibited Substance or Prohibited Method or otherwise violated an anti-doping rule. Except in the case of a Minor, for any violation of Article 2.1, the Athlete must also establish how the Prohibited Substance entered his or her system.

In its assessment of whether Ms. Johaug could be considered to bear “No Fault or Negligence”, the Panel sought “instructive” guidance in CAS jurisprudence and, in particular, the following passages from the award in Marin Cilic v. ITF:50 73. In order to determine into which category of fault a particular case might fall, it is helpful to consider both the objective and the subjective level of fault. The objective element describes what standard of care could have been expected from a reasonable person in the athlete’s situation. The subjective element describes what could have been expected from that particular athlete, in light of his personal capacities.

(…) 74. (…) aa) The objective element of the level of fault At the outset, it is important to recognise that, in theory, almost all anti-doping rule violations relating to the taking of a product containing a prohibited substance could be prevented. The athlete could always (i) read the label of the product used (or otherwise ascertain the ingredients), (ii) cross-check all the ingredients on the label with the list of prohibited substances, (iii) make an internet search of the product, (iv) ensure the product is reliably sourced and (v) consult appropriate experts in these matters and instruct them diligently before consuming the product.51

Already here the Panel’s approach is puzzling. First, no mention is made of the fact that the Cilic case concerned an athlete misreading a label (“Nicethamide” confused with “Nicotinamide”) in the context of consumption of nutritional supplements, and that the substance inadvertently ingested by the athlete was prohibited in competition only. More specifically, the relevant legal test discussed in the Cilic case was, in essence, how to assess the level of care for inadvertent intake out of competition of a substance prohibited in competition only. This is a narrow set of facts from which to extrapolate a general statement of law. Second, based on the specific circumstances of the Cilic case, the panel in that case held that the degree of precautionary steps required depends on the nature of the

50

Ibid., para. 179. CAS 2013/A/3327 & 3335, Marin Cilic v. ITF, Award of 11 April 2014, paras. 71 and 74 as quoted in CAS 2017/A/5015 & 5010, FIS v. Therese Johaug & NIF, Award of 21 August 2017, para. 179.

51

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prohibited substance subsequently detected in the athlete’s sample.52 This is an unusual type of logic that is difficult to reconcile with general principles of negligence (culpa) in civil law.53 This logic may, perhaps, make sense within the confines of the facts of the Cilic case, but not as a general statement of law. The authors shall not go further into the Cilic case here other than to point out that it is surprising that the reasoning of that case seems to be embraced and referred to uncritically by other arbitration panels. Again, it is worth underscoring that the Panel in the Johaug case does not explain its analogical application of the approach taken in the Cilic case. The Panel in the Johaug case went on to state that athletes could not always be expected to follow all of the steps detailed in Marin Cilic v. ITF,54 but found it “striking” that Ms. Johaug had failed to perform the “most important” step, namely examination of the label.55 The Panel also noted that Ms. Johaug had failed to conduct an internet search in order to verify whether the ingredients of Trofodermin were on the Prohibited List and that such internet search could have been done “very quickly and easily”.56 In placing such decisive weight on Ms. Johaug’s failure to check the label of the Trofodermin, the majority of the Panel appears to have disregarded what seems to be an important point, namely the impact of Dr. Bendiksen’s erroneous advice (see Sect. 2.1 above) on the assessment of Ms. Johaug’s fault or negligence.57 The same can be discerned from the somewhat polemic statements of the Panel, like the following: “An athlete cannot abdicate from his or her personal duty to avoid the consumption of a prohibited substance by simply relying on a doctor”58—as if Ms. Johaug had made use of a medical doctor, in a situation where she needed medication, in order to avoid having to do the checking herself. But that seems hardly an appropriate description of Ms. Johaug’s situation. It is inevitable that different lawyers take different views in the assessment of what constitutes fault or negligence on a given set of facts. This is also found in civil courts e.g. in the context of negligence in tort law. In Ms. Johaug’s case, it is obvious that the Panel dissented on central issues involving the concept of fault when applied to Ms. Johaug’s situation. In this respect, it is fair that the majority

52

CAS 2013/A/3327 & 3335, Marin Cilic v. ITF, Award of 11 April 2014, para. 75. To take a parallel from criminal law: If a person accused of smuggling narcotics—and with negligent smuggling constituting an offense—puts up as a defence that the drugs found in his/her suitcase must have been put there by others, he/she must obviously come forward with a credible explanation to that effect, but in his/her efforts to explain that all reasonable steps were taken to avoid such occurrence, it would clearly make no sense to let the type of drug subsequently discovered (e.g. heroin as opposed to marijuana) retroactively determine the type of caution required. 54 See also ibid., para. 75. 55 CAS 2017/A/5015 & 5010, FIS v. Therese Johaug & NIF, Award of 21 August 2017, para. 180. 56 Ibid., paras. 182 and 183. 57 The point is briefly mentioned in paragraph 207 of the award, but there as a mere statement that the point is considered in relation to the assessment of the duration of the period of ineligibility, as determined by the majority. 58 Ibid., para. 192. Similar formulations can be found in para. 212. 53

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emphasized the duty of an athlete to personally check the medication received, more so than the minority seems to have emphasized, and more so than the Adjudication Committee did emphasize. It seems, however, that the majority took a more dogmatic view in this respect than the facts, as presented, reasonably justified. On the issue of consultation with medical personnel in general (as opposed to delegation of anti-doping responsibility in particular, see Sect. 3.1.2 below), the essence of the Panel’s determinations was that athletes have a duty to “cross-check” assurances given by a doctor.59 In support of its finding on this point, the Panel referred to CAS jurisprudence, but—again, it did not elaborate on how the mentioned cases would relate to the circumstances of Ms. Johaug’s case.60,61

59

Ibid., paras. 187–192. Our analysis of the cases referenced by the Panel reveal that the facts concerning the athletes’ dealings with the medical personnel in question differ significantly from Ms. Johaug’s case. We therefore question this use of prior cases with no discussion of the facts underlying the legal statements in the same. For instance, in one case (CAS 2012/A/2959, referenced in para. 191 of the Johaug award), the athlete did not disclose to his doctor that he was subjected to doping controls—a factual scenario starkly at odds with that of the Johaug case. Other cases concern athletes that did not consult medical expertise at all (e.g. CAS 2010/A/229 and CAS 2005/A/830 referenced in paras. 183 and 184). In these cases, the athletes’ failure to consult medical expertise was also highlighted in the awards as being of paramount importance—again at odds with the facts of Ms Johaug’s case. When it comes to the relationship between the assessment of fault and the calculation of the period of ineligibility, the importance of giving a fair presentation of prior cases is well illustrated by the Panel’s use of the Stauber case (CAS 2006/A/1133, WADA v. Stauber & Swiss Olympic, Award of 18 December 2006, referred to in para. 188 of the Johaug award). With respect to bona fide reliance on doctors’ advice, the Stauber case is comparable with Ms. Johaug’s case (although Mr. Stauber did not expressly ask the doctor about anti-doping assurances). More importantly and similar to Ms. Johaug’s case, the Stauber case concerned a minimum period of ineligibility for “Non—Significant Fault or Negligence”. Mr. Stauber’s fault was found to be minimal and one of the questions before the CAS panel was whether to set the period of ineligibility below the minimum of 12 months based on fundamental principles of proportionality between violation and sanction. Due to Mr. Stauber’s decision to retire from sports, this point was left open. However, the following passage is worth quoting: “In the present case, the sanction [of 12 months] will never be effective as the award does not modify the sporting situation of an Athlete having already ended his career. Therefore, the Panel did not need to further examine whether the principle of proportionality could effectively require applying a sanction of less than the minimum provided for in application of [the relevant rule]. However, the Panel feels that there could arise some serious doubts how to judge such a case had the Athlete not ended his career” (CAS 2006/A/1133, WADA v. Stauber & Swiss Olympic, Award of 18 December 2006, paras. 46–47). This is a fairly strong statement made in the athlete’s favour and we consider it unfortunate that the Panel did not comment on this when discussing the question of proportionality in the Johaug case, despite the Stauber case being referred to in connection with the question of fault. On the question of proportionality in the Johaug case, see Sect. 3.3. below. For a similar critical comparison between the Johaug case and the Cilic case, see Rigozzi, Viret, Wisnosky, The Johaug CAS award. Too harsh? —published in November 2017, accessible at http://wadc-commentary.com/johaug/#_ftnref113. 61 The extensive use of prior cases in the Johaug case also has a questionable methodological aspect: how are athletes expected to foresee their legal position under the WADA Code with respect to the assessment of fault if that can only be discerned from reading an extensive amount of prior CAS cases, some of which are not even published on CAS’ homepage? See important considerations in that respect, Rigozzi, Viret, Wisnosky, The Johaug CAS award. Too harsh?—(2017). 60

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From a common sense point of view, athletes in need of medical treatment as in the present case should be, at least on a prima facie basis, considered to act prudently when making use of a highly qualified medical professional’s services, and should have—at least prima facie—reason to trust that professional’s assurances that the medication is safe in use vis-à-vis- the Prohibited List. We do not purport to express an opinion on whether or not such use of and trust in medical staff is sufficient to fulfill the strict requirements of “No Fault or Negligence” within the context of the WADA Code.62 But it seems, again from a common sense point of view, clear that a bona fide reliance on such professional advice ought to have a bearing on what additional steps an athlete is required to take as a matter of cautionary behavior. In other words, if an athlete omits to check the package information of medication after having received assurances from professional staff that it does not contain prohibited substances, this should be assessed differently from a situation when the procurement of the medication is made without professional intermediacy. Again, if one accepts the premise that a bona fide reliance is placed on medical advice, then the requirement to do additional checking would— as a matter of legal analysis—be affected, and that is so irrespective of how easy (or difficult) it would be to discern the ingredients from the packaging if such additional checking were to be performed by the athlete.63 It appears trite that in the context of this legal test, it was fully prudent of Ms. Johaug to make use of the services of Dr. Bendiksen, whose professional record was beyond challenge, and whose task it was to ensure that no prohibited substances were given to athletes. In light of this test, it also seems artificial to say that the athlete had a duty to oversee the way the delegate, Dr. Bendiksen, performed this task, which would lie at the core of his functions and expertise. Therefore, there are aspects to Ms. Johaug’s case that, in the authors’ view, are not satisfactorily addressed. In view of the Panel’s dogmatic approach, it is not surprising that the Panel (majority) found that Ms. Johaug’s failure to “check the label” of the Trofodermin excluded a finding of “No Fault or Negligence” under Article 10.4 of the WADA Code.64 62

See, however, the remarks in footnote 60 above. In that respect it is puzzling how the Panel chose to include an image of the warning on the Trofodermin package, not only once but twice in the award (paras. 10 and 180), as if to convey to the reader that such a clear warning could hardly have been overlooked. If the purpose was to illustrate the gravity of negligence (in the Panel’s view) of Ms. Johaug’s failure to observe the warning, then that again involves the above point of causation; if it prima facie must be considered prudent to rely on a medical expert’s advice, then it can hardly be considered gravely negligent not to double check that advise, see also the Stauber case (CAS 2006/A/1133, WADA v. Stauber & Swiss Olympic, Award of 18 December 2006, referred to in footnote 60 above). 64 Ibid., para. 201. In the authors’ view it is not entirely clear from the award whether this finding was unanimous or by majority only. From paras. 201–203 of the award the finding may appear unanimous but the topic of “No Fault or Negligence” is intertwined with that of permission of delegation of anti-doping responsibilities, and on this latter point there was dissent, see Sect. 3.1.2. below. 63

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“Delegation of Anti-doping Responsibility”

There is a difference between situations of mere consultation between a medical professional and an athlete, and situations in which medical personnel (also) take on the role of checking medication prescribed to athletes against the Prohibited List.65 This in turn leads to another important legal point in the case, namely whether an athlete is entitled to delegate tasks of his/her anti-doping diligence to others, in the sense that: assuming the athlete is prudent in his/her selection and oversight of such delegates, then whatever mistake the delegate makes, is not to be imputed to the athlete. Again, this is a difficult question, with diverse signals given in earlier CAS jurisprudence, and in Ms. Johaug’s case there was dissent on this point. With respect to the alleged “delegation of anti-doping responsibility”, the majority of the Panel “disagreed” with Ms. Johaug and dismissed her plea that her degree of fault would depend on the reasonableness of her choice of delegate.66 In particular, the Panel (majority) stated that it had been “consistently held in CAS decisions that an athlete cannot delegate away his or her responsibilities to avoid doping”.67 In support of this statement, the Panel quoted the following passage from Sharapova v. ITF: 97: a. (…) It cannot be consistent with the relevant precedents and the WADC that an athlete can simply delegate her obligations to a third party and then not otherwise provide appropriate instructions, monitoring or supervision without bearing responsibility; such a finding would render meaningless the obligation of an athlete to avoid doping.68

This reference is difficult to follow. First, it is clear from the omitted part of the referenced passage that it relates to a scenario where anti-doping obligations were delegated. Second, Ms. Sharapova’s decision to delegate her anti-doping obligations to her agent who was not a medical professional was considered “reasonable”.69 According to the CAS Panel, Ms. Sharapova only “fell short” in her “failure to monitor or supervise in any way whether and how [the delegate] was meeting the anti-doping obligations imposed on an athlete when [the delegate] agreed to assist her”.70 Ms. Sharapova ultimately obtained a reduction of the period of ineligibility from two years imposed by the Independent Tribunal appointed by the ITF to 15 months.71 It is therefore an open, but interesting, question how the

65

In Ms Johaug’s case there was disagreement between the parties as to how the role of Dr. Bendiksen should be categorized in this respect, see, for instance, CAS 2017/A/5015 & 5010, FIS v. Therese Johaug & NIF, Award of 21 August 2017, para. 154. 66 Ibid., paras. 194 and 195. 67 Ibid., para. 195. 68 CAS/A/4643, Maria Sharapova v. ITF, Award of 30 September 2016, para. 97. 69 Ibid. 70 Ibid. 71 Ibid., in particular paras. 84–91 and 95–98.

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reasoning of the Panel in the Sharapova case would be applied to a scenario like that of Ms. Johaug where anti-doping obligations were allegedly delegated to a team doctor with acknowledged expertise in anti-doping.72 Another point that is difficult to follow is the Panel’s comment that the scenario of Sharapova v. ITF would differ from Ms. Johaug’s case because in Sharapova v. ITF the parties had agreed, in the CAS proceedings “to follow the approach that athletes are permitted to delegate elements of their anti-doping obligations”.73 It is true that the CAS Panel in Sharapova v. ITF noted that the Parties agreed on the application of the approach.74 However, the CAS Panel in that case did “concur” with this approach as elaborated in CAS jurisprudence.75 Hence, it does not appear from the reasoning of the CAS panel in Sharapova v. ITF that the notion of delegation of anti-doping obligation was applied merely as some extraordinary rule agreed between the Parties.76 The Panel’s (majority) reasons and determinations in the Johaug case are, perhaps, best understood in light of this rather didactic statement at paragraph 212 of the award: … The Panel remarks that if athletes were allowed to escape their personal duty by passing it on completely to an expert in anti-doping (such as a specifically qualified doctor), this could create a more advantageous position for wealthier athletes who have more resources to engage experts, leading to potentially unequal treatment in assessing compliance.

In the authors’ view, the Panel’s (majority) reasons and determinations do not settle the principal question of whether delegation—in part or in whole—of anti-doping responsibility is permitted or, if answered in the positive, how the fault of an athlete in that case should be assessed in relation to the fault of the delegate.77 We hence consider that Ms. Johaug’s case represents an important opportunity lost in terms of clarifying a point of law of great significance to athletes. Some additional remarks should here be made: The cases referred to by the Panel concern the question of fault on the athlete’s part78 and do not—in our view —assist in analyzing the legal question of whether a delegate’s fault should be imputed to the athlete if (hypothetically) there is no fault on the athlete’s 72

In that respect it is worth noticing that one arbitrator took part in both cases and that there was dissent on this point in the Johaug case. 73 CAS 2017/A/5015 & 5010, FIS v. Therese Johaug & NIF, Award of 21 August 2017, para. 197. 74 CAS/A/4643, Maria Sharapova v. ITF, Award of 30 September 2016, para. 85. 75 Ibid., referring in particular to CAS 2014/A/3591, Sheikh Hazza Bin Sultan Bin Zayed Al Nahyan v. Fédération Equestre Internationale (FEI), Award of 8 June 2015, para. 177. 76 An interesting discussion of whether CAS panels should, without more, accept the parties’ agreement involving statements of law, is given in Rigozzi, Viret, Wisnosky, The Johaug CAS award. Too harsh?—(2017) under section E.1. Role of delegates revisited. 77 See, however, Rigozzi, Viret, Wisnosky, The Johaug CAS award. Too harsh? (2017) who, in Section E. 1. Role of delegates revisited, takes the view that the question of delegation has been finally settled by the Johaug case. 78 See, for instance, CAS 2006/A/1133, WADA v. Stauber & Swiss Olympic, Award of 18 December 2006, and footnote 60 above.

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part. A genuine legal question of delegation would assume that the athlete has acted diligently and that there is a genuine ‘latent defect’ attached to the advice obtained. In such a scenario, would it still be so that the fault made by the delegate must be imputed to the athlete? In the authors’ view, this question should be answered in the negative: It is the athlete’s own fault and not that of the delegate that is the subject matter of the WADA Code’s sanctioning system. Moreover, the opposite solution—that the fault of the delegate is to be imputed to the athlete—would lead to the gravity of the delegate’s fault being decisive also in respect of the assessment of the period of ineligibility imposed on the athlete. This is not legally tenable, and was not even argued in the Johaug case, where the mistake made by Dr. Bendiksen was arguably grossly negligent. The minority’s reasons and determination are not provided in the award.79

3.2

“No Significant Fault or Negligence”

In view of the Panel’s (majority) determinations on the issues of fault and delegation of anti-doping responsibility, it is hardly surprising that it placed Ms. Johaug’s degree of fault and sanctioned her in “the middle of the 16–20 month range” of “No Significant Fault or Negligence” (“normal degree of fault”).80 With respect to the Panel’s reasoning on degree of fault and appropriate sanction, there is, however, one issue that warrants separate comment, namely the “transpos[ition]” of the so-called ‘Cilic test’ to Ms. Johaug’s case.81 The ‘Cilic test’ refers to the guidelines established by the CAS panel that ruled on Marin Cilic v. ITF case in 2014 by assessing Mr. Cilic’s degree of fault in view of the specific circumstances.82 Mr. Cilic, a professional tennis player, had ingested (out-of-competition) a substance prohibited in-competition (Nicethamide).83 In its assessment of Mr. Cilic’s degree of fault, the Cilic panel described, among other things, two distinct sets of preventive steps that could be considered “reasonable” depending on the type of the substance—prohibited at all times or prohibited in competition.84

79

As noted above, one of the arbitrators on the Panel also served on the CAS panel in Sharapova v. ITF, and in the latter case there was no dissent as to the admissibility of the delegation of anti-doping responsibilities. 80 CAS 2017/A/5015 & 5010, FIS v. Therese Johaug & NIF, Award of 21 August 2017, paras. 208 and 213. 81 Ibid., para. 208. Test identified by the CAS panel in CAS 2013/A/3327&3335, Marin Cilic v. ITF, Award of 11 April 2014, in particular paras. 69 ff. 82 Ibid. 83 Ibid., paras. 11–19. 84 Ibid., para. 75.

