Editor’s note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked.   

The headlines

What a month June turned out to be. Waking up the morning after the 23^rd, the results of the UK referendum on EU membership were final. The words of Mark Twain: “Apparently there is nothing that cannot happen today”, might provide the most apt description of the mood felt at the time.[1] The Leave campaign’s narrow victory has brought along tremendous economic, political and legal uncertainties for both the UK and the (other) Member States. To give but one example, with regard to the implications of Brexit on Europe’s most profiting football league, we recommend an older blog by Daniel Geey and Jonny Madill.

Perhaps just as shocking as the UK’s wish for secession, was the Bundesgerichtshof decision in the infamous Pechstein case. On 7 June the highest German civil court ruled in favour of the validity of forced CAS arbitration and the independence of the CAS, leaving Claudia Pechstein to cough up roughly EUR 300 000 in legal expenses. For a critical analysis of the decision see Antoine Duval’s blog.

Operación Puerto, deemed “one of the most infamous and obscure doping sagas in history”, saw a new chapter being added on 14 June. A Spanish special criminal appeal chamber held that the more than 200 blood bags of professional athletes (which had been stored since their confiscation in 2006) can be delivered to the Spanish Anti-Doping Agency (AEPSAD), WADA, the UCI and the Italian Olympic Committee (CONI). Oskar van Maren examined the case in a blog.

Last but not least, in June we witnessed the IAAF upholding its decision not to reinstate the Russian Athletics Federation (RusAF) for IAAF Membership. This means that Russian athletes will still not be allowed to compete in International Competitions under IAAF Rules including the European Championships and the Rio 2016 Olympic Games. A few days later, the 21th of June, the IOC endorsed IAAF’s position. Though it also potentially opened the door for Russian athletes to demonstrate that they are clean. The IAAF’s decision was appealed collectively by 61 Russian athletes to the CAS, and the final decision is due before the start of the Olympic Games in Rio. 

Case law

On June 3rd a temporary injunction was granted by the Landgericht München in the case between the International Basketball Federation (FIBA) and FIBA Europe versus several basketball clubs. The court ruled that FIBA may not prevent these clubs from participating in the so-called Euroleague competitions. The alleged abuse of a dominant position is addressed in a blog by Marine Montejo. Yet the injunction was annulled in a subsequent decision of the LG München.

Famous tennis star Maria Sharapova was found to have violated anti-doping rules for the use of the controversial ‘meldonium’. A specially appointed independent tribunal imposed a two-year ban, disqualifying her from professional tennis from 26 January 2016 to 25 January 2018 (see also this piece by James Segan). In reply, she appealed the decision to the CAS, which is due to decide the case in September. This will prevent her from participating at the Olympic Games in Rio.

A key player in our Unpacking Doyen’s TPO deals blogs, football club FC Twente, found itself in a rollercoaster of conflicting decisions during the end of season 2015/2016. On 18 May the licensing committee of the Dutch football federation (KNVB) issued a decision in which it relegated the club to the second (and lowest) professional league. It did so by creating a new ad hoc license for the second league, which did not exist before. Subsequently on 10 June, in summary proceedings before the district court, FC Twente’s request for provisional measures got rejected, and the relegation approved. Yet only a week later, the KNVB’s appeal committee overturned the licensing committee’s initial ruling. As a result FC Twente will stay in the highest professional league.  

Official documents and Press releases

CAS – Statement on the decision made by the German Federal Tribunal in the case between Claudia Pechstein and the International Skating Union (ISU)

CAS – Maria Sharapova files an appeal at the Court of Arbitration for Sport, Tennis, Anti-doping

CAS – List upcoming hearings

CAS – KS Skenderbeu files an appeal at the Court of Arbitration for Sport, Football

CAS – The Appeal filed by Galatasaray SK is rejected by the Court of Arbitration for Sport

European Council - Council conclusions on enhancing integrity, transparency and good governance in major sport events

European Commission - Mapping and Analysis of the Specificity of Sport, A Final Report to the DG Education & Culture of the European Commission

FIBA - FIBA Europe welcomes Munich court decision to cancel temporary injunction

FIFA - Attorneys for FIFA provide update on internal investigation and details on compensation for former top officials

