The Role of the Court of Arbitration for Sport (CAS) in Countering the Manipulation of Sport

Abstract

It is not surprising that, with so much money in sport, sadly, there is some corruption in sport, which may take many forms, including match-fixing. This is particularly true in association football—the world’s favourite sport and also the most lucrative one. For example, English Premier League footballers earn and are transferred for mega sums. We are living in the age when the likes of Wayne Rooney, when he was playing for Manchester United, reputedly earned £300,000 per week. As regards transfers of players, Paul Pogba, for example, was transferred from Juventus to Manchester United in the summer of 2016 for the record sum of £89.3 million! Sadly, however, many other sports are not immune from match-fixing and/or ‘spot fixing’ (a species of match-fixing) either, including the genteel sport of cricket.

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Introduction

Sport is now big business, worth more than 3% of world trade.

In the European Union (EU), comprising some 508 million people, sport accounts for 3.7% of the combined GNP of the twenty-eight member states and 5.4% of the EU labour force—around 15 million people—are employed, directly and indirectly, in sport.

There is, therefore, a great deal at stake in sport at the global and European levels—not only on but also, and perhaps more so, off the field of play.

Thus, it is not surprising that, with so much money in sport, sadly, there is some corruption in sport, which may take many forms, including match-fixing.

This is particularly true in association football—the world’s favourite sport and also the most lucrative one.¹ For example, English Premier League footballers earn and are transferred for mega sums. We are living in the age when the likes of Wayne Rooney of Manchester United reputedly earned £300,000 per week. That works out at £30 per minute and 50 p per second, which is 27,000% more than the average UK wage! As regards transfers of players, Neymar Jr was transferred from FC Barcelona to Paris St Germain FC for a world record sum of £200 million in the 2017 Summer Transfer Window!

Sadly, however, many other sports are not immune from match-fixing and/or ‘spot fixing’ (a species of match-fixing) either, including the genteel sport of cricket.²

International Sports Governing Bodies are grappling with the problems of corruption in and the manipulation of sport, which strike at the very integrity and nature of sport, which is—or, at least, should be—all about fair play and competition, as well as the uncertainty of sporting outcomes; and are taking measures to combat them, as much as possible. Not only for their own benefit, that of their athletes and sports fans, but also for the benefit of their corporate sponsors, who do not wish their brands to be tarnished by association with any form of corruption or wrongdoing. To these ends, these Bodies are also calling on outside public and private agencies, such as ‘Interpol’, ‘Europol’ and ‘Sportradar’,³ to assist them in their Herculean task of policing and cleaning up their sports.⁴

Match-fixing generally comes to light as a result of unusual betting patterns in sports competitions and Sports Bodies, working with Governments and other outside agencies (as mentioned above), have put in place ways and means of detecting and monitoring them.⁵

In this chapter, we will look at the role played by the Court of Arbitration for Sport, which is sport’s highest tribunal for sports-related disputes, in dealing with match-fixing cases, concentrating—in view of the confines and space limitations of this Chapter—on association football; and, in particular, on two CAS leading football match-fixing appeal cases, namely ‘Metalist’,⁶ and ‘Skenderbeu’.⁷

Before doing so, some words on the CAS itself would not be inappropriate in order to provide the reader with a general background as well as context.

CAS

Generally

At the beginning of the 1980s, an increasing number of international sports disputes and the lack of any independent body to deal with them in a flexible, quick, inexpensive and binding manner prompted a number of international sports federations to look at this situation and see what could be done.

Soon after assuming the Presidency of the International Olympic Committee (IOC) in 1981, the late Juan Antonio Samaranch had the idea of creating a sports court that would become ‘the supreme court of world sport’. The following year at an IOC Meeting in Rome, the late Judge Keba Mbaye, from Senegal, an IOC member and, at the time, a Judge at the International Court of Justice in The Hague, was asked to chair a working party with the aim of preparing the Statutes of a sports dispute resolution body that, in time, would become the ‘Court of Arbitration for Sport’.

In 1983, the IOC officially ratified the Statutes of the CAS, which came into force on 30 June 1984, and, on the same date, the CAS became operational. The CAS is also known by its French acronym, TAS (Tribunal Arbitral du Sport). The official languages of the CAS are French and English. For more information on the CAS, log onto its official website.⁸

The CAS, which is governed by ICAS (International Council of Arbitration for Sport), offers arbitration and also mediation for the settlement of sports-related disputes—not only purely sporting ones, such as eligibility disputes, but also commercial ones, such as disputes arising under sponsorship agreements.

CAS Arbitrations are conducted under two permanent divisions: the ordinary division and the appellate division.

The CAS also operates an ‘Ad Hoc’ Division which sits for the settlement of disputes arising during the Summer and Winter Olympic Games.

Currently, the CAS registers around 500 cases each year, many of which are doping and football appeals,⁹ and has around 350 arbitrators, drawn from many countries throughout the world, who are specialists in arbitration and sports law. They are appointed for 4-year renewable terms and must sign a ‘letter of independence’ confirming that they will act impartially. They must also sign a similar declaration each time they are appointed to act in a particular case. CAS Arbitrations may be conducted by single- or three-member Panels, as agreed by the parties in dispute.