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The particular circumstances of Ms. Johaug’s case highlight this arguably significant weakness in the Cilic test, namely the premise that the assessment of an athlete’s fault at the time of inadvertent ingestion of a prohibited substance should be different depending on the category to which such prohibited substance belongs. Nevertheless, the Cilic test was applied in Ms. Johaug’s case and, in the authors’ opinion, the same criticisms as those outlined above apply to the Panel’s reasoning.85 In addition, the Panel appears to contradict itself by, on one hand, acknowledging the—obvious—point that only the athlete’s degree of fault is to govern the assessment of the sanction, and, at the same time, making didactic statements relating to “wealthier athletes” “escaping” anti-doping responsibilities.86 Although the Panel’s didactic statements may reflect sound policy considerations at an overarching level, they hardly belong to legal arguments within the confines of applying the degree of fault to a given set of circumstances in a concrete case under adjudication. To apply this reasoning would be the same as saying that an athlete with highly competent support and medical staff, should act—when it comes to the assessment of prudence in the context of anti-doping—as if that support staff did not exist. That is hardly in line with recognized principles of negligence and culpa in civil law. Further, Ms. Johaug’s case raises an important question of the appropriateness of extrapolating the Cilic approach to cases involving non-Specific Substances. The Cilic case concerned intake of a Specific Substance and a period of ineligibility in case of “No Significant Fault or Negligence” spanning from 0 to 24 months. In such a situation, it may well make sense to operate with a division of fault in three categories corresponding to the 24 months divided into three; from 0 to 8 months; from 8 to 16 months; from 16 to 24 months. In cases involving non-Specific Substances the relevant sanctioning period spans from 12 to 24 months and leaves no room for a seamless assessment of a low degree of fault against a low level of sanctioning (such as a mere warning or, say, ineligibility of 2 months in cases involving Specific Substances). Seen from a perspective of fault (culpa), it is perplexing that the sanctioning leaps from none (in case of no fault) to the minimum of 12 months even with the lowest degree of fault. Is it then appropriate to also adopt the Cilic approach and divide the 12–24 months range into three; from 12 to 16 months; from 16 to 20, and from 20 to 24? Interestingly, that is not how this question has been handled in past cases involving non-Specific Substances and the minimum period of 12 months. For instance, in the Stauber case,87 which is referred to elsewhere in the Johaug

85

Whether this reasoning reflects the views also of the minority, which dissented on the question of length of the sanction, remains an open question, since the reasoning of the dissenting minority is not articulated in the award. 86 CAS 2017/A/5015 & 5010, FIS v. Therese Johaug & NIF, Award of 21 August 2017, compare para. 212 (quoted above in Sect. 3.1.2) and para. 224. 87 CAS 2006/A/1133, WADA v. Stauber & Swiss Olympic, Award of 18 December 2006.

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award,88 the CAS panel found the appropriate sanction to be 12 months, in other words at the very minimum period. There was no discussion in that case that such assessment was not appropriate, for example because it was not aligned with a kind of equal distribution of fault spanning a 12 months period from 12 to 24 months.89 Indeed, from a perspective of fault, it could well be argued that instances of lower degrees of fault involving non-Specific Substances ought to be placed in the lower part of the 12–24 months’ range, so as to be reasonably aligned with a similar degree of fault in cases involving Specific Substances.90 In view of the above, the premise applied by the Panel (majority) for the assessment of Ms. Johaug’s sanction is far from obvious. The kind of ‘judge made law’ which one here sees is also questionable from a perspective of legality; how are athletes supposed to foresee their legal position if such ‘rules’ cannot be read from the WADA Code itself but has to be discerned from CAS case law?91 Moreover, the problematic aspects of the 12 months minimum sanctioning rule when viewed in light of principles of fault (culpa), becomes equally problematic when viewed in the light of principles of proportionality (see Sect. 3.3 below).92

3.3

Principle of Proportionality

As noted above, Ms. Johaug included in her prayers for relief a claim that the “principle of proportionality” (under Swiss law), as a separate legal basis independent from considerations of proportionality built into the WADA Code, should be applied to “eliminate” or “significantly reduce” any sanction imposed on her.93

88

See CAS 2017/A/5015 & 5010, FIS v. Therese Johaug & NIF, Award of 21 August 2017, para. 188; see also footnote 60 above. 89 Interestingly, the Adjudication Committee in the Johaug case sanctioned her with 13 months with the reasoning that, although her degree of fault was considered low, to set the sanctioning at 12 months would not give room for cases with possibly even lower degrees of fault (CAS 2017/A/ 5015 & 5010, FIS v. Therese Johaug & NIF, Award of 21 August 2017, p. 13). That type of reasoning seems to be closer to the approach taken in earlier CAS cases involving non-Specific Substances than that of the CAS Panel (majority) in the Johaug case, adopting the system of the Cilic case. 90 See in that respect Rigozzi, Viret, Wisnosky, The Johaug CAS award. Too harsh?—(2017) with a comparison between the Cilic and Johaug cases, questioning the reasonableness of 3 months imposed in the one and 18 months in the other, essentially because of the different types of prohibited substances involved in the respective cases. 91 See also, Rigozzi, Viret, Wisnosky, The Johaug CAS award. Too harsh?—(2017) and footnote 61 above. 92 When looking into the history of the rules relating to non-specific versus Specific Substances, it transpires that there is no consistent legal thinking behind it, and that the rules have changed over time. A further discussion of that topic is, however, outside the scope of this commentary. 93 Ibid., paras. 150 and 135 ff.

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When addressing this plea, the Panel referred to Sharapova v. ITF and stated 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”.94 The Panel did not indicate the passages it relied on or how Ms. Sharapova’s situation would compare to Ms. Johaug’s. In view of Ms. Johaug’s pleadings (in particular the argument relating to the “artificial separation” between non-Specified Substances and Specified Substances) and the extraordinary circumstances of Ms. Johaug’s case, it is surprising that the Panel did not further elaborate on this issue.95 CAS jurisprudence is not settled with respect to the validity of Ms. Johaug’s argument based on the ‘principle of proportionality’.96 Some CAS panels have notably held that this principle, as a matter of protection of personality rights and hence Swiss public policy, requires that the proportionality of a sanction be assessed independently in view of the specific circumstances of each case.97 One CAS panel has also held that the principle of proportionality remains “essential and continuously applicable” also under the 2015 WADA Code.98 It falls outside the scope of this commentary to submit a view on the relevance and weight of Ms. Johaug’s argument. The authors will, however, note that a blank dismissal of this principle as such could effectively deprive athletes of recourse against disproportionate infringements of personality rights resulting from otherwise correct applications of the WADA Code.99

94

Ibid., para. 227 referring to CAS/A/4643, Maria Sharapova v. ITF, Award of 30 September 2016. 95 Whether one takes a perspective of disproportionality or a perspective of incoherent application of principles of culpa, it is clearly questionable to operate with zero ineligibility in case of no fault and then make a ‘jump’ to 12 months’ ineligibility for the lowest imaginable form of no significant fault (Art. 10.4 versus Art. 10.5.2 of the WADA Code). Similarly, it makes little sense to treat with 12 months’ difference situations of inadvertent intake—and with the same degree of the lowest type of negligence—of the one type of substance versus the other. As will be known, inadvertent intake of a Specified Substance allows for the imposition of a mere warning (Art. 10.5.1.1). The paradox of the rules is, moreover, demonstrated by the fact that in case of inadvertent intake of Prohibited Substances through contaminated nutrition supplements, then also intake of a non— Specified Substance may lead to the imposition of a mere warning (Art. 10.5.1.2). See critical remarks to the same effect, Rigozzi, Viret, Wisnosky, The Johaug CAS award. Too harsh?— (2017). See also, T. Solvang, Some critical remarks on the quality of the drafting of the WADA Code, under publication in The Finnish Sports Law Yearbook 2018 (Urheilu ja oikeus 2018). 96 Of particular interest to the Johaug case is the Stauber case, see the discussion in footnote 60 above. 97 See, in particular, CAS anti-doping division OG AD 16/011, Award of 8 December 2016, paras. 36 ff. where these considerations were traced back to the European Court of Human Rights’ Decision of 8 July 1986 in Lithgow and others v. The United Kingdom. See also CAS 2017/A/ 5031, Award of 13 September 2017, paras 71 ff.; CAS 2006/1025, Award of 12 July 2006, paras 75 ff.; CAS 2005/A/830, Award of 15 July 2005, paras 10.21 ff. 98 CAS anti-doping division OG AD 16/011, Award of 8 December 2016, para. 39. 99 See the further discussion in Rigozzi, Viret, Wisnosky, The Johaug CAS award. Too harsh?— (2017).

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‘Hidden’ Dissent

Obviously, given the cultural importance of cross-country skiing in Norway and the intensity of the Norwegian people’s collective emotions for this sport, Ms. Johaug’s case attracted a lot of attention in the media and the legal community in Norway. In addition to the perceived unfairness and severity of the sanction imposed on Ms. Johaug, commentators reacted to the dissent on the Panel and the absence of the minority’s reasons.100 The idea of not reporting and not publishing dissents is foreign to the Nordic and the Anglo-American traditions where it is common practice that court decisions indicate whether they are made unanimously or by majority and where court decisions made by majority include and/or are published with minority reasons (NO/DK: “dissens”/SE: “skiljaktig mening”). One rationale behind this approach is that the judges’ voting impacts the authoritative value of decisions and that minority reasons are necessary to adequately inform the reasons of authoritative decisions made by majority. To Norwegian law a system of ‘hidden’ dissent is particularly foreign, since the Arbitration Act contains a provision requiring that minority views to be expressed,101 which in turn is based on general considerations of transparency in adjudication. From a Swiss perspective, ‘hidden’ dissents are not unusual. Rather, they are the norm: as a matter of principle, Swiss court decisions do not indicate whether they are made unanimously or by minority and dissenting opinions are not published. However, the Swiss Federal Supreme Court may hold oral deliberations that are open to the public, typically in cases where the judges have diverging views.102 For the CAS, the Swiss approach has been codified in Articles R46 and R59 of the CAS Code that provide that “[d]issenting opinions are not recognized by the CAS and are not notified”. In the present case, the hidden dissent may be seen as particularly unfortunate as it involved a difficult, and under CAS jurisprudence, unsettled point of law. In the wake of the recent Judgement of the European Court

See, for instance, Prof. Trond Solvang, “Skjuler Johaug-dissens”, available at https://www.dn. no/meninger/2017/08/25/1857/Innlegg/skjuler-johaug-issens; and T. Schei (former Chief Justice of the Norwegian Supreme Court), “Hva er en god begrunnelse?”, available at https://rett24.no/ articles/hva-er-en-god-begrunnelse. 101 Arbitration Act of 14 May 2004 No. 25, Section 36. The Act is essentially based on UNCITRAL’s model law of arbitration. 102 Art. 58 of the Loi sur le Tribunal fédéral (LTF) of 17 June 2005. In contrast to the hearing before the Adjudication Committee, CAS hearings are closed, so the public has no means of discerning or anticipating the basis of the decisions made. 100

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of Human Rights in Mutu and Pechstein v. Switzerland,103 the authors expect and welcome more debate devoted to the principle of publicity (le principe de la publicité) in the context of CAS proceedings.104

4 Concluding Remarks It follows from the above that there are aspects to Ms. Johaug’s case that, in the authors’ view, are not satisfactorily addressed. In particular, it is questionable whether the Panel adequately addressed the impact of Dr. Bendiksen’s erroneous advice on the assessment of Ms. Johaug’s fault and Ms. Johaug’s pleas relating to the alleged delegation of anti-doping responsibilities. In relation to the latter point, it is not entirely clear from the reasoning of the Panel whether it dismissed the notion of delegation as such or whether it considered that Ms. Johaug’s delegation, in view of the circumstances, was irrelevant for the assessment of Ms. Johaug’s degree of fault. As a result of the Panel’s decision to extend the period of ineligibility to 18 months, Ms. Johaug missed two entire seasons, including the Winter Olympics in Pyeongchang.

103

Mutu and Pechstein v. Switzerland (applications no. 40575/10 and no. 67474/10), European Court of Human Rights, Judgment of 2 October 2018, French original version available at http:// hudoc.echr.coe.int/eng?i=001-186434. 104 Ibid., see in particular paras 170 ff.

CAS 2016/A/4787, Jersey Football Association (JFA) v. Union of European Football Associations (UEFA), Award of 28 September 2017 Benoît Keane

Contents 1

2 3 4 5

Facts and Procedure ............................................................................................................ 1.1 Factual Background.................................................................................................... 1.2 Procedure and Jurisdiction ......................................................................................... Definition of a Country ....................................................................................................... Power to Accept or Reject Membership Application......................................................... Post Script............................................................................................................................ Commentary......................................................................................................................... 5.1 Meaning of a Country ................................................................................................ 5.2 Commentary on Congress Vote ................................................................................. 5.3 Conclusion ..................................................................................................................

118 118 119 121 123 124 125 125 129 130

Abstract The hot potato of what constitutes a country arose once again in a case concerning Jersey, a dependency of the British Crown, brought by its football association against UEFA’s decision to refuse it membership. Membership of UEFA is open, according to Article 5(1) of the UEFA Statutes (applicable at the time), to national football associations situated in the continent of Europe, based in a country which is recognised by the United Nations as an independent state, and which are responsible for the organisation and implementation of football-related matters in the territory of their country. Notwithstanding the degree of autonomy it enjoys, the CAS ruled that Jersey has not been recognised by any member of the Benoît Keane, Solicitor & Avocat, Keane Legal. The author regularly represents sports organisations before the European Commission and EU courts and has appeared as an independent expert before the Court of Arbitration for Sport. All views and comments are strictly personal to the author. B. Keane (&) Keane Legal, Brussels, Belgium e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2019 A. Duval and A. Rigozzi (eds.), Yearbook of International Sports Arbitration 2017 https://doi.org/10.1007/15757_2019_26

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United Nations so could not be considered to be a country for the purpose of Article 5(1) of the UEFA Statutes. The decision confirms that the public international law concept of a country should be applied to membership rules of International Federations. The case also addressed the powers of the UEFA Executive Committee to examine membership applications. Taking a formalistic approach, the CAS set aside the UEFA Executive Committee’s decision on the basis that a literal reading of the UEFA Statutes only grants the UEFA Congress the right to consider a membership application. However, this does not mean that the UEFA Congress can take arbitrary decisions without complying with the mandatory requirements for membership. This put UEFA in the curious—and arguably incoherent—position of having to transmit the doomed application to the UEFA Congress for its consideration. Keywords Country


State
Admission
International Federations
Football

1 Facts and Procedure 1.1

Factual Background

The Bailiwick of Jersey is an island located in the Channel that is a self-governing possession of the British Crown.1 As a Crown Dependency, it is not a part of the United Kingdom. It has its own directly elected legislative assemblies, administrative, fiscal and legal systems and courts of law. However, the defence and the international representation of Jersey is the responsibility of the United Kingdom. The Crown Dependencies are not recognised internationally as sovereign States2 in their own right but as “territories for which the United Kingdom is responsible”.3 Football on the island is co-governed by the Jersey Football Association (JFA). JFA is recognised as a ‘County Football Association’ by the English Football Association (English FA). On 7 December 2015, JFA submitted an application to become a member of the Union of European Football Associations (UEFA). 1

There are two other Crown Dependencies: The Isle of Man (in the Irish Sea) and the Bailiwick of Guernsey (also in the Channel). Within the Bailiwick of Guernsey there are three separate jurisdictions: Guernsey (which includes the islands of Herm and Jethou); Alderney; and Sark (which includes the island of Brecqhou). See further: The Royal Family, Crown Dependencies. https:// www.royal.uk/crown-dependencies. Accessed 16 May 2019. 2 Oxford Dictionary of Law defines a State as “a sovereign and independent entity capable of entering into relations with other states and enjoying international legal personality. To qualify as a state, the entity must have (1) a permanent population although in the case of the Vatican or Nauru, this may be small; (2) a defined territory over which it exercises authority (although its borders, as in the case of Israel, need not be defined or undisputed); (3) an effective government”. 3 Ministry of Justice, Factsheet on the UK’s relationship with the Crown dependencies, 16 August 2018. https://www.gov.uk/government/publications/crown-dependencies-jersey-guernsey-and-theisle-of-man#history. Accessed 16 May 2019.

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Article 5(1) of the UEFA Statutes (as applicable at the relevant time) set out the following condition of membership: Membership of UEFA is open to national football associations situated in the continent of Europe, based in a country which is recognised by the United Nations as an independent state, and which are responsible for the organisation and implementation of football-related matters in the territory of their country.

The admission procedure is set out in Article 6 of the UEFA Statutes. Article 6 (1) provides that a national football association that wishes to become a member of UEFA shall submit a written application for admission. Article 6(2) states that “Congress shall have the power in its discretion to accept or refuse an application for membership”. In accordance with Article 6(3), the UEFA Executive Committee may admit a national football association on a provisional basis, but a decision on full admission must be taken at the next Congress. On 1 September 2016, UEFA issued a decision (the “Appealed Decision”) informing JFA that its membership application had been examined by the UEFA administration and was discussed at a meeting of the UEFA Executive Committee on 25 August 2016 which rejected the application. According to the Appealed Decision, the UEFA Executive Committee “decided that the application should not be forwarded to the UEFA Congress, since the admission criteria set out in Article 5 of the UEFA Statutes are clearly not satisfied, in particular, since Jersey cannot be considered as an independent state within the meaning of this provision”.4

1.2

Procedure and Jurisdiction

On 15 September 2016, JFA lodged a Statement of Appeal before the Court of Arbitration for Sport (CAS) against UEFA concerning the Appealed Decision in accordance with Articles R47 and R48 of the CAS Code, filing its Appeal on 26 September 2016. Together with its Answer of 4 November 2016, UEFA objected to the jurisdiction of the CAS. Following completion of the written procedure, a hearing was held on 28 June 2017 in which both the substantive and jurisdictional issues were addressed. UEFA argued that, in accordance with Article 62 of its Statutes,5 the jurisdiction of the CAS as an Appeals Arbitration Body only applied to members of UEFA (and 4

CAS 2016/A/4787, Jersey Football Association (JFA) v. Union of European Football Associations (UEFA), Award of 28 September 2017, para. 6. 5 Art. 62 of the UEFA Statutes states: “(1) Any decision taken by a UEFA organ may be disputed exclusively before the CAS in its capacity as an appeals arbitration body, to the exclusion of any ordinary court or any other court of arbitration. (2) Only parties directly affected by a decision may appeal to the CAS. However, where doping-related decisions are concerned, the World Anti-Doping Agency (WADA) may appeal to the CAS. (3) The time limit for appeal to the CAS shall be ten days from the receipt of the decision in question. (4) An appeal before the CAS may only be brought after UEFA’s internal procedures and remedies have been exhausted.”

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between UEFA members).6 Its jurisdiction could not be extended to non-members, which is the case of an applicant like JFA. By contrast to the CAS cases concerning an application from the Gibraltar Football Association, UEFA had not offered or entered into any separate contract or agreement to arbitrate the dispute.7 JFA, in response, argued that the UEFA Statutes drew a distinction between the CAS as an Ordinary Court of Arbitration (at Article 618) where jurisdiction to arbitrate is limited to the established UEFA family and appeal cases of decisions emanating from UEFA (at Article 62) where no such limitation is made. Article 62 does not specify that it is subject to Article 61(1); on the contrary, the plain and natural reading is that it is entirely and intentionally disjunctive. In support of this view, JFA observed that the jurisdictional clause of UEFA expressly provided for a non-member, the World Anti-Doping Agency (WADA), to appeal decisions by a UEFA organ. Article 62(2) merely refers to the “party affected” by a UEFA decision without any qualification or link to UEFA membership. Finally, JFA cited the UEFA Regulations Governing the Implementation of the UEFA Statutes which require an association applying for membership to sign a declaration undertaking to observe UEFA’s Statutes, regulations and decision at all times. The CAS agreed with JFA that it had jurisdiction. The CAS considered the wording of Article 62 to be very broad, referring to “any” decision of UEFA, without the same institutional qualification as in Article 61. Moreover, Article 62(2) does not refer exclusively to members affected by the decision by UEFA organs but to any “parties”. The reference to WADA, likewise, indicates that it is open to non-members. The CAS stated: Article 62(2) of the UEFA Statutes states that ‘Only parties directly affected by a decision may appeal to the CAS’. The JFA is a party directly affected by the Appealed Decision. In this respect, it is obvious that the Appealed Decision concerns nobody but the Appellant.9

The CAS also dismissed other objections raised by UEFA relating to its standing to be sued.10 It was not disputed that the applicable law was Swiss law as the governing law for the UEFA Statutes.11 6

CAS 2016/A/4787, Jersey Football Association (JFA) v. Union of European Football Associations (UEFA), Award of 28 September 2017, para. 28 et seq. 7 Ibid., paras 35–37. 8 Art. 61 of the UEFA Statutes states: “The CAS shall have exclusive jurisdiction, to the exclusion of any ordinary court or any other court of arbitration, to deal with the following disputes in its capacity as an ordinary court of arbitration: (a) disputes between UEFA and associations, leagues, clubs, players or officials; (b) disputes of European dimension between associations, leagues, clubs, players or officials. The CAS shall only intervene in its capacity as an ordinary court of arbitration if the dispute does not fall within the competence of a UEFA organ.” 9 CAS 2016/A/4787, Jersey Football Association (JFA) v. Union of European Football Associations (UEFA), Award of 28 September 2017, para. 96. 10 Ibid., paras 106–121. It also dismissed a claim by UEFA that JFA lacked standing to sue UEFA alone (without the English Football Association being a co-respondent) as the decision concerned an internal matter relating to the UEFA organs. 11 Ibid., para. 105.