FIFA - Overview of Important Provisions contained in the Employment Contracts of Messrs. Blatter, Valcke and Kattner since 2007

FIFA - Circular no. 1542, Amendments to the Regulations on the Status and Transfer of Players

FIFA - Circular no. 1545, FIFA Forward Programme/2016 financial support - operational costs

IAAF – Ethics board statement 10 June 2016

IAAF - Response to Ethics Board statement

IAAF - Decision on Russia's participation in Rio Olympics

IAAF – IAAF Taskforce: Interim report to IAAF Council, 17 June 2016

IOC - Declaration of the Olympic Summit

ISU - Decision of the Bundesgerichtshof in the case of Ms. Claudia Pechstein

KNVB – Besluit licentiecommissie betaald voetbal 26 november 2015

WADA - International Standard for Laboratories (ISL)

WADA - WADA Update regarding Maria Sharapova Case

WADA - Acknowledges Madrid Court decision to provide access to "Operation Puerto" athlete blood bags

WADA - WADA Suspends the Accreditation of the Almaty Laboratory 

In the news

Athletics

Rebecca R. Ruiz, Juliet Macur and Ian Austen - Even With Confession of Cheating, World’s Doping Watchdog Did Nothing

Cycling

Stuart Clarke - Judge rules athletes implicated in Operation Puerto can be identified

Culture, Media and Sport Committee – Whistleblower Dan Stevens in front of the Committee

Football

Guardian - Football clubs in England’s top four tiers generated more than £4bn in 2014-15

Brian Homewood - No formal proceedings against FIFA chief Infantino says ethics committee

Mary Papenfuss - Auditor KPMG pulling out of Fifa because of 'lack of commitment' to reform

SBD - Barcelona Pleads Guilty To Fraud In Neymar Case, Agrees To Pay $6.2M Fine 

Olympics

Nick Butler - Exclusive: Clause at centre of European Championships contract row is "superseded"

James M. Dorsey - Kuwaiti Rulers Fight their Internal Battles on the Sports Field

Sam Morshead - 'It's like a badminton player playing tennis': Boxing comes under fire after voting for professionals to compete at Rio Olympics just 10 weeks before the Games

Dan Roan - Russia and Rio 2016: How the IOC is working up an Olympic compromise

SBS - Sailors take Olympic appeal bid to CAS

Pechstein case

Deutschlandfunk - "Sportler sollten Gerichtsbarkeit wählen können"

FAZ - Claudia Pechstein droht Schuldenberg

FIFPro - Despite decision, Pechstein must trigger reform

Johannes Herber - Urteil im Fall Pechstein, "Siegen oder sterben"

Swimming

Kor. Herald - Park Tae-hwan resumes arbitration proceedings against Olympic ban

David Leggat - Kane Radford, Charlotte Webby set to appeal Olympic snubs 

Academic materials

Dawn Aquilina and Angelo Chetcuti, The Aftermath of a Match-Fixing Case that Shook Two Nations: Insights into How Malta and Norway Are Seeking to Redeem Their Football

Bruce W. Bean, FIFA — The Reform Charade Continues

Richard Bunworth - Egg-shell skulls or institutional negligence? The liability of World Rugby for incidents of concussion suffered by professional players in England and Ireland

Antoine Duval, Getting to the games: the Olympic selection drama(s) at the court of arbitration for sport

Antoine Duval, Herman Ram, Marjolaine Viret, Emily Wisnosky, Howard L. Jacobs and Mike Morgan - The World Anti-Doping Code 2015: ASSER International Sports Law Blog symposium

Arnout Geeraert and Edith Drieskens, Theorising the EU and International Sport: The Principal-Agent Model and Beyond

Andrew C. Harmes, Forecheck, backcheck . . . paycheck? Employment status of the quasi-professional athlete: A case study of the CHL and the Major junior hockey player

Thomas Margoni, The Protection of Sports Events in the EU: Property, Intellectual Property, Unfair Competition and Special Forms of Protection

Despina Mavromati, The Legality of an Arbitration Agreement in Favour of CAS Under German Civil and Competition Law - The Pechstein Ruling of the German Federal Tribunal (BGH) of 7 June 2016

Karen Petry, The Beginnings and Development of European Sport Research at Universities: From Marginalisation to Fragmentation?