The procedure to be followed in CAS Arbitrations is set out in the Code of Sports-related Arbitration (the Code), the latest edition of which dates from 1 January 2017, and the text of which is set out on the CAS official website; copies of the Code can be obtained from the CAS Court Office in Lausanne, Switzerland.¹⁰ And the applicable law for determining disputes is Swiss law, unless the parties agree on another law. The parties may also authorise the CAS to decide the dispute ‘ex aequo et bono’ (according to what is fair and just).¹¹

Because the CAS is based in Switzerland, with its legal seat in Lausanne, the CAS is generally governed by Swiss law. This is so, even when it hears cases outside Switzerland.¹² The CAS Court Office, which is headed by the Secretary General and who is assisted by several legal counsels and secretaries, supervises the arbitration and mediation procedures and acts as a Registry; it also organises the ‘Ad Hoc’ Divisions and deals with other administrative matters.

Under the CAS Mediation Rules, disciplinary matters, which include doping, match-fixing and corruption cases, may not be settled by CAS Mediation.¹³

As regards appeals to CAS, there is a time limit for doing so established in Article R49 of the CAS Code of Sports-related Arbitration, which provides as follows:

In the absence of a time limit set in the statutes or regulations of the federation, association or sports-related body concerned, or of a previous agreement, the time limit for appeal shall be twenty-one days from the receipt of the decision appealed against. After having consulted the parties, the Division President may refuse to entertain an appeal if it is manifestly late.

If the Appellant fails to submit its Appeal Brief as required under the procedural rules, the appeal shall be ‘deemed withdrawn’.¹⁴ If the Respondent fails to file an answer as required under the procedural rules, the Panel may nevertheless proceed with the case and deliver an award.¹⁵ If any of the parties are summoned, but fails to appear, the Panel may nevertheless proceed with the hearing.¹⁶ This may raise, according to the particular circumstances, questions of ‘due process’.

Provisional or Conservatory Measures

In appropriate cases, it is possible for the parties to apply to the CAS for so-called provisional or conservatory measures under the procedural rules.¹⁷ Such measures, if granted, may be made conditional on the provision of security.

Article R37 of the CAS Code of Sports-related Arbitration (the Code) empowers the CAS to offer the parties in dispute certain protective measures within a very short time frame, provided that all internal legal remedies provided for in the rules of the federation or sports-body concerned have been exhausted.

This Article does not specify or limit the kinds of preliminary measures that the CAS Arbitrators can issue in a given case. But traditionally in arbitral proceedings, these measures tend to fall into three categories:

• measures to facilitate the proceedings, such as orders to safeguard vital evidence;

• measures aimed at preserving the status quo during the proceedings, such as those that preserve the object of the proceedings; and

• measures that safeguard the future enforceability of the decision, such as those concerning property.

For example, in the infamous so-called Skategate case during the 2002 Salt Lake City Winter Games, an order was imposed on the judges of the competition not to leave the Olympic village before the CAS ‘Ad Hoc’ Division had investigated the circumstances in which the disputed medal had been awarded. Again, orders have been made in doping cases to preserve samples taken during a disputed doping control.

However, preliminary measures can never exceed the object of the dispute. Thus, such measures cannot be issued against anyone who is not a party to the dispute; or anyone else who is not bound by the arbitration agreement signed by the applicant seeking the preliminary measures.

It should be noted that when deciding whether to award preliminary relief, the President of the Division or the Panel, as the case may be, shall consider whether the relief is necessary to protect the applicant from irreparable harm; the likelihood of success on the merits of the claim; and whether the applicant’s interests outweigh those of the Respondent(s).¹⁸

Furthermore, under the terms of Article R37 of the Code, in appeal proceedings, the parties by agreeing to the CAS Procedural Rules ‘waive their rights to request such measures from state authorities or tribunals’ (in other words, from the local courts).

Again, under Article R37 of the Code, provisional and conservatory measures may be made conditional on the provision of some security, usually a financial guarantee, by the party seeking them.¹⁹

Expedited Proceedings

Likewise, the Division President or the CAS Panel may, with the consent of the parties, agree to expedite the proceedings, in respect of which appropriate directions may be issued.²⁰ This, in practice, is a useful measure in sporting disputes, including match-fixing cases, where athletes or teams/clubs are often subject to sporting deadlines and other time pressures. See the case of Apollon Kalamarias FC v/Hellenic Football Federation & Olympiakos FC,²¹ and also comments on this decision.²²

Stay of Execution

Again, Article 48 of the Code also allows a party to obtain a ‘stay of execution’ of the decision appealed against, provided a request to that effect is made at the time of filing the statement of appeal with the CAS, together with the corresponding reasons. If the request is not made at that time, it is lost; the assumption being that there is no urgency; otherwise, this would have been pleaded at the outset.

Cost of CAS Proceedings

Challenges to decisions of international sports federations are dealt with by the Appeals Division of CAS. Where such disputes relate to disciplinary matters, including doping cases, apart from the payment of the non-refundable Court fee of Sw Frs 1000, the proceedings are free of charge. In all other appeal cases, for example, an appeal relating to a match-fixing matter, costs are fixed in the same way as disputes dealt with in the ordinary division (see below).

Commercial disputes referred to the CAS are dealt with under the ordinary jurisdiction. Apart from the payment of the CAS Court fee, the CAS fixes the costs in accordance with a sliding scale, based on the amount in dispute, and before the case may proceed the parties are required to pay an advance of fees to the CAS Office.²³

The CAS can award costs to the successful party in a CAS case or determine the proportion in which the parties are to share them; as a general rule, the prevailing party is granted a contribution towards its legal fees and other expenses, including the costs of witnesses and interpreters.²⁴

Legal Challenges to CAS Awards

The CAS awards can be legally challenged in the Swiss Federal Court (Tribunal Federal Suisse), also based in Lausanne, by a dissatisfied party, but only in very limited circumstances, under the provisions of Article 190(2) of the Swiss Federal Code on Private International Law of 18 December 1987. This article reads (in translation) as follows:

[The Award] can be attacked only:

• (a) if a sole arbitrator was designated irregularly or the arbitral tribunal was constituted irregularly;

• (b) if the arbitral tribunal erroneously held that it had or did not have jurisdiction;

• (c) if the arbitral tribunal ruled on matters beyond the claims submitted to it or failed to rule on one of the claims;

• (d) if the equality of the parties or their right to be heard in an adversarial proceeding was not respected;

• (e) if the award is incompatible with Swiss public policy.

