Abstract
The dispute opposing FIFA to its former President, Mr. Joseph Blatter, and to UEFA’s former President, Mr. Michel Platini, has certainly been one of the key sports law events of 2016. Both Mr. Blatter and Mr. Platini were banned by FIFA judicial bodies from any football-related activities for several years (eight in the first instance before the FIFA Ethics Committee, reduced to six by the FIFA Appeal Committee). And both men decided to challenge their suspension in front of CAS, arguing that the CHF 2 million payment made by FIFA to Mr. Platini in 2011, on the basis of which they had been sanctioned, was perfectly legitimate since it arose from an oral agreement they had reached in 1998. In both cases, however, the CAS Panels entirely (in Mr. Blatter’s case) or largely (in Mr. Platini’s case) upheld the decisions of FIFA judicial bodies. This commentary will focus on the award rendered in Mr. Platini’s case. As stated, the CAS Panel largely upheld the decision of FIFA judicial bodies, holding that the CHF 2 million payment had no contractual basis, since the oral agreement invoked by Messrs. Platini and Blatter had never existed, and was therefore to be considered as an undue advantage. The Panel also held that Mr. Platini should have refrained not only from accepting such an advantage, but also from participating in the FIFA Finance Committee’s meeting approving the 2010 accounts in which the CHF 2 million payment was included, and from signing a declaration of support to Mr. Blatter’s reelection as FIFA President in 2011. The Panel thus confirmed that Mr. Platini had violated the FIFA Code of Ethics, and in particular its Articles 19 and 20, but nevertheless decided to reduce the sanction inflicted to Mr. Platini to a four-year ban (and to a fine of CHF 60,000 instead of the CHF 80,000 retained by FIFA judicial bodies).
The author would like to thank Valentin Roten and Matthew Salgo for their contribution to this commentary.
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Notes
- 1.
See below in relation to the applicable version of the FCE.
- 2.
Article 13 FCE reads as follows:
“General rules of conduct
-
1.
Persons bound by this Code are expected to be aware of the importance of their duties and concomitant obligations and responsibilities.
-
2.
Persons bound by this Code are obliged to respect all applicable laws and regulations as well as FIFA’s regulatory framework to the extent applicable to them.
-
3.
Persons bound by this Code shall show commitment to an ethical attitude. They shall behave in a dignified manner and act with complete credibility and integrity.
-
4.
Persons bound by this Code may not abuse their position in any way, especially to take advantage of their position for private aims or gains.”
-
1.
- 3.
Article 15 FCE reads as follows:
“Loyalty
Persons bound by this Code shall have a fiduciary duty to FIFA, the confederations, associations, leagues and clubs.”
- 4.
Article 19 FCE reads as follows:
“Conflicts of interest
-
1.
When performing an activity for FIFA or before being elected or appointed, persons bound by this Code shall disclose any personal interests that could be linked with their prospective activities.
-
2.
Persons bound by this Code shall avoid any situation that could lead to conflicts of interest. Conflicts of interest arise if persons bound by this Code have, or appear to have, private or personal interests that detract from their ability to perform their duties with integrity in an independent and purposeful manner. Private or personal interests include gaining any possible advantage for the persons bound by this Code themselves, their family, relatives, friends and acquaintances.
-
3.
Persons bound by this Code may not perform their duties in cases with an existing or potential conflict of interest. Any such conflict shall be immediately disclosed and notified to the organization for which the person bound by this Code performs his duties.
-
4.
If an objection is made concerning an existing or potential conflict of interest of a person bound by this Code, it shall be reported immediately to the organization for which the person bound by this Code performs his duties for appropriate measures.”
-
1.
- 5.
Article 20 FCE reads as follows:
“Offering and accepting gifts and other benefits
-
1.
Persons bound by this Code may only offer or accept gifts or other benefits to and from persons within or outside FIFA, or in conjunction with intermediaries or related parties as defined in this Code, which
-
(a)
have symbolic or trivial value;
-
(b)
exclude any influence for the execution or omission of an act that is related to their official activities or falls within their discretion;
-
(c)
are not contrary to their duties;
-
(d)
do not create any undue pecuniary or other advantage and
-
(e)
do not create a conflict of interest.