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2 Definition of a Country The key substantive issue concerned the question of whether Jersey could be considered to be a country for the purpose of UEFA’s admission rules. First, JFA argued that Article 5 of the UEFA Statutes should be interpreted in a manner that facilitated the admission of more than one association per country. JFA contended that the requirement to be “based in a country recognized by the United Nations as an independent state” does not require that there should be only one football association per country. Consequently, Jersey is located “in a country recognized by the United Nations as an independent state”, i.e. the United Kingdom.12 Second, JFA claimed that the UEFA admission rule is discriminatory. Crown Dependencies, it asserted, are the most constitutionally independent “non-sovereign territories” in the world. Whilst JFA conceded that it was rational for the rule to prevent UEFA from being drawn into territorial disputes or secession issues, Article 5 had to consider the position of the principal and permanent subjects of its application. The result of UEFA’s application of Article 5 is to leave the Crown Dependencies in a unique position of exclusion from international football.13 Third, JFA considered the admission rule to be irrational, principally because of its reliance upon classic international law notions of sovereignty and independence. According to JFA, these are increasingly relative and disputed concepts in modern Europe. Jersey fulfils almost all of the requirements for state sovereignty—the exception being the use of military force external to its borders—as well as other classic requirements absent from modern definition.14 From UEFA’s perspective, the admission rule consists of three key elements: (i) The applicant must be a national football association situated in the continent of Europe; (ii) The applicant must be based in a country which is recognised by the United Nations as an independent state; (iii) The applicant must be responsible for the organisation and implementation of football-related matters in the territory of their country. With respect to the first requirement, UEFA stated the association must be a national football association, not a regional association. UEFA considered JFA to be a regional football association due to its status as a County Football Association within the English FA. The rationale of the admission rule is to protect current member associations and prevent the fraction of such associations into several (regional) associations in their territory, which could then all apply for UEFA membership. Although UEFA recognised that JFA had some responsibility to

12

Ibid., paras 53–56. Ibid., paras 57–59. 14 Ibid., para. 60. 13

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organise football on a local level in Jersey, this responsibility can be exercised only within the framework established by the English FA.15 The fact that JFA is legally integrated into the English FA was reflected both in JFA’s own statutes16 as well as those of the English FA relating to County Football Associations.17 UEFA observed, moreover, that football players from Jersey are eligible for the English national football team and, as such, suffer no prejudice from JFA’s non-membership of UEFA. Consequently, JFA did not meet the first requirement for admission to UEFA of being a national football association. Another cited rationale for the admission rule was that UEFA wanted to set out a clear criterion for future membership applications, i.e. recognised independence of the respective country. Jersey is not a country, it is not an independent State, and it is not recognised as such by any member of the international community.18 Even if the Crown Dependencies have some autonomy with respect to the extension of international agreements to their territories, the international representation and defence of Jersey is the responsibility of the United Kingdom. The CAS endorsed UEFA’s view as to the key elements to be satisfied for admission. It considered the wording of the admission rule to be sub-optimal because only the member states of the United Nations—not the United Nations itself as the admission rule provides—can recognise other States. However, the CAS had little difficulty in interpreting its meaning. Referring to the extensive analysis conducted by the CAS in the case brought by the Serbian Football Association concerning the membership of the Kosovo Football Association, the CAS held that Article 5 must be interpreted as requiring the applicant to be based in a country which is recognised as an independent State “by the majority of UN members”.19 In the view of the CAS, JFA had “not established that Jersey has been recognized as an independent State by any other State and even less so by the majority of the United Nations members.”20 As the conditions for admission were cumulative, JFA’s application failed to satisfy the conditions for admission to UEFA (the question of whether JFA was

15

Ibid., paras 80–85. UEFA cited in particular the Memorandum of Association of JFA which included a requirement for JFA “to adopt and carry out all such rules and regulations, conditions, bye-laws, agreements and arrangements of [the English FA] as are now in existence and from time to time.” 17 Article 4 states: “Each County Association shall cover a defined area and shall neither extend nor alter such area without first having obtained the written consent of The Association and accordingly, only on the written confirmation by The Association shall an association be accorded the status of a County Association.” 18 CAS 2016/A/4787, Jersey Football Association (JFA) v. Union of European Football Associations (UEFA), Award of 28 September 2017, paras 87–90. 19 Ibid., para. 142, referring to CAS 2016/A/4602, Football Association of Serbia v. UEFA, Award of 24 January 2017, para. 133. 20 CAS 2016/A/4787, Jersey Football Association (JFA) v. Union of European Football Associations (UEFA), Award of 28 September 2017, para. 144. 16

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actually a national football association was left open – though the CAS opined that it was closely associated with the concept of nationhood21). The CAS concluded that UEFA “made the right decision”.22

3 Power to Accept or Reject Membership Application In a surprising twist, however, the CAS ruled that UEFA’s decision had been taken by the wrong organ. Essentially, JFA had argued that the decision taken by the UEFA Executive Committee was ultra vires because the UEFA Statutes provided that “[m]atters within the power of Congress shall be the […] consideration of membership applications and the exclusion of a Member Association”. JFA argued that the decision should be struck down “on this reason alone”.23 UEFA pointed out, in response, that the UEFA Executive Committee had acted in accordance with its long-standing procedures and common practice. Referring to its Regulations Governing the Implementation of the UEFA Statutes, UEFA stated that a national football association that wishes to become a member of UEFA must (i) submit a written application to the UEFA Administration, for (ii) submission to the UEFA Congress. The written application must first be sent to the UEFA Administration which conducts a preliminary assessment. Within this framework, the UEFA Administration and then the UEFA Executive Committee examine in detail whether the applicant meets all the necessary legal requirements for membership with UEFA. It is only if these requirements are met that the application file (upon a formal decision of the UEFA Executive Committee) is transmitted onwards to the UEFA Congress for the decision as to whether or not the applicant shall be admitted.24 According to UEFA, this first examination is necessary to prevent any random membership application from being forwarded to the UEFA Congress even if it is totally without merit.25 The CAS disagreed, even if it had some sympathy for UEFA’s views. However, it held that “associations [sic] enact regulations and statutes that articulate its functioning […] which are mandatory for the association itself (including its organs) and for its members and such regulations have priority over any deviating

21

Ibid., Ibid., 23 Ibid., 24 Ibid., 25 Ibid., 22

para. 140. para. 147. para. 48. paras 65–69. para. 71.

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custom.”26 The CAS reiterated previous rulings that the “interpretation of the statutes and rules of a sport association has to be rather objective and always to start with the wording of the rule, which falls to be interpreted”.27 The CAS considered it to be uncontested that the UEFA Executive Committee had the right to analyse the membership application first, and it also accepted that it would not serve the purpose of the rules for it to act “as a mere postman”.28 However, the CAS considered the final power to accept or refuse membership lay exclusively with the UEFA Congress: [A]s stated in Article 6(2), the final power to accept or refuse an application to membership resides with the UEFA Congress. Moreover, Article 13 (2) lit. l) establishes that one of the attributions to the UEFA Congress is the ‘consideration of membership applications’. It is therefore clear that the UEFA Statutes provide the Congress with the primary power and discretion to make final decisions on the merits of membership applications.

The CAS concluded that the UEFA Executive Committee was not entitled to render a final and binding decision on whether a candidacy may or may not be rejected. The application should have been transmitted to the UEFA Congress for decision-making. The CAS declared that the Appealed Decision must be set aside and it ordered UEFA to transmit JFA’s application for membership to the UEFA Congress. That said, the CAS accepted that satisfaction of the conditions of membership is mandatory for all applicants. The CAS concluded that UEFA “made the right decision, albeit taken by the wrong body”.29

4 Post Script The practical effect of the CAS’s decision was the UEFA Executive Committee being required to send JFA’s doomed application to the next UEFA Congress for its consideration. Unsurprisingly, the application of JFA was overwhelmingly rejected by the UEFA Congress, with no votes cast in its favour.30

26

Ibid., para. 125. Ibid., para. 126 citing CAS 2010/A/2071, Irish Football Association v. Football Association of Ireland and Kearns, Award of 27 September 2010, para. 46. 28 Ibid., para. 130. 29 Ibid., para. 147. 30 49 votes against; 1 abstention; 5 no vote cast. See: Jersey Evening Post, Jersey’s bid for UEFA membership rejected, 26 February 2018. https://jerseyeveningpost.com/top-stories/homepage/ 2018/02/26/jerseys-bid-for-uefa-membership-rejected/. Accessed 16 May 2019; see also: BBC News, Jersey: Uefa congress rejects application to become international football nation, 26 February 2018. https://www.bbc.com/sport/football/43183023. Accessed 16 May 2019. 27

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5 Commentary 5.1

Meaning of a Country

Reading the decision and the brevity required for the CAS to come to its conclusion, one could be forgiven for wondering how such a case ever materialised. It is surely common knowledge that Jersey is not a country, even within the Bailiwick itself. But it is precisely because the CAS has admitted territories that are not countries as members of UEFA that such a speculative case arose. In order to understand how the CAS came to its decision in the JFA case, it is first necessary to explore the reasoning in the earlier decisions. In the cases concerning the Gibraltar Football Association (GFA), the CAS was faced with the same question as to whether Gibraltar, as a British Overseas Territory,31 could be admitted as a member of UEFA even though it had not been recognised as a country. At the time, the English version of the UEFA admission rule stated that “[m]embership of UEFA is open to national football associations situated in the continent of Europe …”.32 It did not specify that the country had to be recognised by member states of the United Nations, a clarification that was only added after the GFA’s application had commenced.33 In the GFA cases, the CAS decided that the UEFA admission rule was not limited to independent countries. In so finding, the CAS put considerable emphasis upon a legal report provided by an expert panel to the UEFA Executive Committee. The expert panel concluded that UEFA’s admission rule at the time could extend to territories which are not countries because the German text of the admission rule (which had precedence over the English and French versions) only referred to “European” associations (europäische Verbände) as opposed to “national” associations. The expert panel concluded that “given that Gibraltar is a European association which is no longer dependent on the [English] FA … and given that the GFA indisputably exercises sole responsibility for the organisation and structure of football in its territory, Article 5 paragraph 1 can only be interpreted as to mean that the GFA from a legal perspective fulfils the criteria of the UEFA statutes for becoming a UEFA member”.34 In the third award concerning Gibraltar, the CAS

31

It had been formerly a British Crown Colony before the change of its status. British Overseas Territories have a different status under British law to Crown Dependencies, but this difference is of no importance to the analysis as it is clear that British Overseas Territories are also not countries. 32 CAS 2002/O/410, The Gibraltar Football Association (GFA) v. Union des Associations Européennes de Football (UEFA), Award of 7 October 2003, para. 19. 33 This was the subject of dispute in the first award concerning the GFA, with UEFA ordered to consider the application on the basis of the admission rule at the time the application process commenced and not after it was amended. 34 CAS 2002/O/410, The Gibraltar Football Association (GFA) v. Union des Associations Européennes de Football (UEFA), Award of 7 October 2003, para. 20.

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stated that this expert report created a legitimate expectation for the GFA to achieve its goal to become affiliated to UEFA.35 In the subsequent Gibraltar case concerning the GFA’s separate application for FIFA membership (see author disclosure below36), the question of what is a country arose once again. At the relevant time, the 1996 FIFA Statutes stated “FIFA shall consist of the national associations which are affiliated to it and recognised by it as controlling association football in their respective countries”. This time the CAS found that the meaning of the term ‘country’ should be interpreted to include territories without independent statehood. It observed that FIFA had interpreted the admission rule in a broad manner so as to include territories that did not have independent statehood.37 In the CAS’s view, the position of the GFA was similar to those other cases and, as such, should be treated in the same manner. In the Gibraltar cases, the CAS did not actually examine what constitutes a country from an international law perspective. Instead, the CAS either stated that an interpretation of the UEFA rule prevented such an interpretation (even though the UEFA Executive Committee itself rejected the view of the expert panel) or, in the case of FIFA, the manner in which it was apparently applied in other cases estopped such an interpretation. In both situations, the CAS refrained from interpreting the rules as relating to recognition by UN member states or the international community because there was not an express requirement to that effect in the rules—even though this may reasonably have been considered to be the starting point for any review of membership to an international federation. These cases resulted in both UEFA and FIFA adopting new admission rules referring to international recognition. The first test for UEFA’s new admission rule arose when the Serbian Football Association contested the resolution by the UEFA Congress to admit the Football Federation of Kosovo as a member on 3 May 2016.38 As the admission rule referred to ‘UN recognition’ rather than recognition by the members of the United Nations, a question arose as to whether Kosovo’s admission could be approved given that it was not a member of the United Nations. At the Congress, UEFA’s legal director stated that the admission rule could not be interpreted literally because the United Nations cannot and does not recognise States—only sovereign states can recognise 35

CAS 2007/O/1237, The Gibraltar Football Association (GFA) v. Union des Associations Européennes de Football (UEFA), Award of 18 August 2011. 36 CAS 2014/A/3776, Gibraltar Football Association v. FIFA, Award of 27 April 2017. The author was appointed by FIFA as an independent legal expert on EU law in this case. All views expressed relating to this case are strictly personal. 37 Ibid., paras 300–302. In particular, the CAS observed that FIFA failed to distinguish the GFA from the other football associations that FIFA accepted as members including (i) most importantly, the associations of other British Overseas Territories, such as Anguilla, Monserrat, the British Virgin Islands, the Cayman Islands, Bermuda, and the Turks & Caicos Islands; (ii) the associations of other non-independent territories such as the US Virgin Islands, Guam, the Faroe Islands etc.; and (iii) the associations of non-independent politically sensitive territories such as Palestine. 38 CAS 2016/A/4602, Football Association of Serbia v. Union des Associations Européennes de Football (UEFA), Award of 24 January 2017.

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other countries.39 As such, the UEFA legal director advised the Congress that the admission rule should be interpreted in a reasonable and common sense manner as relating to recognition by members of the United Nations.40 Kosovo was deemed to meet this requirement as it was recognised by the majority of UN members (109 out of 193 UN members). The CAS agreed that it made “little sense” to interpret the admission rule literally given that the United Nations cannot recognise countries, adding that the French and German versions were “nonsensical when interpreted literally”.41 It then examined whether the requirement meant that the country from which the application federation was applying had to be a member of the United Nations (a requirement that Kosovo does not fulfil) or merely recognised by a majority of UN members. The CAS observed that the rule was amended to ensure that there is only one federation per independent state.42 It dismissed the obiter dictum in the first Gibraltar case where the Panel referred to the new admission rule as requiring the application to come from a country that is a member of the United Nations.43 Instead, the CAS, in a marked departure from the approach taken in the Gibraltar cases, looked at the political reality: The concept of “state” is, thus, subject to political developments. This being said, the Panel is well aware that in a sporting context the term “state” or “country” need not be understood in the same way as in public international law. However, striving for cooperation between national sports entities within an international sporting framework and thereby ignoring the political realities is in most instances bound to fail. Thus, the attempt to mirror the solutions and realities of the political map onto the sporting world makes a lot of sense. This is all the more true in a case where the association seeks “unequivocal” guidance. The latter is far easier if reference is made to established principles of international public law than creating

According to the webpage of the United Nations relating to UN Membership, “The recognition of a new State or Government is an act that only other States and Governments may grant or withhold. It generally implies readiness to assume diplomatic relations. The United Nations is neither a State nor a Government, and therefore does not possess any authority to recognize either a State or a Government. As an organization of independent States, it may admit a new State to its membership or accept the credentials of the representatives of a new Government.” See: United Nations, About UN Membership. https://www.un.org/en/sections/member-states/about-unmembership/index.html. Accessed 16 May 2019. 40 Ibid., paras 16–19. 41 Ibid., para. 108. 42 Ibid., para. 113. 43 Ibid., para. 119 citing CAS 2002/O/410, The Gibraltar Football Association (GFA) v. Union des Associations Européennes de Football (UEFA), Award of 7 October 2003, in which the CAS stated: “Article 5 paragraph 1 of the UEFA Statutes was amended by the UEFA Congress on 11 October 2001 … (hereinafter the “New Rule”). The Panel interprets this text to mean that the respective country must have been admitted as a member of the United Nations. The United Nations do not ‘“recognize” countries in the strict sense of the word. However, what is clear is that under the New Rule, the GFA would not be eligible as a member of UEFA, since Gibraltar is not an independent State admitted to membership in the United Nations.” 39

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and defining a specific sporting term and understanding. As a starting point, thus, whatever constitutes an independent state or country within the meaning of public international law should be regarded as a “territory” eligible for membership according to Art. 5 (1) UEFA Statutes.

In other words, the starting point should be the public international law position before any sporting context is taken into consideration.44 The CAS noted that the public international law concept of an independent state is not limited to members of the United Nations. Thus, the CAS concluded that the reference to the United Nations in Article 5(1) UEFA Statutes is “not designed or intended to restrict the notion of ‘independent state’ beyond the threshold in public international law”.45 Such an interpretation would also be in line with the requirement in the FIFA Statutes and the Olympic Charter, which both refer to a country as being “an independent State recognised by the international community”.46 Given this history, it is understandable why JFA would want to test the robustness of UEFA’s admissibility rule to determine whether recognition by UN member states was merely desirable or essential to admission. The decision by the CAS to unequivocally apply the public international law standard of what constitutes a country is, therefore, welcome. As one commentator observed, the recognition of a territory by an International Federation certainly enhances the public perception of that territory being a country even if formally speaking it may not be: If you ask the ‘man on the street’ whether Kosovo was a state as Majlinda Kelmendi […] stood on the podium after winning a gold medal in judo at the 2016 Summer [Olympic] Games, or while that man watches the Kosovo team participate in the UEFA Euro and FIFA World Cups – that answer is more and more likely to be ‘yes’.47

An interesting question, however, remains as to what International Federations should do with quasi-States that are not recognised as countries by the international community and yet have a certain self-autonomy. As noted above, the CAS opined in the Kosovo case that the term ‘state’ or ‘country’ need not necessarily be understood in the same way as the terms in public international law when applied “in a sporting context”. In the Jersey case, the CAS did not delve into whether there may be a “sporting context” for extending the meaning of a country for the purpose of the UEFA Statutes. It is, however, quite conceivable that some quasi-States, such as those which are geographically located far from the State responsible for their international representation, may have a separate sporting identity (e.g. French Guiana, located in South America, is a member of the regional football confederation but not a

44

Ibid., para. 123. Ibid., para. 124. 46 Ibid., paras 126–129. 47 Ryan Gauthier, Kosovo at the Court of Arbitration for Sport—Constructing Statehood through Sport? 17 March 2017. https://www.asser.nl/SportsLaw/Blog/post/kosovo-at-the-court-of-arbitrationfor-sport-constructing-statehood-through-sport-by-ryan-gauthier-thompson-rivers-university. Accessed 16 May 2019. 45

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member of FIFA). It is also possible that an association may extend beyond the boundaries of a single country48 or merge with another national association for sporting reasons.49 However, it would be inadvisable to apply such sporting context to the general admission rules as this could undermine the clarity of the requirement to come from an internationally recognised country. It could also expose International Federations to the charge, as occurred in the Gibraltar cases, that they are acting in a discriminatory manner by admitting some non-country territories but not others. Instead, the sporting context may be better accommodated in an exceptional rule on membership or associate membership. A form of associate membership for quasi-States could, for example, allow access to international competitions to accommodate the sporting context at issue but only confer non-voting observer status in terms of representation within the International Federation. This exceptional approach would also enable the admission of politically sensitive territories without any suggestion that it is a form of international recognition. Such an exceptional rule could be clearly reserved for extraordinary sporting and political circumstances to avoid circumvention of the general membership rule.