In practice, perhaps ground (d) is the most important one, and the CAS bends over backwards, in each case, to ensure that the parties are properly heard and receive a fair hearing.²⁵

In practice, there have been few legal challenges to CAS awards and its independence. In the latest challenge in 2003 in a case concerning the independence of the CAS and its relationship with the IOC, which partially funds the CAS, the Swiss Federal Court (the Swiss Supreme Court) held that the CAS offered all the guarantees of independence and impartiality to be regarded as a real court of arbitration, even where the IOC—as in that case—was a party in its proceedings.²⁶

The Legal Status of CAS Awards

Awards made by the CAS, like other international arbitral awards, are legally enforceable generally in accordance with the rules of International Private Law, and also specifically under the provisions of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 10 June 1958.

The CAS is also recognised under the European Convention on the Recognition of the Legal Personality of International Non-governmental Organisations.

So, the CAS decisions (Awards) are legally effective and can generally be enforced internationally.

‘Lex Sportiva’

Although CAS arbitrators are not generally obliged to follow earlier decisions and obey the sacred Common Law principle of ‘stare decisis’ (binding legal precedent),²⁷ in the interests of comity and legal certainty, they usually do so.²⁸ As a result of this practice, a very useful body of sports law—a so-called Lex Sportiva—is steadily being built up in a wide range of sports cases, including match-fixing cases.²⁹

We now turn to consider two leading match-fixing appeal cases decided by the CAS.

Metalist

The parties in this case³⁰ were as follows:

The Appellant was Public Joint-Stock Company ‘Football Club Metalist’ (FC Metalist), a professional Ukrainian football club based in the city of Kharkiv, Ukraine and affiliated with the Football Federation of Ukraine (‘FFU’).

The Respondents were the Union of European Football Associations (UEFA) and PAOK FC (PAOK).

UEFA, with its headquarters in Nyon, Switzerland, is a legal entity registered under Swiss law and an international association of European football federations and the governing body of European football. As such, it exercises regulatory, supervisory and disciplinary functions over national federations, clubs, officials and players affiliated with UEFA or participating in its competitions. UEFA is also the organising authority of all UEFA football competitions for clubs at the European level, amongst which are the UEFA Champions’ League and the Europa League.

PAOK is a professional Greek football club, based in Thessaloniki, Greece and affiliated with the Football Federation of Greece.

The facts and complex proceedings in this case were as follows:

According to the findings of the FFU, a football match played on 19 April 2008 between the Ukrainian football clubs FC Karpaty and FC Metalist (‘the Football Match’) was fixed. According to the decisions of the Disciplinary Committee of the FFU, dated 9 August 2010, and of the Appellate Committee of the FFU, dated 19 October 2010, the FC Metalist official, Mr. Krasnikov, was, amongst others, sanctioned for being involved in the manipulation of the Football Match. Furthermore, the two clubs, FC Karpaty and FC Metalist, were held liable for the behaviour of their players or officials under the principle of strict liability.

In April 2011, FC Metalist submitted an entry form to take part in the 2011/2012 UEFA Europa League. FC Metalist failed, however, to mention on its entry form that disciplinary proceedings were, at that point in time, in progress against the FC Metalist official, Mr. Krasnikov, amongst others.

When dealing with the entry form from another Ukrainian football club, UEFA discovered that FC Metalist had been sanctioned by the competent disciplinary body of the FFU for its involvement in a case of bribery in connection with the Football Match. FC Metalist had appealed against the decision of the FFU before the CAS and this case (CAS 2010/A/2267, 2278, 2279, 2280, 2281—‘Football Club Metalist’ et al. v. FFU) was still pending at the time UEFA had to decide on the admission of FC Metalist to the 2011/2012 UEFA Europa League.

Following the UEFA General Secretary’s letter, dated 25 May 2011, the UEFA Control and Disciplinary Body decided on 6 June 2011 to await the outcome of the CAS decision and to allow FC Metalist to take part in the UEFA Europa League in the meantime. However, FC Metalist was instructed that ‘In order to allow the Control and Disciplinary Body to re-evaluate the situation after the CAS has issued its decision on the club’s appeal, it considers it necessary to order FC Metalist Kharkiv to inform UEFA without delay of this CAS decision’.

Subsequently, on its entry form for the 2013/2014 UEFA club competitions, FC Metalist stated that the above-mentioned CAS procedure was still pending. By signing this entry form, the Appellant also agreed to be bound by and observe the Regulations of the UEFA Champions League 2012–2015 Cycle (‘the RCL’).

On 2 August 2013, the CAS rendered an award in the case CAS 2010/A/2267, 2278, 2279, 2280, 2281—‘Football Club Metalist’ et al. v. FFU (the ‘CAS Award’), by which the Appellant, amongst others, was found liable for match-fixing. The appeal filed by FC Metalist against the decision issued by the Appellate Committee of the FFU on 19 October 2010 was partially upheld. The decision in the sections relating to FC Metalist was confirmed, except for the part concerning the deprivation of 9 (nine) points in the standings of the 2011/2012 sporting season of the Ukrainian Football Championship, which was set aside.

