On October 24^th and 25^th 2019, the T.M.C. Asser Institute and the International Sports Law Centre hosted the International Sports Law Journal (ISLJ) Conference for a third year in a row, bringing together a group of academics and practitioners from around the world. This year’s conference celebrated the 20^th year of the International Sports Law Journal, which was originally started by Robert Siekmann. Over the past 20 years, the ISLJ has aimed to be a truly international journal that addresses global topics in sports law while keeping the highest academic standards.

With this background, the conference facilitated discussions and exchanges over six differently themed panels on international sports law’s most pertinent issues and gave participants wide opportunities to engage with one another. Additionally, this year’s edition also had the great honor of hosting two distinguished keynote speakers, Moya Dodd and Ulrich Haas, who were able to share their wealth of experience and knowledge with the conference participants.

The following report aims to give an overview of the ISLJ Conference 2019 to extract and underline the fundamental ideas raised by the different speakers.

Day 1:

Opening Speech: Moya Dodd

The conference was kickstarted by Moya Dodd, a former FIFA Council member and current ICAS member, who gave an engaging presentation on her experiences as an athlete in boardrooms of FIFA. After retiring from the Australian National Team, she began to become involved in sport governance, starting as a member of the AFC Executive Committee. She eventually made her way to the FIFA Executive Committee where she made it a priority to represent groups who did not have a voice in FIFA’s governance. In this vain, she launched a task force for women, which helped spearhead reforms that brought gender issues into light. Ms. Dodd also explained how she worked hard to keep connections with persons outside of the sports governing structures in order to represent them from the inside. In the end, she explained how the experience playing sports helped develop skills that became invaluable in the boardroom. This includes, teamwork skills, constantly striving to improve oneself, valuing persons for their capabilities, and the ability to deal with setbacks. This discussion led particularly well into the first panel of the conference, which took a magnifying glass to the role of athletes in sports governance.

Panel 1: Where is the athletes’ voice? The (il)legitimacy of international sports governing bodies

Antoine Duval and Marjolaine Viret began the first panel of the conference by exploring the athletes’ voice in the fight against doping and particularly within WADA. They explained that in order for the World Anti-Doping Code (WADC) and WADA to be considered legitimate, the actors most affected by its policies, athletes, would need to be participating meaningfully and have a real input in the decision-making process. This input requires an actual reflection in the regulatory output of WADA, and it entails not only consulting with athlete stakeholders but that representatives have voting powers on both the code revision process and the administrative bodies of WADA. Their study examines to what extent the current operation of WADA is in line with these ideals by examining the role of athletes in WADA’s bodies and its actual regulatory output.

Mark Conrad studied the issue from a wider lens by explaining how the current representation of athletes in sports governing bodies is inadequate and why there needs to be a fundamental rethinking of the current athlete committee model. This model, he explains, is ineffective in truly representing athletes’ interests, since their mandates are not clearly defined and greatly rely on the good favor of the federations’ management. As an alternative model, he presented a collective bargaining approach, which already is widespread in North America, in which athlete unions would represent athletes’ interests in a bargaining process with the sports governing bodies. Such a model would give the athletes ‘real’ representation by relying on their strength in numbers and by negotiating agreements that would entitle them to specific rights. These agreements could cover salary standards, salary controls, free agency, drug testing and many other aspects of the employment relationship. He concluded by discussing the general pros and cons of such a model but that overall, since athletes would actually have an effective representation, it would overcome any of the negative effects of such a model.

Panel 2: Criminal law and sports – criminal law of sports

The day’s conversation then shifted from sports governance structures to the application of criminal law in sports. Björn Hessert kicked off the panel with a presentation on the cooperation and reporting obligations in sport investigations. He began by illustrating the catch-22 situation in which athletes may find themselves during an investigation. On the one hand, they are required to ‘cooperate fully’ with the investigation authorities, including providing self-incriminating evidence, or face sanctions. If they choose not to cooperate, then they also receive sanctions. This state of affairs may have had a direct impact on the skyrocketing number of sanctions over the past few years involving reporting and cooperation violations. Hessert argued that this situation could be significantly improved by introducing fundamental procedural rights found in criminal law systems to these investigations, such as the right to remain silent and the privilege against self-incrimination. These rights are found in article 6 (1) and (2) of the European Convention on Human Rights (ECHR). Such a regime would force sports governing bodies to be creative in finding new strategies to investigate and prosecute alleged sports rule violations.