Any gifts or other benefits not meeting all of these criteria are prohibited.
-
(a)
-
2.
If in doubt, gifts shall not be offered or accepted. In all cases, persons bound by this Code shall not offer to or accept from anyone within or outside FIFA cash in any amount or form.
-
3.
Persons bound by this Code may not be reimbursed by FIFA for the costs associated with family members or associates accompanying them to official events, unless expressly permitted to do so by the appropriate organization. Any such permission will be documented.
-
4.
Persons bound by this Code must refrain from any activity or behavior that might give rise to the appearance or suspicion of improper conduct as described in the foregoing sections, or any attempt thereof.”
-
1.
- 6.
Article 21 FCE reads as follows:
“Bribery and corruption
-
1.
Persons bound by this Code must not offer, promise, give or accept any personal or undue pecuniary or other advantage in order to obtain or retain business or any other improper advantage to or from anyone within or outside FIFA. Such acts are prohibited, regardless of whether carried out directly or indirectly through, or in conjunction with, intermediaries or related parties as defined in this Code. In particular, persons bound by this Code must not offer, promise, give or accept any undue pecuniary or other advantage for the execution or omission of an act that is related to their official activities and is contrary to their duties or falls within their discretion. Any such offer must be reported to the Ethics Committee and any failure to do so shall be sanctionable in accordance with this Code.”
-
1.
- 7.
See above, footnote 5.
- 8.
CAS 2016/A/4474, Michel Platini v. Fédération Internationale de Football Association, Award of 9 May 2016, paras 230–284.
- 9.
It is worth noting that the Panel applied the 2012 version of the FCE, although the violations reproached to Mr. Platini took place before 2012. The Panel noted in this respect that Article 3 FCE provides for the application of the new version of the Code, unless it is less favorable to the author of the violation than the previous ones. According to the Panel, this was not the case in the presence instance, therefore the decision would have been the same if the Panel had applied the previous versions of the Code (as did the CAS Panel that decided Mr. Blatter’s case—see CAS 2016/A/4501, Joseph S. Blatter v. FIFA, Award of 5 December 2016, paras 95–96).
- 10.
Hohl 2016, para 1234 and paras 2111–2116, referred to (although to the earlier version of the book) in CAS 2016/A/4474, Michel Platini v. Fédération Internationale de Football Association, Award of 9 May 2016, para 209.
- 11.
CAS 2016/A/4474, Michel Platini v. Fédération Internationale de Football Association, Award of 9 May 2016, paras 213–216.
- 12.
SFT 4A_390/2015, decision of 18 November 2015, para 3.3. In this case, the legal expert appointed by Mr. Platini, Prof. Vito Roberto, apparently based this conclusion according to CAS 2016/A/4474, Michel Platini v. Fédération Internationale de Football Association, Award of 9 May 2016, para 199.
- 13.
CAS 2016/A/4474, Michel Platini v. Fédération Internationale de Football Association, Award of 9 May 2016, paras 210–212.
- 14.
See in particular CAS 2011/A/2426, Amos Adam v. FIFA, Award of 24 February 2012, and CAS 2011/A/2625, Mohamed Bin Hammam v. FIFA, Award of 19 July 2012, both referred to in CAS 2016/A/4474, Michel Platini v. Fédération Internationale de Football Association, Award of 9 May 2016, para 219.
- 15.
CAS 2016/A/4474, Michel Platini v. Fédération Internationale de Football Association, Award of 9 May 2016, para 219.
- 16.
Ibid., paras 233–284.
- 17.
Ibid., para 284.
- 18.
Article 11(1) CO reads as follows: “The validity of a contract is not subject to compliance with any particular form unless a particular form is prescribed by law”.
- 19.
Xoudis 2012, para 9.
- 20.