On 6 August 2013, the UEFA disciplinary inspector submitted his report on the admissibility of FC Metalist for the 2013/2014 UEFA Champions League competition. On the same date, the chairman of the UEFA Control and Disciplinary Body informed the parties involved that he had decided to submit the case directly to the UEFA Appeals Body for decision in accordance with the provisions of the UEFA Disciplinary Regulations and the UEFA Statutes.

After having defeated PAOK FC in the third qualifying round of the 2013/2014 UEFA Champions’ League played on 30 July and 7 August 2013, and following the draw which took place on 9 August 2013, the Appellant was scheduled to play the next play-off matches against FC Schalke 04 on 21 and 27 August 2013. The winner of these play-off matches would enter the UEFA Champions’ League group stage while the loser would play in the UEFA Europa League.

On 12 August 2013, the Appellant filed an appeal with the Swiss Federal Court Tribunal against the CAS Award and requested a stay of the execution of the award. On the same date, the FFU consented to this request.

In the decision given on 13 August 2013 and notified to the Appellant on 14 August 2013, the UEFA Appeals Body disqualified the Appellant from the 2013/2014 UEFA competitions. The UEFA Appeals Body found that one of the Appellant’s employees, Mr. Krasnikov, was involved in an ‘activity aimed at arranging or influencing the outcome of a match at national or international level’ within the meaning of para 2.04(g) of the RCL. Pursuant to the principle of strict liability, the UEFA Appeals Body found that the Appellant was ultimately responsible for the behaviour of its employee and should be sanctioned: ‘Given the facts as established by the UEFA Appeals Body, it is now deemed necessary and appropriate to disqualify the club from the 2013/14 UEFA competitions in accordance with Paragraph 2.05 of the Regulations of the UEFA Champions League, for failing to fulfil an extremely important admission criterion, without prejudice to any possible disciplinary measures’.

On 14 August 2013, and following the above-mentioned decision, the UEFA Emergency Panel decided as follows:

• 1. FC Metalist Kharkiv is replaced in the 2013/14 UEFA Champions League play-offs by its opponent in the third qualifying round, i.e. by PAOK FC, who will therefore play the 2013/14 UEFA Champions League play-offs against FC Schalke 04 on 21 August (in Gelsenkirchen) and 27 August 2013 (in Thessaloniki).

• 2. The club which was drawn to play PAOK FC in the 2013/14 UEFA Europa League play-offs on 22 and 29 August 2013, i.e. Maccabi Tel-Aviv FC, qualifies directly for the group stage of the 2013/14 UEFA Europa League without needing to contest the play-offs.

• 3. […].

• 4. These decisions are final.

On 15 August 2013, the Swiss Federal Tribunal (the ‘first SFT decision’) upheld the request for a stay of execution of the CAS Award in the case CAS 2010/A/2267, 2278, 2279, 2280, 2281—‘Football Club Metalist’ et al. v. FFU with regard to the Appellant.

On 16 August 2013, the Swiss Federal Tribunal (the ‘second SFT decision’) upheld the request for a stay of execution of the CAS Award in the case CAS 2010/A/2267, 2278, 2279, 2280, 2281—‘Football Club Metalist’ et al. v. FFU with regard to the employee of the Appellant, Mr. Krasnikov.

On 14 August 2013, the Appellant filed an Application for provisional and conservatory measures (the ‘first Application for a Stay’) with the CAS pursuant to Article R37 of the Code of Sports-related Arbitration, 2013 edition (the ‘CAS Code’) requesting that the decision be stayed.

On 15 August 2013, the Appellant wrote to the CAS requesting that PAOK FC be joined in the procedure in view of the decision of the UEFA Emergency Panel dated 14 August 2013 to replace FC Metalist with PAOK FC. Furthermore, in addition to its first Application for a Stay, the Appellant amended its prayers for relief and requested in addition that ‘PAOK FC is replaced by FC Metalist in the 2013/14 UEFA Champions League play-offs against FC Schalke 04 on 21 August and 27 August 2013’.

By letter dated 15 August from the CAS Court Office, PAOK FC was joined as a Respondent and was granted a deadline until 15 August 2013, at 3 pm CET, to comment on the Appellant’s request.

On 15 August 2013, at 3 pm CET, UEFA and PAOK FC filed their respective answers to the Appellant’s request.

By Order on Request for provisional and conservatory measures, dated 16 August 2013, the Deputy President of the CAS Appeals Arbitration Division dismissed the Appellant’s first Application for a Stay, concluding that the Appellant ‘had not met the criteria of irreparable harm and balance of interest’ in accordance with the CAS jurisprudence.

Also on 16 August 2013, FC Metalist filed its Statement of Appeal with the CAS with respect to the decision and included both UEFA and PAOK FC as Respondents.

Furthermore, also on 16 August 2013, the Appellant filed another Application for provisional and conservatory measures (the ‘second Application for a Stay’) with the CAS pursuant to Article R37 of the CAS Code, requesting that the decision be stayed.

On 19 August 2013, UEFA and PAOK FC filed their respective answers to the Appellant’s second Application for a Stay.

On 20 August 2013, FC Metalist filed its Appeal Brief with the CAS with respect to the decision and included the EM decision in the Appeal. FC Metalist stressed that the Appeal Brief, if necessary, was to be considered as both the Statement of Appeal and Appeal Brief in respect of the EM decision.