After Hessert’s presentation on procedural rights in sports investigations, Jan Exner took the podium to discuss the proportionality of the sanctions in the anti-doping code. He began by giving an overview of the characteristics of the sanctions in the WADC, which include a fixed sanction framework and limited flexibility for panels hearing alleged doping rule violations. He explained that due to the rigid sanction framework of the WADC, panels hearing a doping dispute are unable to go below limits set therein and that in certain exceptional cases, these sanctions may be disproportionate. Exner then illustrated some of the negative effects of the current system in which CAS panels hearing similar factual circumstances end up with delivering different sanctions. Such a predicament, Exner argues, goes against any equality of outcome of the proceedings. In the end, he contended that there should be a revised sanction framework that would allow hearing panels to go below the limits set in the WADC as long as certain criteria are met in order to ensure that the sanction is proportionate to the rule violation.

Ruby Panchal closed the panel by shining a light on match-fixing. She argued that sports governing bodies have been so concerned with doping that match fixing has not been sufficiently addressed. Much like how anti-doping rules have been significantly developed over time, anti-match-fixing laws also need to be made far more robust. Panchal explained that certain factors essential for the development of lex sportiva will be essential in the growth of this field. These factors include the validity of unilateral action clauses, a growing relationship between sports governing bodies and state courts, the creation of evidentiary processes in disciplinary proceedings, and co-operation between sports governing bodies and investigative authorities. Panchal closed her talk by examining the approach of the Convention on the Manipulation of Sports Competitions (Macolin Convention) in addressing this regulatory void. While the Convention takes a ‘hopeful approach’, the question remains open as to how effective it will be in combatting match-fixing.

Panel 3: Transfer systems in international sports

The last panel of day one of the conference took a deep dive into transfer systems in international sports. Jan Łukomski opened the panel by studying the finalization of international football transfers and professional football players’ contracts. There are many kinds of agreements that could be potentially involved in the transfer of a football player, including offers, pre-contracts, definite contracts, that have significantly different legal effects. For example, the CAS explained in CAS 2008/A/1589 MKE Ankaragücü Spor Külübü v. J. that the difference between a pre-contract and a contract ‘is that the parties to the ‘precontract’ have not agreed on the essential elements of the contract or at least the “precontract” does not reflect the final agreement’. This is just one example of a growing CAS case law on issues of contractual validity of football contracts. In the end, Łukomski explains that often times disputes on contractual validity stems from ‘mistakes’ that were made by clubs and players during the negotiation process.

Following the examination of the transfer system in football, Xavier Mansat gave the participants a small peek into the archaic transfer model currently in place in volleyball. He took the audience on a journey of the transfer of one volleyball player by emphasizing all the different steps and actors participating in the process. Mansat also elucidated the various administrative and transfer fees that are taken out at every step by the involved actors. He closed the panel by explaining that the current system is in the process of being challenged by a new stakeholder group, Association des Clubs Professionels de Volleyball (ACPV) and that it is likely that some of the components in the current transfer framework are incompliant with EU law.

Day one ended with an opportunity for the conference participants to unwind over a dinner in the charming harbor of Scheveningen.

Day 2:

Keynote lecture: Ulrich Haas

Day two of the ISLJ Conference was launched by a lecture from Ulrich Haas, who gave an in-depth lecture on the nature and function of association tribunals in international sport. Haas underlined that while association tribunals are the most important dispute resolution mechanism in practice, legal literature on them is scarce. The sheer volume of the decisions made by association tribunals is staggering. In the case of FIFA, the decisions are around 10000-11000 per year. After having demonstrated the incredible importance of association tribunals to the functioning of sports governance, he outlined their legal basis, which is based in the freedom of association (in Switzerland and Germany). Austria, on the other hand, makes association tribunals mandatory. Haas then began to unpack the differences between authoritarian decision-making, used by association tribunals, compared to other forms of alternative dispute resolution, such as mediation, conciliation, and arbitration. Interestingly, he concluded that while all these differences can serve as indications of whether a body is an association tribunal or an arbitration panel, there is no set international standard to make this determination. Hence, there is a need to refer to national law in order to fill this void. In conclusion, Haas endorsed a procedural law approach over a substantive law approach to determine the appeals status of an association body’s decision.