Ryan M. Rodenberg, Jeff Sackmann and Chris Groer - Tennis integrity: a sports law analytics review

Stephen Kirwan, Levelling the Playing Field? Remuneration Caps, EU Competition Law and Article 7(3) of the FIFA Regulations on Working With Intermediaries

Zachary Shapiro, Regulation, prohibition, and dantasy: The case of FanDuel, DraftKings, and Daily Fantasy Sports in New York and Massachusetts

Joshua D. Winneker, Philip Schultze and Sam C. Ehrlich, Lights, Camera, … Injury! The NBA Needs to Ban Courtside Cameramen 

Books

Michael Barry, James Skinner and Terry Engelberg, Research Handbook of Employment Relations in Sport

Antoine Duval, Ben Van Rompuy (Eds.), The Legacy of Bosman, Revisiting the Relationship Between EU Law and Sport

LawInSport and the British Association for Sport and Law, Sports Law Yearbook 2015/16 - UK, Ireland and EU eBook.

Götz Schulze, Aktuelle Rechtsfragen im Profifußball: Psychologische Faktoren und rechtliche Gestaltung Taschenbuch  

Blogs

Gregory Basnier, Joint selling of French Rugby’s tv rights: A review of the recent competition law cases

Carol Couse and Jake Cohen, The potential impact of Brexit on European football

Johanna Croon-Gestefeld, Der BGH und Pechstein: Transnationaler Konstitutionalismus sieht anders aus

Thomas Croxford and Nick De Marco, Fiduciary duties, football, and the fundamental importance of the contractual relationship

Juan de Dios and Crespo Pérez, Operación Puerto: A long and winding road in the fight against doping

Antoine Duval, The BGH’s Pechstein Decision: A Surrealist Ruling

Antoine Duval, The Pechstein case: Transnational constitutionalism in inaction at the Bundesgerichtshof

Antonia Foster, Advice for Athletes facing false allegations by the press – Practical and Legal Options

Ryan Lake, Signing new talent: How the entry draft system works in the National Hockey League

Daniel Lowen, Determining the level of compensations for out of contract football players: The PFCC Danny Ings Award

Jonny Madill and Jack Jones, Sharing sports clips in the digital age: 6 things you should know

Oskar van Maren, The EU State aid and Sport Saga: Hungary revisited? (Part 2)

Oskar van Maren, Operación Puerto Strikes Back!

Kester Mekenkamp, The Müller case: Revisiting the compatibility of fixed term contracts in football with EU Law

Lance Miller, Celeste Koravos and Nick Fitzpatrick, Sustainable procurement at Tokyo 2020 Olympics: Top 10 tips for a winning bid

Marine Montejo, FIBA/Euroleague: Basketball’s EU Competition Law Champions League- first leg in the Landgericht München

Kimberly Morris and Barry Lysaght, How FIFA TMS Investigations increase transparency and accountability in international football transfers

Tim Owen, Sport, corruption and the criminal law: the need for an expert investigative body

Fabian Reinholz, Das Pechstein urteil nimmt dem sport reformdruck

Jennifer E. Rothman and Eugene Volokh, Brief of 28 constitutional law and intellectual property law professors as Amici Curiae in support of petitioner in, No. 15-1388, In the Supreme Court of the United States, National Collegiate Athletic Association, petitioner, v. Edward C. O’Bannon et al., Respondents

James Segan, A riddle wrapped in a mystery inside an enigma: the Sharapova case

Andrew Smith, A review of the updates to FIFA’s Regulations on the Status and Transfer of Players

The Swiss Rambler, Nottingham Forest - From The Ritz To The Rubble

The Swiss Rambler, Wolverhampton Wanderers - After The Gold Rush

WADC Commentary Team, Meldonium and Moral Fault: Five Lessons Learned from the Sharapova ITF Tribunal Decision

Mathias Wittinghofer and  Sylvia Schenk, A Never Ending Story: Claudia Pechstein’s Challenge to the CAS

John Wolohan, The integrity of education in college sport: does the NCAA model compromise athlete welfare? 