5.2

Commentary on Congress Vote

The decision of the CAS to require the UEFA Congress to decide upon the application even though it manifestly failed to meet the admission criteria is difficult to understand. It appears to have arisen from a misinterpretation of JFA’s prayers for relief. JFA sought the annulment of the Appealed Decision “on this ground alone”. It is doubtful that JFA would have requested this relief if it knew that the application was doomed. This ruling is also inconsistent with the previous findings in the Gibraltar cases. There, the UEFA Executive Committee was upbraided for refusing to follow a legal report addressed to it on the basis that this report conferred the GFA with a legitimate expectation that it would be admitted. Yet, according to the CAS in the Jersey case, the UEFA Executive Committee does not even have the right to reach a decision as to whether the application should be accepted or rejected. It is difficult to see how a legal report that advised the non-deciding organ of UEFA could be interpreted as conferring a legitimate expectation for membership. This key element

48

For example, the Irish Rugby Football Union encompasses the Republic of Ireland and Northern Ireland. 49 The International Olympic Committee permitted South Korea and North Korea to field a unified women’s hockey team and to march under a single flag in the Winter Olympics 2018. See: IOC Press Release, Unified Korean Olympic Team to march at Olympic Winter Games PyeongChang 2018, 20 January 2018. https://www.olympic.org/news/unified-korean-olympic-team-to-march-atolympic-winter-games-pyeongchang-2018. Accessed 16 May 2019.

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of the Gibraltar cases only makes sense if it is accepted that the UEFA Executive Committee did have the power to decide upon the suitability of the application. The fact that the CAS relied solely upon a literal interpretation of the rule sits at odds with its decision to take a different interpretative approach with respect to the admission rule itself. The failure to pursue an alternative interpretative approach is particularly puzzling because the CAS accepted that the UEFA Congress cannot take arbitrary decisions that do not comply with the requirements for membership, as compliance with Article 5(1) of the UEFA Statutes is mandatory for all new potential members. As such, the CAS made it clear that the application of Jersey could not be accepted by the UEFA Congress (and its admission could have been annulled by the CAS had it done so). Surely the UEFA Executive Committee should have the discretion to refuse to transmit an application which would fail the mandatory requirements of membership—and if it is wrong in such assessment then an appeal before the CAS would be still available to require the transmission of the file to the Congress. Had the CAS applied the common practice approach to the interpretation of the Statutes (an acceptable interpretative approach under Swiss law), then it would have ended up with a more logical outcome. As a consequence of the CAS decision, International Federations may now have to consider the amendment of their membership procedures to prevent speculative and potentially politically sensitive applications being made before their Congresses by ensuring that the initial discretion lies with the executive organs of the International Federation.

5.3

Conclusion

The Jersey case confirms that the public international law concept of a country is back at the centre of the discussion on membership of International Federations. A broader question remains as to what to do with such quasi-States. International Federations and confederations would be advised, given the past Gibraltar cases, to remain steadfast in only admitting members under their membership rules if they are recognised States by the international community to avoid any future claim of discriminatory treatment. Perhaps associate membership with access to international competitions but limited membership rights would strike the right balance for such quasi-States.

Part III

Sports Arbitration and National Courts

Chamber for Contentious Administrative Proceedings of the Audiencia Nacional, Sixth Section, Marta Dominguez v. Minister for Education, Culture and Sport, 21 June 2017 Audrey Cech and Carlos Schneider

Contents 1 Introduction.......................................................................................................................... 2 Facts and Proceedings ......................................................................................................... 3 The Status of High-Level Athletes ..................................................................................... 4 Enforcement and Recognition of Doping-Related CAS Decisions in Spain..................... 5 The Dispute ......................................................................................................................... 6 Conclusion ........................................................................................................................... References ..................................................................................................................................

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Abstract The June 2017 decision of the Sala de lo Contencioso-Administrativo, Sección Sexta, de la Audiencia Nacional leading to Marta Dominguez’ re-instatement as a “High-Level Athlete” (deportista de alto nivel) is a textbook example of the importance of the recognition of international arbitral awards to produce effects under national law. Are doping-related CAS awards exempt from exequatur in Spain? The decision of the Audiencia Nacional replied negatively, confirming that without the prior recognition at the national level by the competent body, a CAS award cannot have effects under Spanish law, such as the withdrawal of an administrative status. Moreover, the Audiencia Nacional’s decision provides a welcome clarification to the wording of Law 3/2013 on the Protection of Health and A. Cech
C. Schneider (&) Fédération Internationale de Football Association, FIFA-Strasse 20, P.O. Box 8044, Zürich, Switzerland e-mail: Carlos.Schneider@fifa.org A. Cech e-mail: Audrey.Cech@fifa.org © T.M.C. ASSER PRESS and the authors 2019 A. Duval and A. Rigozzi (eds.), Yearbook of International Sports Arbitration 2017 https://doi.org/10.1007/15757_2019_27

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the Fight Against Doping in Sports and other relevant regulations. In this sense, the decision confirms that the Spanish Agency for the Protection of Health in Sports is the competent authority to recognize doping-related CAS awards. As a general remark, the commented decision should not be regarded as another attack against the CAS system. It should be interpreted as a simple reminder that CAS awards do not benefit from special treatment, and like any other international arbitral awards, they cannot have direct consequences in the domestic legal system without first being recognized in accordance with the applicable national law.










Keywords CAS Doping Exequatur Enforcement and recognition of international arbitral awards Agencia Española de Protección de la Salud en el Deporte (AEPSD) Status of high-level athlete







1 Introduction Marta Domínguez is a well-known Spanish runner whose sporting career is capped with four participations at the Olympics and six World Championships appearances. Yet, her impressive sporting achievements are clouded by serious doping accusations. In December 2010, Ms. Dominguez was arrested by the Spanish Guardia Civil in the course of “Operación Galgo”1 but was later acquitted in 2011. Since then, she has been entangled in a judicial turmoil related to doping scandals.

2 Facts and Proceedings On 11 March 2013, the International Association of Athletics Federations (IAAF) reported atypical findings in Marta Dominguez’ biological passport with “two suspected periods of blood doping: one around the time of the 2009 World Championship in Berlin and the other around the time of the 2010 European Championship in Barcelona”.2 On 8 July 2013, the IAAF informed the Royal Spanish Athletics Federation (Real Federación Española de Atletismo, RFEA) of Marta Dominguez’ potential Anti-Doping Rule Violation (ADRV) and immediately Known in the media as “Operación Galgo”. This investigation was conducted by the Spanish Guardia Civil into potential doping allegations in elite sports and during which several high-profile athletes, coaches and doctors were arrested. However, due to insufficient evidence, the investigation was closed. See Ministerio del Interior, La Guardia Civil detiene a catorce personas implicadas en una red de dopaje en el deporte, 9 December 2019. http://www.interior.gob.es/ noticias/detalle/-/journal_content/56_INSTANCE_1YSSI3xiWuPH/10180/1030259/. Accessed 24 April 2019. 2 CAS 2014/A/3561 & 3614, International Association of Athletics Federation (IAAF) & World Anti-Doping Agency (WADA) v. Marta Domínguez Azpeleta and Real Federación Española de Atletismo (RFEA), Award of 19 November 2015, para. 17. 1

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imposed a provisional suspension on her. However, on 19 March 2014, the RFEA acquitted Marta Dominguez and lifted her provisional suspension. The RFEA decision mostly relied on expert reports according to which her results were not necessarily abnormal and on the basis that the ADRV was not proven beyond all reasonable doubts. The IAAF and WADA appealed against the RFEA decision before the CAS seeking a four-year period of ineligibility against the athlete. The CAS decided, in its award rendered on 19 November 2015,3 that Ms. Dominguez was to be sanctioned with a three-year ineligibility period and stripped her of the competitive results obtained between August 2009 and July 2013, including the gold medal in steeplechase at the Berlin IAAF World Championships in Athletics in 2009. As a consequence of the doping offence confirmed by the CAS, Marta Dominguez also saw her status of “High-Level Athlete” challenged by the Spanish national authorities. On 19 January 2016, the General Secretary of the RFEA informed the Spanish Superior Sports Council (Consejo Superior de Deportes, CSD) that despite the doping sanction imposed by the CAS, Ms. Dominguez continued to hold such status. On 28 January 2016, the President of the CSD decided to rescind her status as a “High-Level Athlete” “for having been sanctioned, by a definitive administrative act, for a doping offence”, based on Article 15(b) of the Royal Decree 971/ 2007 of 13 July 2007 on High-Level and High Performance Athletes.4 Ms. Dominguez filed an appeal against this decision before the Sixth Section of the Chamber for Contentious Administrative Proceedings of the Audiencia Nacional. The decision commented here, dated 21 June 2017, is the one rendered by the Audiencia Nacional upon Ms. Dominguez’ appeal.5 The main issue dealt with by the Audiencia Nacional was whether an international arbitral award, such as those rendered on appeal by the CAS in doping cases, could directly produce effects under Spanish law without its prior recognition by the competent authorities. The Audiencia Nacional replied negatively. As a result, Marta Dominguez was re-instated as a “High-Level Athlete”.

3 The Status of High-Level Athletes Reaching the highest level of international competition requires tremendous dedication and sacrifice from athletes frequently resulting in compromises regarding other aspects of their lives—typically formal academic education. It results therefrom that at the end of their professional sporting careers, athletes may face difficulties in finding a new professional path. It is with these preoccupations in mind 3

Id. Real Decreto 971/2007, 13 de Julio, sobre deportistas de alto nivel y alto rendimiento, Royal Decree 971/2007. 5 Spain. Audiencia Nacional (Sala de lo Contencioso-Administrativo, 6th Section), Sentence num. 01802/2016 of 21 June 2017. 4

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that the Spanish legislator adopted Royal Decree 971/2007 on High-Level and High Performance Athletes. In general terms, the aim of Royal Decree 971/2007 is to provide an extensive set of rules fully integrated within the Spanish legal system to promote, encourage and support high-level athletes during and after their sporting career. In particular, Royal Decree 971/2007 intends to support the technical preparation of high-level athletes, encourage their integration in the Spanish educational systems and to facilitate their insertion in social and economic life. According to Articles 3 and 4 of Royal Decree 971/2007, an athlete must comply with a minimum number of requirements in order to benefit from the status of “High-Level Athlete” (hereinafter HLA status). In particular, athletes may receive HLA status if, due to their sporting performance and ranking, they are considered to be amongst the best in the world or in Europe. Athletes holding a Spanish sporting licence who participate in competitions organised by International Federations recognised by the International Olympic Committee may also be entitled to receive HLA status. Being granted HLA status results in multiple benefits of personal and financial nature—ranging from the concession of public or private grants (from clubs, associations, autonomous communities, the High Council of Sports, other special programs, etc.) to a favourable fiscal regime, educational benefits, etc. In this context, Marta Dominguez’ legal battle clearly goes further than just a dispute on principle or for prestige. Indeed, her name appeared on the provisional admission list for access to the National Police Forces (in Spanish “cuerpo nacional de policía de españa”) published in the Official Bulletin of 14 July 2016.6 Amongst other advantages, she may benefit from a facilitated examination regime thanks to her HLA status.7 The CAS ruling confirming her ADRV would put her HLA status in jeopardy, also affecting her future professional projects. Indeed, the grant of HLA status is not permanent. Article 15 of Royal Decree 971/2007 sets the conditions that would result in the loss of said status. In particular, an Athlete may lose HLA status “for having been sanctioned, by a definitive administrative act, for a doping offence” (emphasis added). In such cases, the relevant Spanish sports association will have to immediately inform the President of the Evaluation Committee of High Level Sport (Comisión de Evaluación del Deporte de Alto Nivel),8 who will declare the loss of HLA status. Athletes losing HLA status in such circumstances may not apply to be

6

Boletín Oficial Del Estado (BOE) num. 169 of 14 July 2016, Sec. II.B, p. 49283. Royal Decree 637/2010 of 14 May 2010 and BOE num. 126 of 25 May 2016, Sec. II.B, p. 34402. 8 The President of the Evaluation Committee of High Level Sport is a member of the CSD. The CSD is a body of the general Spanish administration. More specifically, it is part of the Spanish Sports and Culture Ministry. See Consejo Superior de Deportes, Comisión de Evaluación del Deporte de Alto Nivel. https://www.csd.gob.es/es/csd/comisiones-organos-colegiadosorganismos-deportivos-y-rr-ii/comision-de-evaluacion-del-deporte-de-alto-nivel. Accessed 24 April 2019. 7

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reinstated in the same status until the sanction that was imposed on them has been fully complied with. The interpretation and practical application of the latter condition was at the centre of the dispute before the Audiencia Nacional. Can a CAS decision rendered on appeal regarding an ADRV committed by a “High-Level Athlete” be considered as a “definitive administrative act” within the meaning of Article 15 of Royal Decree 971/2007? The Audiencia Nacional answered negatively explaining that, in the present case, there had been no administrative act. In order to produce such effect, the CAS award ought first to be recognized nationally to deploy its full effects under Spanish law—particularly effects of an administrative nature.

4 Enforcement and Recognition of Doping-Related CAS Decisions in Spain In 1977, Spain ratified, without reservation, the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.9 However, it was only in 2015 that the Spanish legislator adopted Law 29/2015 on international legal cooperation in civil matters, which entered into force on 20 August 2015.10 Law 29/ 2015 provided numerous modifications to the provisions regarding the recognition and enforcement of foreign judgments and awards in Spain, particularly by amending Articles 951 to 958 of the 1881 Civil Procedure Rules.11 Since 20 August 2015, Law 29/2015 constitutes the general legal framework for the recognition and enforcement of foreign judgments and awards in Spain subject to more specific provisions in EU Law, international treaties or other specific legislation.12 Article 31(2) of Law 3/2013 on the Protection of Health and the Fight against Doping in Sports13 describes the exequatur for foreign decisions imposing sanctions in doping related matters and therefore applies as a lex specialis to Law 29/2015. Depending on the instance that passed the decision, Article 31(2) of Law 3/2013 distinguishes between two procedures. On the one hand, decisions passed by a foreign Anti-Doping Organisation, federation or other ‘international entity’ will be immediately recognised in Spain as 9

See New York Arbitration Convention, Contracting States. http://www.newyorkconvention.org/ countries. Accessed 1 February 2019. 10 Ley 29/2015, de 30 de julio 2015, de cooperación jurídica internacional en materia civil, Law 29/ 2015 and BOE num. 182 of 21 July 2015, Sec. I, p. 65906. 11 Ley 1/2000, de 7 de enero 2000, de Enjuiciamiento Civil; Luis Morón Mélida, Reconocimiento y ejecución de laudos extranjeros y la ley de cooperación jurídica internacional, 10 February 2016. https://www.abogacia.es/2016/02/10/reconocimiento-y-ejecucion-de-laudos-extranjeros-y-la-leyde-cooperacion-juridica-internacional/. Accessed 4 February 2019. 12 Rodríguez Benot (2016, p. 236). 13 Ley Orgánica 3/2013, de 20 de junio 2013, de protección de la salud del deportista y lucha contra el dopaje en la actividad deportiva, Law 3/2013.

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long as they are in line with the WADA Code and the deciding entity acted within its competence. The Spanish Agency for the Protection of Health in Sports (Agencia Española de Protección de la Salud en el Deporte, AEPSD) will be responsible for the recognition of such decisions ex officio or following an athlete’s request where doubts might arise regarding their “origin” (in Spanish “procedencia”).14 The use of the word “origin” here is unclear. A systematic interpretation of the legislation would lead to the conclusion that the word “origin”, used in this context, refers to the competence of the deciding body. Therefore, the authors consider that the AEPSD will be responsible for the recognition of decisions passed by a foreign Anti-Doping Organisation, federation or other ‘international entity’ following an athlete’s request where doubts arise regarding the competence of the latter. On the other hand, the recognition and enforcement of arbitral awards and final decisions passed by foreign tribunals in doping related matters will be subject to Book II, Title VIII, section 2 a) of the Civil Procedure Law and the international norms applicable in Spain (modified by Law 29/2015).15 The above provisions may lead to confusion regarding decisions rendered by the CAS. Undoubtedly, CAS awards should fall under the category of “arbitral awards”16 and therefore be subject to Law 29/2015 for their recognition and enforcement. However, it could be argued that CAS awards could also be considered as decisions passed by an “international entity”. The Audiencia Nacional concluded that the AEPSD shall be the competent body to recognize the CAS award rendered on 19 November 2015 against Marta Dominguez. To reach this conclusion, the Audiencia Nacional followed a pragmatic approach, with a rather unsatisfactory explanation, focused on the outcome. In particular, the decision reasoned as follows: The Royal Decree 971/2007, of 13 July, on high level and high performance athletes, when it regulates the loss of that condition and wants to tie it to a sanction for doping, requires the existence of a definitive administrative act, which cannot occur in cases where the sanction has been issued by an international body outside of any internal administrative procedure, as it is the case here.

Art 31(2) Law 3/2013, para. 1. The Spanish original text reads: “Cualquier resolución dictada por las autoridades antidopaje de otros Estados o por las Federaciones o entidades internacionales competentes será reconocida de manera inmediata en España siempre que sean conformes a lo dispuesto en el Código Mundial Antidopaje y correspondan al ámbito de competencias de esa entidad. La Agencia Española de Protección de la Salud en el Deporte será la encargada de hacer el reconocimiento de oficio o a instancia de los deportistas, en los casos en que puedan suscitarse dudas acerca de su procedencia”. 15 Ibid., para. 2. The Spanish original reads: “El reconocimiento y ejecución de los laudos arbitrales y de las sentencias firmes dictadas por los tribunales extranjeros en materia de dopaje se ajustará a lo establecido en el libro II, título VIII, sección 2.ª de la Ley de Enjuiciamiento Civil, aprobada por Real Decreto de 3 de febrero de 1881 y a las normas internacionales aplicables en España”. 16 Nafziger and Ross (2011, p. 40); Rubino-Sammartano (2014, p. 1709). 14

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Therefore, it is essential for the Administration to recognise these effects, and we understand that the Spanish Agency for the Protection of Health in Sport is competent to issue this recognition.17

In this sense, the Audiencia Nacional correctly explains that Royal Decree 971/ 2007 requires the existence of a definitive administrative act to withdraw the HLA status. However, the Audiencia Nacional jumps to the conclusion that only the AEPSD can provide this administrative recognition, without explaining why a CAS award rendered on appeal should be dealt with as a decision passed by an “international entity” and not as an “arbitral award”, which would then be subject to Law 29/2015. To further substantiate its position, the Audiencia Nacional refers to Royal Decree 461/2015 of 5 June 2015, which approved the Status of the AEPSD. In particular, and similar to Article 31(2) of Law 3/2013, Article 7(1)(f) of Royal Decree 461/2015 provides that the AEPSD may recognize ex officio or at the request of athletes decisions passed by foreign Anti-Doping Organisations, federations, or competent international entities as long as they are in line with the WADA Code and correspond to the scope of competence of the aforementioned anti-doping entities.18 In this regard, the Audiencia Nacional stressed that the above mechanism provides the necessary link so that decisions passed outside of the Spanish administration may produce effects under Spanish law—such as the withdrawal of HLA status. Moreover, the Audiencia Nacional also underscored that the procedure before the AEPSD guarantees that foreign decisions related to ADRVs are in line with the WADA Code. Serious questions may arise regarding this last statement by the Audiencia Nacional. What if the AEPSD considers a CAS decision to be contrary to the WADA Code? In this sense, and in light of the wording of Law 3/2013 and Royal Decree 461/2015, the authors believe that AEPSD recognition is a mere administrative step intended for decisions passed by foreign Anti-Doping Organisations but not directed at CAS awards.