Panel 4: Rethinking sports arbitration

The first panel of day two of the ISLJ Conference took to rethinking the current framework of sports arbitration. Veronica Lavista was first to go and presented her findings on the influence of international dispute settlement on sports. She took an empirical approach to her study by going through CAS’ case law and placing the arbitrators in those cases into different categories based on their background, such as a sports law, corporate law, or international law specialist. Based on this determination, Lavista was then able to identify that the makeup of the panel had an appreciable influence on the extent certain legal issues were discussed in the award. Lavista also underlined some of the overlaps between international dispute resolution and the CAS, including the voluntary nature of their jurisdiction, the use of ad hoc panels, and the explosion of case law over the past few decades.

Next up, Daniela Mirante and Artur Flaminio da Silva offered a case study in the Portuguese context of sports arbitration to argue that perhaps switching to a mandatory arbitration scheme would alleviate many of the issues currently present in the ‘voluntary’ arbitration model. Portugal created a permanent sport arbitration center in the Portuguese Court of Arbitration for Sport (TAD), which has a mandatory jurisdiction for ‘all sports disputes related to administrative law’. After underlining many of the issues plaguing the TAD, such as institutional independence and arbitrators’ impartiality, the confidentiality of the awards, and the high costs of arbitration, they explained the advantages of mandatory sports arbitration. First, it would get rid of the concept of consent, which they argue is a fiction since athletes must consent to arbitration or else not be able to participate in the sport. It would also reduce the time needed to render a decision since there would be less room for parties to challenge the jurisdiction of arbitration panels. They concluded that mandatory arbitration definitely could be a future path for sports arbitration but that it would have to follow a different path than the current Portuguese model.

To close the panel, Massimiliano Trovato brought forth his three ‘radical’ proposals to ensure the legitimacy of the CAS. Before unveiling the three proposals, Trovato gave a brief historical overview of the CAS and its relationship with the Olympic Movement to contextualize his arguments. He highlighted the interactions between the two and how certain individuals have held top positions in the CAS bodies and other sports governing bodies, like the IOC, leading to potential conflicts of interest. At this point, Trovato revealed his first proposal that article S4 and S6 of the CAS Statutes be amended to make the ICAS into a body ran by the arbitrators themselves, since they have both the ability and expertise to run the CAS for the interests of all the parties involved. Second, Trovato argued that the closed-list system of arbitrators be abolished under article S14 and move towards an open system. The quality of the arbitrators, Trovato explained, could still be assured by introducing certain minimum eligibility requirements for the arbitrators. The third proposal Trovato presented was that Article R65 be altered to make sports governing bodies responsible for the costs of arbitration, not the parties.  Shifting the burden would make sports governing bodies more disciplined and would help compensate for the fact that athletes are essentially forced into arbitration.

Book L(a)unch: The Court of Arbitration for Sport and its Jurisprudence: An Empirical Inquiry Into Lex Sportiva by Johan Lindholm

During lunchtime, the conference participants were treated to a very special book launch from the ISLJ’s chief editor, Johan Lindholm. His book, The Court of Arbitration for Sport and its Jurisprudence: An Empirical Inquiry Into Lex Sportiva, is an exhaustive and thorough empirical study into the CAS’ jurisprudence, its arbitrators, and its parties. Covering a period of 30 years (1984-2014), the book tries to unpack some of the most often raised arguments against the CAS and puts these claims to the ultimate test. For example, whether particular arbitrators are more likely to be chosen by certain parties. Furthermore, the book, through impressive data visualization graphics, illustrates a variety of intriguing data samples, including what kind of cases the CAS has deliberated and to what extent the CAS can call itself a global international sports tribunal.

