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. 3: The Curious Non-Application of Training Compensation to Women’s Football – By Rhys Lenarduzzi

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.

 

As recently as September 2020, questions were raised in the European Parliament on the non-application of training compensation to women’s football. Whilst this blog will predominantly consider potential inconsistencies in reasoning for and against training compensation in men’s and women’s football, the questions before the Commission were largely on the theme of disrespect and discrimination. Somewhat unfortunately, the questions raised were side-stepped, with Ms Gabriel (Commissioner for Innovation, Research, Culture, Education and Youth) simply stating that: “The TFEU does not give the Commission the competence to interfere in the internal organisation of an independent international organisation such as FIFA.” This might be true in theory, though one might feel some degree of uneasiness if privy to the Commission’s role in the 2001 FIFA regulatory overhaul.

It is currently explicit in the regulations and the commentary, that in women’s football, signing clubs are not required to compensate training clubs for developing players, through the training compensation mechanism that exists in men’s football. Though it is a contentious comment and as will be expanded below, this may not have always been the case.

At Article 20 of the FIFA Regulations on the Status and Transfer of Players (RSTP), one will find that the principles of training compensation shall not apply to women’s football. Further, in FIFA’s recently released Women’s Football Administrator Handbook (the handbook), it states that disputes relating to training compensation are limited for the moment to male players only.[1]

Regulations on solidarity contributions on the other hand do apply to women’s football, but given transfer fees are not so common, the use of the mechanism is not either. As an indication of how uncommon the activation of the solidarity contribution mechanism in women’s football might be, FIFA reported in the handbook just four claims with the Players’ Status Department in 2016 (three claims involving the same player), and zero since.[2] That is in comparison to hundreds of claims made per season in men’s football, where signing and owing clubs had not fulfilled their obligation to pay the solidarity contribution.

Given the aforementioned, this blog will largely focus on training compensation and how it came to be the case that this mechanism, often presented as critical in the context of men’s football, does not apply in women’s football. To do so, I will first discuss the reasoning advanced in an unpublished CAS award, which one may reasonably suspect played a fundamental role in shaping the current exemption. I will then turn to FIFA’s timely response to the award and the adoption of its Circular No. 1603. Finally, I will point out the disconnect in FIFA’s decision to adopt two radically different approaches to the issue of training compensation in male and female professional football. More...


New Event! Zoom In on Transnational Sports Law - Blake Leeper v. IAAF - 4 December at 4pm (CET)

The Asser International Sports Law Centre in collaboration with Dr Marjolaine Viret is launching a new series of zoom webinars on transnational sports law: Zoom In. The first discussion (4 December at 16.00) will zoom in on the recent arbitral award delivered by the Court of Arbitration for Sport (CAS) in the Blake Leeper v. International Association of Athletics Federations (IAAF) case.

In this decision, reminiscent of the famous Pistorius award rendered a decade ago, the CAS panel ruled on the validity of an IAAF rule that places the burden on a disabled athlete to prove that a mechanical aid used to compete in IAAF-sanctioned competitions does not give them an overall competitive advantage. While siding with the athlete, Blake Leeper, on the burden of proof, the CAS panel did conclude that Leeper’s prosthesis provided him an undue advantage over other athletes and hence that the IAAF could bar him from competing in its events.

To reflect on the key aspects of the decision and its implications, we have invited scholars with different disciplinary backgrounds to join the zoom discussion. 

Confirmed guests

 Moderators


The webinar is freely available, but registration here is necessary.

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

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

Pistorius revisited: A comment on the CAS award in Blake Leeper v. IAAF - By Marjolaine Viret

On 23 October 2020, a panel of the Court of Arbitration for Sport (‘CAS’) rendered an award in the matter opposing Mr Blake Leeper (‘Mr Leeper’ or ‘the Athlete’) to the International Association of Athletics Federation (‘IAAF’).[1] The CAS panel was asked to make a ruling on the validity of the IAAF rule that places on a disabled athlete the burden to prove that a mechanical aid used to compete in IAAF-sanctioned competitions does not give such athlete an overall competitive advantage.

