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International and European Sports Law – Monthly Report – September - October 2020 - By Rhys Lenarduzzi

14. October 2020 Antoine Duval International Sports Law Cases, International Sports Law Commentaries, International Sports Law Events, International Sports Law Material, International Sports Law Publications (0)

The Headlines


Human rights and sport  

Caster Semenya

Human rights issues are taking the headlines in the sporting world at present. A short time ago, Caster Semenya’s appeal at the Swiss Federal Tribunal against the CAS decision was dismissed, perhaps raising more questions than answering them. Within the last few days however, the message from the Semenya camp has been that this is not over (see here).  See the contributions from a range of authors at Asser International Sports Law Blog for a comprehensive analysis of the Semenya case(s) to date.

Navid Afkari

As the sporting world heard of the execution of Iranian Wrestler Navid Afkari, a multitude of legal and ethical questions bubbled to the surface. Not least of all and not a new question: what is the responsibility of sport and the governing bodies therein, in the space of human rights?  And, if an athlete is to acquire a high profile through sporting excellence, does that render athletes vulnerable to be made an example of and therefore in need of greater protection than is currently afforded to them? There are differing views on how to proceed. Consider the following from the World Players Association (Navid Afkari: How sport must respond) and that from the IOC (IOC Statement on the execution of wrestler Navid Afkari) which shows no indication through this press releases and other commentary, of undertaking the measures demanded by World Players Association and other socially active organisations. (See also, Benjamin Weinthal - Olympics refuses to discuss Iranian regime’s murder of wrestler).

Yelena Leuchanka

As this is written and relevant to the above, Yelena Leuchanka is behind bars for her participation in protests, resulting in several sporting bodies calling for her immediate release and for reform in the sporting world around how it ought to deal with these issues. As a member of the “Belarus women's national basketball team, a former player at several WNBA clubs in the United States and a two-time Olympian”, Leuchanka has quite the profile and it is alleged that she is being made an example of. (see here)

Uighur Muslims and Beijing Winter Olympics

British Foreign Secretary, Dominic Raab does not rule out Winter Olympics boycott over Uighur Muslims. ‘The foreign secretary said it was his "instinct to separate sport from diplomacy and politics" but that there "comes a point where that might not be possible".’ Though Raab’s comments are fresh, this issue is shaping as a “watch this space” scenario, as other governments might echo a similar sentiment as a result of mounting pressure from human rights activist groups and similar, in lead up to the Winter Games.

 

Major International Sports Law Decisions

CAS Decisions (September)


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CAS

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Asser International Sports Law Blog | Revisiting FIFA’s Training Compensation and Solidarity Mechanism - Part.1: The historical, legal and political foundations - By Rhys Lenarduzzi

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

Revisiting FIFA’s Training Compensation and Solidarity Mechanism - Part.1: The historical, legal and political foundations - By Rhys Lenarduzzi

6. November 2020 Antoine Duval Blog, International Sports Law Commentaries (0)

Editor’s note: Rhys Lenarduzzi is a final semester Bachelor of Law (LL.B) and Bachelor of Philosophy (B.Phil.) student, at the University of Notre Dame, Sydney, Australia. As a former professional athlete, then international sports agent and consultant, Rhys is interested in international sports law, policy and ethics. He is currently undertaking an internship at the T.M.C. Asser Institute with a focus on Transnational Sports Law.


In 2019, training compensation and solidarity contributions based on FIFA’s Regulations on the Status and Transfer of Players (RSTP) amounted to US$ 75,5 million. This transfer of wealth from the clubs in the core of the football hierarchy to the clubs where the professional players originated is a peculiar arrangement unknown in other global industries. Beyond briefly pointing out or reminding the reader of how these systems work and the history behind them, this blog series aims to revisit the justifications for FIFA-imposed training compensation and the solidarity mechanism, assess their efficacy and effects through a case study of their operation in the African context, and finally analyse the potential impact of upcoming reforms of the FIFA RSTP in this context.

First, it is important to go back to the roots of this, arguably, strange practice. The current transfer system and the legal mechanisms constituting it were largely the result of a complex negotiation between European football’s main stakeholders and the European Commission dating back to 2001. The conclusion of these negotiations led to a new regulatory system enshrined in Article 20 and Annex 4 of the RSTP in the case of training compensation, and at Article 21 and Annex 5 in the case of the solidarity mechanism. Before paying some attention to the historical influences and how we arrived at these changes, as well as the justifications from the relevant bodies for their existence, let us briefly recall what training compensation and the solidarity mechanisms actually are.


1.     FIFA’s training compensation and solidarity mechanism: A very short introduction

Training compensation is the obligation of an acquiring/buying/signing/new club to compensate the training clubs of a player. A training club is considered to be the clubs of the player between the ages of 12 and 21, though the obligation to compensate continues if either of the following two instances take place, up until the season of a player’s 23rd birthday:  i) “[A] player is registered for the first time as a professional” or,  ii) “a professional is transferred between clubs of two different associations…”. The obligation does not arise if a former club terminates a player’s contract without just cause, when a professional reacquires amateur status in moving clubs, or when a player transfers to a category 4 club. Regarding the categories, this is important because the amounts owed to a training club hinge on where clubs fall within four categories (For more on the four categories see HERE).

There are some regulatory differences between the EU/EEA and the rest of the football world. A significant distinction is that without sufficient justification that it is worthy of compensation, a former club will not be owed by a “new club”[1] if they have not offered a contract of equivalent value to the player in question.[2]

The Solidarity mechanism provisions stipulate that when a player moves to a new club, mid contract, for a fee agreed between the new club and former club, then 5% of that fee is designated as a solidarity contribution, and each of the player’s training clubs will receive a portion. The apportionment varies depending on what age the player was registered with the training club (further information on apportionment can be found HERE). This obligation arises when a player is transferred definitively or on loan, between clubs from different associations, as well as when a transfer takes place within the same association, but a training club of the player is affiliated to another association.

For both training compensation and the solidarity mechanism, the regulations provide that the national association will instead receive the money when the club owed “has in the meantime ceased to participate in organised football and/ or no longer exists”.[3] In cases as such, the compensation is to be used for youth football development.

Disputes can arise when the new club does not pay on time or at all, or if there is a disagreement on the amount owed, as well as when a new club attempts to make the case that a player has already terminated his training period prior to age of 21. Given the above explanation of the systems is brief, further detail may be found within the relevant articles and annexes (see HERE for the full regulations).

2.     A brief history: From the ‘retain and transfer system’ to the FIFA RSTP 2001

Much of the current framework is the product of various events surrounding the birth of the regulations in 2001, though the ideas and concepts it captures go way back beyond this time. The English Football League’s registration system that would go on to be touted as the ‘retain and transfer system’ dates back to at least 1893.[4] Both this system and the American Baseball ‘reserve rule’ system are often mentioned in the same breath. As Sloane pointed out in 1969: “The justification for the reserve rule and the retain and transfer system lies in their alleged function in bringing about a more or less equal distribution of playing talent between clubs, whilst, their advocates argue, free competition would lead to a concentration of 'star' players into a few rich clubs.”[5]  Both systems were the target of an array of challenges over the years, though up until ‘free agency’[6] in the case of American Baseball (much earlier) and Bosman[7] in football, each system remained largely the same in existence and justification.[8] To further emphasise that the issues recognised, and in turn the ideas and justifications pertinent to the current system are hardly new, the Chester Report of 1969 on the situation regarding employment and transfers in football in England had striking similarities to much of what was raised within the European-level negotiations that lead to the changes in 2001.[9]

With the momentous Bosman case in 1995, the previously commonplace practice of an out of contract player being retained and unable to transfer (regardless of that player’s preferences) was found contrary to EU law. Importantly for the subject of this blog, the court also recognised that “encouraging the recruitment and training of young players must be accepted as legitimate”[10] aim, on the basis of which the free movement rights of players could in principle be restricted. Thus, leaving an opening for a regulatory system that would support the “recruitment and training of young players”[11] and restrict free movement in a proportionate way.

