The summer saga surrounding Luis
Suarez’s vampire instincts is long forgotten, even though it might still play a
role in his surprisingly muted football debut in FC Barcelona’s magic triangle.
However, the full text of the CAS award in the Suarez
case has recently be made available on CAS’s website and we want to grasp this
opportunity to offer a close reading of its holdings. In this regard, one has
to keep in mind that “the object of the appeal is not to request the complete
annulment of the sanction imposed on the Player” (par.33). Instead, Suarez and
Barcelona were seeking to reduce the sanction imposed by FIFA. In their eyes, the
four-month ban handed out by FIFA extending to all football-related activities
and to the access to football stadiums was excessive and disproportionate. Accordingly,
the case offered a great opportunity for CAS to discuss and analyse the
proportionality of disciplinary sanctions based on the FIFA Disciplinary Code (FIFA DC).
I.
Admissibility: Can FC Barcelona join
the appeal?
As a preliminary matter, FIFA was
contesting the right of FC Barcelona to take part in the appeal against the
decision. The Panel judged that “in light of the specific circumstances of the
case, taking into account the impact of the specific sanction imposed, the Panel
finds that the Club is sufficiently affected by the Appealed Decision and that
the Club has a tangible interest of financial and sporting nature at stake”
(par. 47). In other words, “in a case where the FIFA authorities are issuing a
sanction against a player and such sanction affects direct financial interests
of a club, such club must have the possibility to appeal (within the applicable
deadline) such decision in order to be able to protect its legal interests,
even if this interests became actual after the challenged decision was issued”
(par.48). In short, the right to appeal to CAS is extended to the club of the player,
even when he is not party to the original proceedings.
II.
Merits: Is it the right sanction?
a.
The
applicability of Art. 57 FIFA DC
The first problem raised was “whether
the actions of the Player at the Match constitute […] an unsporting behaviour to be sanctioned […] under art. 57 FIFA DC”
(par.69). The club and the player were invoking various well-known principles
of criminal law (ne bis in idem and nulla poena sine lege certa) against it,
but the arbitrators decided to reject these objections (par.70-74).
Interestingly, the Panel held that “it is not necessary for the principles of
predictability and legality to be respected that the football player should
know, in advance of his infringement, the exact rule he may infringe, as well
as the measure and kind of sanction he is liable to incur because of the
infringement”. Furthermore, “[t]he fact that the competent body applying the
FIFA DC has the discretion to adjust the sanction mentioned in the rules deemed
applicable to the individual behaviour of a player breaching such rules is not
inconsistent with those principles” (par.73). Yet, the Panel was also of the
opinion that “the wording of art. 57 FIFA DC shows that this provision contains
a mere general clause, trying to cover all possible conducts against fair play,
which are not yet covered by other articles, or “consumed” by the application
of any other provision, of the FIFA DC”. Hence, “to the extent the action of
biting (in the circumstances in which it occurred at the Match) falls within
the scope of art. 48 par. 1 lit. d) FIFA DC (as all the parties concede), since
the kinds of “assaulting” therein described (“elbowing, punching, kicking”) are
expressly not exhaustive (“... etc.”), the same action could not be comprised
in the scope of art. 57 FIFA DC, even though the Player’s assaulting in the
case at hand, being a misconduct, is also against fair play”. Thus, “the
punishment of the Player is already and fully covered by the application of
art. 48 par. 1 lit. d) FIFA DC – with no room left for art. 57 FIFA DC, wrongly
applied by the FIFA disciplinary bodies” (par.77). In short, article 48 par. 1
lit. d) FIFA DC is deemed the lex
specialis to art. 57 FIFA DC. Therefore, “any sanction going beyond those
allowed by art. 48 par. 1 lit. d) FIFA DC would be inappropriate to the
peculiarities of the case and would be disproportionate” (par.78).
b.