Upcoming events

14 July - Sports Corruption 2016 Conference, MBL Seminars London

19 – 21 July - Executive Programme in International Sports Law, Sports Law and Policy Centre, Ravello, Italy

2 & 3 September - International Sport Arbitration 6th Conference CAS & SAV, The Court of Arbitration for Sport (CAS), the Swiss Bar Association (SAV / FSA) and the Swiss Arbitration Association (ASA), Lausanne Switzerland

16 September - The future of the ‘legal autonomy’ of sport, Anglia Ruskin University, Cambridge, UK

26 September - Soccerex - Global Convention 2016, Manchester, UK 

[1] Mark Twain, American author (30 November 1835/21 April 1910)

In the same week that saw Europe’s best eight teams compete in the Champions League quarter finals, one of its competitors received such a severe disciplinary sanction by FIFA that it could see its status as one of the world’s top teams jeopardized. FC Barcelona, a club that owes its success both at a national and international level for a large part to its outstanding youth academy, La Masia, got to FIFA’s attention for breaching FIFA Regulations on international transfers of minors.  Unfortunately, at the moment FIFA has not published the decision of the Disciplinary Committee on this case, therefore our analysis is mainly based on the two official statements of FIFA and FC Barcelona.

When FC Barcelona signed the 13 years-old South Korean Lee Sung Woo, in 2011, they thought they found the “new Lionel Messi”. Little did they know that this under-aged Korean football player was to be one of the sources of the legal trouble they are in now. On 5 february, 2013, the Club received the request from FIFA via the Spanish Football Federation (RFEF) to provide information concerning the registration of Lee. Over the course of 2013, FIFA further asked FC Barcelona for additional information on other players. By December 2013, FC Barcelona provided FIFA information on a total of 37 minors.

According to FIFA’s official statement FC Barcelona has been found to be in breach of art.19 of the Regulations on the Status and Transfer of Players (hereinafter “the Regulations”). In this regard, special attention was focused on ten minors signed between the years 2009 and 2013, including the abovementioned Lee. According to article 19 of the Regulations, international transfers of players are only permitted if the player is over the age of 18, or 16 if the player is transferred within the territory of the European Union[1]. Also according to FIFA, the RFEF has been found to have breached the same article 19 of the Regulations in the context of the transfer and registration of certain minor players. Indeed, the Regulations oblige the National Federations to enforce these provisions on national football clubs.

For a normal international transfer procedure, the Regulations impose to clubs and Federations the use of the web-based Transfer Matching System (hereinafter “the TMS”) since 2009.  The TMS ensures that all international transfers are conducted in line with the FIFA rules, thereby controlling the integrity of both clubs and Federations involved. In other words, the club willing to register a new player informs its National Federation of the transfer, who in turn informs TMS, in order for the new player to be registered in his new Federation. As regards the case at hands, the exact details of the used procedure are unknown. However, one could suspect that FC Barcelona deviated from the “usual” procedure and decided to register the minors with the Catalan Federation instead. This means that, at a certain point, the Catalan Federation had to inform the National one. According to the RFEF Secretary General, the Spanish National Federation actually refused to register the concerned minors, but the Catalan Federation proceeded anyway. This alternative registering procedure is by no means contrary to TMS, but does increase the risk for “bureaucratic mistakes”. This case highlights the difficulty in identifying a responsible party. Despite the fact that FC Barcelona, RFEF and the Catalan Federation have a shared responsibility in the administrative mess-up leading to this procedure, FIFA only sanctioned the first two.

FIFA has been clear regarding the disciplinary sanctions: in accordance with article 23 of FIFA Disciplinary Code, FC Barcelona is imposed a ban to register new players for two complete and consecutive transfer periods (summer 2014 and January 2015). Moreover, the Club received a fine of CHF 450,000 and a deadline of 90 days in which to regularise the position of all minors concerned. The RFEF, for its part, received a fine of CHF 500,000 plus a deadline of one year in order to regularise their regulatory framework on this issue. With a turnover of more than 400 million Euro per year, it is unlikely that the Club is seriously worried about the fine. However, the transfer ban places the FC Barcelona in a very unpleasant situation. The first team is in need of certain important replacements, such as a new goalkeeper and a central defender, after both Víctor Valdés and Carles Puyol announced their departure this upcoming summer. Furthermore, it remains unclear what will happen with the promised signings of the German goalkeeper Marc-André Ter Stegen and the Croatian talent Alen Halilović.