In 1998, the European Commission decided to open an investigation against FIFA based on competition law concerns linked to its then applicable RSTP.  This decision brought FIFA, UEFA and FIFPro to the European Commission’s negotiating table to hammer out a compromise that would satisfy their divergent interests and be compatible with the EU’s antitrust rules. The regulations as they now stand, aside from some minor amendments, reflect the outcome of those negotiations. The final press release of the European Commission concluded that FIFA’s new regulations would have to reflect a set of principles in order to be deemed compatible with EU competition law. In particular it accepted that:

  • in the case of players aged under 23, a system of training compensation should be in place to encourage and reward the training effort of clubs, in particular small clubs;
  • creation of solidarity mechanisms that would redistribute a significant proportion of income to clubs involved in the training and education of a player, including amateur clubs; 

These are in fact quite faithfully transposed in the FIFA RSTP provisions discussed above. Since then, the Bernard[12] ruling of the CJEU further clarified that the societal significance of sport, rendered the incentivisation of training legitimate. In its ruling, the court specified that in order to comply with EU law, a training compensation system ‘must be actually capable of attaining that objective and be proportionate to it, taking due account of the costs borne by the clubs in training both future professional players and those who will never play professionally’.[13] This remains the main benchmark that any FIFA training compensation system must meet in order to comply with EU law.

As we have shown in this section, the shape of the current FIFA training compensation system and solidarity mechanism are very much a direct result of the EU’s interventionism in the regulation of football in the aftermath of the Bosman case. In doing so, the EU institutions also recognised that the idea of redistributing funds to compensate the costs incurred by the training club in instructing a player is a legitimate one.

3.     Justifying redistribution: Sharing the costs of training

Why do football institutions want this system in place and how was it justified? As was alluded to above, these ideas are not new ideas and are rooted in tradition.[14] Football and its intricacies have been deemed in need of protection for a long time, at least from within. More importantly for this blog, there is a desire for wealth to be redistributed in the form of compensation to the training clubs, to manufacture solidarity between the different levels of football and to incentivise goals such as training, education and development. This justification for FIFA’s redistributive systems is largely connected to the recognition that sport is important for the social fabric, and that incentivising development and training clubs goes beyond football and has societal benefits.

These objectives are reflected in the compromise agreed between FIFA and the EC in 2001. The latter’s press release emphasised that training compensation was “to encourage and reward the training effort of clubs, in particular small clubs“. Similarly, FIFA stated in Circular no. 769; “This system is designed to encourage more and better training of young football players, and to create solidarity among clubs, by awarding financial compensation to clubs which have invested in training young players.” Thus, it is clear that both the football authorities and the EU institutions recognise that the core aim of the FIFA’s training compensation and (though less obviously) its solidarity mechanism are to support the recruitment and training of young professional footballers. In fact, the CJEU’s advocate general in Bernard later recognised that training compensation rules “ensure that clubs are not discouraged from recruitment and training by the prospect of seeing their investment in training applied to the benefit of some other club, with no compensation for themselves”.[15] She went on to emphasise that “there is a broad public consensus that the training and recruitment of young players should be encouraged rather than discouraged”.[16]

At the heart of these rationalisations lies the core belief that failing to compensate the club that has helped a young player grow into a professional player is unfair and would discourage the club’s future effort to train players. Whether a training compensation system is necessary to attain such an objective is, however, far from evident. As was pointed out by advocate general Lenz in the Bosman case, such objectives could as well “be attained by a system of redistribution of a proportion of income, without the players' right to freedom of movement having to be restricted for that purpose“.[17] Nevertheless, the idea of redistribution between clubs remains the fundamental policy objective that underpins both FIFA’s training compensation system and solidarity mechanism.

Concluding remarks and subsequent blogs

This blog has highlighted that FIFA’s training compensation system and solidarity mechanism were introduced, after lengthy discussions with the European Commission and relevant stakeholders, in order to create a solidarity and redistributive relationship between the club where a player was trained and the club were a player pursues his professional career. The core justification behind them is that the training clubs provide an important educational service and that their work would be discouraged if they would not be enjoying some economic returns on their investment (in time and resources) to train players that go on to play professionally for a bigger/richer club.

While this objective is certainly respectable, there are, however, questions that remain regarding the adequacy and necessity of these systems to effectively redistribute funds between clubs. First, one should always keep in mind that training compensations are restricting the players’ freedom to move between clubs. Second, as we will see in the coming blog focusing on African players and clubs, it is questionable whether the current FIFA rules are in practice achieving their main redistributive function. Third, if these mechanisms are necessary to encourage training, it is as well remarkable that they are not also introduced in the context of women professional football, as will be discussed in our third blog. Finally, my last blog will assess how the coming changes to FIFA’s RSTP will affect the structure and operation of both the training compensation system and the solidarity mechanism.

[1] “New club” is the language used in the RSTP.

[2] “[I]n writing via registered post at least 60 days before the expiry of his current contract” per RSTP Annex 4 (6) ‘Special provisions for the EU/EEA’.

[3] RSTP - Annex 4 (3) 3; Annex 5 (2) 3.

[4] Sloane, P. J. (1969), The labour market in professional football, British Journal of Industrial Relations, 7, 181-199.

[5] Ibid.

[6] Established from the decision in Curt Flood v. Bowie Kuhn, et al. 407 U.S. 258.

[7] Case C-415/93 Union Royale Belge des Socie´te´s de Football Association and others v. Bosman and others, ECLI: EU: C:1995:463

[8] Gerrard, B. (2002), The Muscle drain, Coubertobin-Type Taxes and the International Transfer System in Association Football,  European Sport Management Quarterly at 50 – “High Court in England ruled in 1963 that the retain-and transfer system was a restraint of trade. This led to a progressive relaxation of the transfer system with players being given more freedom to move between teams at the end of their contracts while transfer fees remained payable”.

[9] Per Sloane (1969) – “Contracts should have a terminable date and be renewable only on the consent of both parties… The committee did, however, suggest that a special levy should be imposed by the Football League on transfer fees, in addition to the present arrangement and graded according to the size of fee at a progressive rate. This levy could be returned to clubs for the purpose of ground improvements and would thereby tend to offset the tax advantage which clubs derive by signing players, since such payments, unlike the cost of ground improvements, are tax allowable.

[10] Bosman, para 106.

[11] Ibid.

[12] Case C-325/08 Olympique Lyonnais SASP v Olivier Bernard and Newcastle UFC, ECLI: EU: C:2010:143

[13] Ibid para 45.

[14] Pearson, G. Sporting Justifications under EU Free Movement and Competition Law: The Case of the Football ‘Transfer System’, European Law Journal, Vol. 21, No. 2, (March 2015) pp. 222.