The award is remarkable in that it declared the shift of the burden of proof on the athlete invalid, and reworded the rule so that the burden is shifted back on the IAAF to show the existence of a competitive advantage. Thus, while the IAAF won its case against Blake Leeper as the panel found that the sport governing body had discharged its burden in casu, the outcome can be viewed as a victory for disabled athletes looking to participate in IAAF-sanctioned events. It remains to be seen how this victory will play out in practice. Beyond the immediate issue at stake, the case further presents an illustration of how – all things equal – assigning the burden of proof can be decisive for the real-life impact of a policy involving complex scientific matters, as much as the actual legal prerequisites of the underlying rules.

This article focuses on some key aspects of the award that relate to proof issues in the context of assessing competitive advantage. Specifically, the article seeks to provide some food for thought regarding burden and degree of proof of an overall advantage, the contours of the test of ‘overall advantage’ designed by the CAS panel and its possible bearing in practice, and potential impact of the ruling on other areas of sports regulations such as anti-doping.

The award also analyses broader questions regarding the prohibition of discrimination in the regulation of sports, as well as the interplay with international human rights instruments such as the European Convention on Human Rights (‘ECHR’), which are not explored in depth here. More...

Revisiting FIFA’s Training Compensation and Solidarity Mechanism - Part. 2: The African Reality – By Rhys Lenarduzzi

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.


Having considered the history and justifications for the FIFA training compensation and solidarity mechanisms in my previous blog, I will now consider these systems in the African context. This appears to be a worthwhile undertaking given these global mechanisms were largely a result of European influence, so understanding their (extraterritorial) impact beyond the EU seems particularly important. Moreover, much has been written about the “muscle drain” affecting African football and the need for such drain to either be brought to a halt, or, more likely and perhaps more practical, to put in place an adequate system of redistribution to ensure the flourishing of African football that has essentially acted as a nursery for European football for at least a century. In the present blog, I intend to draw on my experiences as a football agent to expand on how FIFA’s redistributive mechanisms function in practice when an African player signs in Europe via one of the many kinds of entities that develop or purport to develop talent in Africa. I will throughout address the question of whether these mechanisms are effective in a general sense and more specifically in relation to their operation in Africa.More...



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

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.


The Headlines

Aguero and Massey-Ellis incident: An Opportunity for Change and Education?

In mid-October a clip went viral of Argentinian star Sergio Aguero putting his hands on sideline referee, Sian Massey-Ellis. A heated debate ensued in many circles, some claiming that Aguero’s conduct was commonplace, others taking aim at the appropriateness of the action, around players touching official and a male touching a female with an unsolicited arm around the back, the squeeze and pull in. Putting the normative arguments aside for a moment, the irony of the debate was that all sides had a point. Football, almost exclusively, has grown a culture of acceptance for touching officials despite the regulations. Male officials who have let such conduct slide, have arguably let their female colleague down in this instance.

Whilst a partial defence of Aguero might be that this kind of conduct takes place regularly, the incident could serve as a learning experience. If Massey-Ellis’ reaction was not enough, the backlash from some of the public might provide Aguero and other players the lesson, that touching a woman in this way is not acceptable.

Returning to football, the respect and protection of officials in sport, the key here appears to be cracking down on touching officials entirely. This is not a foreign concept and football need only look at the rugby codes. Under no circumstances does the regulations or the culture permit that a player from the rugby codes touch a referee. It is likely the case that the obvious extra level of respect for officials in these sports derives from a firm culture of no touching, no crowding officials, communicating with officials through the team captain only, with harsh sanctions if one does not comply.

The Football Association of England has decided no action was necessary, raising questions of how seriously they take the safety of officials, and gender issues. This is ultimately a global football issue though, so the confederations or international bodies may need step in to ensure the protections that appear at best fragile.  


Rugby Trans issue

The World Rugby Transgender guideline has been released and contains a comprehensive unpacking of the science behind much of the regulatory framework. Despite many experts applauding World Rugby on the guidelines and the extensive project to reach them, the England Rugby Football Union is the first to defy the World Rugby ruling and transgender women will still be allowed to play women’s rugby at all non-international levels of the game in England for the foreseeable future. This clash between national bodies and the international body on an important issue is concerning and will undoubtedly be one to keep an eye on.

 

CAS rejects the appeal of Munir El Haddadi and the Fédération Royale Marocaine de Football (FRMF)

The refusal to authorise a footballer to change national federation is in the headlines with the CAS dismissing the appeal of the player and Moroccan federation, confirming the original determination of the FIFA Players’ Status Committee.