Panel 5: Revisiting the (in)dependence and transparency of the CAS

Following the book l(a)unch, the next panel treated conference participants to a fascinating debate on the (in)dependence and transparency of the CAS. Velislava Hristova launched the panel by exploring the intersection between human rights and sports arbitration and in particular, the right to a public hearing in sport cases. She used the ECtHR case of Mutu and Pechstein v. Switzerland to illustrate the topic. Before jumping into the legal issues, Hristova gave an overview of the nearly 10-year legal history of the Pechstein Saga. She explained that the case boiled down to four main issues: whether Article 6 (1) ECHR (right to a fair and public hearing) could be applicable to sports arbitration, whether Pechstein waived this right, whether the CAS is sufficiently independent and impartial, and whether the lack of a public hearing in this case actually violated Article 6 (1). Next, Hristova analyzed the findings of the ECtHR on these four issues and explained how the ECtHR concluded that while the right to a public hearing is not absolute, the lack of a public hearing in Pechstein’s case was a violation because of the compulsory nature of sports arbitration, the fact that a public hearing was requested, the ‘nature and complexity’ of the case, and since the factual background had been contested. In the end, athletes, arbitrators and the CAS will have to take this landmark ruling into account moving forward.

Antonio Rigozzi further delved into the issue of the (in)dependence of the CAS by not only looking at the Pechstein case but also the Swiss Federal Tribunal’s (SFT) decision in the Seraing case and how these rulings could potentially impact the CAS. Concerning the Seraing case, he explained how the SFT had to determine whether the CAS is structurally independent, which differs from the Lazutina case because the SFT had to determine whether it was independent from FIFA, not the IOC. In the end, the SFT did not find it necessary to depart from its analysis in the Lazutina case and deemed the CAS to be independent so long there were no overriding reasons indicating that FIFA is given special treatment. Furthermore, the SFT noted that the CAS had made significant efforts to strengthen its independence by improving its structure and functioning. Rigozzi finished by drawing some conclusions from the Pechstein and Seraing cases. First, the Pechstein case has made public hearings at the CAS an inevitability now that Article 6 (1) ECHR is fully applicable to its proceedings, and the CAS will have to improve the optics concerning its rules on the appointment of the president of the panel. Secondly, the SFT in the Seraing made clear that while CAS could be further ‘perfected’, it was not the proper institution to take on such a project. Instead, it placed the responsibility in the hands of the Swiss legislator, and it is yet to be seen whether they will actually take the initiative to introduce change.

The panel was brought to a close by Tom Seamer, who plunged into the issue of the independence and impartiality of CAS arbitrators. He argued that there could be two main areas of improvement in this regard, the ICAS and the appointment of arbitrators. Concerning the ICAS, only minor changes would be necessary to drastically improve the status quo, such as ensuring that its president be neutral and has no connections with any sports governing body, athlete or clubs. Secondly, Seamer supported the contention that certain arbitrators are repeatedly nominated by the same parties and often make decisions in favor of that particular party. He explained that in order to test this theory, one must only look at the period in which the particular arbitrator was on the approved CAS list and then determine the proportion of cases they were called upon by a particular party during that same period. Seamer closed by asserting more needed to be done in order to tackle these issues, while acknowledging some of the challenges ahead.

Panel 6: The future of sports: sports law of the future

The last panel of the conference took the opportunity to look forward into the future of sports law and discussed the growing fields of e-sports and extreme sports. On e-sports, Cedric Aghey tackled the issue of e-sports governance and how it could be potentially integrated into the current sports governing structures, since currently there is an unharmonized e-sport structure. At the moment, e-sports relies on a variety of stakeholders operating at different levels, such as games publishers, e-sports governing bodies, and investors. In order to address this situation, Aghey argued that the e-sports definition should be narrowed only to video games that seek to emulate ‘traditional’ sports. This would allow for a rather seamless integration of these e-sports into the already existing sports federations. For example, FIFA would absorb its FIFA e-sport counterpart.

Nick Poggenklaas also presented on e-sports but instead took a wider definition of e-sports by not only limiting e-sports to games based on ‘traditional’ sports. He contended that the current regulatory framework present in e-sports is inadequate to sufficiently protect minors from the negative aspects of sport. This issue is particularly pertinent, since minors make an exceptionally large share of the e-sport athletes, which is especially worrying since there have been cases of doping and sexual and financial abuse. Such cases question whether enough is being done to really combat these problems. Thus, Poggenklaas put forth several proposals that could substantially improve the situation of minor’s rights in e-sports. He submitted that by creating an overarching e-sport governing body that would manage an abuse hotline, minors would be subject to a more rigid regulatory regime that would at least provide them with the opportunity and means to raise their concerns. Furthermore, Poggenklaas believes that the creation of players unions and further parent involvement would also help to ensure that minors’ interests are sufficiently protected.