FC Barcelona announced in its aforementioned official statement, that it will be appealing to the FIFA Appeal Committee and, if necessary, further appeal to CAS. Furthermore, the Club will demand for provisional measures in order to register new players during the next transfer window at least. Meanwhile, the RFEF is yet to give a detailed statement on its future legal strategy.

The fact that FIFA sanctions one of the biggest and renowned football clubs in the world in an unprecedented way demonstrates that they take this issue seriously, no matter how big the club in question is. The rules on minors is made to protect the best interest of the child. FIFA argues that the interest in protecting the appropriate and healthy development of a minor as a whole must prevail over purely sporting interests. This position is also supported by the International Federation of Professional Footballers (FIFPro), who fears that without the proper controls the development of a minor is not adequately protected against exploitation.

Undoubtedly, FC Barcelona will refer to the letter its former President, Sandro Rosell, sent to FIFA in March 2013. In this letter, Rosell argued that to fully safeguard the protection of minors, clubs must ensure the players can benefit from any good opportunity on their reach. In this regard, Rosell asked FIFA to consider a further exception on article 19 in favour of the clubs that have developed excellent Youth Academies. This would mean that certain clubs should be allowed to register minors regardless of their origin as long as the clubs compromise to take care of the minor until his 18^th birthday.

This could be a valid argument but would require FIFA Regulations to be modified. With regard to provisional measures, the Club’s demand is very unlikely to be accepted by the FIFA Appeal Committee, since article 124 of the FIFA Disciplinary Code only permits a suspension of the economical sanction. At CAS, on the other hand, the Club should demonstrate the existence of an irreparable harm, the likelihood of success on the merits of the claim, and whether the interests of the FC Barcelona outweigh those of FIFA[2]. In this regard, FC Barcelona can refer to the Mexès case where CAS temporarily lifted the ban imposed on the Italian football club A.S. Roma[3]. Furthermore, it can also rely on a more recent precedent in this field: the Kakuta case.

Considering the potential impact of the imposed disciplinary sanctions, this legal dispute will be one of the most difficult and challenging games in FC Barcelona’s long history. But make no mistake, this is just the beginning of an exciting legal game…

[1] Article 19 stipulates a few exceptions that provide International transfers of minors to be allowed. In each case, FIFA’s Player’s Status Committee has exclusive competence to review the circumstances and permit the exception.

[2] R37 Provisional and Conservatory Measures – CAS Procedural Rules

[3] Arbitrage TAS 2005/A/916 AS Roma c. Fédération Internationale de Football Association (FIFA), §39-40

With this blog post, we continue the blog series on Turkish match-fixing cases and our attempt to map the still unchartered waters of the CAS’s match-fixing jurisprudence.

The first blog post addressed two issues related to the substance of match-fixing disputes, namely the legal characterization of the match-fixing related measure of ineligibility under Article 2.08 of the UEL Regulations as administrative or disciplinary measure and the scope of application of Article 2.08. In addition, The Turkish cases have raised procedural and evidentiary issues that need to be dealt with in the framework of match-fixing disputes.

The CAS panels have drawn a clear line between substantial and procedural matters. In this light, the Eskişehirspor panel declared the nature of Article 2.08 UEL Regulations to be administrative and rejected the application of UEFA Disciplinary Regulations to the substance. Nonetheless, it upheld that disciplinary rules and standards still apply to the procedure. This conclusion, however, can be considered puzzling in that disciplinary rules apply to the procedural matters arising by a pure administrative measure. To this extent, and despite the bifurcation of different applicable rules into substantial and procedural matters, the credibility of the qualification of Article 2.08 as administrative seems to be undermined. And here a question arises: How can the application of rules of different nature to substantial and procedural matters in an identical match-fixing dispute be explained?