Also on 20 August 2013, by Order on Request for provisional and conservatory measures, the Deputy President of the CAS Appeals Arbitration Division dismissed the Appellant’s second Application for a Stay concluding once again that the Appellant ‘had not met the criteria of irreparable harm and balance of interest’ in accordance with the CAS jurisprudence.

The parties all agreed to have the case dealt with as an expedited procedure.

A hearing was held at CAS headquarters in Lausanne, Switzerland on 27 August 2013 at which the parties presented their cases and legal arguments before the CAS three-member Panel, which rendered its decision (Award) on 29 November 2013 as follows:

Based on the foregoing and after taking into consideration all evidence produced and all arguments made, the Panel finds no grounds to conclude that the UEFA Appeals Body did not have sufficient legal grounds to render its decision and, furthermore, the Panel finds no grounds to conclude that the violation was time-barred. Moreover, the Panel finds that there are no grounds to either set aside the decision or make the decision suspended against the background of the Appellant’s submissions concerning alleged disproportionality or violation of the principle of equal treatment.

The Appeal filed against the decision is therefore dismissed and, consequently, the Appeal filed against the EM decision and the request for provisional and conservatory measures filed by Football Club Metalist on 20 August 2013 are considered redundant.

All other motions or prayers for relief were dismissed.

Comments

The legal principles applied by the CAS in this complex case were as follows:

The case confirmed the principle of strict liability and also vicarious responsibility in match-fixing cases. In other words, football clubs can be held liable without fault for the actions of their players and officials as part of the fight against match-fixing in sport, which is considered to be one of the greatest threats to organised sport worldwide.

Article 2.05 of the Regulations of the UEFA Champions League 2012–15 Cycle (RCL) defines how UEFA has to establish the factual basis of a decision to declare a club ineligible for having been directly and/or indirectly involved in any activity aimed at arranging or influencing the outcome of a match at national or international level. Listing possible and admissible pieces of evidence, in a non-exclusive way, this article gives UEFA full discretion to assess the pieces of evidence chosen. One kind of evidence, mentioned in Article 2.05 RCL, is a decision of an arbitral body that UEFA can rely on, but is not bound by the assessment of evidence taken in a decision of an arbitral body.

Furthermore, it is consistent CAS jurisprudence that, even if evidence might not be admissible in a civil or criminal court in Switzerland, this does not automatically prevent a sports federation or an arbitration tribunal from taking such evidence into account in its deliberations. As regards the public interest in finding the truth in match-fixing cases and also having regard to the limited means of sports federations and arbitration tribunals to secure evidence, it is possible to include evidence even though such evidence could potentially have been secured in an inappropriate—including illegal—manner. However, this is applicable only as long as the inclusion of such evidence in arbitration cases does not infringe any fundamental values reflected in Swiss public policy.³¹ This approach by the CAS has been upheld by the Swiss Supreme Court.³²

The CAS Panel also held that the case was not time-barred as claimed by the Appellant, since the Appellant specifically agreed to the term that clubs, which are found to have been involved since 27 April 2007 in activities aimed at arranging or influencing the outcome of a match at national or international level, will be declared ineligible to participate in any of the UEFA competitions. Thus, such a declaration of ineligibility is not limited by any prescription rules.

Furthermore, it is a recognised principle in CAS jurisprudence that any sporting or financial sanction must comply with the principle of proportionality, meaning that there must be a reasonable relationship between the kind of misconduct and the sanction. In other words, the severity of a sanction must be proportionate to the offence committed. To be proportionate, the sanction must not exceed what is reasonably required to achieve a justifiable aim. Any party alleging disproportionality of a sanction, of course, bears the burden of proof. In the present case, the CAS Panel held that an ineligibility period of one year was perfectly legitimate, proportionate and necessary to protect UEFA’s legitimate interest in the integrity of its European football competitions under Article 2.05 of the RCL.

Finally, the CAS Panel also held that the principle of equal treatment is mandatory under Swiss association law and it is only violated when two similar situations are treated differently. Any party alleging the discriminatory nature of a sanction, of course, bears the burden of proving it.

Skenderbeu

The parties in this case³³ were as follows:

The Appellant was Klubi Sportiv Skënderbeu (the Club), a professional football club, with its registered headquarters in Korçë, Albania and registered with the Football Association of Albania (FAA), which, in turn, is affiliated to the Union Européenne de Football Association and the Fédération Internationale de Football Association (FIFA).

The Respondent was Union Européenne de Football Association (Respondent or UEFA), an association under Swiss law with its registered office in Nyon, Switzerland and the governing body of football at the European level, where it exercises regulatory, supervisory and disciplinary functions over national federations, clubs, officials and players in Europe.

The facts and complex proceedings in this case were as follows:

Since 2010, the UEFA Betting Fraud Detection System (BFDS) had identified more than 50 matches involving the club where the results were allegedly manipulated for betting purposes.

Following the Albanian domestic season 2015/2016, the club qualified for the preliminary phase of the UEFA Champions’ League 2016/2017.

On 4 May 2016, the UEFA Ethics and Disciplinary Inspectors informed the UEFA General Secretary that, following investigations on the club, they had found sufficient evidence to instigate disciplinary proceedings against the club. They asked the UEFA General Secretary that, upon receipt of the club’s ‘admission criteria form’ for the 2016/2017 UEFA club competitions (Admission Form), the case of this club be referred to the UEFA Control, Ethics and Disciplinary Body (UEFA CEDB), pursuant to article 4.07 of the UEFA Champions’ League Regulations 2016/2017 (UCLR), so that it could consider the final report of their investigation and issue a formal decision on the club’s admission to the UEFA Champions’ League 2016/2017.