Lastly, Angela Busacca examined extreme sports and the kind of civil liability applicable to these activities. She first described the elements and different classifications of extreme sports under Italian law. For instance, extreme sports have a component of risk and require a certain interaction with nature. They can also be placed on a scale ranging from sports that have a set of pre-defined rules to those where there are no pre-defined rules and consequently giving a free range for the athlete’s actions. In addition, extreme sports are categorized by those that have a clear governance organizational structure to those who do not have a defined structure. All these aforementioned components can have an impact on the establishment of civil liability and whom is responsible in case of an accident.

Conclusion

After two intense days of discussion and debate of international sports law’s most pressing topics through six differently themed panels, two keynote lectures, eighteen invited speakers, and many other highlights, the ISLJ Conference 2019 came to a close. The Asser International Sports Law Centre was honored to have been able to host another successful edition. On behalf of the organizers, we would like to thank all the speakers and participants who made this conference such a success and look forward to seeing you all back at the Institute soon!

Yesterday, the press revealed that the European Commission decided to reject the complaint filed by Jean-Louis Dupont, the former lawyer of Bosman, on behalf of a player agent Striani, against the UEFA Financial Fair Play (FFP) Regulations. The rejection as such is not a surprise. The Commission had repeatedly expressed support of the principles underlying the UEFA FFP. While these statements were drafted vaguely and with enough heavy caveats to protect the Commission from prejudicing a proper legal assessment, the withdrawal of its support would have been politically embarrassing.

Contrary to what is now widely assumed, this decision does not entail that UEFA FFP regulations are compatible with EU Competition Law. UEFA is clearly the big victor, but the legal reality is more complicated as it looks.

UEFA’s Austerlitz

UEFA, which most probably leaked the decision to the press, must have been enchanted by it. At a time when Europe is buzzing with rumours on the potential illegality of the UEFA FFP Regulations, it is fully vindicated by this decision. Indeed, at least in the short run, the UEFA FFP regulations will not be legally threatened anymore. Basically, for the time being, FFP is here to stay.

The European Commission’s Death Sentence to the Striani complaint

The Commission’s decision to reject the complaint is less far-reaching than one would think. The decision does not enter into the substance of the compatibility of the UEFA FFP regulations with EU Competition law. Rather, the EC has chosen the easy way out of what it must have perceived as a toxic case, with much political capital to lose for a single player agent. The elegant way out of a potential mess was to consider Striani not directly affected by the UEFA FFP Regulations. We can gather from the press reports that the Commission argued that Striani as a Player Agent was not an addressee of the FFP rules and was not substantially affected by them (as he was claiming only a symbolic euro of damages in front of the Belgian Courts), thus leaving him with no legitimate interest. Moreover, the fact that the UEFA FFP Regulations were welcomed by diverse groups of stakeholders (ECA, FIFPro) corroborates in the eyes of the Commission that there is no interest for it to act ex officio in light of such a consensus. This decision can now be contested in front of the EU General Court. However, the European Commission enjoys, in light of its very limited resources, a wide discretion in deciding which cases deserve to be investigated. Hence, it is very unlikely that the Court would annul this decision. But is it the end of the legal war?

Is a Waterloo still possible for UEFA?

After Austerlitz, came the Berezina and finally Waterloo: the war over the UEFA FFP regulations is far from done. The European Commission has not pronounced itself on the substantial merit of the claim and Dupont has still a case ongoing in front of the Belgium Courts. If it goes all the way up the legal ladder, it will most probably be referred, via the preliminary reference procedure, to the EU Court of Justice, giving it the opportunity to address the merits of the case. However, it is obvious that Player agents are perceived as the dark sheep of the football family. This is not a Bosman-like situation with a player barred from exercising his job because of a European-wide boycott and rules discriminating expressly on the ground of nationality. Therefore, we doubt that Striani will be more successful in front of the Courts. Nevertheless, if the players, for example via FIFPro, or the clubs decided to go after the UEFA FFP regulations (for now FIFPro and ECA are officially supporting FFP) it would be a completely different story. Such a complaint would be difficult to disregard by the Commission.