This has been given considerable recent attention and seemingly worth following, perhaps best summed up by FIFA Director of Football Regulatory, James Kitching, where in a tweet he notes: “The new eligibility rules adopted by the FIFA Congress on 18 September 2020 have passed their first test. We will be publishing our commentary on the rules in the next fortnight. Watch this space.” More...



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

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. More...



Invalidity of forced arbitration clauses in organised sport…Germany strikes back! - By Björn Hessert

Editor's note: Björn Hessert is a research assistant at the University of Zurich and a lawyer admitted to the German bar.

 

The discussion revolving around the invalidity of arbitration clauses in organised sport in favour of national and international sports arbitral tribunals has been at the centre of the discussion in German courtrooms.[1] After the decisions of the German Federal Tribunal[2] (“BGH”) and the European Court of Human Rights[3] (“ECtHR”) in the infamous Pechstein case, this discussion seemed to have finally come to an end. Well…not according to the District Court (LG) of Frankfurt.[4] On 7 October 2020, the District Court rendered a press release in which the court confirmed its jurisdiction due to the invalidity of the arbitration clause contained in the contracts between two beach volleyball players and the German Volleyball Federation[5] (“DVV”) – but one step at a time. More...

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


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. More...



The Specificity of Sport - Comparing the Case-Law of the European Court of Justice and of the Court of Arbitration for Sport - Part 2 - By Stefano Bastianon

Editor’s note: Stefano Bastianon is Associate Professor in EU Law and EU sports law at the University of Bergamo and lawyer admitted to the Busto Arsizio bar.


1. EU law and the CAS case-law

Bearing in mind these questions, it is possible to affirm that under EU law, the specificity of sport

i) refers to the inherent characteristics of sport that set it apart from other economic and social activities and which have to be taken into account in assessing the compatibility of sporting rules with EU law; and

ii) under EU law these inherent characteristics of sport must be  considered on a case by case  basis, per the Wouters test as developed by the ECJ in the Meca Medina ruling.

Both aspects can be found in the CAS case-law too, although the CAS case-law shows some remarkable differences and peculiarities. From a general point of view, the application of the principle of specificity of sport in the CAS case-law represents an aspect of the more general issue related to the application of EU law by the CAS. However, the purpose of this paper is not to fully examine if and to what extent the CAS arbitrators apply EU law rules on free movement and competition; rather, the aim is to analyse the way the CAS deals with the concept of the specificity of sport, highlighting similarities and differences compared to the ECJ.

Taking for granted that ‘a CAS panel is not only allowed, but also obliged to deal with the issues involving the application of [EU] law’,[1] as far as the compatibility of sporting rules with EU law is concerned the CAS case-law shows different degrees of engagement. For instance, in the ENIC award concerning the so-called UEFA integrity rule, the CAS panel went through a complete competition-law analysis in perfect harmony with the Wouters et al. ruling by the ECJ.[2] On the contrary, in the above-quoted Mutu case, the issue of compatibility of the FIFA’s transfer regulations with EU competition law was analysed in a rather simple way, merely stating that the FIFA rules at stake were not anti-competitive under EU competition law without giving any reason to support this conclusion. More recently, in the Galatasaray and Milan A.C. awards, concerning the UEFA’s financial fair-play regulations, the CAS  applied a detailed analysis of EU competition law. However, in both cases, according to the CAS the proportionate character of sanctions listed in the UEFA’s financial fair-play regulations cannot affect the evaluation of the legitimacy of these regulations under Art. 101 TFEU. This conclusion represents a clear breaking point with respect to the ECJ case-law, according to which the evaluation of the restrictive effects of a rule necessarily presupposes the analysis of the proportionate character of the sanction imposed in the event of a violation of that rule as well.[3]   In regard to EU free movement, the CAS case-law tends to be less analytical in terms of the principle of proportionality. For instance, in the RFC Seraing award  which concerned both EU free movement and competition law, the CAS panel mainly focused on the legitimate objectives of the contested rule (FIFA’s ban on Third-Party Ownership – TPO), merely affirming that the restrictive measures under EU free movement were justified and inherent in the pursuit of those objectives.More...



Asser International Sports Law Blog | The CAS jurisprudence on match-fixing in football: What can we learn from the Turkish cases? - Part 2: The procedural aspects. 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 2: The procedural aspects. By Thalia Diathesopoulou

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 Machiavellianthe 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.

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