[15] Opinion of Advocate General Sharpston in CJEU case C-325/08 Olympique Lyonnais SASP v Olivier Bernard and Newcastle UFC, para 46.

[16] Ibid para 47.

[17] Opinion of Advocate General Lenz CJEU case C-415/93 Union Royale Belge des Socie´te´s de Football Association and others v. Bosman and others, para 239.

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Asser International Sports Law Blog | The CAS jurisprudence on match-fixing in football: What can we learn from the Turkish cases? - Part 1 - By Thalia Diathesopoulou

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

The CAS jurisprudence on match-fixing in football: What can we learn from the Turkish cases? - Part 1 - By Thalia Diathesopoulou

23. September 2014 Antoine Duval Blog, International Sports Law Cases, International Sports Law Commentaries (1)

The editor’s note:

Two weeks ago we received the unpublished CAS award rendered in the Eskişehirspor case and decided to comment on it. In this post Thalia Diathesopoulou (Intern at the ASSER International Sports Law Centre) analyses the legal steps followed and interpretations adopted by CAS panels in this case and in a series of other Turkish match-fixing cases. The first part of the post will deal with the question of the legal nature of the ineligibility decision opposed by UEFA to clubs involved in one way or another into match-fixing and with the personal and material scope of UEFA’s rule on which this ineligibility is based. The second part is dedicated to the procedural rules applied in match-fixing cases.


Introduction

The unpredictability of the outcome is a sine qua non feature of sports. It is this inherent uncertainty that draws the line between sports and entertainment and triggers the interest of spectators, broadcasters and sponsors. Thus, match-fixing by jeopardising the integrity and unpredictability of sporting outcomes has been described, along with doping, as one of the major threats to modern sport.[1] 

It does not come as a surprise, therefore, that the fight against match-fixing has been elevated over the past years to a general interest issue, being also included in European Commission’s Agenda on sports as a priority. The urge to protect the integrity of sport, has stimulated the adoption by sports-governing bodies, and especially UEFA and FIFA, of regulations specifically intended to combat match-fixing. The evolution of UEFA Disciplinary Regulations (UEFA DR) in the last 10 years has been remarkable: it follows a path from a broad capture of match-fixing conduct by reference to the general values of loyalty, integrity and sportsmanship[2] in the 2004 version, to the explicit - first ever- reference to the offence of match-fixing in the revised 2013 edition.[3]

In this context, the CAS has been called to implement these rules in a series of match-fixing cases. Especially Turkey’s unprecedented match-fixing scandal in 2011 led to a series of important CAS awards tackling match-fixing. The latest episode of this Turkish series was written on 2 September 2014: following Fenerbahçe and Besiktas, it was Eskişehirspor’s turn to face a CAS ruling on a match-fixing related case.

CAS jurisprudence on match-fixing being in its infancy, the approach of the CAS panels towards procedural, evidentiary and matters of substance in match-fixing disputes is still uncertain. Considering the magnitude of the match-fixing threat and the CAS role as a ‘cartographer’ of the so called lex sportiva, it is worthwhile to monitor the emerging trends of CAS on these integrity-related issues. This blog series will, therefore, use the Turkish cases as a vehicle in order to build a legal roadmap in match-fixing cases and shed light on four issues that have been extensively addressed in recent CAS jurisprudence: the qualification of the legal nature of the measure of ineligibility as a result of a Club’s involvement in match-fixing, the scope of application of this measure, the standard of proof to be applied and, finally, the admissibility of evidence in match-fixing cases

Particularly, two substantial problems that emerged in match-fixing disputes, i.e. the legal qualification of the match-fixing related measure of ineligibility under Article 2.08 of the UEL Regulations as administrative or disciplinary measure (1) and the scope of application of Article 2.08 (2), will constitute the axes of this first blog series. 


The 2011 Turkish match-fixing series in brief

In the summer of 2011, following Turkish’s police investigation into 19 football matches suspected of being fixed, 61 individuals were arrested, including club managers and Turkish national players. Fenerbahçe, Besiktas and Eskişehirspor were connected with match-fixing allegations in domestic tournaments in 2011.

Istanbul giant Fenerbahçe was at the epicentre of this match-fixing scandal, with its Chairman, Aziz Yildirim, being convicted by Istanbul’s 16th High Criminal Court of establishing and leading a criminal organisation, which rigged four games and offered payments to players or rival clubs to fix three others. Particularly, among other matches, it was found that under the leadership of the then President of Fenerbahçe, match-fixing agreements were made for the matches of Eskişehirspor against Fenerbahçe and Eskişehirspor against Trabzonspor dating from 9 April 2011 and 22 April 2011 respectively. The Eskişehirspor head coach and the player were found guilty for match-fixing in the match with Trabzonspor and were sentenced to imprisonment. Furthermore, the High Criminal Court convicted Besiktas’ Officials of match-fixing activities with regard to the Final Cup played between Besiktas and Istanbul BB on 11 May 2011.

As a result of this alleged match-fixing involvement Fenerbahçe was banned by the Turkish Football Federation (TFF) from participating in the 2011-2012 CL. Later on, the 25 July 2013, Fenerbahçe was found ineligible by the UEFA Appeals Body (UAB) to participate in the next two UEFA club competitions including the 2013/14 UEFA CL, since it could not comply with the UEFA Champions League (UEL) admission requirements. Similarly, Besiktas and Eskişehirspor, in 2013 and 2014 respectively, were considered by the UAB ineligible to participate in the next UEL season, on the grounds of a breach of the UEL admission criteria and particularly of Article 2.08.

A next round of proceedings was brought before the CAS. On 28 and 30 August 2013, the CAS rejected Fenerbahçe’s and Besictas’ appeals.[4] One year later, on 2 September 2014, Eskişehirspor faced the same fate. Interestingly enough, the Eskişehirspor panel was the first CAS panel to deal with the sanction of a club victim of a match-fixing arrangement.

The outcome of the Turkish cases is not necessarily surprising. The CAS practice has been consistently embracing the UEFA zero tolerance policy against match-fixing. However, the legal reasoning followed by CAS to reach a similar outcome differs significantly fostering legal uncertainty in the match-fixing context. At this point, therefore, this blog post will attempt to map the reasoning of the CAS over the following thorny issues which were particularly raised in the Turkish cases: the legal nature of the measure of ineligibility under Article 2.08 of the UEL Regulations (1) and the scope of application of Article 2.08 (2).   


Qualifying Article 2.08 UEL Regulations: administrative measure or disciplinary sanction?

At a first glance, the question of the legal nature of the ineligibility measure of Article 2.08 is rather theoretical, but it also bears important practical implications. The identification of the legal nature of Article 2.08 as administrative or disciplinary determines ‘how this measure shall be applied and under which legal principles’.[5] In other words, the characterization of the measure of Article 2.08 as a disciplinary one may trigger the application of UEFA Disciplinary regulations, including the strict liability principle and the possibility of issuance of a probationary period. Before proceeding with our analysis, it should be pointed out that the Fenerbahçe case, deals with the legal nature of Article 2.05 UEFA Champions League Regulations (UCLR). However, since the wording of Article 2.05 UCLR and Article 2.08 UELR is exactly the same, the panel’s findings are transposable.

When qualifying the legal nature of the ineligibility measure in match-fixing disputes, the Fenerbahçe,Besiktas and Eskişehirspor panels used as a landmark the well-established distinction between administrative acts and disciplinary measures.[6] This is the common point of reference for the three cases, which thereafter differentiates in the interpretation of the ineligibility measure.