Decision of the Audiencia Nacional, pp. 9 and 10. The Spanish original reads: “El Real Decreto 971/2007, de 13 de julio, sobre deportistas de alto nivel y alto rendimiento, cuando regula la pérdida de esa condición y quiere anudarla a la sanción por dopaje, requiere de la existencia de una resolución administrativa que la hubiera impuesto con carácter definitivo, lo que no puede producirse en casos en los que, como aquí ocurre, la sanción se ha dictado por un organismo internacional al margen de cualquier procedimiento administrativo interno. Por tanto, resulta imprescindible un reconocimiento por parte de la Administración que posibilite la producción de esos efectos, y entendemos que ese reconocimiento corresponde a la Agencia Española de Protección de la Salud en el Deporte”. 18 Art. 7(1)(f) Royal Decree 461/2015. The Spanish original reads: “Reconocer de oficio o a instancia de los deportistas las resoluciones dictadas por las autoridades antidopaje de otros Estados o por las Federaciones o entidades internacionales competentes, cuando sean conformes al Código Mundial Antidopaje y correspondan al ámbito de competencias de las referidas entidades antidopaje”. 17

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5 The Dispute Ms. Dominguez’ paradoxical position lies at the heart of the dispute: she was banned for three years by the CAS for an ADRV, and therefore forbidden from competing, yet claimed that she was still entitled to benefit from the status of “High-Level Athlete”. By accepting her claim, the decision of the Audiencia Nacional reflects the complexity of the legal system in which sports operate in Spain and the importance of the exequatur procedures of international arbitral awards under Spanish law. Through its interpretation of Law 3/2013, the Audiencia Nacional adopts a strict approach and does not grant CAS awards any exemption. However, by accepting the path created by Article 31(2) of Law 3/2013 and Article 7(1)(f) of Royal Decree 461/2015, the Audiencia Nacional opens the doors to a fast track and simplified recognition procedure for doping-related CAS awards by circumventing the burdensome requirements contemplated under the Law 29/2015. As a general remark, Spanish sports associations, such as the RFEA, receive from the national government a delegation of public prerogatives and as such, operate under Spanish administrative law. However, national sports federations are also affiliated to an international sports federation, such as the IAAF, which are normally subject to a different legal system—frequently Swiss private law. Consequently, sports federations are simultaneously subject to both civil and administrative laws. In this sense, the Audiencia Nacional highlighted the following: In this case there is concurrence and eventual collision between national and international regulations. The problem has been addressed in different rulings, especially in the Contentious-Administrative Chamber of the Audiencia Nacional, considering that sports federations may act exercising functions delegated to them by the public Administration, in which case their acts are subject to the jurisdictional control of the Contentious-Administrative Courts. However, they also act as private entities that are members of an international organisation that groups them together, as delegates of said international organisation, and in such a case they are not exercising functions delegated by a Public Administration, but rather those delegated by said international organisation, whose rules will be applicable and whose decisions will be subject to the control mechanisms established in their own rules, without violating state or national law or ignoring public functions of internal order that have not come into play.19

Decision of the Audiencia Nacional, p. 7. The original Spanish reads: “En este caso se produce la concurrencia y eventual colisión entre una normativa nacional y otra internacional. El problema ha sido abordado en diferentes sentencias, en especial de la Sala de lo Contencioso-Administrativo de la Audiencia Nacional, considerando que las Federaciones deportivas pueden actuar ejerciendo funciones delegadas de la Administración pública, en cuyo caso sus actos quedan sometidos al control jurisdiccional de los Tribunales ContenciosoAdministrativos. Sin embargo, también actúan, en cuanto entes privados integrantes de una organización internacional que las agrupa, como delegados de dicha organización internacional y en tal caso no están ejerciendo funciones delegadas de una Administración Publica, sino las delegadas por dicha organización internacional, cuya normativa será la aplicable y cuyas decisiones quedarán sometidas a los mecanismos de control establecidos en sus propias normas, sin que por ello se vulnere el Derecho estatal o nacional, ni se desconozcan funciones públicas de orden interno que no han entrado en juego”.

19

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It results from the above that, depending on the situation, an act of a Spanish sports federation can be either of an administrative nature—when the federation acted within the powers delegated to it by the Spanish government—or of a private nature—when the federation acted within the powers delegated to it by the international sport association to which it is affiliated.20 Ms. Dominguez argued that, for her HLA status to be withdrawn, she first must have been sanctioned via a definitive administrative act. As a result, if a sanction for a doping offence is not imposed by a national administrative authority, but for instance a foreign arbitral tribunal like the CAS, it must first be recognized in Spain to deploy its full effects under Spanish Law. In this regard, Ms. Dominguez emphasised the requirements of the dual system for the recognition of decisions passed on doping matters under Spanish law, in accordance with Law 3/2013: (1) if a foreign ADO or federation or other international body imposed the sanction, it will be immediately recognized in Spain by the AEPSD, as long as the sanction is in line with the WADA Code; (2) if the sanction was imposed by an arbitral award or by a foreign anti-doping tribunal, it will need to be recognized following the process described in the Law 29/2015. Specifically, Ms. Dominguez argued that the decision passed by the CAS had not been recognized by the AEPSD, nor through the Law 29/2015.21 She added that since decisions passed by CAS are arbitral awards, it should have been recognized following the procedure established by Article 31(2) of Law 3/2013. However, due to the absence of its previous recognition, the CAS decision had no effects in Spain.22 Therefore, Ms. Dominguez concluded that she had not been “sanctioned, by a definitive administrative act, for a doping offence”, and the requirement set forth in Article 15(b) of Royal Decree 971/2007 was not met. Consequently,

20

Rodríguez García (2014, p. 56). Decision of the Audiencia Nacional, p. 8. The original Spanish reads: “Refiere que, en el caso enjuiciado, la sanción por dopaje no ha sido reconocida en España por los órganos competentes para ello, en concreto la Agencia Española de Protección de la Salud en el Deporte, ni para el reconocimiento del laudo se han seguido los trámites previstos al efecto en la Ley de Enjuiciamiento Civil”. 22 Ibid. The original Spanish reads: “Y afirma que “al tratarse de un laudo, lo que habría sido procedente es que se hubiera procedido a su reconocimiento siguiendo el procedimiento previsto en la Ley de Enjuiciamiento Civil, puesto que esto es lo establecido en el artículo 31.2 de la Ley Orgánica 3/2013, de 20 de junio. En este sentido hay que reconocer que el Tribunal Supremo (Sala de lo Civil), en su sentencia de 14 de julio de 2008 (rec. 3581/2001) ha afirmado que para hacer valer en España los efectos de una decisión adoptada por un órgano judicial extranjero es necesaria la previa declaración de reconocimiento y ejecutoriedad por nuestras autoridades competentes. Para proceder a excluir a mi representada de la lista de deportistas de alto nivel habría sido condición indispensable que previamente se hubiera reconocido en España el laudo arbitral, pero en este momento no existe ninguna resolución sancionadora que resulte de aplicación en nuestro país”. 21

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her status as a HLA could not be withdrawn.23 On this basis, she requested the annulment of the decision passed on 28 January 2016 by the President of the CSD. For his part, the Spanish State Attorney argued that when passing his decision, the President of the CSD correctly applied Article 15(b) of Royal Decree 971/2007, stressing that (1) the CAS award was rendered on appeal following a decision passed by the competent international federation and was therefore immediately recognizable in Spain; (2) the award was in line with the WADA Code; and (3) the CAS clearly acted within its competence in rendering it. The State Attorney contended that a differing interpretation would void Article 15(b) of Royal Decree 971/ 2007 of meaning, particularly when international athletes were concerned.24 He further argued that, in practice, it would be impossible to deprive international athletes of the status of HLA because they would never be subject to a definitive administrative act. To sustain his claim, the State Attorney explained that the sanctioning competence in doping matters always resides with the international federation. Appeals are therefore restricted to the CAS. A Spanish administrative body—such as the Contentious-Administrative Courts (Tribunales ContenciosoAdministrativos)—would never be competent to hear such matters. This would result in an absurd situation where only national level athletes—subject to the Spanish national judicial system—could see their HLA status withdrawn. Finally, the Spanish State Attorney stressed that the CAS is a well-recognized and respected institution throughout the sports world, including in Spain. The debate between these two antagonistic views is clear: on the one hand, Marta Dominguez contended that the sanction imposed on her is not enforceable under Spanish law, as it does not constitute a final administrative act. On the other hand, the State Attorney holds that the CAS decision is directly enforceable under Spanish law. In the present case, the Audiencia Nacional upheld Marta Dominguez’ position, confirming that there was no definitive administrative act since the sanction imposed on her was rendered within the scope of the delegation of power given by

Ibid. The original Spanish reads: “De lo que concluye que no se dan los requisitos previstos en el artículo 15.b) del Real Decreto 971/2007, de 13 de julio, para excluir a la recurrente de la lista de deportistas de alto nivel”. 24 Decision of the Audiencia Nacional, p. 12. The original Spanish reads: “… porque en la práctica sería imposible privar de la condición de DAN a aquellos deportistas respecto de los cuales la competencia sancionadora en materia de dopaje no reside en el Estado español, sino en las federaciones deportivas internacionales y es aplicada por la correspondiente federación española por delegación de aquellas cabiendo, como hemos visto (Reglamento de la IAAF), únicamente un recurso ante el CAS, no ante ningún otro órgano administrativo español (…)se llegaría al despropósito de que solamente los deportistas que no tienen este carácter internacional, generalmente los que no son tan sobresalientes en el ámbito deportivo, verían caer sobre ellos las consecuencias que el legislador español establece como reacción ante los casos de dopaje, como es la pérdida de la condición de DAN, mientras que un deportista de carácter internacional sancionado por el CAS en materia de dopaje, órgano este cuya jurisdicción es reconocida y acatada en todo el mundo deportivo, incluida España, mantendría en todo caso la condición de DAN”. 23

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an international organisation, outside of the Spanish internal administrative procedures. In particular, the Audiencia Nacional considered that the CAS acted as an appeal body of the RFEA. Consequently, the Audiencia Nacional analysed the nature of the initial decision passed by the RFEA to evaluate whether it was an administrative act or not. In this regard, the Audiencia Nacional found that the RFEA acted within the powers delegated to it by the IAAF and not within its public competences. Thus, the initial decision of the RFEA acquitting Marta Dominguez could not be considered as an administrative act. As a result, the Audiencia Nacional concluded that the CAS award also could not produce effects of an administrative nature under Spanish law. That said, it bears noting that when the RFEA acts within its administrative functions, appeals to the CAS against its decisions are generally not possible. Indeed, such decisions would have to be appealed before the national Sport Administrative Tribunal (Tribunal Administrativo del Deporte, TAD).25 The Audiencia Nacional’s decision suggests that the President of the CSD adopted too lenient an interpretation of the applicable laws when considering that the CAS award of 19 November 2015 could be directly enforceable under Spanish law in the same manner as an administrative act. The absence of a prior recognition by the AEPSD prevented the CSD from withdrawing Ms. Dominguez’ HLA status due to the lack of a legal basis. To this end, the CAS award should have been recognised by the competent Spanish public authorities in one of the two possible ways provided by Article 31(2) of Law 3/ 2013, i.e. either by the AEPSD or by the common Civil Procedure Law. Interestingly, the Audiencia Nacional considered that the present CAS award, rendered on appeal of a decision rendered by an international sport organisation, is an act passed by an “international entity” and should therefore follow the (simplified) exequatur procedure before the AEPSD, rather than the (more burdensome) procedure under Law 29/2015 that generally applies to foreign arbitral awards. In practice, this means that the decision is rather pragmatic and actually favourable to the swift execution of doping-related CAS awards. The Audiencia Nacional justified its position in particular by explaining that the exequatur procedure before the AEPSD allows the Spanish authorities to verify whether a sanction imposed by the CAS in doping matters complies with a number of minimum requirements, particularly the WADA Code. Moreover, the Audiencia Nacional held that such a procedure should be regarded as a safety net for both the concerned athletes and the public legal system created for sport in Spain.

25

See Consejo Superior de Deportes, Tribunal Administrativo del Deporte. https://www.csd.gob. es/es/csd/organizacion/legislacion-basica/tribunal-administrativo-del-deporte. Accessed 24 April 2019.

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6 Conclusion The present case is an excellent example of a legal dispute won over purely procedural grounds. If the General Secretary of the RFEA or the President of the CSD had first opted for the formal recognition of the CAS award within the Spanish legal system, Marta Dominguez would have been deprived of her status of HLA. However, she benefited from a paradoxical situation whereby she was forbidden from competing since 2015 due to an ADRV but held the status of HLA in Spain until 2 June 2018.26 The decision of the Audiencia Nacional should not be understood as an attack against the current CAS system but rather as a reminder of the importance of the recognition of foreign arbitral awards. Furthermore, the Audiencia Nacional’s reading of Article 32(2) of Law 3/2013 plays in favour of the recognition of CAS awards rendered in doping-related matters. By accepting that the accelerated route envisaged in Article 31(2) of Law 3/2013 and Article 7(1)(f) of Royal Decree 461/ 2015 applies to CAS doping-related awards, the Audiencia Nacional subjects those decisions to a fast track and simplified recognition procedure by the AEPSD which circumvents the burdensome requirements contemplated under the Law 29/2015. Finally, it should be recalled that the purpose of exequatur is to allow national authorities to exercise a minimum level of control on a foreign arbitral award before its enforcement at the national level. In the case at hand, the AEPSD will ensure that an athlete will not be deprived of his or her administrative status as a HLA in Spain if the decision affecting such status is passed by a foreign entity and does not comply with the WADA Code. In this context, one can wonder how far the AEPSD could go when analysing the compliance of a CAS award with the WADA Code. Be that as it may, as far as the decision commented here is concerned, the authors contend that it should be regarded as protective of athletes’ individual rights.27

References Dios Crespo Perez J (2017) Audience nationale espagnole, Chambre du contentieux administratif, 6e section, sentence du 21 juin 2017, Marta Dominguez c/ Ministre de l’éducation, de la culture et du sport. Chronique de jurisprudence arbitrale en matière sportive. Revue de l’arbitrage 2017 – N°3, pp. 1051–1052. Nafziger J, Ross S (2011) Handbook on International Sports Law. Edward Elgar, Cheltenham. Rodríguez Benot A (2016) La Ley de Cooperación Jurídica Internacional en materia civil. Cuadernos de Derecho Transnacional 8: 234–259.

26

See Consejo Superior de Deportes, Buscador de Deportistas de Alto Nivel. https://www.csd.gob. es/es/alta-competicion/deporte-de-alto-nivel-y-alto-rendimiento/deportistas-de-alto-nivel-yalto-rendimiento/deportistas-de-alto-6. Accessed 23 April 2019. 27 See also Dios Crespo Perez (2017).

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Rodriguez Garcia J (2014) Régimen jurídico de los deportistas españoles en Relación con las organizaciones internacionales. Universidad Carlos III de Madrid, doctoral thesis. Rubino-Sammartano M (2014) International Arbitration Law and Practice, 3rd edn. JurisNet.

Sports Arbitration Cases Before the Swiss Federal Tribunal in 2017—A Digest Erika Hasler and Yann Hafner

Contents 1 2

Introduction.......................................................................................................................... Summaries of the SFT’s Decisions Rendered Between 1 January and 31 December 2017 ..................................................................................................................................... 2.1 Article 190(2)(b) PILA—Incorrect Decision on Jurisdiction .................................... 2.2 Article 190(2)(c) PILA—Award Ultra, Extra or Infra Petita .................................... 2.3 Article 190(2)(d) PILA—Violation of the Parties’ Right to Be Heard and Equal Treatment .................................................................................................................... 2.4 Article 190(2)(e) PILA—Award Contravening Public Policy .................................. 2.5 Article 393(e) CCP—Arbitrariness ............................................................................ References ..................................................................................................................................

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Abstract Following up on the 2016 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 and 31 December 2017. A table setting out the case references, the grounds invoked in the annulment 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.

E. Hasler (&) Lévy Kaufmann-Kohler, Geneva, Switzerland e-mail: [email protected] Y. Hafner University of Neuchâtel, Neuchâtel, Switzerland e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2020 A. Duval and A. Rigozzi (eds.), Yearbook of International Sports Arbitration 2017 https://doi.org/10.1007/15757_2020_31

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Keywords SFT CAS Chapter 12 PILA Part 3 CCP remedies against arbitral awards annulment jurisdiction infra, extra or ultra petita right to be heard public policy arbitrariness excessive formalism legal aid

























1 Introduction In the year under review, the SFT rendered 20 decisions with respect to sports arbitration matters. Below, we have summarized the decisions that contain actual holdings on the merits of the annulment action, as opposed to those that are limited to dispositive procedural determinations, namely where the application was found to be inadmissible without further analysis.1 As in our previous digests, the summaries below 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, and subsections (a)–(f) of Article 393 of the CCP, which governs the annulment of awards rendered in domestic proceedings.2 Beyond its specific rulings on the grounds for annulment, the SFT rendered noteworthy decisions on other topics pertaining to annulment proceedings. In particular, the SFT expressly confirmed that public-funded legal aid is available for eligible parties in annulment proceedings governed by the SCA against domestic and international arbitral awards, notwithstanding the statutory exclusion of such legal aid from the arbitral proceedings themselves.3

1

SFT 4A_444/2016 and 446/2016, decision of 17 February 2017; SFT 4A_480/2015, decision of 31 October 2017; SFT 510/2017, decision of 9 November 2017. 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_690/2016, Decision of 9 February 2017, para 5. In this specific instance, legal aid was denied as the applicant’s case did not satisfy one of the requirements of Article 64(1) SCA, namely that the application for annulment should not appear, on its face, destined to fail. See also SFT 4A_384/2017, Decision of 4 October 2017, para 5 (not summarized in Sect. 2 below), and SFT 4A_592/2017, Decision of 5 December 2017, para 5 (not summarized in Sect. 2 below).

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2 Summaries of the SFT’s Decisions Rendered Between 1 January and 31 December 2017 2.1

2.1.1

Article 190(2)(b) PILA—Incorrect Decision on Jurisdiction SFT 4A_492/2016, Decision of 7 February 2017

Underlying Facts, Proceedings and Decision(s) Football Club A. and Player B. entered into two employment contracts in August 2008 (the “First Standard Employment Contract” and the “First Private Employment Contract”), followed by a further contract extending the terms of the First Private Employment Contract, in November 2008, and by a service contract in April 2009. The First Private Employment Contract, the November 2008 extension agreement and the 2009 service contract were also signed by Company C. In January 2010, Player B. and Football Club A. entered into a new employment contract. The parties’ contracts contained different dispute resolution clauses: some but not all the clauses mentioned the CAS, with one of the August 2008 contracts providing for disputes to be resolved “exclusively” by the CAS. In July 2010, the Player wrote to the Club and Company C. requesting the payment of EUR 6 mio., within 10 days, on foot of the November 2008 extension contract. The payment remained outstanding. In August 2010, the Player declared he no longer considered himself contractually bound to the Club and Company C. in view of the overdue payment. Shortly thereafter, B. seized the FIFA DRC, claiming the payment of more than EUR 15 mio. by the Club, for outstanding salary payments and damages. On 6 November 2014, the FIFA DRC partially upheld the Player’s claims. The Club then appealed against the FIFA DRC decision before the CAS, arguing that the FIFA DRC lacked jurisdiction. In an award rendered in July 2016, the CAS found that the FIFA DRC did have jurisdiction over the parties’ dispute, but annulled its decision and remanded the case to it for a new decision. Annulment Action and SFT Decision Club A. sought the annulment of the CAS award on the ground that it had incorrectly upheld the jurisdiction of the FIFA DRC. According to the Club, the parties had agreed in their contracts to have their disputes heard by an arbitral tribunal, namely the CAS, as the sole instance, and not by the FIFA DRC followed by the CAS on appeal. The SFT noted that the CAS Panel had applied Article 22 FIFA RSTP and found that the parties’ dispute was an employment-related dispute of international dimension within the meaning of Article 22(b) RSTP, which the FIFA DRC has jurisdiction to hear in the first instance, save where a national court is seized or an independent arbitral tribunal is made available, at the national level, by the relevant association or within the framework of a collective bargaining

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agreement. Since the parties did not agree to a tribunal other than the CAS, and the CAS is not an arbitral tribunal established “at national level”, the parties could not be deemed to have agreed to exclude the jurisdiction of the FIFA DRC.4 Accordingly, the CAS had been correct in finding that the FIFA DRC was competent to hear the dispute in the first instance, subject to appeal before the CAS. The application for annulment was thus dismissed. 2.1.2

SFT 4A_40/2017, Decision of 8 March 2017

Underlying Facts, Proceedings and Decision(s) By means of an award dated 17 November 2016, 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 Club X. In the same award, the CAS also partially upheld the appeal brought by Club X., finding that the Club owed the Player EUR 366,166 in salary arrears, and that the indemnity due by the Club to the Player for breach of contract without just cause was nil. Annulment Action and SFT Decision Club X. sought to have the CAS award annulled inter alia on the ground that the Panel had violated Article 190(2)(b) PILA by issuing a decision extra potestatem, to the extent that it had determined the dispute ex aequo et bono, without the parties’ authorization so to decide, instead of applying the proper law of the contract. The SFT held that a purported usurpation of the power to decide ex aequo et bono is not an issue pertaining to jurisdiction and thus does not fall under Article 190(2)(b) PILA. The SFT therefore declared the application inadmissible to the extent it relied on this particular ground for annulment. 2.1.3

SFT 4A_206/2017, Decision of 6 October 2017

Underlying Facts, Proceedings and Decision(s) A., a wrestler in the men’s freestyle 65 kg category, competed at the Rio Summer Olympic Games, representing country X. On that occasion, he wrestled in, and lost, the bout for the bronze medal in his category. In November 2016, A. and X.’s National Olympic Committee (the X. NOC) filed an appeal with the CAS, affirming that they had raised a written protest with the president of the team of referees, just after the bronze medal competition, which had remained unanswered. In March 4

Notably, the SFT’s reasoning (at para 3.3.3) confirmed its case law according to which the adjudicatory instances within sports federations or associations, such as the FIFA DRC, are not independent arbitral tribunals but rather internal decision-making bodies, giving effect to the association’s own will.