This paradoxical approach can be justified by the conflicting duty of the CAS in match-fixing disputes. The CAS aims to strike the right balance between due process concerns, on the one hand, and the urge to fight against match-fixing effectively, on the other hand. In this sense, procedural matters have to be examined in conjunction with substantial issues raised in match-fixing disputes. Having as a starting point, therefore, the fundamental distinction between administrative and disciplinary measures, this blogpost will proceed with an analysis of the standard of proof applicable in match-fixing disputes (1) and of the admissibility of evidence (2). 

Standard of proof in Match-Fixing disputes: To be ‘comfortable’ or not to be?

It has been argued that in international arbitration the standard of proof has an impact on the form and not on the substance of a dispute.[1] However, in cases of corruption and particularly in match-fixing disputes, the determination of the standard of proof is significant, since the application of a different standard may lead the CAS to adopt a different substantive conclusion on the merits.[2] Considering, also, the severity of the ineligibility sanction imposed to a club for being involved in an act or an attempt of match-fixing, it is important to assess the emerging trends of the CAS jurisprudence in setting this standard.

The CAS Code does not define the applicable standard of proof in CAS proceedings. As a result, sports-governing bodies may explicitly specify a pre-determined standard of proof in their regulations. Indeed, in the Bin Hammam, Köllerer and Adamu cases, the CAS recognized the autonomy of a sports federation in determining the applicable standard of proof[3] by acknowledging that ‘in the absence of any overarching regulation, each association can decide for itself which standard of proof to apply’. Specifically, in the context of UEFA match-fixing proceedings, UEFA has embedded the standard of ‘comfortable satisfaction’ as the applicable standard of proof in Articles 2.05 of the UEFA Champions League (UCL) Regulations and 2.08 of the UEFA Europa League (UEL) Regulations. However, even in cases where the standard of proof is enshrined in the applicable regulations, the CAS is not impeded to deviate from this standard. In any case, it is interesting to analyse the reasoning of the panels in coming to the conclusion that the comfortable satisfaction standard or another standard of proof is applicable.

The first time the CAS was called to adjudicate on the standard of proof to be used in match-fixing disputes was in the Pobeda case.[4] Since then, in a number of awards, including the most recent example of the Turkish cases, the CAS has attempted to establish certain general principles on the standard of proof to be applied in match-fixing cases. However, this has not been done in an entirely consistent way.

In the Fenerbahçe case, the Panel determined the comfortable satisfaction as the standard applicable in the event of a maximum one year period of ineligibility to participate in the UEFA CL or UEFA EL, namely in case of application of Articles 2.05 UCL or 2.08 UEL. Nevertheless, to determine the standard of proof when Articles 2.06 UCL or 2.09 UEL apply, in absence of a standard explicitly provided, the CAS referred to Swiss civil law cases and to the CAS jurisprudence. In fact, the panel observed a contradiction. While according to Swiss civil law cases the standard to be applied is the ‘beyond reasonable doubt’, the CAS jurisprudence, making an analogy to doping cases, has found that the applicable standard of proof in match-fixing cases should be ‘comfortable satisfaction’. The CAS jurisprudence has justified this departure from the commonly applicable standard of proof in civil cases to the reduced standard of comfortable satisfaction by referring to the ‘restricted investigative powers of sports governing bodies’[5]and to the fact that in corruption cases the parties involved seek evasive means to escape from sanction.[6] The Fenerbahçe panel acknowledged the difficulties of proving an occurrence of match-fixing in the case at hand, since UEFA had access to circumstantial evidence only and concluded that the reduced standard of comfortable satisfaction had to be applied.

A similar approach was adopted in the Besiktas case. Although Article 2.08 UEL Regulations explicitly provided for the standard of comfortable satisfaction, the panel referred extensively to the match-fixing related CAS jurisprudence and particularly to the Metalist case[7] in order to justify the application of the comfortable satisfaction standard. Interestingly enough, although the Appellant claimed that in this case UEFA and the CAS had access to the broad investigatory powers of the Turkish authorities and therefore the beyond any reasonable doubt standard should have applied, the Besiktas panel declared that the pure civil character of the CAS proceedings excludes per se the application of a standard of proof applicable in criminal proceedings.