On 11 May 2016, the club sent its Admission Form to UEFA, signed by the club and the FAA.

On 13 May 2016, the UEFA General Secretary, upon the request of the UEFA Ethics and Disciplinary Inspectors and pursuant to article 4.07 UCLR, referred the Admission Form and the case itself to the UEFA CEDB.

Also on 13 May 2016, the UEFA Ethics and Disciplinary Inspectors submitted a report, in which they requested to refer the case to the UEFA Appeals Body in accordance with article 34(3) of the UEFA Disciplinary Regulations and to preliminarily declare the club ineligible to participate in the UEFA Champions’ League 2016/2017.

Again, on 13 May 2016, the club was informed that disciplinary proceedings were instigated against it in accordance with article 48 of the UEFA Disciplinary Regulations in relation to the infringement of article 4(1)(g) UCLR.

Likewise, on 13 May 2016, the Chairman of the UEFA CEDB informed the club that he had decided to submit the case directly to the UEFA Appeals Body in accordance with article 48 of the UEFA Disciplinary Regulations and that a hearing was fixed for 25 May 2016.

On 24 May 2016, the club informed UEFA that it intended to attend the hearing, but that it had not received the documents relating to this case. The club reserved its right to request a further hearing.

On 25 May 2016, a hearing was held at the UEFA headquarters in Nyon, Switzerland. Even though the UEFA Appeals Body was comfortably satisfied that the club was properly informed about the opening of the proceedings and that the documents were properly handed over on 13 May 2016, the cub was granted a new deadline until 31 May 2016 to submit its position and a new hearing was fixed for 1 June 2016.

On 1 June 2016, a second hearing was held.

On 1 June 2016, the UEFA Appeals Body rendered its decision (the ‘Appealed Decision’) setting out the following operative part:

• 1. [The Club] is not eligible to play the UEFA Champions League competition 2016/2017.

• 2. The costs of the proceedings, totalling €5.000 (minus the appeal fee), are to be paid by [the Club].

• 3. The [FAA] is jointly and severally liable for the payment of the fine and the costs of the proceedings (Article 59.2 DR).

• 4. The decision is final (subject to Article 58.7 DR) and is communicated to:

  • a. The parties;

  • b. The UEFA Control, Ethics and Disciplinary Body;

  • c. The UEFA administration;

  • d. The [FAA].

On 6 June 2016, the grounds of the UEFA Appeals Body’s decision were notified to the parties, determining, inter alia, the following:

The Panel considers the reference to a fine being imposed on the club is a typographical mistake, as it appears from the reasoning of the Appealed Decision that no fine was imposed.

In respect of the club’s argument that its right to be heard was violated, the UEFA Appeals Body determined that ‘the [Club] was given an overall 28 days (starting from 13 May 2016) since the notification of the opening of the proceedings, which is for instance an extraordinary deadline in the scope of disciplinary proceedings and more than the deadline granted by CAS in its Article R55 for submitting the answer of [UEFA] in the context of an appeal proceedings. Bearing the above in mind, the Appeals Body rejects the procedural flaws raised by the club’.

As to the reliability of the BFDS, the UEFA Appeals Body concluded that it ‘is at least comfortably satisfied that reports provided by the BFDS contain reliable information on potential match fixing activities’.

As to the information deriving from the BFDS reports in respect of the club, the UEFA Appeals Body concluded that ‘[t]his UEFA disciplinary body recalls again, as already pointed out by CAS in the above mentioned referred award CAS 2010/A/2172, that evidence considered cumulatively may satisfy the test of comfortable satisfaction, even beyond a reasonable doubt.

In this regard, this UEFA disciplinary body has no doubts that the club was involved in match fixing activities in the light of the BFDS reports. Even assuming the categorization made by the [Club] into four different groups of BFDS report, as made by the BFDS itself, the club is implicitly accepting that “an alleged involvement of the [Club] in match-fixing only concerns 20% of the total reports”. This UEFA disciplinary body recalls that only one match is enough to trigger the consequences of Article 4.02 UCL Regulations, accepting [Club] without the combination of other factors that 20% of the reported matches may be aimed to such involvement.

For the reasons explained above, the global number of matches is outstanding, as well as when dividing them into two groups as proposed by this UEFA disciplinary body: one group of ten matches in which the conclusions and explanations of the BFDS leave no doubt about the existence of match fixing activities, and another group of matches in which the probabilities of match fixing are very high and definitely confirmed in combination with other factors (with or without the combination with those matches linked to the “First Group”). Bearing the above in mind, the Appeals Body is already comfortably satisfied that the club was involved in activities aimed at arranging the outcome of matches in accordance with Article 4.02 UCL Regulations and shall therefore be declared ineligible to participate in the next UEFA Champions League competition in 2016/2017’.

As to the connections between the club and/or its officials, the UEFA Appeals Body concluded that ‘the above account of the different direct interconnections between a number [sic] individuals linked to [the Club] and the betting market draws a highly concerning picture of the situation at hand. It is undeniable that all the elements which may be needed to create an organization aimed at fixing matches are definitely present in this case. It has been proven without any possible doubt that that [sic] [the Club] and/or its officials, mainly the current president Ardjan Takaj and his specific environment i.e. personal relations with players and coaches and direct links with the betting market (ownership of a betting company, sponsors of the club being betting companies, relations of the shareholders of this companies and their employees with [the Club’s] players and officials, etc.), had the means to influence matches and to gain high benefits from the betting market.

