Bulletin TAS

CAS Bulletin
Boletín del TAS
2024/01
 TRIBUNAL ARBITRAL DU SPORT/COURT OF ARBITRATION FOR SPORT/TRIBUNAL
ARBITRAL DEL DEPORTE
______________________________________________________________________________

Bulletin TAS
CAS Bulletin
Boletín del TAS
2024/1

Lausanne 2024
 Table des matières/Table of Contents/Indice de Contenidos
Editorial ......................................................................................................................................................... 3

Articles et commentaires / Articles and Commentaries / Artículos y comentarios .......................... 5

Safeguarding and beyond - The role of sports regulations, human rights and the balance between
the rights of interested parties in sports investigations and the disciplinary proceedings that arise
from them
Janie Soublière and Björn Hessert ......................................................................................................... 6
Caselaw of the Swiss Federal Tribunal on appeal against CAS awards (2020-23)
Alexis Schoeb ......................................................................................................................................... 33

Jurisprudence majeure / Leading Cases / Casos importantes ............................................................ 53

CAS 2019/A/6594
Cardiff City Football Club Limited v. SASP Football Club de Nantes
26 August 2022 ...................................................................................................................................... 54
CAS 2020/A/7314
Horacio Luis Rolla v. Palermo Football Club S.p.A & Fédération Internationale de Football
Association (FIFA)
12 April 2023 .......................................................................................................................................... 62
CAS 2021/A/7912
Olympiakos Nicosia v. Club Necaxa
15 March 2023........................................................................................................................................ 71
CAS 2021/A/8060
Association Sporting Club Bastiais & SC Bastia v. Fédération Internationale de Football
Association (FIFA) & FSV Mainz 05
25 April 2023 .......................................................................................................................................... 75
CAS 2021/A/8471
Al-Hilal Khartoum Club v. Jesi Last
6 February 2023 ..................................................................................................................................... 83
CAS 2021/A/8531
Mohamed Zakaria Khalil, Soufiane El Mesbahi & Yassir Kilani v. The International Tennis
Integrity Agency (ITIA)
9 March 2023 .......................................................................................................................................... 87
CAS 2022/A/8574
Marcos Lavín Rodríguez v. FC Voluntari
15 March 2023........................................................................................................................................ 92
CAS 2022/A/8582
Dawid Lange v. International Paralympic Committee (IPC)
11 May 2023 ........................................................................................................................................... 97
CAS 2022/A/8592
USD Lavagnese 1919 v. Fédération Internationale de Football Association (FIFA)

1
 17 April 2023 (operative part of 20 June 2022) ............................................................................... 102
CAS 2022/A/8621
Nikola Djurdjic v. Chengdu Rongcheng Football Club LTD
30 December 2022............................................................................................................................... 107
CAS 2022/A/8737
Hellas Verona FC S.p.A v. FC Sellier and Bellot Vlasim & Udinese Calcio S.p.A & Fédération
Internationale de Football Association (FIFA)
7 March 2023 ........................................................................................................................................ 116
CAS 2022/A/9033
International Tennis Federation (ITF) v. Mikael Ymer
17 July 2023 .......................................................................................................................................... 124
CAS 2022/A/9113
Nairo Alexander Quintana Rojas v. Union Cycliste Internationale (UCI)
5 June 2023 (operative part of 3 November 2022) ......................................................................... 130
CAS 2022/A/9219
Jubilo Co. LTD v Fédération Internationale de Football Association (FIFA)
14 June 2023 (operative part of the award of 22 December 2022) .............................................. 135

Jugements du Tribunal fédéral / Judgements of the Federal Tribunal / Sentencias del Tribunal
federal ........................................................................................................................................................ 140
4A_22/2023
16 mai 2023
A. c. Professional Tennis Integrity Officers .................................................................................... 141
4A_170/2023
28 juin 2023
Fédération Internationale de Football Association c. A. ............................................................... 146
4A_254/2023
12 juin 2023
A. C. Fédération Internationale d’Escrime ................................................................................... 154
4A_580/2022
26 avril 2023
A. c. B. & Fédération Internationale de Football Association ...................................................... 158