Morin 2012, para 1.
- 21.
CAS 2016/A/4501, Joseph S. Blatter v. FIFA, Award of 5 December 2016, para 157.
- 22.
CAS 2016/A/4474, Michel Platini v. Fédération Internationale de Football Association, Award of 9 May 2016, paras 256–257 and 271.
- 23.
Ibid., para 257.
- 24.
See for instance Xoudis 2010, paras 47–48, referred to (although with a wrong quotation) in CAS 2016/A/4474, Michel Platini v. Fédération Internationale de Football Association, Award of 9 May 2016, para 257.
- 25.
Ibid., para 53.
- 26.
CAS 2016/A/4474, Michel Platini v. Fédération Internationale de Football Association, Award of 9 May 2016, paras 252–257 and 279–283.
- 27.
We do not know whether Mr. Platini raised this argument in the CAS proceedings. The Award does not provide any indication in this respect.
- 28.
Xoudis 2010, para 55. See also Article 38(1) CO.
- 29.
Chappuis 2012, para 8.
- 30.
CAS 2016/A/4474, Michel Platini v. Fédération Internationale de Football Association, Award of 9 May 2016, paras 253 and 279.
- 31.
Ibid., paras 292–293.
- 32.
Ibid., para 296.
- 33.
Ibid., para 295.
- 34.
It is interesting that the Panel chose this explanation rather than the arguably more obvious one (apparently pleaded by FIFA—see CAS 2016/A/4474, Michel Platini v. Fédération Internationale de Football Association, Award of 9 May 2016, para 302) that Mr. Platini’s support was actually aimed at rewarding Mr. Blatter for the undue advantage.
- 35.
Ibid., paras 303 and 307–314.
- 36.
Ibid., paras 304 and 316.
- 37.
Ibid., para 309.
- 38.
Ibid., para 369.
- 39.
Ibid., para 358.
- 40.
Ibid., paras 358 and 362.
- 41.
Ibid., para 328 (“Loin de dire que le comportement de M. Platini était loyal, la Formation est donc d’avis que l’application de cette disposition générale n’a pas lieu d’être dans le cas d’espèce”) and para 335 (“Ce qui précède ne signifie bien entendu pas que le comportement de M. Platini était éthique, mais simplement que la disposition générale doit céder la place aux dispositions spéciales”).
- 42.
Article 9(1) FCE reads as follows: “The sanction may be imposed by taking into account all relevant factors in the case, including the offender’s assistance and co-operation, the motive, the circumstances and the degree of the offender’s guilt”.
- 43.
At the time of drafting and submitting this commentary, the SFT had not yet rendered its decision on the challenge brought by Mr. Platini against the Award.
- 44.
CAS 2016/A/4474, Michel Platini v. Fédération Internationale de Football Association, Award of 9 May 2016, paras 260–263.
References
Chappuis C (2012) Article 38 CO. In: Thévenoz L, Werro F (eds) Code des obligations I, 2nd edn. Helbing Lichtenhahn, Basel, pp. 312–315.
Hohl F (2016) Procédure civile, Vol. I. Stämpfli Editions SA, Bern.
Morin A (2012) Article 2 CO. In: Thévenoz L, Werro F (eds) Code des obligations I, 2nd edn. Helbing Lichtenhahn, Basel, pp. 54–59.
Xoudis J (2010) Articles 54–55 CC. In: Pichonnaz P, Foëx B (eds) Code civil I. Helbing Lichtenhahn, Basel, pp. 412–431.
Xoudis J (2012) Article 11 CO. In: Thévenoz L, Werro F (eds) Code des obligations I, 2nd edn. Helbing Lichtenhahn, Basel, pp. 79–98.
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Beffa, L. (2017). CAS 2016/A/4474 Michel Platini v. Fédération Internationale de Football Association, Award of 9 May 2016. In: Duval, A., Rigozzi, A. (eds) Yearbook of International Sports Arbitration 2016. Yearbook of International Sports Arbitration. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/15757_2017_1
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