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2017, the CAS issued a Preliminary Award on Jurisdiction and Admissibility, declining jurisdiction to hear the case.

Annulment Action and SFT Decision A. and the X. NOC sought to have the CAS award on jurisdiction “annulled or challenged” by the SFT. The SFT recalled that in accordance with its jurisprudence, challenges against sports arbitration awards that merely apply the rules of the game are not admissible. The SFT further noted that the CAS had declined jurisdiction on the ground that the Statutes and Regulations of the respondent international federation did not provide for appeal to the CAS against referees’ decisions or against rulings on protests, and that the parties had not concluded an arbitration agreement providing for CAS jurisdiction in connection with the dispute at hand. Accordingly, the CAS award could not be challenged before the SFT, in particular because the applicants had failed to demonstrate that the dispute had any other object than the mere application of the rules of the game. Article 61 of the Olympic Charter, which the applicants had also relied upon to argue that the CAS ought to accept jurisdiction over the dispute, could not serve as a basis for the SFT to admit and rule upon the application, given that the CAS decision could not be reviewed. Accordingly, the application for annulment was declared inadmissible.

2.1.4

SFT 4A_436/2017, Decision of 20 November 2017

Underlying Facts, Proceedings and Decision(s) Sports-governing body B. (SGB B.) decided in 2013 to retest urine samples from a competition in country U. In December 2013, SGB B. informed Athlete A. that the new tests had revealed the presence of a prohibited substance in her samples. On the same occasion, SGB B. informed A. that it also intended to retest the samples from another competition in which she had participated. At that point, A. seized the courts with a request for interim measures enjoining SGB B. from retesting more of her samples. A.’s request for interim relief was granted on a preliminary basis. A. then initiated arbitration proceedings against SGB B. before the CAS. In July and August 2015, the parties reached a procedural agreement whereby the disciplinary proceedings SGB B. had initiated against A., as well as the court proceedings and the pending CAS arbitration would all be discontinued and replaced with a new CAS proceeding, which was subsequently initiated. On 14 June 2017, the CAS rendered a Preliminary Arbitral Award, in which it held that SGB B. could not conduct further tests, nor disciplinary proceedings against A. in relation to the competition in country U. With regard to the samples taken at the other competition, the CAS ordered that they be tested in accordance with the parties’ procedural agreement. Finally, the CAS rejected a request for production of evidence filed by A.

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Annulment Action and SFT Decision In August 2017, A. filed an application for the annulment of the Preliminary Arbitral Award. The SFT held that A. was mistaken in considering that the CAS award was a partial award within the meaning of Article 188 PILA. The CAS award was a preliminary or interim decision within the meaning of Article 190(3) PILA, and as such could only be challenged on the grounds set out in Articles 190(2)(a) and (b) PILA (irregular constitution of the tribunal or incorrect decision on jurisdiction). The SFT also recalled that a jurisdictional defense must be raised promptly by the respondent in an arbitration, prior to any defense on the merits, failing which the respondent is deemed to have waived its jurisdictional objections, regardless of whether or to what extent the dispute is covered by a valid arbitration agreement (the so-called Einlassung principle). Raising a plea of lack of jurisdiction before the SFT when the applicant has failed to object to the tribunal’s jurisdiction in the arbitration is contrary to good faith and inadmissible. In the CAS proceedings, A. had contested SGB B.’s jurisdiction to conduct disciplinary proceedings, but had not challenged the CAS Panel’s jurisdiction to hear the parties’ dispute. Accordingly, A. was precluded from relying on Article 190(2)(b) PILA before the SFT. Her application to set aside the CAS award was thus inadmissible.

2.2

2.2.1

Article 190(2)(c) PILA—Award Ultra, Extra or Infra Petita SFT 4A_384/2017, Decision of 4 October 2017

Underlying Facts, Proceedings and Decision(s) In June 2016, further to a series of anti-doping controls in connection with the updating of his biological passport, a middle distance runner was heard in internal disciplinary proceedings and banned from competition by the Disciplinary Commission (DC) of his national federation for a period of 4 years, in addition to having all the results he obtained since 7 June 2014 annulled retroactively. Minutes from the disciplinary proceedings were sent to the athlete shortly after the dispositive part of the DC’s decision, at the end of June 2016. The Athlete sent an e-mail to his national and international federations, WADA and CAS in early August 2016, indicating that he was appealing the DC’s decision, and enclosing a document setting out “detailed explanations for the appeal”. The Athlete did not receive an answer to his e-mail of August 2016. In January 2017, he wrote again to his federation, the international federation, WADA and CAS. The CAS informed him then that it did not consider itself as the addressee of his e-mail of August 2016 and that in any event the purported “detailed explanations for the appeal” accompanying that e-mail did not meet the Code’s requirements for a Statement of Appeal (SoA). In February 2017, further to his request for the complete file of his case, the international federation wrote to the Athlete, drawing his attention to Article R47 et

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seq. of the CAS Code, inviting him to clarify whether he still intended to appeal against the DC’s decision and if so, “[regardless of] any future decision by the CAS Appeal Division with regard to the belatedness of his appeal”, to undertake the necessary steps. The Athlete, represented by counsel, submitted an SoA to the CAS in March 2017. Upon the CAS’s setting in motion of the appeal proceedings, the national and international federations sought the immediate dismissal of the appeal, arguing that it was manifestly belated. Having provided the Athlete with an opportunity to comment on this request, the President of the CAS Appeals Division issued an order declaring the SoA inadmissible due to its belatedness under Article 42.15 of the applicable ADR, closing the proceedings and striking them from the CAS roll (the Closing Order). Annulment Action and SFT Decision The Athlete sought the annulment of the Closing Order issued by the CAS, inter alia on the ground that, in issuing the Order, the President of the CAS Appeal Division had failed to rule on one of his claims, namely that his national federation had not complied with the ADAMS rules in handling his case. The SFT found that the Appeal Division President had ruled on the only claim that was before her for determination at the stage when she rendered the Closing Order in accordance with Article R49 CAS Code, i.e. whether the Athlete’s appeal was timely or not. Accordingly, the Appeal Division President had not ruled infra petita. For this reason and those summarized in Sect. 2.4.8 below, the application for annulment was dismissed. 2.2.2

SFT 4A_424/2017, Decision of 23 October 2017

Underlying Facts, Proceedings and Decision(s) A squash player (the Player) and the World Squash Federation (the WSF) entered into an agreement stating that the Player had committed an anti-doping rule violation and agreed to serve a one-year suspension and to forfeit all of his sporting results from the 2016 South Asian Games onwards (the Agreement). The World Anti-Doping Agency (WADA) challenged the Agreement before the CAS. The CAS upheld WADA’s appeal, replacing the one-year suspension with a four-year ban. In the award, the Panel held that the Player had not proven that the anti-doping rule violation was unintentional. As such, the proper sanction was a four-year ban, to be served in full given that the conditions for a reduced sanction were not met in the case at hand.

Annulment Action and SFT Decision The Player sought the annulment of the CAS award inter alia on the ground that it violated the ne infra petita principle. In his submissions before the CAS, the Player

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had requested, subsidiarily, that his sanction be reduced on the basis of the “prompt admission” mechanism provided for in the WSF’s Anti-doping Rules. Before the SFT, the Player argued that the CAS did not examine whether he had in effect promptly admitted the anti-doping rule violation, nor the fact that the WSF had consented to a reduction of his sanction on that basis. The SFT found that the CAS had patently denied this prayer for relief in the chapter of the award where it discussed the rationale for extending the period of ineligibility imposed upon the Player, as well as in the dispositive part of the award. Accordingly, the SFT denied the Player’s application for the annulment of the award on this account.

2.3

2.3.1

Article 190(2)(d) PILA—Violation of the Parties’ Right to Be Heard and Equal Treatment SFT 4A_716/2017, Decision of 26 January 2017

Underlying Facts, Proceedings and Decision(s) In June 2009, a professional football player (the Player) entered into a 5-year employment contract with Club X. In July 2013, the Player informed the Club that he was terminating the contract for just cause. Shortly thereafter, the Player entered into a new contract with Club Y. Club X. seized the FIFA DRC, which, in a decision issued in July 2015, condemned the Player and Club Y. to pay EUR 5265,000 to Club X. as indemnity for breach of contract without just cause. Club Y. and the Player each brought an appeal before the CAS against the FIFA DRC Decision. In a joint award rendered on 7 October 2016, the CAS partially upheld the appeals and ruled that Club Y. and the Player had no outstanding financial obligations towards Club X. Annulment Action and SFT Decision Club X. applied to have the CAS award set aside, arguing that the Panel had rendered its decisions on the basis of an unpredictable legal reasoning, thereby breaching its right to be heard. The SFT recalled that, under Swiss law, the parties’ right to be heard with regard to the legal grounds underpinning a judicial decision is governed by the principle jura novit curia, meaning that courts (and arbitral tribunals) apply the law ex officio, and are not bound by the parties’ legal submissions. The only exception to this principle is that the parties must be given an opportunity to comment if the court/tribunal intends to base its decision on a norm or legal argument not invoked by the parties and which they could not reasonably foresee. However, underscoring that whether the relevance of a legal argument is foreseeable is a matter of some discretion, the SFT applies the exception with circumspection in order to avoid reviewing awards on the merits. In the case at hand, the SFT noted that the CAS Panel, applying Article 17(1) RSTP to the facts of the case,

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had concluded that Club X. had suffered no damages as a result of the contract’s termination, taking into account an amount the Club had received when it loaned out the Player. Given that the Player had raised this argument in his submissions to the CAS, the Club could not now argue that it was not in a position to foresee it and therefore reply to it in its own submissions. Accordingly, Club X.’s application for the annulment of the award was dismissed. 2.3.2

SFT 4A_690/2016, Decision of 9 February 2017

Underlying Facts, Proceedings and Decision(s) In a decision rendered on 10 April 2015, FIFA’s Dispute Resolution Chamber (DRC) held that a professional football player (the Player) and Club C. were jointly liable towards Club A. for breach of contract without just cause under Article 17(1) RSTP. The FIFA DRC condemned the Player and Club C. to pay EUR 3100,000 to Club A. (the FIFA DRC Decision). In an award rendered on 4 October 2016 in joined proceedings grouping three arbitrations, the CAS found that the Player’s appeal against the DRC Decision was inadmissible. The CAS reached this conclusion on the ground that the filing of the Player’s Statement of Appeal (SoA) had not been compliant with Article R31(3) CAS Code, to the extent that the SoA had only been filed by telecopier.

Annulment Action and SFT Decision The Player challenged the CAS award on two grounds, namely that the CAS had violated his due process rights, and that it had rendered an award incompatible with public policy (Article 190(2)(e) PILA, on this latter ground, see Sect. 2.4.1 below). With respect to his due process argument, the Player claimed that by enabling FIFA to participate in the proceedings as a party, even though he had withdrawn his appeal against it, and by founding its decision to declare his appeal inadmissible on an objection raised by FIFA, the CAS had breached the principle of equal treatment of the parties. More specifically, the Player contended that the CAS had disrupted the equality of arms between himself and Club A, by effectively allowing FIFA, even though it should not have been a party to that particular proceeding, to assist the Club’s case in the appeal. Having examined the record of the proceedings, the SFT found that the Player had failed to object in a timely and clear fashion to FIFA’s participation in the proceedings. In particular, the Player had not requested that FIFA’s answer brief be struck from the file to the extent it addressed his appeal, nor had he raised objections to FIFA’s pleadings relating to his case at the evidentiary hearing. The SFT concluded that the Player had waived, by his own conduct, the right to object to FIFA’s status as a party in “his” arbitration. Accordingly, the alleged violation of his due process rights could not be examined in the annulment proceedings. For these reasons and those summarized in Sect. 2.4.1 below, the application for annulment was dismissed.

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SFT 4A_40/2017, Decision of 8 March 2017

Underlying Facts, Proceedings and Decision(s) The facts in this case have been summarized in Sect. 2.1.2 above. Annulment Action and SFT Decision In addition to its complaints under Articles 190(2)(b) and 190(2)(e) PILA (see Sects. 2.1.2 above and 2.4.2 below), Club X. argued that the CAS Panel had violated the parties’ right to be heard by failing to indicate, in the award, which law it had applied to reach its decisions, and why it had not applied the law the Club had relied upon, namely the law designated by the applicable FIFA and CAS rules and agreed upon by the parties. The SFT noted that the CAS award contained a section devoted to the applicable law, where the Panel set out the applicable rules and provided for the subsidiary application of Swiss law, in accordance with the CAS Code and relevant FIFA regulations, followed by the Panel’s analysis of the facts and application of the designated rules to those facts. As such, the CAS award was unimpeachable. In reality, the SFT observed, Club X. was criticizing the way in which the Panel had interpreted and applied the relevant rules, which, however, is not a ground for annulment under Article 190(2)(d) PILA. For these reasons and those summarized in Sects. 2.1.2 above and 2.4.2 below, the application for the annulment of the award was dismissed. 2.3.4

SFT 4A_470/2016, Decision of 3 April 2017

Underlying Facts, Proceedings and Decision(s) Subsequent to the publication, on 16 July 2016, of the independent investigation report prepared by Prof. McLaren for WADA, which revealed the existence and scale of operations of a Russian state-sponsored doping scheme deployed between 2011 and 2015, the International Paralympic Committee (IPC) initiated proceedings against the Russian Paralympic Committee (RPC), seeking to suspend the latter’s rights as an IPC member. In a decision issued on 7 August 2016, the IPC suspended the RPC’s membership with immediate effect (the IPC Decision). On 11 August 2016, the parties concluded an agreement providing for CAS jurisdiction to hear RPC’s appeal against the IPC Decision. Still in August 2016, a hearing was held before the CAS Panel, which rendered its award on 23 August 2016, rejecting the RPC’s appeal and confirming the IPC Decision. Annulment Action and SFT Decision The RPC 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. 2.4.3 below). The RPC contended that the CAS Panel had disregarded its right to be

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heard by failing to examine some of its essential allegations and arguments in the arbitration, in particular the argument that the IPC Decision violated the rights of the RPC’s own members, i.e. the Russian paralympic athletes. The SFT noted that the CAS Panel had not failed to examine such arguments, but having considered them, had found that it was not for it to decide them, given that the athletes in question were not parties to the arbitration. The SFT further held that, by simply contending, in its application for annulment (by reference to legal opinions on Swiss and Russian law), that the Panel’s conclusion that it could not hear claims in connection with the athletes’ own rights was unsustainable, the RPC had not demonstrated in which way its right to be heard in the arbitration had been violated. The SFT also dismissed the RPC’s argument that, under Swiss law, it was entitled to present claims on behalf of the individual athletes so as to protect their personality rights and “natural justice rights”, noting that the RPC had not shown that the athletes had been precluded from bringing their own claims before the CAS or other fora (as some had done before the courts in Germany, at the seat of the IPC). Accordingly, the RPC’s complaint that its right to be heard had been violated was dismissed.

2.3.5

SFT 4A_692/2016, Decision of 20 April 2017

Underlying Facts, Proceedings and Decision(s) On 13 July 2016, USADA and a US gymnast concluded an agreement entitled “Acceptance of sanction”. WADA challenged that agreement in an appeal filed with the CAS on 11 August 2016. Upon receipt of the appeal, the CAS advised the parties that the advance on costs for the arbitration had been fixed at CHF 36,000 and that WADA was to pay half of that amount, with the other half to be paid in equal shares by USADA and the Athlete. The time limit for payment of the advance was fixed on 20 September 2016. After USADA and the Athlete informed the CAS that they did not intend to pay their respective shares of the advance, the CAS wrote back to all parties reminding them of the time limit for payment of the advance, and of the fact that, failing timely payment, Article R64.2 CAS Code would apply. Having ascertained that USADA and the Athlete still had not paid their share, on 12 September, the CAS invited WADA to pay the entire advance, specifying in its invitation letter that if the payment was not received within the time limit, the appeal would be deemed withdrawn. WADA paid half of the advance on costs on 19 September 2016. On 28 September, the CAS Court Office invited WADA to provide proof that payment of the outstanding half of the advance on costs had been made within the 20 September time limit. WADA’s counsel replied on the same day, explaining that WADA had not paid the second half of the advance on time, even though it intended to do so, due to a clerical mistake, and indicating that its client had already given instructions for payment of the outstanding amount. Noting that WADA had failed to pay the full advance on costs by the set time limit, USADA and the Athlete requested that the CAS terminate the proceedings, in

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accordance with Article R64.2 CAS Code. In the ensuing exchanges with the CAS, WADA argued that a decision to terminate the proceedings would amount to an excess of formalism on the part of the CAS. On 11 November 2016, the President of the CAS Appeal Division issued a Termination Order, closing the proceedings and striking the matter from the CAS roll in accordance with Article R64.2. Annulment Action and SFT Decision WADA sought to have the CAS’s Termination Order set aside, inter alia on the ground that, in rendering the decision, the President of the Appeal Division had violated its right to be heard by failing to consider its arguments to the effect that a strict application of Article R64.2 CAS Code was not warranted in the case at hand. The SFT accepted that the Termination Order was a challengeable decision within the meaning of Article 190 PILA, given that it resulted in the definitive and irreversible closing of the case, as provided in Article R64.2 CAS Code. The SFT further noted that while the right to be heard requires that tribunals duly consider the parties’ pertinent arguments, the arbitrators’ interpretation and application of the relevant rules to the facts of the case is not subject to review in annulment proceedings. On the face of the Termination Order’s text, the SFT observed that the President of the Appeal Division had set out the facts and grounds for her decision, and had concluded, in light of the unambiguous text of Article R64.2 CAS Code, that there were no valid reasons to admit WADA’s belated payment of the full advance. The SFT recalled that Article 190(2)(d) PILA does not oblige arbitrators to render a reasoned decision. It further opined that an express discussion of the Parties’ arguments, even if relevant and provided they have been duly considered, is not necessary—particularly in cases like the one at hand, where the rule to be applied by the CAS leaves no room for appreciation as to the consequences to be drawn from a failure to pay the advance. In any event, the SFT found that it was apparent from the Termination Order that WADA’s objection of excessive formalism had not been upheld by the CAS Appeals Division President in light of the fact that WADA had been duly warned of the consequences of a failure to pay the advance on costs within the time limit under Article R64.2. For these reasons and those summarized in Sect. 2.4.4 below, the application for annulment was dismissed.