Informations diverses / Miscellanous / Información miscelánea ..................................................... 161

Publications récentes relatives au TAS/Recent publications related to CAS / Publicaciones
recientes relacionadas con el CAS ..................................................................................................... 162

2
Editorial

Between the last internal CAS seminar in The recruitment of additional staff in 2023,
Budapest in 2019 and the recent one held in made necessary by the constant increase in the
Geneva, the CAS has gone through a major number of cases registered by the CAS – more
period of adaptation. This four-year cycle than 900 cases registered in 2023 - brings the
marked by the COVID-19 pandemic, has led number of CAS employees to 53, all based at
to a major evolution of internal and technical the new CAS premises, at the Palais de
practices, including the development of Beaulieu in Lausanne. The CAS headquarters
hearings by videoconference and e-filing were selected in the competition organized by
systems. Many important changes will occur the magazine Bilan Immobilier and won the
soon in the CAS IT sector; more specifically, 2023 award of the best real estate renovation in
the CAS website will be refreshed, a new e- Suisse romande. This award was granted by a
filing system will be implemented allowing jury of experts in architecture.
automatic filings without prior intervention
form the Court Office, and a new system will We are pleased to publish in this issue an article
host the database for jurisprudence. co-written by Janie Soublière, CAS arbitrator,
Furthermore, a mobile application will be also and Björn Hessert, CAS counsel, entitled
developed simultaneously. “Safeguarding and beyond - The role of sports
regulations, human rights and the balance
Importantly, increasing attention is being paid between the rights of interested parties in
to human rights issues in sport with the sports investigations and the disciplinary
“Guidelines for the hearing of vulnerable proceedings that arise from them”, and an
witnesses and testifying parties in CAS article by Alexis Schoeb, CAS arbitrator,
Procedures” issued by the ICAS in December summarising the caselaw of the Swiss Federal
2023 to recommend best practices in this area. tribunal on appeal against CAS awards for the
Each CAS Panel is encouraged to take these period from 2020 to 2023.
Guidelines into account when it faces a
situation involving vulnerable witnesses, As usual, because most CAS cases are related
bearing in mind its duty to comply with the to football, this new issue of the Bulletin
parties’ right to a fair trial, including the right includes a majority of selected “leading cases”
to be heard and to benefit from equal related to football, that is ten football cases,
treatment. These Guidelines are three doping cases (in equestrian, powerlifting
recommendations with respect to the and cycling respectively), and one case of
implementation of Articles R44.2 and R57 match-fixing in tennis.
(hearing), as well as Articles R46 and R59
(publication of award) of the Code of Sports- At last, summaries of the most recent
related Arbitration (the Code) when there is a judgements rendered in French by the Swiss
vulnerable witness but shall not prevail over Federal Tribunal (SFT) in connection with
the Code. It is noteworthy that these CAS decisions have also been enclosed in this
Guidelines do not constitute mandatory Bulletin. The decision 4A 22/2023 states that
procedural rules and cannot be used by parties the failure to comply with the time limit
seeking to challenge the application or non- referred to in article R59 paragraph 5 of the
application of these Guidelines by any CAS CAS Code does not automatically deprive the
Panel. arbitrators of their power to rule on the merits
of the dispute. In the judgement 4A 254/2023,
the SFT recalls that because the filing on the

3
CAS platform is a condition for the validity of the CAS to hear witnesses via a video
the statement of appeal and not a mere conferencing system neither contravenes
formality, strict compliance with Article R31 of generally recognised fundamental principles
the CAS Code (Notifications and nor leads to an intolerable contradiction with
Communications) is essential for reasons of the sense of justice.
equal treatment and legal certainty. Likewise, in
4A 580/2022, the SFT stresses that if the I wish you a pleasant reading of this new
conditions of article R31 of the CAS Code are edition of the CAS Bulletin.
not met, the CAS Court Office may refuse to
hear the case and there is no formal denial of
justice. Finally, in 4A_170/2023, the SFT states Matthieu Reeb
that the fact that it is materially impossible for CAS Director General

4
_____________________________________________________________________________________