The Commission is certainly the guardian of Treaty, but not its interpreter. One would be ill-advised to throw caution to the wind and assume that the UEFA FFP regulations are definitely compatible with EU law. The European Commission conveniently avoided deciding on this matter. But, as Bosman reminded us, the Commission can also err in its evaluation of EU law’s bite and nothing precludes the Judges in Luxembourg from assessing the compatibility with EU law in a different way.

UEFA may have won a crucial battle, but there is still a legal war to fight.

Editor’s Note: Oytun Azkanar holds an LLB degree from Anadolu University in Turkey and an LLM degree from the University of Melbourne. He is currently studying Sports Management at the Anadolu University.

Introduction

On 19 October 2017, the Turkish Professional Football Disciplinary Committee (Disciplinary Committee) rendered an extraordinary decision regarding the fixing of the game between Manisaspor and Şanlıurfaspor played on 14 May 2017. The case concerned an alleged match-fixing agreement between Elyasa Süme (former Gaziantepspor player), İsmail Haktan Odabaşı and Gökhan Sazdağı (Manisaspor players). The Disciplinary Committee acknowledged that the evidence relevant for proving the match-fixing allegations was obtained illegally and therefore inadmissible, and the remaining evidence was not sufficient to establish that the game was fixed. Before discussing the allegations, it is important to note that the decision is not only significant for Turkish football but is also crucial to the distinction between disciplinary and criminal proceedings in sports.

Background of the Case

During the last weeks of the 2016/2017 season in Turkish 2^nd Division League, three teams, namely Manisaspor, Şanlıurfaspor and Gazişehir Gaziantep, were competing to avoid relegation. At the penultimate week, Manisaspor played against Şanlıurfaspor and won the game. Gazişehir Gaziantep also won its match. As a consequence of these results, Şanlıurfaspor was relegated to a lower division. At the end of the season, on 5 July 2017, Şanlıurfaspor claimed that the club Gazişehir Gaziantep had attempted to influence the outcomes of the games and Şanlıurfaspor appealed to the Turkish Football Federation (TFF).

Şanlıurfaspor’s claims mainly focused on the recording of the talk between Nizamettin Keremoğlu (Vice-President of Gazişehir), Elyasa Süme (a former Gaziantepspor player), Gökhan Sazdağı (Gazişehir player who was on loan at Manisaspor at the time) and İsmail Haktan Odabaşı (Manisaspor player). The recording was leaked and uploaded on Youtube. The content of the recording clearly demonstrates that incentives were provided to Manisaspor players by Gazişehir in order to encourage them to win against Şanlıurfaspor. Furthermore, Gökhan Sazdağı confessed in the recording that he had been involved in match-fixing before and that this would not be his first time. In addition, Gaziantepspor claimed that Elyasa Süme was involved in match-fixing. On 20 July 2017, based on these serious allegations and the incriminating evidence publically released, the TFF referred Şanlıurfaspor’s application to the Turkish Football Federation Ethics Committee (Ethics Committee). Following the Ethics Committee’s report, the TFF subsequently referred the case to the Disciplinary Committee for determining the possible sanctions to be imposed on Gazişehir Gaziantep, Nizmettin Keremoğlu, Elyasa Süme, Gökhan Sazdağı and İsmail Haktan Odabaşı. Finally, on 19 October 2017, the Disciplinary Committee decided that the evidence relevant for proving match-fixing was illegally obtained and the remaining evidence was not enough to establish an instance of match-fixing.

Separating Disciplinary and Criminal Proceedings

It is generally accepted that in sports law disciplinary proceedings are to be treated differently than criminal investigations.[1] In countries like Turkey, match-fixing and/or match-fixing attempts also constitute a crime. Article 11(1) of the Act on the Prevention of Violence and Disorder in Sports stipulates that a person providing advantages or benefits in order to influence the final result of a game shall be punished with imprisonment from five to twelve years. Article 11(5) of the same regulation also states that in case of commission of the offense by offering or promising incentive pay with the intention of enabling one team to win a match, only half of the punishment is to be imposed.