Finally, the Eskişehirspor panel confirmed the application of the comfortable satisfaction standard, which is in line with the existing CAS jurisprudence. By contrast to the Besiktas case, the Eskişehirspor panel relied on the wording itself of Article 2.08 and then went a step further by elaborating the meaning of the comfortable satisfaction standard. Specifically, the comfortable satisfaction standard was defined as a ‘kind of sliding scale’ based on the seriousness of the allegation. In practice this means that ‘the more serious the allegation and its consequences, the higher certainty the Panel would require to be comfortable satisfied’.[8] The comfortable satisfaction standard, therefore, requires that the offence be demonstrated to a higher level than a mere balance of probability but less than proof beyond a reasonable doubt bearing in mind the seriousness of the allegation which is being made. In this light, considering the serious repercussions of being found guilty of match-fixing and particularly the sizeable economic consequences due to missing out on the Europa League or Champions League competitions, the comfortable satisfaction standard provides sufficient safeguard to the football clubs.[9]

The comfortable satisfaction fits better disciplinary proceedings, where the burden of proof must be proportionate to the sanction imposed. At this point, however, a paradox emerges. Taking into consideration the CAS declaration in the Eskişehirspor case of the administrative character of the ineligibility measure under Article 2.08 UEL Regulations, it comes as a surprise that the CAS applies a standard of proof, which in principle is linked to disciplinary proceedings. This transposition can be explained by the fact that, according to the CAS, the UEFA DR still apply in procedural matters. However, the author of this commentary is of the opinion that the CAS falls prey to a contradiction. Having identified the enforcement of Article 2.08 as administrative, the CAS distinguished between substance and procedure in a controversial way, by applying to the later the comfortable satisfaction standard usually used in the framework of disciplinary proceedings. This blurs again the line between administrative and disciplinary measures, and raises the question whether the CAS can cherry pick procedural elements from disciplinary proceedings.

More importantly, the Eskişehirspor assessment seems to undermine the ratio itself of the distinction between administrative and disciplinary measures and the qualification of article 2.08 as administrative. As the Fenerbahçe panel remarked, the bifurcation of the proceedings regarding the administrative measure and the proceedings in respect of the disciplinary measure can be justified by the necessity of having to act quickly in respect of the administrative measure in order to protect the integrity of the competition, while the imposition of the final and appropriate disciplinary measure might require a more comprehensive evaluation of the case. In this sense, due to the urgency of rendering a club ineligible as a result of its involvement in match-fixing, a lower standard than the comfortable satisfaction could be tolerated, namely the standard of balance of probability.

It seems, therefore, that in the match-fixing framework the CAS is called to reconcile two contradictory but equally overriding aims: the due process concerns generally embraced by the CAS and the fundamentality of the fight against match-fixing in the eyes of UEFA. In the Eskişehirspor case, and in previous match-fixing cases, the CAS opted for a standard of proof in line with the intensity of the administrative measure adopted, a standard that safeguards the due process rights of a club to the detriment of systematic coherency. 

Admissibility and evaluation of evidence in match-fixing disputes

With regard to the evidentiary measures in match-fixing proceedings, it is well-established jurisprudence that sports federations and arbitral tribunals enjoy considerable discretion and are not necessarily barred from taking into account evidence, which may not be admissible in civil or criminal state courts.[10] 

In the Turkish match-fixing scandal, two issues have been specifically raised: the reliance of the CAS panel on findings of a state court in match-fixing (1) and the admissibility of the use of wiretaps (2).

In both the Fenerbahçe and Besiktas cases, at the time of the CAS proceedings, criminal proceedings were pending before the Turkish Supreme Court. The legal question arising out of these parallel proceedings was whether the CAS panels could rely on the findings of domestic courts. The Fenerbahçe panel took into account that there was no final and binding criminal conviction in domestic courts yet, and, thereby, chose to adopt a slightly independent approach. The panel tried to provide its own evaluation of the facts. However, it concluded that based on the lower standard of comfortable satisfaction the criminal case could be taken into account to corroborate the conclusion reached by UEFA, namely that one of the Fenerbahçe’s officials was suspected of being involved in match-fixing.[11] On the other hand, the Besiktas panel using the Oriekhov[12] case as a point of reference argued that due to the restricted investigative powers of UEFA and the CAS, the panel should be able to rely on domestic courts’ decisions. It noted, however, that the CAS should not blindly rely on a particular national decision, but rather assess and evaluate all the evidence available in the context of its own case. While the two panels justified the use of findings of a state court in a different way, their approach reflects a rather cautious approach of the CAS when extending a criminal conviction to a disciplinary conviction the readiness of the CAS to import evidentiary material from national courts even though it is to do so in a rather cautious manner, weary of the disciplinary nature of the case presented to its jurisdiction.

