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.
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. 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
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.
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
to the fact that in corruption cases the parties involved seek evasive means to
escape from sanction.
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
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
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
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.
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.
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
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.
On the other hand, the Besiktas panel
using the Oriekhov
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
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.
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
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.
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/).
 E Barak and D Koolaard,
‘Match-fixing. The aftermath of Pobeda-what have the past four years brought
 A Rigozzi and B Quinn,
‘Evidentiary Issues before CAS’(http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2438570), 24.
 CAS 2009/A/1920, FK Pobeda,
Aleksandar Zabrcanec, Nicolce Zdraveski v UEFA.
2010/A/2172, Oleg Oriekhov v UEFA.
2009/A/1920 (n 4).
2010/A/2267-2281, Football Club “Metalist” et al. v. FFU.
 CAS 2013/A/3256, Fenerbahçe Spor Kubülü v UEFA, para 123.
 CAS 2004/A/607, B. v.
International Weightlifting Federation (IWF), para 34.
2011/A/2425, Ahongalu Fusimalohi v FIFA, para 79.
CAS 2013/A/3256 (n 8), para 543-544.
2010/A/2172 (n 5).
2011/A/2425 (10), para 80.