In the first case, the Fenerbahçe panel introduced the idea of a ‘two stage process’ in match-fixing disputes: the first stage encompasses an administrative measure, akin to a preliminary minimum sanction, while the second stage is a disciplinary measure, imposing an additional sanction. Thereafter, in a surprising twist the CAS declared the inherent disciplinary nature of the administrative measure of ineligibility, since the subject matter of Article 2.08 is ‘the imposition of a sanction’. According to this panel, the minimum sanction serves the legitimate interest of UEFA to exclude a club from European competitions with immediate effect, while additional sanctions can be imposed if the circumstances so justify. However, this interpretation creates a paradox in that it blurs the lines between acts of administrative and disciplinary nature, a distinction well entrenched in CAS case law.

The Besiktas case adds to the legal uncertainty with regard to the legal nature of the ineligibility measure. According to this panel and contrary to the assessment in the Fenerbahçe case, Article 2.08 UELR does not have a sanctioning character, even if it excludes a club from UEFA competition. This argument is based on the wording of Article 50 (3) UEFA Statutes which, by referring to the ineligibility measure as a measure imposed ‘without prejudice to any possible disciplinary measures’, implicitly excludes its sanctioning nature.

This contradictory interpretation of the ineligibility measure by the previous panels triggered the concerns of the Eskişehirspor panel, which aimed to put an end to the legal uncertainty surrounding the definition of the legal nature of Article 2.08. Therefore, the CAS proceeded for the first time with an extensive analysis of the legal nature of Article 2.08. First of all, the CAS recognized the existence of a double regulatory regime in match-fixing cases: an administrative measure aiming at preventing match-fixing, laid down in Articles 2.05 UCL or 2.07, 2.08 of UEL Regulations and Article 50.3 of the UEFA Statutes 2008, and a disciplinary measure enshrined in the Disciplinary Regulations, specifically at Art 5.2j of the UEFA Disciplinary Regulations (DR) 2008. While this distinction seems to be inspired by the ‘two stage process’ elaborated in the Fenerbahçe case, this panel went a step further by drawing a clear line between measures of administrative and disciplinary character. After having clarified this distinction between measures of different legal nature and effect, the panel concluded that the measure of ineligibility of Article 2.08 is of a purely administrative nature. This assessment is based on an interpretation of Articles 2.09 UEL Regulations and Article 50.3 of the UEFA Statutes 2008 similar to the one adopted in the Besiktas case: both provisions refer to the automatic administrative application of the measure of ineligibility, leaving the door open for potential additional disciplinary measures ‘if the circumstances so justify’. Furthermore, the CAS noted that the administrative measure of Article 2.08 has a broad scope of application encompassing ‘any activity aimed at arranging or influencing the outcome of the match’, as compared to the disciplinary offence which in line with its sanctioning character is more restrictive.

Thereafter, the panel highlighted the consequences to be drawn from this qualification. As a result of the pure administrative nature of Article 2.08, the legal principles usually applicable to disciplinary measures are considered irrelevant. In practice, this means that the CAS excludes the application of: a) Articles 5.2 .j. and 17.1 of UEFA DR about the evaluation of mitigating circumstances when disciplinary measures are imposed; b) Article 6 of UEFA DR imposing a strict liability system; c) Article 11 of UEFA DR about the elimination of the ineligibility measure or the issuance of a probationary period; and finally, d) the ‘nulla poena sine culpa’ principle recognized in criminal law.

This straightforward position of the CAS in the Eskişehirspor case reflects its intention to put a provisory end to the legal uncertainty with regard to the legal nature of Article 2.08 and the legal consequences it entails. Borrowing elements from the previous Turkish cases, the CAS came up with a more sophisticated and coherent interpretation of the legal nature of the ineligibility measure, an interpretation that may serve as a reliable guideline for subsequent arbitral panels dealing with match-fixing. 


The scope of application of Article 2.08 UEL Regulations

Article 2.08 UEL Regulations does not define precisely the activities of a club that is directly or indirectly involvement in match-fixing. In match-fixing disputes, therefore, the CAS has a decisive role in clarifying the scope of application of the ineligibility measure.

As far as the scope ratione materiae is concerned, the Fenerbahçe and Besiktas panels converged in a broad understanding of the scope of Article 2.08. Indeed, based on the ordinary meaning of Article 2.08 which encompasses ‘any activity aimed at arranging or influencing the outcome of a match at a national or international level’ in conjunction with the ratio legis of this provision, which reflects the zero tolerance policy of UEFA against match-fixing, the CAS considered that Article 2.08 targets not only activities directly intending to fix the outcome of a game, but also activities that may have an unlawful influence on it. In this sense, for instance, the fact that Eskişehirspor accepted a bonus from a third party, i.e. Fenerbahçe, for winning, even though it cannot be qualified as match-fixing, is influencing the outcome of the match and, therefore, falls within the scope of Article 2.08. Furthermore, the Besiktas panel offered a broad interpretation of the wording ‘aimed at’ suggesting that not only the act of match-fixing, but also an attempt falls within the broad scope of Article 2.08. Hence, the Turkish cases establish an important finding with regard to the scope of application of the ineligibility measure in match-fixing disputes: a broad interpretation of Article 2.08 is in line with UEFA’s statutory objectives and, therefore, has to be adopted.

On the other hand, with regard to the scope ratione personae of Article 2.08, the CAS panels have been inconsistent. In order to identify whose actions are attributable to the club, the Besiktas panel applied the strict liability principle enshrined in Article 6 of the 2008 UEFA Disciplinary Regulations (DR). Here, the application of UEFA DR seems to be at odds with the previous characterization of Article 2.08 as an administrative measure. By contrast, in the Eskişehirspor case, where the issue whether the actions of a coach, who is a mere employee, can be attributed to the club is raised. In that case, the panel relying on the pure administrative character of Article 2.08, rejected the application of the strict liability principle. The Eskişehirspor panel, insisting on the qualification of the measure of ineligibility as an administrative measure, suggested an entirely different, but equally broad, interpretation of the ratione personae scope of article 2.08. Indeed, it suggests a broad interpretation of the term ‘official’, an interpretation that would capture ‘every board member ….coach, trainer and any other person responsible for technical, (…) as well as other persons obliged to comply with the UEFA Statutes’. In other words, the coach has to be considered as an official in the sense of Article 2.08 and his actions were, thus, attributable to the club.

To conclude, it seems that whatever the interpretative road chosen, the scope of application rationae personae and materiae of article 2.08 will be understood broadly. Nevertheless, it would be more coherent to have such a broad interpretation rely on a stabilized legal practice and the Eskişehirspor award provides an interesting first step in this direction.


The series of Turkish cases has provided the CAS with the opportunity to frame a consistent approach in substantive matters linked to match-fixing cases. In the Eskişehirspor case, the CAS attempts to clarify its approach to match-fixing in football. Two important conclusions can be drawn: the ineligibility measure imposed by Article 2.08 UELR has a broad scope of application and, secondly, it should be qualified as having an administrative nature. As a result, disciplinary rules do not apply to match-fixing disputes involving the eligibility of a club to European competitions. Regarding certain procedural matters, however, disciplinary standards and rules do apply. This is the real Achilles’ heel of the CAS approach in match-fixing cases: how can the application of rules of different nature to substantial and procedural matters in an identical match-fixing dispute be explained? 