2.3.6

SFT 4A_668/2016, Decision of 24 July 2017

Underlying Facts, Proceedings and Decision(s) In November 2014, a professional football player (the Player) sought to be loaned to Club C from Club A. To that end, the Player instructed his exclusive representative (the Representative) to liaise with an intermediary (the Intermediary) with close connections to Club C. On 24 December 2014, the Player, the Representative and the Intermediary entered into an agreement (the Representation Agreement). Under the terms of the Representation Agreement, the Representative was tasked to

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instruct the Intermediary to negotiate the loan with Club C exclusively; in return, the Representative and the Intermediary were to receive 10% of the total gross salary of the Player during the term of the loan, equally divided in two. On 22 January 2015, the Player and the Intermediary signed a second agreement (the Commission Agreement). The Commission Agreement stipulated that the Player would pay the Intermediary a first instalment in the amount of EUR 37’500 on 23 January 2015 and a second instalment in the same amount by no later than 15 April 2015. Should the Player fail to pay on time, a contractual penalty of 10% of the corresponding instalment would apply after a grace period of two weeks. Club C (on behalf of the Player) paid the first instalment to the Intermediary within the applicable deadline. In November 2015, the Intermediary requested the payment of the second instalment without success. Relying on the arbitration clause in the Commission Agreement, the Intermediary commenced CAS proceedings in December 2015. On 1 April 2016, the CAS Court office informed the Parties that the Sole Arbitrator appointed to hear the dispute had decided to hold a hearing. The Player replied that he would not appear at the hearing for financial reasons. On 13 April 2016, the CAS Court office informed the Player that he could participate in the hearing via telephone or skype. On the same day, counsel for the Player informed the CAS Court office that the Player would be represented by the Representative at the hearing, attaching a power of attorney to that effect. The hearing took place on 15 April 2016. Both parties signed a procedural order at the outset of the hearing, without reservations, and, at the end of the hearing, expressly confirmed that their right to be heard had been respected throughout the proceedings. In his award, the Sole Arbitrator found the Player liable towards the Intermediary in the amount of EUR 37’500, plus the contractual penalty and interest. The Sole Arbitrator found that the relationship between the Representation Agreement and the Commission Agreement was to be construed under Swiss law, in the absence of specific guidance in the applicable FIFA Players’ Agents Regulations regarding the interplay between such contracts. Accordingly, the Sole Arbitrator applied the principle of freedom of contract under Swiss law, and concluded that the Player had failed to prove that the total remuneration agreed upon (EUR 75’000) was excessive in the case at hand. The Sole Arbitrator further concluded that Club C was not liable for the payment of the second instalment to the Intermediary, as the Player had not proven that such payment had been assigned to Club C.

Annulment Action and SFT Decision The Player argued, in his application for annulment, that the parties had not been placed on an equal footing in the proceedings. Specifically, the Player re-asserted that he had been unable to attend the hearing for financial reasons, and alleged that his lawyer had stopped representing him two days prior to the hearing. The Player further asserted that this situation had prevented him from realizing that the Representative was conflicted (as he had a personal interest in the success of the Player’s opponent)

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and could not therefore validly represent him at the hearing. The SFT noted that the Player had taken the decision not to attend the hearing in person, nor to participate remotely, when he was still assisted by legal counsel, and that he had not made use of the possibility to request legal aid and/or the assistance of pro bono counsel to represent him at the hearing. The SFT found that, in reality, the Player had awaited the outcome of the case to challenge the award, relying on alleged violations of his procedural rights which he had failed to raise during the proceedings. As to the alleged conflict of interest, the SFT noted that the Representative was not a party to the Commission Agreement (and therefore to the dispute before the CAS) and had already been compensated in full under the Representation Agreement. Moreover, as observed by the Intermediary, there was no indication that the latter’s victory in the CAS proceedings would preclude him from raising claims against the Representative under the Representation Agreement. Accordingly, the Representative’s alleged conflict of interest was in any event not established. Hence, even assuming the Player had not waived his right to object to the validity of the proceedings, his complaint was unfounded. For these reasons and those summarized in Sect. 2.4.5 below, the application for annulment was dismissed. 2.3.7

SFT 4A_80/2017, Decision of 25 July 2017

Underlying Facts, Proceedings and Decision(s) A. (the Athlete) is an international weightlifter from Russia. He won a gold medal and set two world records at the 2015 World Championships in Houston, USA (the World Championships). In November 2015, the Athlete tested positive for Ipamorelin, a prohibited substance under the IWF Anti-Doping Policy. The Athlete’s A and B samples were tested by the same accredited laboratory, using the same detection method, and were both found to be positive. By a decision issued in May 2016, the IWF Hearing Panel sanctioned the Athlete with a four-year ban and the disqualification of the results he obtained at the World Championships and thereafter, including the forfeiture of all medals, points and prizes. The IWF Hearing Panel’s decision was upheld by the CAS in an award issued on 1 December 2016.

Annulment Action and SFT Decision The Athlete sought the annulment of the CAS award on the ground that the Panel had violated his right to be heard and to a fair proceeding by basing its decision on an incorrect concentration (1 ng/ml instead of 0.1 ng/ml) of the prohibited substance. The SFT noted that although a concentration of 1 ng/ml was mentioned in the CAS award, it was plain from the factual section of the decision that the CAS Panel was apprised of the correct concentration, including the fact that the actual detected concentration was “extremely low”. In addition, the expert report relied upon by the Panel in rendering its decision had excluded the possibility of a “false positive” result based on the correct (0.1 ng/ml) concentration of Ipamorelin in the

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Athlete’s samples. Accordingly, the SFT concluded that the award clearly contained a typo in the passage that referenced a 1 ng/ml concentration. In any event, as noted by the SFT, even if the Panel had based its decision on an incorrect concentration (quod non), the Athlete had failed to establish that the alleged mistake violated his right to be heard, which does not include the right to a factually correct decision. The SFT recalled that, when arguing a violation of the right to be heard due to a material mistake in the award, the applicant must show that the mistake in question prevented him or her from presenting or establishing his or her position with regard to an issue relevant to the outcome of the case. Absent such a showing, the award, even if incorrect, is not subject to annulment. As discussed in Sect. 2.4.6 below, the Athlete further argued that his right to be heard had been violated by the CAS Panel in several other respects, in manners that also amounted to breaches of procedural public policy within the meaning of Article 190(2)(e) PILA. 2.3.8

SFT 4A_316/2017, Decision of 2 August 2017

Underlying Facts, Proceedings and Decision(s) In June 2013, a football player (the Player) and a club (the Club) entered into a two-year employment contract (the Contract). In January 2014, the Club unilaterally terminated the Contract. Seized by the Player, the FIFA DRC found that the Club had terminated the Contract without cause and ordered it to pay EUR 155’627 to the Player, being the equivalent of five monthly salaries minus monies already paid (the FIFA DRC Decision). Upon appeal by the Club, a CAS Sole Arbitrator upheld the FIFA DRC Decision, in an award issued on 1st May 2017. Annulment Action and SFT Decision The Club sought the annulment of the award on the ground that the Sole Arbitrator had violated its right to be heard by disregarding the “payment receipts and banking documents” it had submitted, both before the DRC and before the CAS, to prove the payments it had made to the Player. The SFT held that the Club was in fact criticizing the manner in which the Sole Arbitrator had assessed the evidence submitted to him, a complaint that is not covered by the right to be heard under Article 190(2)(d) PILA and cannot be raised in annulment proceedings. Further, the SFT noted that it was bound by the factual finding in the award according to which the Club had not challenged the Player’s allegation that he had been paid approx. EUR 60,000 less than the Club claimed to have paid him. That specific finding could therefore no longer be questioned. Finally, the Club’s argument that it had not been put in a position to anticipate that the evidence produced by it to prove the alleged payments would not be deemed sufficient was also unfounded, given that the Club clearly bore the burden of proving the payments and the same evidence had already been found to be inconclusive in that regard by the FIFA DRC. Accordingly, the application for annulment was dismissed.

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E. Hasler and Y. Hafner

SFT 4A_318/2017, Decision of 28 August 2017

Underlying Facts, Proceedings and Decision(s) In September 2012, a professional football player (the Player) and Club A concluded an employment agreement that was to last until the end of the 2014–2015 season (the Employment Agreement). Still in September 2012, the Player, Club A and another club (Club B) concluded a loan agreement, stipulating that the Player would be on loan to Club B during the entire 2012–2013 season and that Club B would pay the Player’s salary for that season. In August 2013, the Player terminated the Employment Agreement and claimed for payment of the balance of his salary before the FIFA DRC. The DRC partially upheld the Player’s request, ordering Club A to pay him USD 150’000 in outstanding salaries, plus interests, and USD 250’000 as compensation for the termination of the Employment Agreement with just cause (the DRC Decision). Club A appealed the DRC Decision with the CAS, which partially upheld the appeal (reducing the amount owed to the Player on foot of outstanding salaries).

Annulment Action and SFT Decision Club A sought the annulment of the award on the basis of a violation of its right to be heard. Club A contended that the CAS Panel had failed to address its argument that the outstanding amounts owed to the Player were taxable under the laws of Club A’s domicile. According to Club A, the CAS Panel ought to have deducted 20% in taxes from the amount awarded to the Player, but had failed to do so in its decision, even though the Club had explained the reasons for the deduction at the hearing. The SFT noted in particular that Club A had opted, in accordance with Article R51 of the CAS Code, to have its Statement of Appeal considered as its Appeal Brief, i.e. as the entirety of its pre-hearing written submissions in the arbitration. According to Article R56(1) CAS Code, the parties may not as a rule supplement or amend their claims and arguments after the submission of their last pre-hearing written submissions. The award did not mention Club A’s argument relating to the deduction of taxes, which was also not included in its Statement of Appeal. Assuming Club A had raised the argument at the hearing, which it had not proven before the SFT (for instance by producing a transcript and pointing to the relevant passages), the argument would in any event have been inadmissible absent a special agreement between the parties or an authorization by the Panel for the Club to bring it at that stage (Article R56(1) CAS Code). The existence of such an agreement or authorization was again not mentioned in the award, and Club A had not proven it in any way. Hence, the argument could not be invoked before the SFT. For these reasons and those summarized in Sect. 2.4.7 below, the application for annulment was dismissed.

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163

SFT 4A_424/2017, Decision of 23 October 2017

Underlying Facts, Proceedings and Decision(s) The facts in this case have been summarized in Sect. 2.2.2 above. Annulment Action and SFT Decision In addition to his complaint under Article 190(2)(c) 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 that the CAS had failed to consider whether a reduced sanction could be applied based on his prompt admission of the anti-doping rule violation. Among the (cumulative) requirements for the operation of the prompt admission mechanism, the WSF Anti-doping Rules mention that both WADA and the WSF must agree to the application of the mechanism. The CAS found that WADA had declined to agree to a reduction of the sanction based on the Player’s purported prompt admission. Accordingly, and notwithstanding its full power of review of the facts under Article R57 of the CAS Code, the Panel had found it unnecessary to investigate any further whether the Player had in effect promptly admitted the anti-doping rule violation. The SFT recalled that it is bound by the factual findings in an award, which in the case at hand included the Panel’s ascertainment that WADA had refused to agree to the application of the prompt admission mechanism. In any event, the SFT found that the CAS was correct in holding that it did not need to consider the application of the prompt admission mechanism any further, in view of WADA’s refusal to consent to it. In so deciding, the Panel had not violated the Player’s right to be heard. For these reasons and those summarized under Sect. 2.2.2 above, the application for annulment was dismissed. 2.3.11

SFT 4A_592/2017, Decision of 5 December 2017

Underlying Facts, Proceedings and Decision(s) In January 2014, an FA-licensed agent (the Agent) brought a claim against club B (the Club) in connection with the execution of an agreement for the transfer a player to the Club. The Single Judge of the FIFA Players’ Status Committee dismissed the Agent’s claim having found that the Agent lacked standing to sue and had failed to substantiate part of his claim on the merits. The Agent appealed the Single Judge’s decision before the CAS, which, in an award issued on 4 October 2017, dismissed the appeal and confirmed the Single Judge’s decision. Annulment Action and SFT Decision The Agent argued that the CAS Sole Arbitrator had violated his right to be heard and to equal treatment. In a short decision, the SFT found that the application for annulment did not comply with the substantiation requirements of Article 77(3) SCA, and declared it inadmissible.

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2.4.1

E. Hasler and Y. Hafner

Article 190(2)(e) PILA—Award Contravening Public Policy SFT 4A_690/2016, Decision of 9 February 2017

Underlying Facts, Proceedings and Decision(s) The facts in this case have been summarized in Sect. 2.3.2 above. Annulment Action and SFT Decision In addition to its complaint under Article 190(2)(d) PILA, the Player sought the annulment of the award on the ground that the CAS had violated public policy in two ways. First, according to the Player, CAS’s decision to consider the appeal inadmissible on the ground that the SoA had not been filed in compliance with Article R31(3) CAS Code amounted to excessive formalism, given that the SoA had been filed, timely and in compliance with the other requirements of Article R31, (at least) by telecopier. Second, the Player argued that by setting the proceedings in motion and accepting the filing of his Appeal Brief as well as the payment of the advance on costs for the proceedings, the CAS had acted in a manner that is contrary to good faith, in that it had led him to believe that his appeal was admissible, in contrast with the position later adopted by the Panel in the award. The SFT dismissed both objections, finding them to be insufficiently substantiated and, with respect to the second one, deeming it to misrepresent the CAS’s actual conduct as reflected in the record of the proceedings. For these reasons and those summarized in Sect. 2.3.2 above, the application for annulment was dismissed. 2.4.2

SFT 4A_40/2017, Decision of 8 March 2017

Underlying Facts, Proceedings and Decision(s) The facts in this case have been summarized in Sect. 2.1.2 above. Annulment Action and SFT Decision In addition to its complaints under Articles 190(2)(b) and 190(2)(c) PILA (see Sects. 2.1.2 and 2.3.3 above), the applicant Club also argued that the CAS Panel had failed to explain which law it had applied in the award and why it did not apply the law the Club had relied upon in its submissions, namely the law designated both by the relevant FIFA and CAS rules, and by an agreement between the Parties. In so acting, the CAS had, according to the Club, violated its right to be heard. Still according to the Club, had the Panel applied the correct law, it would necessarily have dismissed the Player’s claims against the Club. The SFT found, having

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reviewed the award, that the CAS Panel had clearly set out its position on the applicable law and proceeded to apply that law to the facts of the case in order to make its determinations on the Parties’ respective arguments and claims. The fact that the Panel might have determined that a law or specific legal provisions other than those relied upon by (one of) the Parties should be applied to resolve the dispute is not a ground for annulment under Article 190(2) PILA. For this reason and those summarized in Sects. 2.1.2 and 2.3.3 above, the Club’s application for annulment was dismissed.

2.4.3

SFT 470/2016, Decision of 3 April 2017

Underlying Facts, Proceedings and Decision(s) The facts in this case have been summarized in Sect. 2.3.4 above.

Annulment Action and SFT Decision In addition to its complaint under Article 190(2)(d) PILA, the RPC argued that the CAS award breached public policy to the extent it concluded that the RPC could not bring certain claims on behalf of its individual athlete members. In so arguing, the RPC relied on the provisions on Swiss associations’ rights to bring representative actions under the CCP, on the principle of equality of disabled persons, as laid down in the Swiss Federal Constitution, and on the UN Convention on the Rights of Persons with Disabilities of 13 December 2006, to which Switzerland is a party. The SFT noted again that there was no factual finding in the award to the effect that the athletes in question could not actually bring their own claims—quite to the contrary, the RPC itself had confirmed that some of the athletes had brought legal actions against the Bonn-based IPC (whose Decision the RPC was impugning before the CAS), in the German courts. In addition, the SFT found that the RPC’s references to the aforementioned statutory, constitutional and treaty provisions were not sufficient to establish the existence of (a) fundamental and generally recognized principle(s) pertaining to public policy within the meaning of Article 190(2)(e) PILA, which would have been violated by the CAS in the case at hand. In particular, the RPC did not explain which specific principle(s) of public policy would give rise to an association’s right to assert the personal rights of its members in court, nor to what extent such principle(s) would require that the association’s members’ rights be taken into account in assessing the proportionality of a sanction adopted against the association itself (in casu, the RPC’s suspension by the IPC). For these reasons and those summarized under Sect. 2.3.4 above, the application for annulment was dismissed.

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E. Hasler and Y. Hafner

SFT 4A_692/2016, Decision of 20 April 2017

Underlying Facts, Proceedings and Decision(s) The facts in this case have been summarized in Sect. 2.3.5 above. Annulment Action and SFT Decision For the second time in less than 3 months, the SFT was presented with the argument that a decision issued by the CAS was “excessively formalistic”, and that such conduct contravenes public policy within the meaning of Article 190(2)(e) PILA (see also SFT 4A_690/2016 of 9 February 2017, Sect. 2.4.1 above). In the instant case, WADA argued that the President of the CAS Appeal Division had violated procedural public policy by engaging in an unduly strict application of Article R64.2 CAS Code. Going further than in its decision in case 4A_690/2016, the SFT considered here whether excessive formalism, which the Swiss case law assimilates to a form of denial of justice, i.e. a breach of the constitutional right to a fair judicial process, is to be deemed prohibited as a matter of (procedural) public policy, noting that this question had not hitherto been examined in depth. The SFT recalled the definition of excessive formalism as elaborated in its own jurisprudence, namely the strict application of procedural rules where such application is not justified by any interest worthy of protection, becomes an end in itself, and hinders the implementation of legal remedies or access to justice in an unacceptable manner. Here, the SFT left undecided the question whether excessive formalism is part of (procedural) public policy within the meaning of Article 190(2)(e) PILA, but observed that it might be appropriate to consider that only serious instances (“violation(s) caractérisée(s)”) of excessive formalism can amount to violations of public policy, in order to prevent abusive reliance on this ground for annulment. In the case at hand, the SFT found, in light both of its own case law relating to inadmissibility and of the circumstances of the case (including WADA’s extensive experience with CAS appeals proceedings), that the Appeals Division’s President’s decision to terminate the proceedings in accordance with Article R64.2 CAS Code was clearly not excessively formalistic. In particular, the SFT underscored that the amount to be paid for the advance on costs, the time limit for payment, as well as the consequences of a failure to pay the full amount within that time limit, were all perfectly clear for WADA. Requiring that an institution apply its rules on admissibility by taking into account subjective elements such as a party’s “intention to pay” or the interests at stake in a particular case, as argued by WADA, would jeopardize the fundamental principle of equal treatment. For these reasons and those summarized in Sect. 2.3.5 above, the application for annulment was dismissed.

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167

SFT 4A_668/2016, Decision of 24 July 2017

Underlying Facts, Proceedings and Decision(s) The facts in this case have been summarized in Sect. 2.3.6 above. Annulment Action and SFT Decision In addition to his complaint under Article 190(2)(d) PILA, the Player sought the annulment of the award on the ground that the Sole Arbitrator had committed a twofold violation of public policy. The Player argued, first, that the FIFA Players’ Agents Regulations, which apply mandatorily to all stakeholders in football, prohibit the conclusion of two concurrent agency agreements regarding the same player, such as the Commission Agreement and the Intermediary Agreement. According to the Player, by failing to note that the co-existence of the two agreements was legally impossible under Swiss law, and interpreting them in such a way as to circumvent the Regulations, the Sole Arbitrator had contravened public policy. The SFT recalled that a violation of the FIFA’s Players’ Agents Regulations, be they mandatory for the relevant stakeholders, does not amount, in and of itself, to a breach of public policy. The SFT further recalled that the case law related to Article 27 CC applies mutatis mutandis to impossibility under Article 20(1) CO. According to the said case law, a violation of such (mandatory) legal provisions does not embody, per se, a violation of public policy, unless it amounts a serious violation of a fundamental right. Under Article 27 CC, this requires proof that an agreement restricts the economic freedom of a party to such an extent that the very basis of its economic existence is put in jeopardy. In the case at hand, the SFT held that the amount of the agreed commission was not such as to put the Player’s economic survival in danger. The Player further argued that the CAS award contravened public policy to the extent that the Sole Arbitrator had disregarded the strict prohibition against double representation under Article 22(1)(a) of the FIFA Players’ Agents Regulations, as mirrored in Articles 32 and 33 CO, and had unlawfully reversed the burden of proof by requiring the Player to establish that the second instalment of the Intermediary’s remuneration was also to be paid by Club C. The SFT held that none of the arguments raised and violations alleged by the Player, even if established (quod non), came within the purview of public policy within the meaning of Article 190(2)(e) PILA. For these reasons and those summarized in Sect. 2.3.6 above, the application for annulment was dismissed.