On the other hand, match-fixing and incentives also appear in Article 58 of the Turkish Football Disciplinary Instruction. The said provision makes clear that it is forbidden to influence the outcome of the games illegally or unethically. Incentives fall also within the scope of this provision. In case of a breach, individuals will face a life-long ban. In case of an attempt at match-fixing or of the provision of unlawful incentives, clubs will be sanctioned by at least a 12 points deduction.

It is important to note that Turkish prosecutors have not yet opened a criminal investigation for the allegations related to the provision of incentives, even if the allegations and evidence are serious.

The Position of FIFA, UEFA, and CAS with respect to Match-Fixing Allegations and Binding Rules for Turkish Authorities     

FIFA as the world's governing body of football has put in place significant provisions regarding match-fixing and corruption in football. Article 69 FIFA Disciplinary Code stipulates that anyone who unlawfully influences the outcomes of football games can be banned from taking part in any football-related activity for life. Furthermore, Article 3.10 FIFA Code of Conduct also highlights the importance of zero tolerance for bribery and corruption.  

UEFA president Michael Platini announced in 2011 that a zero tolerance policy was adopted by UEFA regarding match-fixing, and that all match-fixing allegations would be seriously investigated. Moreover, as evidenced in Sport Lisboa e Benfica Futebol SAD, Vitoria Sport Clube de Guimaraes v. UEFA and FC Porto Futebol SAD, UEFA is not bound by national associations’ decisions in this regard.

A zero-tolerance policy requires that match-fixing attempts be punished heavily. This does not mean, however, that there is no standard of proof for match-fixing allegations. According to the CAS, match-fixing allegations must be proved to its comfortable satisfaction. [2] Comfortable satisfaction is defined by the CAS as a standard that is higher than the civil standard of “balance of probability” but lower than the criminal standard of “proof beyond a reasonable doubt”.[3] In my view, considering the evidence in the case of Şanlıurfaspor, in particular the recordings and the statements of the clubs, it should be accepted that the standard of proof for match-fixing allegations was met.

What is crucial in our case is that UEFA and the CAS cannot intervene in the Turkish match-fixing proceedings due to Article 64(1) of the Statutes of the Turkish Football Federation stating that “CAS shall not, however, hear appeals on violation of the laws of the game, suspensions according to relevant provisions of the FIFA and UEFA Statutes, or decisions passed by the independent and duly constituted Arbitration Committee of the TFF”. Moreover, Article 59(3) of the Turkish Constitution provides that “the decisions of sports federations relating to administration and discipline of sporting activities may be challenged only through compulsory arbitration. The decisions of the Arbitration Board are final and shall not be appealed to any judicial authority”. On the other hand, in case of a breach, FIFA has the authority, relying on its Code of Conduct and Disciplinary Code, to take important steps in order to sanction clubs and/or individuals, even where national federations fail to do so. Therefore, on 25 October 2017, Şanlıurfaspor declared that if the Arbitration Board of the TFF did not sanction clubs and individuals who were allegedly involved in match-fixing, it would apply to FIFA to do so.

The Validity of Evidence

The main reason why the Disciplinary Committee did not find the clubs and individuals guilty of match-fixing was that the evidence, which was crucial to support the allegations, was obtained illegally. Therefore, it is of primary importance to compare this position to the one adopted by UEFA, CAS, and the Swiss Federal Tribunal with respect to the validity of illegally obtained evidence in disciplinary proceedings involving match-fixing.

UEFA’s position regarding the admissibility of evidence can be derived from specific provisions in its regulations. For instance, Article 4(2) 2017/2018 UEFA Champions League Regulations expressly states that if UEFA is comfortably satisfied that a club was involved in any activity aimed at arranging or influencing the outcome of a match, such club will be ineligible for the participation. While taking its decision, UEFA can rely on the decision of a national or international sporting body, but it is not bound by these decisions. Article 4(2) allows UEFA to punish clubs, even if they have been exonerated by other sporting bodies. Therefore, it can be concluded that if UEFA is comfortably satisfied, the validity of evidence will not be questioned. The article says nothing about the validity of evidence. In addition, even if national sports governing bodies do not punish clubs and/or individuals, UEFA is not bound by national decisions even if the evidence was illegally obtained. [4]

The CAS also supports the approach of UEFA with regard to the admissibility of evidence in match-fixing cases. According to the CAS jurisprudence, “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”.[5] This statement clearly shows that the CAS distinguishes criminal or civil court proceedings from disciplinary proceedings. As a matter of fact, it can be argued that the CAS allows national sports governing bodies to evaluate the admissibility of match-fixing evidence less strictly than in criminal proceedings.