(To be continued)

[1] Match-fixing in sport-A mapping of criminal law provisions in EU 27,  (http://ec.europa.eu/sport/library/studies/study-sports-fraud-final-version_en.pdf), 14.

[2] CAS 2009/A/1920 FK Pobeda, Aleksandar Zabrcanec, Nikolce Zdraveski v/ UEFA, para 78.

[3] UEFA Disciplinary Regulations 2013, Article 12 ‘Integrity of matches and competitions and match-fixing’ (http://www.ecaeurope.com/Legal/UEFA%20Documents/2013_0241_Disciplinary%20Regulations%202013.pdf)

[4] CAS 2013/A/3256 Fenerbahçe Spor Kubülü v UEFA & CAS 2013/A/3258 Besiktas Jimnastik Kulübü v. UEFA

[5] CAS 2014/A/3628 Eskişehirspor Kulübü v UEFA, para 98.

[6] CAS 2007/A/1381 & CAS 2008/A/1583

Comments (1) -

  • Ender Kuyumcu

    9/24/2014 9:43:00 AM |

    If you contact me on my mail, I can suuply you with the CAS verdicts on Besiktas and Fenerbahce cases alongside more info regarding Turkish match fixing scandal.

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Asser International Sports Law Blog | International and European Sports Law – Monthly Report – November and December 2019- By Thomas Terraz

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Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

International and European Sports Law – Monthly Report – November and December 2019- By Thomas Terraz

22. January 2020 Antoine Duval Blog, International Sports Law Cases, International Sports Law Events, International Sports Law Material, International Sports Law Publications (0)

Editor's note: This report compiles the most relevant legal news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. 

 

The Headlines

WADA Conference and the Adoption of 2021 WADA Code Amid Calls for Reform

On November 5-7, WADA held its Fifth World Conference on Doping in Sport where it faced a busy schedule, including the adoption of the revised 2021 World Anti-Doping Code and the election of a new WADA President and Vice-President by the Foundation Board. Concerning the latter, Witold Bańka, Poland’s Minister of Sport and Tourism, was elected as WADA President and Yang Yang, a former Chinese speed skater, elected as Vice-President, replacing Sir Craig Reedie and Linda Helleland respectively.  As Helleland leaves her position, she has expressed some strong views on the state of sport governance, particularly that ‘there is an absence of good governance, openness and independence in the highest levels of international sports’. Helleland was not the only one to recently voice governance concerns, as Rob Koehler, Director General of Global Athlete, also called for a ‘wholesale structural change at WADA’, which includes giving ‘independent’ athletes a vote in WADA’s Foundation Board, ensuring a greater ‘separation of powers’ and ensuring greater protection of athletes’ rights.

In the midst of the calls for reform, the amended 2021 WADA Code and the amended International Standards were also adopted after a two year, three stage code review process. Furthermore, a major milestone in athletes’ rights was achieved with the adoption of the Athletes’ Anti-Doping Rights Acts (separate from the WADA Code), which enumerates certain basic rights to help ‘ensure that Athlete rights within anti-doping are clearly set out, accessible, and universally applicable’. On the other hand, the Act ‘is not a legal document’, which clearly circumscribes some of the potential effects the Act may have. Nonetheless, athlete representative groups have ‘cautiously welcomed’ some of the changes brought by the 2021 WADA Code, such as the ‘modified sanctions for substances of abuse violations’.

Sung Yang’s Historical Public Hearing at the CAS

After much anticipation, the second public hearing in CAS history occurred on November 15 in Montreux, Switzerland in the Sun Yang case (details of this case were discussed in August and September’s monthly report), which was livestreamed and can be seen in its totality in four different parts (Part 1, Part 2, Part 3, Part 4). This was an extremely unique opportunity, which hopefully will become a more common occurrence, to see just how CAS hearings are conducted and perhaps get a taste of some of the logistical issues that can emerge during live oral hearings. One of these problems, accurate translations, rapidly became apparent as soon as Sun Yang sat in the witness chair to give his opening statements. The translators in the box seemed to struggle to provide an intelligible English interpretation of Sun Yang and other witnesses’ statements, while Sun Yang also seemingly had trouble understanding the translated questions being posed to him. The situation degenerated to such an extent that ultimately one of WADA’s officials was called to replace the translators. However, the translation drama did not end there, since during Sun Yang’s closing statements an almost seemingly random person from the public appeared next to Sun Yang who claimed to have been requested from Sun Yang’s team to ‘facilitate’ the translation. Franco Frattini, president of the panel, questioned the identity of the ‘facilitator’ and explained that one could not just simply appear before the court without notice. Interestingly, Sun Yang’s legal team also rapidly intervened claiming that it had not been made of aware of the inclusion of the supporting translator, further complicating the matter. In the end, Sun Yang concluded his statements with the translation from the WADA official.

While it was Sun Yang’s legal team that had provided the original translators in the box, it still raises the question as to how translation at CAS could be improved to ensure a certain standard of translators. After all, quality translation is critical to the parties’ right to be heard under Article 6 (e) ECHR. Regardless, in the end, neither parties made an objection that their right to be heard was violated.

Russian Doping Saga Continues: WADA Compliance Review Committee Recommends Strong Sanctions

As was already discussed in August and September’s monthly report, WADA uncovered numerous inconsistencies concerning data taken from the Moscow Laboratory. After further investigation, WADA’s Compliance Review Committee has recommended that the Russian Anti-Doping Agency (RUSADA) be found non-compliant with the WADA Code. Accompanying the recommendation, the Compliance Review Committee also suggested several sanctions, which include prohibiting Russian athletes from participating in major events like the Olympic Games and ‘any World Championships organized or sanctioned by any Signatory’ for the next four years unless they may ‘dmonstrate that they are not implicated in any way by the non-compliance’. It would also see an embargo on events hosted in Russia during the same period. However, these sanctions did not go far enough for some, like Travis Tygart, chief executive of USADA, who wishes to prevent a repeat of Rio 2016 and PyeongChang 2018 ‘in which a secretly-managed process permitting Russians to compete – did not work’. On the other hand, the IOC has advocated for a softer, individual based approach that pursues ‘the rules of natural justice and respect human rights’. In the midst of these developments, the Athletics Integrity Unit also decided to charge several members of the Russian Athletics Federation (RusAF), including its President Dmitry Shlyakhtin, after a 15 month investigation for ‘tampering and complicity’ concerning a Russian athlete’s whereabouts violations.

Following many calls for strong consequences, the WADA Executive Committee met on December 9th and adopted the recommendations of the Compliance Review Committee. Athlete representatives have expressed their disappointment with the sanctions, calling the decision ‘spineless’ since it did not pursue a complete ban on Russian participation at events such as Euro 2020 and the 2020 Olympics. At this point, RUSADA has sent notice to WADA that it will be disputing the decision of WADA’s Executive Committee’s decision at the CAS.