As far as the use of wiretaps is concerned, the Eskişehirspor case is adding to a series of CAS awards allowing wiretaps recordings as an admissible type of evidence. After having conducted the ‘balancing exercise’, which was introduced in the Fusimalohi[13] case and taking into account the limited investigative powers of UEFA, the CAS concluded that the inclusion of evidence unlawfully obtained is outweighed by the interests of UEFA in uncovering the truth in match-fixing cases. In this light, the use of wiretaps should be admissible as the only evidentiary medium susceptible to ascertain the factual truth. The CAS, therefore, confirmed once again its growing concern to support the fight against match-fixing with all the possible evidentiary means available in its legal toolkit. 

Conclusive Remarks

A series of CAS awards over the past years have addressed procedural and substantial matters related to match-fixing cases. Some of the issues discussed above, i.e. the applicable standard of proof and the evidentiary means accessible in match-fixing cases, seem to be solidly established. Two important conclusions can be drawn with regard to CAS jurisprudence procedural matters: firstly, it is unlikely that the CAS would deviate from a standard of proof enshrined expressively in the regulations of sports-governing bodies and secondly, with regard to the admissibility of evidence, future CAS panels are likely to take into account the difficult position of federations when investigating match-fixing offences.

There are nevertheless a number of issues still open for discussion. In the Eskişehirspor case the CAS attempted to clarify the legal nature and scope of Article 2.08, drawing a clear line between administrative and disciplinary measures. However, by applying UEFA DR in procedural matters, the CAS maintains alive the uncertainty over the real nature of the ineligibility imposed by Article 2.08: is it an administrative measure or a disciplinary sanction? It seems that the CAS is willing to confer an administrative flavour to the ineligibility measure, but at the same time it attempts to ease the draconian economic consequences of this measure by imposing a relatively strict burden of proof on the shoulder of UEFA.

After all, and despite the CAS’s willingness to effectively support the fight against match-fixing, it seems that - for the moment at least - the CAS is not willing to adopt a Machiavellian ‘the end justifies the mean’ approach, namely an approach where due process concerns would come entirely short.

[1] F Rodriguez, ‘ICCA 2014. Standard of Proof: A plea for Precision or an Unnecessary Remedy?’ (http://kluwerarbitrationblog.com/blog/2014/04/10/icca-2014-standard-of-proof-a-plea-for-precision-or-an-unnecessary-remedy/).

[2] E Barak and D Koolaard, ‘Match-fixing. The aftermath of Pobeda-what have the past four years brought us?’ 18 (http://www.tas-cas.org/d2wfiles/document/5890/5048/0/Bulletin202014-120final.pdf).

[3] A Rigozzi and B Quinn, ‘Evidentiary Issues before CAS’ (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2438570), 24.

[4] CAS 2009/A/1920, FK Pobeda, Aleksandar Zabrcanec, Nicolce Zdraveski v UEFA.

[5] CAS 2010/A/2172, Oleg Oriekhov v UEFA.

[6] CAS 2009/A/1920 (n 4).

[7] CAS 2010/A/2267-2281, Football Club “Metalist” et al. v. FFU.

[8] CAS 2013/A/3256, Fenerbahçe Spor Kubülü v UEFA, para 123.

[9] CAS 2004/A/607, B. v. International Weightlifting Federation (IWF), para 34.

[10] CAS 2011/A/2425, Ahongalu  Fusimalohi v FIFA, para 79.

[11]CAS 2013/A/3256 (n 8), para 543-544.

[12] CAS 2010/A/2172 (n 5).

[13] CAS 2011/A/2425 (10), para 80.