Articles et commentaires
Articles and Commentaries
Artículos y comentarios

5
______________________________________________________________________________
Safeguarding and beyond - The role of sports regulations, human
rights and the balance between the rights of interested parties in
sports investigations and the disciplinary proceedings that arise from
them
Janie Soublière* and Björn Hessert**
______________________________________________________________________________

I. Introduction
II. Basis for the subsequent discussion
A. How did safeguarding become a high profile topic?
B. Who needs to be protected and what legal assistance do they need?
C. Who are the perpetrators?
D. Sports rules and regulations and mandatory statutory provisions
III. Balancing the rights of interested parties in sports investigations
A. What are sports investigations?
B. Undertaking sports investigations
C. The provisional suspension of the alleged rule violator and requests related thereto
IV. The provisional suspension of the alleged rule violator and its stay thereof
V. How to balance the rights of all parties in disciplinary proceedings resulting from sports
investigations
A. Standing to be a party in disciplinary proceedings in first instance and before the CAS in
safeguarding cases
B. Legal aid
C. De novo power in appeals proceedings before the CAS
D. Burden and standard of proof
E. Protection of victims and witnesses
VI. Conclusion
______________________________________________________________________________
I. Introduction stakeholders in an expanded effort to prevent,
uncover and punish wrongdoings of all kinds
Sports lawyers and adjudicators are well aware that threaten the integrity of sport. This has
that properly regulating sport requires been especially prevalent in safe sport matters,
balancing the interests and rights of sporting but also in anti-doping and anti-corruption
associations, their members, athletes of all matters.
levels and ages, athlete support personnel, and
other stakeholders. As the complexity of Sport should be conducted in an “environment
sporting disputes grows, so too does the need that is respectful, equitable and free from all forms of
for investigations and disciplinary proceedings non-accidental violence to athletes”1. This is what is
that protect the rights and interests of all these now widely recognized as “safe sport” or

* Janie Soublière, Attorney-at-Law, CAS Arbitrator. A trained trauma-informed investigator, she has been conducting
sports investigations and disciplinary proceedings in antidoping, safe sport and anti-corruption for over 15 years.
** Björn Hessert, Attorney-at-Law, CAS Counsel. He is the author of the book “Sports Investigations Law and the ECHR”

(Routledge, 2023).
1 Mountjoy et al., ‘The International Olympic Committee (IOC) Consensus Statement: Harassment and abuse (non-

accidental violence) in sport’, Br J Sports Med (2016) 1, 3; see also, e.g., Rule 2 para. 18 of the Olympic Charter; Article 4

6
“safeguarding”. Unfortunately, young athletes organization’s members. In an effort to
and other sportsmen and women are exposed safeguard that such investigations and
on a daily basis to risks of abuse of all kinds. proceedings are conducted within a proper
Menacing perpetrators have been able to legal framework, varying questions arise for
weaponize fear and intimidation without facing lawyers when drafting regulations in an effort
any consequences, their misconduct concealed to balance the interests of all stakeholders
under a widely applied cloak of silence. Recent involved or affected by the same. What are
reports indicate that victims and survivors of, legitimate truth-finding investigatory
inter alia, physical, mental and sexual abuse, measures? Should alleged wrongdoers be
neglect, harassment and discrimination suffer informed of the investigations being conducted
not only from the physical and mental pain that against them? When does the balance of
has been inflicted to them, but also from the interests favor at-risk sportspersons and justify
effect of the lack of clarity, independence and a determination that the protection of their
confidentiality in the reporting process, the substantive and procedural rights supersedes
distrust often shown towards victims and those of others?
survivors upon reporting their complaint, the
inaptitude or straight out failure of sports Once investigations are completed and charges
organizations to carry out thorough and brought against alleged perpetrators, similar
efficacious investigations, and the absence, questions related to the balance of interests of
shortcomings or inadequacies of regulated parties arise for adjudicators when assessing
disciplinary measures and meaningful requests for provisional measures, de novo
consequences for perpetrators if and when hearings and the procedural axiom that the
they are effectively brought to justice. rights of natural justice of all parties must be
protected in disciplinary proceedings to ensure
As a result of growing allegations of abuses of that justice can be carried out.
all kinds, including competition manipulation,
corruption and bribery, fraud or other abuses This article first provides a brief overview of
committed to the detriment of other athletes the terminology and legal landscape. Then it
and the integrity of sport, national and considers the varying rights of individuals
international federations are increasingly involved in safeguarding sports investigations
investigating athletes of all levels and ages, as and sports proceedings, with special attention
well as their support teams. The investigation to minor athletes and the rules and regulations
into safe sport-related misconduct serves that apply to them. Finally, it offers suggestions
different purposes, i.e. (i) to assess the legal on how to balance some differing rights and
merits of a complaint or allegation (ii) to right interests involved in investigating and
the wrong inflicted on the victim where a prosecuting safe sport matters as well as other
complaint is established to the required legal matters like anti-doping and anti-corruption
standard by effectively and proportionally before first instance association tribunals or the
prosecuting the perpetrator and (iii) to prevent Court of Arbitration for Sport2 (“CAS”). While
future maltreatment of any of the the discussion in this paper focuses on internal