 

Major International Sports Law Decisions

Court of Arbitration for Sport – Sun Yang Public Hearing Part 1, Part 2, Part 3, Part 4

Court of Arbitration for Sport – CAS 2019/A/6110 Liam Cameron v. UK Anti-Doping Limited (UKAD)

Court of Arbitration for Sport – CAS 2018/A/5989 IAAF v. Qatar Athletics Federation & Musaeb Abdulrahman Balla

 

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Asser International Sports Law Blog | [Call for Papers] Through Challenges and Disruptions: Evolution of the Lex Olympica - 20 September 2024 - Inland School of Business and Social Sciences

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The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

[Call for Papers] Through Challenges and Disruptions: Evolution of the Lex Olympica - 20 September 2024 - Inland School of Business and Social Sciences

2. April 2024 Antoine Duval Blog, International Sports Law Events (0)

Editor's note: This is a call for papers for a workshop inviting sports lawyers and historians to reflect on how the lex olympica developed within the last 128 years through the prism of challenges and disruptions to the Olympic Games and the sharp and incremental changes they provoked.


Background

The lex olympica are legal rules the International Olympic Committee created to govern the Olympic Movement. Since the revival of the Olympic Games in 1896, the lex olympica, with the Olympic Charter taking its central place, has undergone tremendous changes. It has increased not only in volume but also in complexity and reach.

While some changes were designed to give further detail to the Olympic values, others seem to serve as responses to numerous disruptions and challenges that the Olympic Games experienced on their way. History shows that the Olympic Games faced boycotts, apartheid, armed conflicts, wars, propelled commercialisation, corruption, critique based on human rights and sustainability, pandemics, and many other obstacles.

One can see triggers for changes in specific incidents, broader societal changes, external political interests, long-term internal processes, etc., or further differentiate them according to relevant stakeholders impacting the change, such as IOC, NOCs, IFs, NFs, athletes, commercial partners, television, activist groups, NGOs, governments, host countries, etc. Regardless of their taxonomies, all these challenges met different reactions and affected the Olympic regulation in various ways. The IOC chose to distance the Olympic Games from some challenges and fully embrace others.


Keynote speakers

  • Jörg Krieger, Associate Professor, Department of Public Health and Sport Science, Aarhus University; co-leader of the Lillehammer Olympic and Paralympic Studies Center; Associate Professor II Inland Norway University of Applied Sciences.
  • Mark James,  Professor of Sports Law and Director of Research in the Manchester Law School at Manchester Metropolitan University, Editor-in-Chief of the International Sports Law Journal.


Deadline for abstract submission: 15 June 2024

Confirmation of participation: 30 June 2024

Publication: Selected contributions will be considered for a special issue at International Sports Law Journal


Contact information

Yuliya Chernykh (Associate Professor)

yuliya.chernykh@inn.no


Organizer

Lillehammer Olympic and Paralympic Studies Center (LOSC), Inland School of Business and Social Sciences and Legal development research group at INN University


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Asser International Sports Law Blog | Last call to register to the 2021 edition of the Sports Law Arbitration Moot - Deadline 1 December

Asser International Sports Law Blog

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The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

Last call to register to the 2021 edition of the Sports Law Arbitration Moot - Deadline 1 December

27. November 2020 Antoine Duval International Sports Law Events (0)

Dear all,

Our Slovenian friends (and former colleague) Tine Misic and Blaž Bolcar are organising the second edition of the Sports Law Arbitration Moot (SLAM).

The best four teams of the SLAM competition will compete in the finals, which will be held in Ljubljana, Slovenia, on 30th and 31st March, 2021.

This is a great opportunity for students to familiarise themselves with the world of sports arbitration, to meet top lawyers and arbitrators in the field, and to visit beautiful Ljubljana.

Go for it!

You'll find more information and can register at https://sportlex.si/slam/en

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Asser International Sports Law Blog | Mitigating Circumstances and Strict Liability of Clubs in Match-fixing: Are We Going in the Wrong Direction? An Analysis of the Novara and Pro Patria Cases - By Mario Vigna

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

Mitigating Circumstances and Strict Liability of Clubs in Match-fixing: Are We Going in the Wrong Direction? An Analysis of the Novara and Pro Patria Cases - By Mario Vigna

20. July 2017 Antoine Duval Blog, International Sports Law Cases, International Sports Law Commentaries (0)

Editor’s note: Mario Vigna is a Senior Associate at Coccia De Angelis Vecchio & Associati in Rome, Italy. His main practice areas are sports law, commercial law, and IP law. He also has extensive experience in the Anti-doping field, serving as Deputy-Chief Prosecutor of the Italian NADO and as counsel in domestic and international sports proceedings. He is a frequent speaker at various conferences and workshops. He was not involved in either of the cases discussed below.


I.               Introduction 

Gambling in football is a popular and potentially lucrative activity. It also raises numerous issues. When faced with the issue of gambling, the European Court of Justice (now Court of Justice of the EU) determined that gambling was economic activity per se, notwithstanding gambling’s vulnerability to ethical issues, and thus could not be prohibited outright.[1] With the legality of gambling established, it was left to the proper legislative bodies (national legislatures, national and international federations, etc.) to regulate gambling in order to guard against fraud and corruption. Gambling was not going to disappear; the dangers inherent to gambling would require attention. 

Given the amounts of money sometimes at stake, it is unsurprising that fraud and corruption are constant threats in football gambling. Match-fixing, i.e. wherein participants in a match deliberately attempt to secure a specific result to allow certain gamblers to obtain favorable rewards, is one prominent form of such corrupt activity. FIFA and UEFA, as well as other relevant bodies, have attempted to regulate match-fixing to protect the integrity of football competitions. After all, illicit gambling not only enables unjust enrichment on behalf of the corrupt gamblers and their accomplices; illicit gambling undermines the trust that spectators have in an activity and can lead to a decline in interest as a result.

The Italian Football Federation (FIGC) has adopted a strict liability approach to deter and punish match-fixing. Under the operative rules, clubs and federations whose agents or members engage in match-fixing activity are liable for match-mixing regardless of whether the club or federation itself knew of or condoned the conduct. Unfortunately, two relatively recent appeal decisions—Novara and Pro Patria—have handicapped this strict liability regime by allowing clubs to escape or reduce their liability on account of dubious mitigating circumstances. These decisions have undermined the efficacy of strict liability as a doctrine, and consequently diminish the efforts against match-fixing.

This blog post argues first that strict liability is effective in deterring match-fixing activity so long as adjudicatory bodies enforce it with appropriate rigidity. In fact, the doctrine of strict liability is widespread, in sports law and other fields, precisely because it can be effective. Next, this post critiques the decisions in Novara and Pro Patria, contending that both decisions misapply the principle of proportionality and erroneously recognize certain circumstances to mitigate against liability. As a corrective to these two decisions, this post concludes by outlining an effective application of strict liability and highlighting important regulatory efforts that out to be adopted. And while the discussion herein focuses on Italian football, the ideas explained are widely applicable across all sports and throughout all levels of competition. 

 

II.             Italian Law, Rules, and Regulations Against Match-fixing in Football

On the eve of the 2006 World Cup, which Italy won, Italian investigators uncovered efforts involving several major football clubs aimed at rigging referee selection for matches. This scandal became known as Calciopoli and implicated clubs from both Serie A and Serie B (respectively the first and second divisions in Italian football). Subsequent investigations in 2011 and 2015 led to additional scandals concerning clubs competing in Serie B and Lega Pro (the third division of Italian football), among them Scommessopoli (Bet City), Last Bet, Dirty Soccer, and Treni del Gol. Match-fixing, it was revealed, was a real problem in Italian football.