In general, the CAS is bound by Swiss law because it is domiciled in Switzerland. Therefore, the Swiss Federal Tribunal may annul the CAS awards if they are contrary to Swiss public policy. One could argue that a decision based on illegally obtained evidence violates Swiss public policy. Thus, the approach of the Swiss Federal Tribunal also needs to be taken into account. The Swiss Federal Tribunal discussed the admissibility of evidence in A. v The Football Federation of Ukraine. In this case, the appellant claimed that using illegally obtained evidence, violated Swiss public policy. As a response to this claim, the respondent (CAS) argued that there was an overriding public interest in preserving football’s integrity. Therefore, the evidence should have been admissible according to the CAS. The Swiss Federal Tribunal held that pursuant to Article 152(2) Swiss Private International Law Act (PILA), “illegally obtained evidence shall be considered only if there is an overriding interest in finding the truth”. In that particular case, the Swiss Federal Tribunal upheld the decision of the CAS and stated that if necessary to prove an instance of match-fixing, illegally obtained evidence was not inadmissible.

The Approach of Turkish Law against Match-Fixing

As explained above, the Act on the Prevention of Violence and Disorder in Sports and the Turkish Football Disciplinary Instruction contain significant provisions aimed at combating match-fixing. However, these rules say nothing about the admissibility of evidence. Pursuant to Article 38(6) Turkish Constitution, “findings obtained through illegal methods shall not be considered evidence”. Contrary to the PILA, the Turkish Constitution does not provide for exemptions. Additionally, Article 206(2) and 217(2) Turkish Criminal Procedure Code provide that illegally obtained evidence cannot be accepted by criminal courts in Turkey. Nevertheless, there is no definitive verdict about the admissibility of evidence in sporting disciplinary proceedings in Turkey. Furthermore, Turkish sports regulations do not contain specific rules for assessing the evidence in match-fixing allegations. Therefore, it can be argued that in Turkey, there is a loophole in disciplinary proceedings as to whether illegally obtained evidence is admissible or not.

Conclusion

The fight against match-fixing is vital for sports governing bodies. This article has demonstrated that UEFA, CAS, and the Swiss Federal Tribunal share the same view that illegally obtained evidence is not always inadmissible when used to evidence an instance of match-fixing. In my view, the Disciplinary Committee disregarded the approach of UEFA, CAS, and the Swiss Federal Tribunal, and instead followed the practice of the Turkish Criminal Court. Because match-fixing is also a breach of the Turkish Act on the Prevention of Violence and Disorder in Sports, it is the duty of criminal courts in Turkey to assess whether the evidence was obtained legally or not. However, as a disciplinary body, the Disciplinary Committee was not forced to deny the admissibility of illegally obtained evidence. I believe it should have followed the established practices of UEFA, FIFA, and the CAS, and assess the available evidence to determine whether it met the comfortable satisfaction standard of proof. Hence, based on the confession recorded in the YouTube video, the Disciplinary Committee should have decided that the individuals concerned, at a minimum, attempted to fix the match and it should have imposed the corresponding sanctions.   

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[1] Adam Lewis and Jonathan Taylor, Sport: Law and Practice (Bloomsbury, 3rd ed, 2014) 249.

[2] Michael J Beloff et al, Sports Law (Hart Publishing, Second edition, 2012) 188.

[3] Beşiktaş Jimnastik Kulübü v UEFA [2013] CAS 2013/A/3258 [119].

[4] Public Joint-Stock Company “Football Club Metalist” v. Union des Associations Européennes de Football (UEFA) & PAOK FC [2013] CAS 2013/A/3297 [8.8].

[5] Public Joint-Stock Company “Football Club Metalist” v. Union des Associations Européennes de Football (UEFA) & PAOK FC [2013] CAS 2013/A/3297 [2].