of the Fédération Internationale de Gymnasticque 1000/human_rights_documents_uefa_euro_2024.pdf

(“FIG”) Policy and Procedures for Safeguarding and (“HRD UEFA EURO 2024”).
Protecting Participants in Gymnastics (2018); UEFA 2 See e.g. CAS 20210/A/2311 & 2312 Stichting Anti-

and German FA, ‘Human Rights Declaration for UEFA Doping Autoriteit Nederland (NADO) & the
EURO 2024’ (2023), p. 13, availbale at Koninklijke Nederlandsche Schaatsenrijders Bond
https://editorial.uefa.com/resources/0287-
(KNSB) v. Wesley Loomers, award of 22 August 2011;
1974889fe8d8-d387b4a44a67-
CAS 2020/A/6807 Blake Leeper v. International

7
measures and best practices to adopt with The discussion around safeguarding and child
regards to safe sport investigations and safe protection is not entirely new4. Yet, it took one
sport proceedings, it is important to emphasize major scandal to instigate a significant and
that – in the best-case scenario3 – victims and concerted effort to better regulate national and
survivors can also find redress through the international sports federations’ safeguarding
parallel investigations and criminal proceedings rules. Safeguarding rules’ purpose is to
conducted by law enforcement agencies. enshrine the protection of sportspersons by
expressly identifying various misconducts,
II. Basis for the subsequent discussion regulating them and implementing concrete
disciplinary action when a breach of these rules
Investigating and prosecuting safe sport, anti- is uncovered and effectively established.
doping and anti-corruption matters among Arguably, the case of Larry Nassar and USA
others requires a fine balancing act in order to Gymnastics was for safeguarding and child
ensure that the rights of all involved are protection the equivalent of what the so-called
respected, that the integrity of sport is “Festina doping scandal” was for the fight
maintained and that the rules of natural justice against doping. After Joan McPhee and James
and basic legal principles that arise from them P. Dowden published their report5 on the
prevail above all regulations, be they properly Nassar case in December 2018, which was
drafted and implemented or not. Accordingly, echoed to a certain extent by various other
this section looks at (i) the evolution reports published worldwide regarding
safeguarding as a right (ii) the persons whose wrongdoing in gymnastics and other sports6, it
rights need to be protected, (iii) the became evident that more needs to be done by
perpetrators they need to be protected from, sports organizations, national legislators and
who also hold certain rights, and (iv) the law enforcement agencies to ensure that such
applicable substantive sports regulations that wrongdoing can be prevented in the future,
govern all of them. that better mechanisms are set up to report its
occurrence and that perpetrators are more
A. How did safeguarding become a high effectively prosecuted when found liable for
profile topic? the same. A major shift has thus occurred in
the sporting world with the IOC publishing a

Association of Athletics Federations (IAAF), award of (10 December 2018), available at