The FIGC, as the national football federation, maintains regulatory and disciplinary authority over all Italian football competitions and activity. To address the problem of match-fixing, the FIGC employs a set of regulation that deems match-fixing activity improper and sanctionable under a strict liability principle. Article 4 of the FIGC Code of Sport Justice (CSJ) states:

2. Clubs are strictly liable for disciplinary purposes for the actions of their managers, members and the individuals set forth in art. 1, par. 5

[…]

5. Clubs are presumptively liable for the wrongdoing committed for their benefit by any person. Liability is excluded when it is clearly or reasonably doubtful that the club participated in the wrongdoing or ignored it. [2]

Thus, clubs are liable for match-fixing even if they are not intimately aware of or complicit in the match-fixing efforts that benefit the club; liability is found once someone associated with the club—a player, an agent, etc.—engages via their acts or omissions in match-fixing activity. Match-fixing is explicitly prohibited in Article 7 of the CSJ[3], which also provides that strict liability applies for match-fixing and is punishable subject to the degree of fault borne by the club.[4] Here, it is important to note that under Article 7 the adjudicating body has discretion to assess a club’s degree of fault and reduce accordingly the corresponding sanction(s). This discretion is important; it is, however, in making use of this discretion that the appeal bodies erred in Novara and Pro Patria.

 

III.           Novara and Pro Patria: Setting the Wrong Precedent

The FIGC Code of Sport Justice applies strict liability to clubs for match-fixing but allows for consideration of mitigating circumstances to reduce the sanction(s) if appropriate. The problem is that currently there is no standard for what qualifies as appropriate mitigating circumstances. Novara and Pro Patria highlight this problem. In both cases, Italian football clubs—Novara Calcio and Aurora Pro Patria—were sanctioned for match-fixing, but later had those sanctions reduced on appeal on the basis of mitigating factors. This blog post contends that those reductions were ill-informed. If strict liability is to work as a deterrent and truly discourage match-fixing, acceptable mitigating factors against strict liability require greater scrutiny than provided in these two cases.

A.    Novara Calcio

An investigation by the Italian media, coined Scommessopoli, uncovered one of the largest match-fixing schemes in Italian footnall history. Scommessopoli was a wide-ranging, multi-dimensional enterprise; players were involved, as were Italian and foreign criminal groups—in total, the investigation alleged that at least twenty-two clubs and sixty-one people participated in match-fixing efforts. One of the individuals involved, Cristian Bertani, played for Novara Calcio, a club in the Italian Serie B. According to the findings of the National Disciplinary Commission, Bertani conspired with a foreign gambling group and a local criminal group to fix matches. Consequently, the National Disciplinary Commission sanctioned Bertani’s club Novara Calcio under the strict liability regime in effect. Novara Calcio was fined EUR 35,000 and received a four-point deduction from the league table.[5]

The club appealed the decision to the FIGC Court of Justice. On appeal, the court reduced the deduction to three points and eliminated the fine entirely:

“[The reduced sanction] leads to a more accurate assessment of the overall conduct of the Appellant of all the activity carried out by the club, whether in a preventative or subsequent manner, specifically aimed at fighting the phenomenon of illicit sports or eliminating the consequences… In this sense, recalling among others, the approval by Novara Calcio of the first organizational model of the legislative decree no. 231/2001 related to the Code of Ethics; earning the ISO 9001:2008 certification of quality, being the first football association to earn it; having contracted since February 2012 the professional services in order to study the betting quota over the matches played by the club, bringing a discipline scheme over those studies thanks to an Antifraud Code in April 2012 “[6]

In essence, the Court reduced the sanctions on account of the club’s implementation of self-protection tools in accordance with the organizational model set forth in the Legislative Decree no. 231/2001. The problem with this decision, however, is that the efforts in question were taken after the incident. The Court treated this post-incident measures as mitigating circumstances, even though these measures were not operative when Bertani attempted to fix matches.

Such allowance of post-incident mitigating factors is inappropriate and undercuts the effort to prevent match-fixing. Indeed, only the prior adoption of an adequate organizational model against match-fixing by a club should (potentially) mitigate against strict liability. Two requirements should be satisfied: (1) prior adoption, and (2) adequate measures. Legislative decree no. 231/2001 and Italian jurisprudence both distinguish between superficial adoption of an organizational model—which is insufficient by itself—and the adoption of an organizational model with demonstrated sufficient, concrete measures to prevent wrong-doing. Only the latter satisfactorily deters potential wrong-doing, and only the latter should (potentially) shield against strict liability so long as a club can prove its preventative efforts were adequately effected. With Novara Calcio, the problem was that the adoption of an organization model was merely superficial, in addition to being after-the-fact, and that the club did not have to prove that the adopted measures were or would be effective in combatting match-fixing.

B.    Aurora Pro Patria 

In 2015, the Catanzaro Police Department arrested more than forty individuals for alleged participation in match-fixing in matches of the Italian 4th Division. Three arrestees were former members of the club Aurora Pro Patria—two players and one coach—accused of match-fixing activities while employed by Pro Patria. All three were found guilty in the ensuing proceedings. Thus, under the doctrine of strict liability, Pro Patria received a seven-point deduction as a sanction for the conduct of its employees.[7]

Pro Patria appealed the ruling and sanction. And like the Novara case, the sanction was reduced: 

Having found the defendant liable, it cannot but follow the confirmation of the strict liability held by the association (Club). As marked by the vast jurisprudence, indeed, the referred liability cannot be avoided but graduated in the presence of circumstances that would see to deserve special consideration.

… the thorough preventative activity put in action by Aurora Pro Patria, that even when they were not obliged to, they still adopted the model of conduct as set out in the rule Legislative Decree no. 231/2001, they imposed a Code of anti-fraud and have entered into a contract with Federbet [a monitoring company] by which said company will check the flux of the bets related to the activity of the club, we determine that, given the relevant circumstances, the sanction against the association (club) must be reduced…”[8]

The Court reduced the sanction to a three-point deduction. Although the appeal court affirmed strict liability, it undercut its potency by accepting as mitigating circumstances factors that were not in place when the unlawful conduct occurred. The appeal court was in some ways excusing a violation, at least partially, for efforts the responsible party undertook to not commit the same violation again in the future. The efforts had no impact on the violation that already took place.

C.    Problems Posed by the Novara and Pro Patria Rulings 

After being charged with match-fixing, both Novara and Pro Patria hired monitoring companies that supposedly help prevent, or at least detect, potential match-fixing activity. These post-facto efforts were deemed by ruling bodies compelling enough to reduce sanctions imposed for match-fixing. This precedent of reducing on account of mitigating circumstances occurring after the match-fixing activity occurred poses two issues.

First, the precedent undermines the strict liability regime by allowing the reduction of a club’s liability where it fixes the problem ex post facto, thereby providing clubs with a loophole to escape with minimal harm. Second, the precedent does not consider the actual efficacy of the hired monitoring companies or their methods. Without a regulatory framework and established standards for monitoring companies and certification of their services, i.e. no way of assessing whether the hired companies actually make any difference when it comes to the prevalence of match-fixing, nothing separates effective monitoring from the appearance or claim of monitoring.