The
existence of mitigating factors and aggravating circumstances
The claimants argued that the FIFA
disciplinary bodies did not take in account the mitigating factors and
wrongfully assumed aggravating circumstances. The Panel rebuts this line of
thinking. Indeed, regarding “the question of the relevance to be given to the
Player’s remorse as a mitigating factor, the Panel, looking at the
non-contested facts and the Parties’ allegations, finds that the margin of
discretion the FIFA Appeal Committee had to judge this case was not exceeded,
and that it was correctly exercised” (par.81). The arbitrators find that “the
remorse of an offender can hardly be given any weight when the same offender
had in precedent occasions committed the same infringement and in those
occasions had already expressed its remorse and pledged not to repeat that
infringement” (par.83). Moreover, “the remorse and apologies shown by the
Player after having already been sanctioned cannot have the same impact as a
remorse expressed immediately after the event and before any disciplinary
proceeding is started and/or sanction is imposed” (par.83). Additionally, “the
disciplinary bodies could take into account the fact that the Player had already
committed in two preceding occasions the very same infringement, and
irrespective of the level (national) of the competition in which they had
occurred” (par.87). Thus, the Panel is of the view that the discretion granted
to the FIFA Appeal Committee by art.39 par. 4 FIFA DC in weighing the
mitigating factors and aggravating circumstances was properly exercised
(par.90). The sanction against Luis Suarez is not based on an erroneous
analysis of the factual situation. Indeed, remorse can only come into play if
immediately voiced, while the concept of recidivism should be interpreted
widely as including a similar wrongdoing in the framework of any football
competition.
c.
The
proportionality of the ban
The key argument raised by the
appellants against the length (and nature) of the FIFA sanctions imposed on
Luis Suarez concerned the proportionality of the sanctions (par.91-108). In
that regard, FC Barcelona and Suarez argued that “the biting of the Player is
not an act of extreme violence and that there was no damage or injury caused to
the opposing player, as he was able to continue to play without medical
assistance” (par.93), while FIFA dismissively stated that “CAS should not
correct any of its decisions if it is not considered to be “evidently and
grossly disproportionate to the offence”” (par.94). The Panel rejected both analyses.
On the one hand, it held that “biting is absolutely foreign to football and
therefore to be considered as a sort of aggravated assault” and “the fact that
the opposing player was not injured could not be considered a mitigating factor
in the case at hand “(par.95). However, on the other hand, it also held that “the
Player is responsible (only) for the violation of art. 48 par. 1 lit. d) FIFA
DC” (par.96). Therefore, “the four (4) month ban on taking part in any
football-related activity and the prohibition of entering the confines of any
stadiums, not allowed for a violation of art. 48 par. 1 lit. d) FIFA DC, could
not be applied” (par.96). Nevertheless, due to its specific nature as an
intentional assault, the biting “deserves a sanction well above the minimum
level of a two match suspension and a fine indicated as such in art. 48 FIFA DC”
(par.97).
In conclusion, “the Panel finds that
the four (4) month ban of the Player on taking part in any football-related
activity and the prohibition of entering the confines of any stadiums are not
contemplated by art. 48 par. 1 lit. d) FIFA DC, and are also not appropriate to
the infringement committed by the Player on the pitch” (par.104). Moreover, “the
FIFA Disciplinary Committee and the FIFA Appeals Committee did not take into
consideration that with the four (4) months ban of the Player on taking part in
any football-related activity and from entering the confines of any stadiums,
the Player actually was prohibited to train with a team and keep his fitness in
order to be ready to start playing for the Club after and above this four (4)
month ban” (par.105). Furthermore, “this prohibition appears to impact, without
any legitimate justification in the case at hand, on the general possibility
for the Player to derive profits from his image as football player – beyond the
simple participation in football matches” (par.105). Besides, “no justification
was offered in the Appealed Decision (beyond a generic reference to the gravity
of his actions) in support of the specific sanction of the stadium ban– a
measure usually imposed to hooligans, which in the case of the Player does not
seem to pursue any legitimate purpose” (par.106). In light of all of this, the Panel
decides “to replace the sanction of the prohibition on exercising any
football-related activity for four (4) months with the sanction of a match ban
(applicable to official matches played at any level) for the same period”
(par.107).
Conclusion
Luis Suarez is long back on the
pitch and the practical relevance of this discussion is very limited for his
future career. Yet, interesting insights can be derived from this award.
Litigants in disciplinary cases involving FIFA will be interested to know that
a Club, even if it is not directly part to a dispute in front of FIFA’s
disciplinary bodies, might have a legitimate right to appeal a decision
rendered against one of its players. More importantly, the systematic
interaction between article 48 and 57 FIFA DC has been clarified. Article 48
FIFA DC constitutes a lex specialis
to article 57 FIFA DC and, thus, both cannot be applied cumulatively to
sanction a player more heavily. This is not to say that a very peculiar
offense, like the one at hand, will not face a tough sanction. Nonetheless, a
sanction imposing a drastic stadium or football-related activity ban,
threatening the player’s ability to derive any revenues from his work, will be
deemed disproportionate unless it is thoroughly justified. This is a clear warning
not only to FIFA’s disciplinary bodies but also to any Sports Governing Body:
the harsher you get, the stronger the supporting reasoning must be.