In addition, the integrity of some of these individuals has seriously been put in question by the public and criminal authorities, e.g. Ridvan Bode, the president Ardjan Takaj and his family, the brothers Gramoz Murataj and Besnik Murataj. The [Club’s] coach himself has been interrogated by the public prosecutor of Albania for alleged match fixing activities in the past. It means that it is by no means improbable, rather contrary, that individuals facing criminal accusations or evasion of taxes even match fixing accusations, may have been engaged by the idea of gaining high amounts of money by manipulating matches for betting purposes.

Taking the above into account, the Appeals Body deems that added to the above considerations about the evidential weight of the BFDS reports, the Appeals Body is more than convinced that the case in hand demonstrates that match fixing activities took place in the sense of Article 4.02 UCL Regulations’.

As to the public national and international perception, the UEFA Appeals Body maintained that ‘it has been proven by the inspectors that from opponent players to supporters, from betting operators to journalists, all have been aware about the fact that [the Club] were fixing football matches in Albania and in Europe, at least have had a strong suspicion.

In particular the existence of statements given by an opponent player, Sean O’Neal, in the context of the match played between [the Club] and FC Crusaders, who claimed for an investigation on the side of UEFA on match fixing after the match, is the less remarkable. Also significant is the fact that supporters of this team expressed their doubts publicly, like it derives from the case file e.g. the statements of the fan Stuart Briers. In addition, banners have been displayed by supporters of Albania complaining about the alleged match fixing activities of [the Club]. Illustrative is also the fact that some betting operators like Hong Kong Jockey Club don’t offer matches involving this club, or like GLSM recommends their members to exercise caution in this respect. Finally, worth to note is the fact that journalists worldwide put the match fixing activities in the front page when reporting about [the Club], see for instance press releases from “El Pais”, and “ESPN” in the case file.

All these objective and undisputed facts leads this UEFA disciplinary body to express its regret that this situation can only be conceived from an objective and reasonable observation as against the rules and the integrity of football. The public perception is simply another factor, which reinforces this conclusion and puts it to another level, if possible’.

Finally, in respect of the consequences of such finding, the UEFA Appeals Body maintains that ‘the aim of the provision contemplated in Article 4.02 UCL Regulations is not only to prevent a club which has violated such values from taking part in the competitions organized by UEFA (i.e. to protect the integrity of the competition), but to [sic] also to dispel any shadow of doubt in the public about the integrity, the values and the fair play of its competitions i.e. to protect the reputation of the competition (CAS 2013/A/3258).

According to Article 4.02 UCL Regulations, if, on the basis of all the factual circumstances and information available to UEFA, UEFA concludes to its comfortable satisfaction that a club has been directly and/or indirectly involved, since the entry into force of Article 50(3) of the UEFA Statutes, i.e. 27 April 2007, in any activity aimed at arranging or influencing the outcome of a match at national or international level, UEFA will declare such club ineligible to participate in the competition.

As stated above, UEFA applies a principle of zero tolerance towards match-fixing activities. It results that, as the one year ineligibility of UEFA competitions is deemed as a minimum (as determined in CAS 2013/A/3256), the Appeals Body deems, therefore, that [the Club] is not eligible to participate in the next UEFA Champions League competition 2016/2017 in accordance with Article 4.02 UCL Regulations’.

On 14 June 2016, the club filed a combined Statement of Appeal/Appeal Brief, pursuant to Article R48 of the CAS Code of Sports-related Arbitration (the ‘CAS Code’) with the Court of Arbitration for Sport (‘CAS’).

The club applied for a stay of the execution of the Appealed Decision and submitted the following requests for relief:

• 1. As a provisional, urgent measure, we ask the President of the relevant Division or, in alternative, the Panel to suspend the challenged decision hence, allowing KS Skënderbeu to play UCL;

• 2. Firstly, accept this Appeal Statement against the decision rendered by UEFA Appeals Body and so dismissing all and every requests against KS Skënderbeu and particularly the request of its ineligibility for UCL 16–17;

• 3. Condemn the Respondent to the payment of the whole CAS administration costs and Panel fees;

• 4. Fix a sum to be paid by the Respondents to the club in order to cover its defense fees and costs in the amount of CHF 25,000.

On 16 June 2016, UEFA informed the CAS Court Office that it had no objection to the stay of execution of the Appealed Decision provided that the club would agree to the following expedited calendar:

UEFA’s deadline to nominate an arbitrator: 24 June 2016; UEFA’s answer: 30 June 2016 (midday); CAS Hearing: 4 July 2016; CAS award (operative part): 5/6 July 2016. On 17 June 2016, the club agreed with the expedited calendar suggested by UEFA. On 20 June 2016, in the light of the agreement of the parties, the CAS Court Office confirmed the stay of the execution of the Appealed Decision.

On 30 June 2016, UEFA filed its answer, pursuant to Article R55 of the CAS Code, requesting CAS to decide as follows: ‘Rejecting all reliefs sought by Skënderbeu; Confirming the Appealed Decision; Ordering Skënderbeu to pay all the costs of this arbitration and a significant contribution towards the legal fees and other expenses incurred by UEFA in connection with these proceedings’.

The case was heard in Lausanne, Switzerland, on 4 July 2016 and on 6 July 2016, the CAS dismissed the (urgent) appeal filed by Klubi Sportiv Skenderbeu against the decision issued by the UEFA Appeals Body on 1 June 2016 (the UEFA decision) in which the Albanian club was declared ineligible to participate in the UEFA Champions’ League competition 2016/2017 following an investigation into match-fixing.