 

IV.           A Better Way of Evaluating Mitigating Circumstances

An adjudicatory body rightfully must consider the particular context of each case. Accurate and fair decisions acknowledge that not all cases concerning similar issues deserve equal treatment. Mitigating circumstances are an important aspect of any fair legal system. With Novara and Pro Patria, however, the appeal bodies erred by giving weight to certain post-incident mitigating circumstances that had no bearing on the issue at hand. Further, allowing the hire of a monitoring company to mitigate a club’s liability introduces a separate issue, i.e. the efficacy of the monitoring company and its services. Both appeal decisions reduced the capacity of strict liability to deter match-fixing. If a strict liability regime is to be effective in combatting match-fixing, then clear standards for evaluating mitigating circumstances in cases like Novara and Pro Patria are necessary.

Before proposing a way forward, it is important to first try and understand why the appeal decisions reduced the sanctions in the cases at hand. Inherent to the appeals’ justification is the doctrine of proportionality, or the notion that any punishment must fit the crime and cannot be more extreme than is warranted. In Novara and Pro Patria, it seems that the appeal bodies thought that the clubs’ liability for the conduct of their employees should be limited. In other words, while the appeal bodies certainly assigned liability to the clubs, they were unwilling to allow that liability to support too onerous sanctions.

This, of course, misses the point of strict liability in the first place. Strict liability is used to assign liability notwithstanding immediate fault because the liable party is best positioned to absorb the liability and/or work to prevent the wrongful conduct. Punishments for strict liability in match-fixing, if reduced to minimal amounts, do little to nothing to promote clubs to actively prevent match-fixing. The Court of Arbitration for Sport (CAS) re-affirms this point:

With regard to the alleged disproportionality of the Decision, the Panel first of all wishes to stress that the fight against match-fixing is considered to be extremely important for the purpose of preserving confidence in and the integrity of sport.[9]

Part of the proportionality calculus must be the severity of the wrongdoing concerned. Match-fixing is, arguably, the greatest wrong in sports. Therefore, hefty punishments should not violate proportionality. 

The Novara and Pro Patria appeal decisions also over-value the post-incident preventative actions (which is an oxymoron!). The treatment of post-incident actions as mitigating circumstances suggests future offenders will be able to correct wrongful conduct after-the-fact simply by hiring a company that claims to monitor match-fixing activity. Even if a club were to hire a monitoring company prior to any wrongful conduct, the mere signing of a contract with a monitoring company is generally a questionable preventative measure. Clubs that employ monitoring companies and are then subsequently charged with liability for match-fixing should only have sanctions (and thus liability) reduced if they prove to the court that the monitoring company undertook actual and sufficient efforts to monitor and prevent match-fixing.

Merely employing a monitoring company without any regard for the efficacy of its services is an inadequate escape route from strict liability. After all, these companies are unregulated and unaccredited; there is no guarantee that the companies do any work, or that any work the company performs is effective. At a minimum, then, a club must demonstrate that in conjunction with a monitoring company it undertook significant and adequate measures to prevent match-fixing by its employees and agents.

A standard for monitoring companies is important in light of the Novara and Pro Patria rulings, which will support a booming (and unregulated) market for monitoring companies. Clubs may now look to symbolically contract with these companies to escape liability if/when they are accused of match-fixing. The football community should not allow such a deregulated and opaque market to emerge.

 

V.             Conclusion

Match-fixing poses one of the most elemental dangers to professional football—it damages the credibility of the sport and could potentially damage the market. The doctrine of strict liability discourages a club’s participation in match-fixing activities, and incentivizes clubs to put into place measures that ensure their employees abide by anti-match-fixing regulations. Judges and tribunals must not lose sight of the broader picture when determining sanctions in match-fixing cases. In light of the Novara and Pro Patria decisions, this blog post offers a way forward to maintain strict liability’s capacity to effectively combat match-fixing: (1) post-incident efforts should not be considered as mitigating circumstances, and (2) monitoring companies and their services must meet a certain standard if they are to absolve, partially or fully, a club from its liability.

Strict liability can be effective so long as courts and tribunals do not unduly handicap it. Match-fixing is still a prominent threat in football and in sports in general. Now is not the time to weaken the most effective tool (strict liability) available to combat match-fixing. While the preceding discussion focuses on Italian football, the lessons are universal for all sports, at all levels.

[1] Case Her Majesty's Customs and Excise v. Gerhart Schindler and Jôrg Schindler, C-275/92 Judgement of 24th March 1994 [1994] ECR 1-01039.

[2] Unofficial translation from Italian: “Responsabilità delle società 1 […]; 2. Le società rispondono oggettivamente, ai fini disciplinari, dell'operato dei dirigenti, dei tesserati e dei soggetti di cui all’art. 1 bis, comma 5; 3 […]; 4 […] 5. Le società sono presunte responsabili degli illeciti sportivi commessi a loro vantaggio da persone a esse estranee. La responsabilità è esclusa quando risulti o vi sia un ragionevole dubbio che la società non abbia partecipato all'illecito o lo abbia ignorato; 6 […].”

[3] “Committing, by any means, acts to alter the development or outcome of a match or competition or to assure any advantages in the ranking constitutes a sporting wrongdoing.” Unofficial translation from Italian: “1. Il compimento, con qualsiasi mezzo, di atti diretti ad alterare lo svolgimento o il risultato di una gara o di una competizione ovvero ad assicurare a chiunque un vantaggio in classifica costituisce illecito sportivo.”

[4] Art. 7, par. 4: It is considered the strict liability of a club in the sense of art. 4, par. 5 and the fact is punishable subject to the degree of fault, with the sanctions foreseen in art. 18, par. 1 sections (g), (h), (i), (l), and (m). Unofficial translation from Italian: “Se viene accertata la responsabilità oggettiva o presunta della società ai sensi dell'art. 4, comma 5, il fatto è punito, a seconda della sua gravità, con le sanzioni di cui alle lettere g), h), i), l), m) dell’art. 18, comma 1.” The sanctions consist, broadly speaking, in the deduction of points, to be sent to the bottom of the table, to be disqualified from the competition, to have a tittle taken away or the barred from participating in a specific competition.

[5] The sport prosecutor had sought a six-point deduction.

[6] Unofficial translation from Italian: “A ciò conduce una più attenta valutazione della complessiva condotta della reclamante, di tutta la attività da questa posta in essere, invero tanto in via preventiva che successiva ed espressamente finalizzata a combattere il fenomeno degli illeciti sportivi ovvero ad eliminarne le conseguenze… In questo ambito vanno riassuntivamente richiamati, tra gli altri interventi, l’approvazione da parte del Novara Calcio del primo modello organizzativo ex decreto legislativo n. 231/01 e relativo Codice etico; l’approvazione nel gennaio del 2012 di un nuovo modello organizzazione e di gestione; il conseguimento nel marzo ancora di quest’anno di certificazione di qualità ISO 9001:2008 come prima società calcistica in Italia; l’aver affidato nel febbraio 2012 a soggetto professionale lo studio dell’andamento delle quote di scommesse legate alle partite che avrebbe giocato il Novara da quel momento alla fine del campionato, successivamente deliberando di continuare l’opera di monitoraggio delle partite; disciplinando infine tale sistema con l’adozione di un Codice Antifrode.”

[7] The sport prosecutor sought a twenty-point reduction as an exemplary punishment and to increase its deterrent effect.

[8] Federazione Italiana Giouco Calcio; COMUNICATO UFFICIALE N. 48/TFN – Sezione Disciplinare (2015/2016), p. 81.

[9] CAS 2013/A/3297 Public Joint-Stock Company “Football Club Metalist” v. UEFA & PAOK FC, award of 29 November 2013. (Case about match-fixing and sanctions under UEFA rules.)

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