2.4.6

SFT 4A_80/2017, Decision of 25 July 2017

Underlying Facts, Proceedings and Decision(s) The facts in this case have been summarized in Sect. 2.3.7 above.

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Annulment Action and SFT Decision In addition to his complaint under Article 190(2)(d) PILA, the Athlete also argued that the award violated procedural public policy, relying on the same arguments he relied upon in invoking a violation of his right to be heard, equal treatment and equality of arms. Specifically, the Athlete argued that the CAS Panel had unduly denied his requests for an expert opinion on the testing method applied by the laboratory and for an additional analysis of his B-sample (with a different method from the one already applied by the laboratory). The SFT found that, as indicated by the CAS, the Athlete had not requested an expert opinion, but had simply sought information on the limits of detection and uncertainty applied to the analysis of his samples. The Athlete himself failed to demonstrate, in his submissions before the SFT, that he had requested an expert opinion on the analysis. Accordingly, this particular complaint was inadmissible at the annulment stage. As to the request for an additional analysis, the SFT found that the CAS Panel had assessed it in light of the applicable rules on the burden of proof and had come to the conclusion that the additional analysis was unwarranted, not permitted under the anti-doping rules, and, in its view, not apt to put in question the methods that had been applied by the laboratory. In so doing, the CAS had duly reviewed the Athlete’s arguments and examined the evidentiary record, without breaching procedural public policy. Finally, the Athlete argued that the award violated good faith and the prohibition against abuse of rights, as well as his personality rights, to the extent that the CAS had decided not to allow the additional analysis with a different method in order to avoid “political problems”, misapplying the rules in the service of its own objectives. Here too, the SFT found that the Athlete failed to demonstrate how the CAS’s assessment of the analysis that had been conducted and its decision that it sufficed to prove the Athlete’s ADRV in light of the applicable rules violated public policy. For these reasons and those summarized in Sect. 2.3.7 above, the application for annulment was dismissed.

2.4.7

SFT 4A_318/2017, Decision of 28 August 2017

Underlying Facts, Proceedings and Decision(s) The facts in this case have been summarized in Sect. 2.3.9 above.

Annulment Action and SFT Decision In addition to its complaint under Article 190(2)(d) PILA, Club A. sought the annulment of the award on the ground that the CAS Panel had violated public policy. Club A argued that, on the one hand, the CAS Panel had misapplied the principle of good faith and, on the other, it had violated the maxim pacta sunt servanda. The SFT dismissed the first grievance on the ground that it was unsubstantiated. The SFT then recalled its longstanding case law according to which the principle pacta sunt servanda is breached only in cases where the arbitral

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tribunal refuses to apply a contractual clause after finding that it is binding, or, conversely, imposes compliance with a contractual clause which it has found not to be binding on the parties. The SFT also recalled that the manner in which arbitral tribunals interpret contracts and the legal consequences they draw from such interpretation is not subject to its review under Article 190(2)(e) PILA, even under the angle of the pacta sunt servanda rule. Club A contended that the CAS Panel had refused to apply an alleged contractual clause that provided for the deduction of taxes from monies owed to Player, in accordance with the laws of the Club’s country of domicile. The SFT found that the Panel had not refused to apply a contractual clause that it had previously found to be binding on the parties. For these reasons and those summarized in Sect. 2.3.9 above, the application for annulment was dismissed.

2.4.8

SFT 4A_384/2017, Decision of 4 October 2017

Underlying Facts, Proceedings and Decision(s) The facts in this case have been summarized in Sect. 2.2.1 above. Annulment Action and SFT Decision In addition to his complaint under Article 190(2)(c) PILA, the Athlete argued that the CAS Closing Order violated his right to privacy and to the protection of his personal data [as guaranteed by Article 8 of the European Convention on Human Rights (ECHR) and Article 13 of the Swiss Federal Constitution (SFC)] by failing to sanction his federation’s failure to comply with the ADAMS, in particular by validating its use of a private and free e-mail service (Yahoo) to notify a disciplinary decision. The SFT recalled that the ECHR and the SFC are not directly applicable in annulment proceedings against arbitral awards, even though the principles derived from those two fundamental instruments may be relied upon as embodiments of the grounds for annulment set out in Article 190(2) PILA. In any event, the SFT found that the Athlete had not substantiated how the use of a Yahoo e-mail address for the notification of the DC’s decision had undermined his privacy rights. Again relying on Article 190(2)(e) PILA, the Athlete also argued that the President of the CAS Appeal Division had violated his right to a fair trial by declaring his appeal belated and thus inadmissible, even though the CAS had not been able to establish the exact date on which the he had received the appealed decision (the dies a quo for the computation of the time limit for appeal). The SFT noted that the President of the Appeal Division had established in the Closing Order, on the basis of the evidence before her, that the Athlete had received the appealed decision on 30 June 2016. This factual finding was binding on the SFT and the Athlete’s arguments based on the CAS’s purported inability to compute the time limit for appeal ought therefore to be dismissed. Finally, the Athlete argued, by reference to Articles 6 and 13 ECHR, that the CAS Closing Order had deprived him of his right to have the DC decision reviewed by an independent second instance.

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The SFT recalled that in accordance with its case law, the requirement for a two-tiered judicial process is not considered a matter of procedural public policy. Moreover, again in accordance with the SFT case law, strict compliance with the applicable procedural rules, including the time limit for appeal, is necessary to ensure that the parties are treated equally, and for the sake of legal security. Accordingly, the Athlete’s arguments could not be upheld. For these reasons and those summarized in Sect. 2.2.1 above, the application for annulment was dismissed.

2.4.9

SFT 4A_312/2017, Decision of 27 November 2017

Underlying Facts, Proceedings and Decision(s) A professional football club (Club X) and a former agent (the Agent) concluded an agreement by which the Agent would secure the transfer of a player (the Player) to Club X against a commission in the amount of EUR 3’100’000. The Player effectively transferred to Club X for a period of five years, with a salary of EUR 1’360’000 for the entire period of services. In April 2017, the CAS ordered Club X to pay the Agent the sum of EUR 2’700’000, plus interests, being the unpaid balance of the commission. Annulment Action and SFT Decision Before the CAS, the Club argued that the agreed amount for the commission was excessive and should therefore be reduced, on pain of violating the mandatory caps on such remuneration imposed by Swiss law and the FIFA regulations. As the CAS upheld the commission, the Club challenged the award on the ground that it violated substantive public policy. The Club argued again that the amount of the commission was clearly excessive given that it corresponded to more than ten times the Player’s annual salary. According to the Club, the agreement stipulating the commission was to be classified as a brokerage contract for the placement of an employee, and as such was subject to the special (protective) mandatory rules governing such contracts under Swiss law. The rules in question provide for specific caps on the remuneration of brokers and require that adjudicating authorities reduce brokers’ fees in application of equitable principles when they are excessive, so as to avoid a distortion of the employment market. The Club further referred to the FIFA Regulations on Working with Intermediaries, which, although admittedly not applicable (ratione temporis) to the agreement, provided a further illustration of the same principles. The SFT recalled that in accordance with its well-established case law, mandatory rules do not necessarily amount public policy norms within the meaning of Article 190(2)(e) PILA. In addition, the SFT noted that, as it had already held in a recent case relating to football, it would not be appropriate for it to carve out special rules pertaining to public policy in the field of sports or, even more specifically, to govern football matters. Public policy under Article 190(2)(e) PILA ought to remain a uniform and global concept, regardless of the underlying relationships, so as to

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preserve legal certainty. On the other hand, the SFT acknowledged that each case needs to be examined in concreto, in light of the relevant circumstances, to determine whether a certain conduct gives rise to a violation of public policy as it is understood under Article 190(2)(e) PILA. In the instant case, the Agent’s commission had been freely negotiated between the parties, and the Club had not challenged its validity until the Agent brought his claim before the CAS. When the Club acquired him, the Player was a free agent, meaning that the Club could potentially transfer him for an amount higher than the commission paid to the Agent, and therefore make a profit out of the deal. The fact that the Player’s value had not evolved as expected could not be used, ex post, to question the validity of the Club’s agreement. Finally, the Club had not demonstrated that paying the commission would have such an impact on its finances as to hinder its very economic survival, so that this was not a case falling under the prohibition of excessive commitments under Article 27 CC, the violation of which can be a matter of public policy. In light of the foregoing considerations, the application was dismissed.

2.5 2.5.1

Article 393(e) CCP—Arbitrariness SFT 4A_600/2016, Decision of 29 June 2017 (Platini V. FIFA)

Underlying Facts, Proceedings and Decision(s) In September 2015, disciplinary proceedings were opened against Mr Michel Platini (a former UEFA President and Member of the FIFA Executive Committee) by the FIFA Ethics Committee (FIFA EC), in connection with a payment of CHF 2 mio he had received from FIFA in 2011, and with an alleged conflict of interest arising from his participation in a meeting of the FIFA Finance Committee at which the aforementioned payment was validated. In December 2015, having found Mr Platini to have committed several breaches of the FIFA Ethics Code (FEC), the Investigatory Chamber of the FIFA EC banned him from all football-related activities at the national and international level for 8 years, and fined him CHF 80,000. In February 2016, the FIFA Appeal Committee (FIFA AC) reduced Mr. Platini’s ban from 8 to 6 years, but upheld the remainder of the FIFA EC’s decision. Mr Platini appealed the FIFA AC’s decision before the CAS, which partially upheld the appeal in an award rendered on 9 May 2016, reducing the duration of the ban from 6 to 4 years and the amount of the fine from CHF 80,000 to CHF 60,000. Annulment Action and SFT Decision Mr. Platini sought the annulment of the CAS award relying on the ground of arbitrariness, which can be invoked under Article 393(e) of the Swiss Code of Civil Procedure (CCP), the Act that governs domestic arbitration proceedings seated in Switzerland. FIFA objected to the admissibility of the application for annulment, arguing that, in accordance with Article 176 PILA, the arbitration in which Mr Platini’s case had been decided was international, not domestic, and that under the

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provision governing challenges against awards rendered in international arbitrations (Article 190(2) PILA), the ground of arbitrariness is not available. The SFT found that the CAS Panel had indeed incorrectly characterized the arbitration as domestic instead of international, but it also noted that FIFA had not objected to that characterization in the arbitration. According to the SFT, this state of affairs had led Mr Platini to believe that it was open to him to challenge the award on the basis of the annulment grounds set out in the CCP. Depriving him of that possibility at the stage of the SFT proceedings would be prejudicial to him, as the grounds for annulment under Ch. 12 PILA are more restrictive than those available under Part 3 CCP. It would also amount to a breach of the principles of procedural good faith, given that FIFA had not previously objected to the Panel’s mischaracterization of the arbitration. Accordingly, the application for annulment on the ground of arbitrariness was to be deemed admissible, notwithstanding the fact that the CAS arbitration was actually international rather than domestic. Under Article 393(e) CCP, an arbitral award is subject to annulment if it is arbitrary in its result because it is based on findings that are manifestly irreconcilable with the facts as they emerge from the case file, or because it amounts to a manifest violation of the law or of equity. Mr Platini argued that the CAS award was arbitrary in several respects. In particular, Mr Platini contended that the Panel had applied the FEC arbitrarily, first, by relying on a version of that Code that did not govern the relevant facts ratione temporis; secondly, by interpreting the FEC’s provisions in a manifestly incorrect way; thirdly, by ignoring certain relevant facts he had adduced and established, and finally by imposing disproportionate and insufficiently circumscribed sanctions on him. The SFT ruled, inter alia, that: (i) in view of FIFA’s status as the organization governing football worldwide, its regulations should be interpreted in accordance with the (Swiss law) rules of interpretation applicable to statutes rather than those applicable to contracts; (ii) the Panel’s interpretation and application of the relevant provisions in the FEC was not arbitrary within the meaning of Article 393(e) CCP; (iii) Mr Platini had indeed breached the relevant provisions of the FEC by accepting the CHF 2 million payment and participating in the impugned FIFA Finance Committee meeting; and (iv), that, while the wording of Article 22 of the FIFA Disciplinary Code 2011, providing that an individual could be banned “from taking part in any kind of football-related activity (administrative, sports or any other)” lacked precision and could potentially open the door to vexatious conduct on the part of FIFA, it could still be interpreted in a sustainable manner and would not in any event shield FIFA from a challenge, should it decide to apply the sanction in an excessively broad manner. Accordingly, Mr Platini’s application for annulment was dismissed in full. *** 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 above are reproduced and/or commented.5

5

The data included in Table 1 was up to date as of 30 October 2019.

6 October 2017

X. v. Z. & FIFA

X. v. AMA (WADA) & Fédération Internationale de Squash

4A_480/2015

4A_424/2017

A. & X. National Olympic Committee v. United World Wrestling

A. et al. v. B.

4A_510/2017

4A_206/2017

A. v. B.

4A_436/2017

Club X v. A.

4A_312/2017

20 November 2017 9 November 2017 31 October 2017 23 October 2017

A v. Club B.

4A_592/2017

5 December 2017 27 November 2017

Parties

Case No.

Date

D

F

F

D

D

F

F

Language

Schramm 2018, p. 65

http://www. swissarbitrationdecisions.com/

Schramm 2018, p. 68

http://www. swissarbitrationdecisions.com/ http://www.swlegal.ch/ Publications/Arbitration-CaseDigest.aspx (29 January 2018) Schramm 2018, pp. 91, 96

Schramm 2018, pp. 82–83

Sources (including commentaries and translations)

Article 190 (2) (c) PILA Article 190 (2) (d) PILA Article 190 (2) (b) PILA

N/A

N/A

Article 190 (2) (b) PILA

Article 190 (2) (e) PILA

Article 190 (2) (d) PILA

Grounds relied upon in annulment action

(continued)

Inadmissible

Dismissed

Inadmissible

Inadmissible

Inadmissible

Dismissed

Inadmissible

Outcome

Table 1 Grounds for annulment invoked during each application and the outcome thereof (Source http://www.bger.ch/fr/index/juridiction/jurisdictioninherit-template/jurisdiction-recht.htm)

Sports Arbitration Cases Before the Swiss Federal Tribunal in 2017 … 173

FC X. v. Z.

A. v. IWF

4A_318/2017

4A_316/2017

4A_80/2017

28 August 2017

2 August 2017 25 July 2017

A. Club v. B.

X. v. Fédération A. & Association B.

4A_384/2017

4 October 2017

Parties

Case No.

Date

Table 1 (continued)

D

F

F

F

Language

http://www. swissarbitrationdecisions.com/ http://www.swlegal.ch/ Publications/Arbitration-CaseDigest.aspx (24 October 2017) http://sportlegis.com/category/ cas/ Schramm 2018, p. 85

Schramm 2018, p. 83

http://www. swissarbitrationdecisions.com/ http://www.swlegal.ch/ Publications/Arbitration-CaseDigest.aspx (30 November 2017) http://sportlegis.com/category/ cas/ Schramm 2018, pp. 63–64 Schramm 2018, pp. 83, 90

Sources (including commentaries and translations)

Article PILA Article PILA Article PILA Article PILA Article PILA

190 (2) (e)

190 (2) (d)

190 (2) (d)

190 (2) (e)

190 (2) (d)

Article 190 (2) (c) PILA Article 190 (2) (e) PILA

Grounds relied upon in annulment action

(continued)

Dismissed

Dismissed

Dismissed

Dismissed

Outcome

174 E. Hasler and Y. Hafner

Case No.

4A_668/2016

4A_600/2016

4A_692/2016

Date

24 July 2017

29 June 2017

20 April 2017

Table 1 (continued)

AMA (WADA) v. X & USADA

Platini v. FIFA

X. v. Z.

Parties

F

F

F

Language http://www.swlegal.ch/ Publications/Arbitration-CaseDigest.aspx (30 August 2017) http://sportlegis.com/category/ cas/ Schramm 2018, p. 96 http://www. swissarbitrationdecisions.com/ SZZP—RSPC 5/2017 pp. 440– 445 http://www.swlegal.ch/ Publications/Arbitration-CaseDigest.aspx (26 July 2017) http://sportlegis.com/category/ cas/ Football Legal #8 2017 – pp. 91–97 Jusletter, 6 November 2017 Schramm 2018, pp. 59–60 http://www.swlegal.ch/ Publications/Arbitration-CaseDigest.aspx (24 May 2017) http://sportlegis.com/category/ cas/ Schramm 2018, pp. 63–64, 99

Sources (including commentaries and translations)

Article 190 (2) (d) PILA Article 190 (2) (e) PILA

Article 393(e) CCP

Article 190 (2) (d) PILA Article 190 (2) (e) PILA

Grounds relied upon in annulment action

(continued)

Dismissed

Dismissed

Dismissed

Outcome

Sports Arbitration Cases Before the Swiss Federal Tribunal in 2017 … 175

Case No.

4A_470/2016

4A_40/2017

4A_444/2016 & 4A_446/ 2016

4A_690/2016

Date

3 April 2017

8 March 2017

17 February 2017

9 February 2017

Table 1 (continued)

X. v. A., B., C. & FIFA

A. + B. v. IAAF & Russian Olympic Committee

Club X. v. Z.

Russian Paralympic Committee v. International Paralympic Committee

Parties

F

F

F

D

Language http://www.swlegal.ch/ Publications/Arbitration-CaseDigest.aspx (27 April 2017) Schramm 2018, pp. 83, 97 http://www. swissarbitrationdecisions.com/ http://www.swlegal.ch/ Publications/Arbitration-CaseDigest.aspx (27 April 2017) http://sportlegis.com/category/ cas/ Schramm 2018, p. 83 http://www.swlegal.ch/ Publications/Arbitration-CaseDigest.aspx (6 April 2017) http://www. swissarbitrationdecisions.com/ http://www.swlegal.ch/ Publications/Arbitration-CaseDigest.aspx (27 March 2017)

Sources (including commentaries and translations)

Article 190 (2) (d) PILA Article 190 (2) (e) PILA

N/A

Article 190 (2) (b) PILA Article 190 (2) (d) PILA Article 190 (2) (e) PILA

Article 190 (2) (d) PILA Article 190 (2) (e) PILA

Grounds relied upon in annulment action

(continued)

Dismissed

Inadmissible

Dismissed

Dismissed

Outcome

176 E. Hasler and Y. Hafner

Case No.

Parties

Language

Sources (including commentaries and translations)

Grounds relied upon in annulment action

Outcome

7 February 2017

4A_492/2016

FC A. v. B. & FIFA

D

Schramm 2018, p. 99 http://www. Article 190 (2) (b) Dismissed swissarbitrationdecisions.com/ PILA http://www.swlegal.ch/ Publications/Arbitration-CaseDigest.aspx (7 April 2017) 26 January 4A_716/2017 X. S.p.A. v. Club Y. & Z. F http://www. Article 190 (2) (d) Dismissed 2017 swissarbitrationdecisions.com/ PILA (17 March 2017) 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

Date

Table 1 (continued)

Sports Arbitration Cases Before the Swiss Federal Tribunal in 2017 … 177

178

E. Hasler and Y. Hafner

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 Schramm D (2018) Review of the Recent Case Law of the Swiss Federal Supreme Court. In: Müller Ch, Besson S, Rigozzi A (eds) New Developments in International Commercial Arbitration 2018. Stämpfli Editions, Bern, pp. 55–104