Comments on the case

In reaching its decision, as evidence of match-fixing, the CAS relied mainly on the UEFA BFDS reports, rather than seeking direct evidence of match-fixing—that is, catching the match fixer ‘red handed’! The UEFA BFDS had been developed by UEFA in collaboration with Sportradar. In the present case, the UEFA BFDS reports showed suspicious betting patterns in more than 50 matches involving the Albanian club at the European and domestic levels. As the CAS Panel noted in its Award, although the BFDS system could be improved, the analytical information derived from it was valuable evidence that, particularly if corroborated by further evidence, can be used in order to conclude that a club was directly or indirectly involved in match-fixing. Such external supporting evidence was found by the CAS Panel, including video footage of the on-field actions of some particular players. Also, incidentally, Prof. David Forrest, one of the Editors of this Book, was called by UEFA and gave evidence in the CAS hearing as an expert witness on the workings and reliability of the UEFA BFDS system, of which he had made a particular detailed study.

Consistent with CAS practice in doping and match-fixing cases, the CAS Panel held that the standard of proof was ‘comfortable satisfaction’ which is intermediate between the normal civil standard of proof of ‘on a balance of probabilities’ and the criminal standard of ‘beyond reasonable doubt’. CAS jurisprudence also clearly establishes that to reach this ‘comfortable satisfaction’, a CAS Panel should have in mind the seriousness of the allegation which is made.

This standard of proof, combined with the reliance on reports of suspicious betting patterns, which are totally contradictory to those patterns of betting expected in a regular betting market, provides sufficient evidence of match-fixing as far as sports governing bodies and the CAS are concerned. This approach in a match-fixing case is justified on the grounds of serving the public interest in identifying and sanctioning match-fixing and match fixers in sport: to some extent, a kind of Machiavellian approach of ‘the end justifies the means!’

In the present case, no individuals were accused by UEFA of match-fixing but only the Albanian club, in view of the overwhelming evidence of match-fixing shown up by the UEFA BFDS reports. In other words, a principle of ‘vicarious liability’ of the club for the actions of its members was applied by the CAS Panel.

Based on the wording of article 4.02 of the UCL Regulations, the CAS held that no direct culpability of the club was required in order for it to be declared ineligible to participate in the UEFA Champions’ League Competition. Under this UEFA rule, the behaviour of one or more players causes the ‘indirect involvement’ of the club, and this is sufficient to trigger the application of article 4.02. As the CAS Award stated: ‘Therefore, the Club was at the very least indirectly involved in match-fixing activities and the Panel considers that UEFA has proven its case to the Panel’s comfortable satisfaction’. In other words, as in doping cases, the principle of ‘strict liability’ applies.

Also, article 4.02 of the UCL Regulations does not provide the decision-making bodies with any latitude as to the consequences of failing to comply with the admission criteria; if the club is found, to the comfortable satisfaction of the decision-making body, to have been directly and/or indirectly involved in match-fixing activities, it will be declared ineligible to participate in the Competition and such ineligibility will apply for only one football season.

It is generally considered that, as a result of the CAS Award in the Skenderbeu match-fixing case, it should be easier for Sports Governing Bodies to sanction match fixers and for such sanctions to be upheld by their respective Appeal Bodies and also by the CAS.

Conclusions

During its thirty-four years of operations, the CAS is proving to be what its founders intended it to be, namely the ‘Supreme Court of World Sport’, dealing with an ever increasing and wide range of sports-related cases.

These cases, sadly, include those concerning the manipulation of sport in various forms and ways, including match-fixing and doping, another form of unfair competition, which is dealt with in Chapter 4 of this Book.

The CAS is building up a discrete body of jurisprudence—often referred to as a ‘Lex Sportiva’—and thereby introducing a measure of legal certainty for the benefit of all those in the worldwide sporting community, who rely on the intervention of CAS in the settlement of their disputes, which, with the mega sums now involved in sport, are increasing all the time.³⁴

As regards match-fixing cases, the CAS applies the ‘comfortable satisfaction’ standard of proof and ‘strict liability’, and, in order to get at the truth in these cases, in view of the public interest in them, is willing to admit evidence, such as video evidence, that may have been inappropriately or even illegally obtained, subject to the overriding requirement of Swiss public policy.

Regarding the juridical standing of the CAS, the Swiss Federal Tribunal in a Judgement handed down on 27 May 2003, concerning a case challenging the independence of the CAS, has stated as follows:

…the CAS is growing rapidly and continuing to develop. An important new step in its development was recently taken at the World Conference on Doping in Sport, held in Copenhagen at the beginning of March 2003. This Conference adopted the World Anti-Doping Code as the basis for the worldwide fight against doping in sport. Many States, including China Russia and the United States of America, have adopted the Copenhagen Declaration on Anti-Doping in Sport. Under the terms of Art. 13.2.1 of the new Code, the CAS is the appeals body for all doping-related disputes related to international sports events or international-level athletes. This is a tangible sign that States and all parties concerned by the fight against doping have confidence in the CAS…… This new mark of recognition from the international community shows that the CAS is meeting a real need. There appears to be no viable alternative to this institution, which can resolve international sports-related disputes quickly and inexpensively…Having gradually built up the trust of the sporting world, this institution which is now widely recognised…remains one of the principal mainstays of organised sport.³⁵

What greater assurance could the sports world wish for than that general ringing endorsement of the CAS by the highest Court in Switzerland, where CAS is based, especially when dealing with and sanctioning the manipulation of sport and sporting results, including doping and match-fixing cases, all of which strike at the very heart and soul of sport and undermine its integrity!