23 October 2020; CAS 2019/A/6388 Karim https://www.ropesgray.com; see also Anna Whyte, ‘The
Keramuddin v. Fédération Internationale de Football Whyte Review’ (June 2022), available at
Association (FIFA), award of 14 July 2020; https://sportengland-production-files.s3.eu-west-
CAS 2019/A/6669 Sayed Aki Reza Aghazada v. FIFA, 2.amazonaws.com/s3fs-public/2022-
award of 28 April 2022. 08/The%20Whyte%20Review%20Final%20Report%2
3 See K. Benner and J. Macur, ‘Nassar Victims Suing 0of%20Anne%20Whyte.pdf?VersionId=fizNx7wABns
F.B.I. for Early Investigative Failures’ (New York Times, dz5GRldCKl6m6bYcIAqBb (“Whyte Review”).
8 June 2022), available at 6 See the Gymnastics Australia Review (2021), the
https://www.nytimes.com/2022/06/08/us/politics/na Gymnastics New Zealand Cultural Review (2021), the
ssar-fbi-lawsuits.html. Switzerland National Investigation into Rhythmic and
4
Independent, Former Olympic coach gets 17 years for Artistic Gymnastics Incidents (2021), the Dutch
sex attacks (28 September 1995), available at Gymnastics Investigation (2020), the McLaren
https://www.independent.co.uk/news/former- Independent Gymnastics Canada Review (2023)
olympic-coach-gets-17-years-for-sex-attacks- Gymnastics-Report-Jan-22-2023.pdf
1603214.html. (mclarenglobalsportsolutions.com); Independent Mali
5 J. McPhee and J. P. Dowden, ‘The Constellation of
Basketball Abuse Investigation
https://www.mclarenglobalsportsolutions.com/pdf/Fi
Factors Underlying Larry Nassar’s Abuse of Athletes’ baReport-09-2021.pdf.

8
Consensus Report7 and Tool Kit8 for all IOC
sports to implement. Also in the wake of the Risk assessments must be conducted prior to
“me-too movement” sport is now, as a whole, establishing suitable and effective measures for
voicing its commitment to safe sport. The IOC the protection of sportspersons to determine
has further implemented Rule 2 para. 18 of the which sportspersons are at risk and whether
Olympic Charter which states that “The IOC’s the scope of the applicable safeguarding policy
role is to promote safe sport and the protection of athletes applies to them and their perpetrator.
from all forms of harassment and abuse”. As a result
of the importance of this high-profile topic, As a starting point, children and minors are the
many sports organizations have already taken most vulnerable persons within society. This is
important steps in this regard. The wellbeing no different in a sporting environment. Article
and protection of sportspersons is considered 1 of the Convention on the Rights of the
by many sports organizations as a fundamental Child10 (“CRC”) provides that “a child means
legislative and operational objective9 and abuse every human being below the age of eighteen years unless
and harassment are now widely considered to under the law applicable to the child, majority is
be a severe violation of the integrity of sport. attained earlier”. While the CRC refers to
Yet, the sporting community’s attempt to national law as opposed to sports rules and
successfully address and redress these issues regulations, the definition of a child can
has faced various roadblocks, including nevertheless be applied by analogy to sports
questioning whether the rules and regulations regulations. In other words, although most
of national and international sports sports organizations are private entities to
organizations are suitable and effective to whom the CRC and the Convention do not
combat these offences of varying gravity. directly apply (unless a sports organization has
committed itself to respecting the CRC11 which
B. Who needs to be protected and what will be further discussed below), sports
legal assistance do they need? organizations’ rules and regulations generally

7 Mountjoy et al., ‘The International Olympic conjunction with articles 2, 7 and 13 of the FIFA Human
Committee (IOC) Consensus Statement: Harassment Rights Policy (2017 edition); HRD UEFA EURO 2024,
and abuse (non-accidental violence) in sport’, Br J Sports p. 7, in which, inter alia, UEFA and the German FA
Med (2016) 1, 3.
8 Duncan/Kirsty. IOC Toolkit for IFs and NOCs.
recognize that they are “committed to respecting and promoting
Safeguarding athletes from harassment and abuse in all recognised human rights and to aligning all actions during the
sport. 03 November 2017. preparation and staging of UEFA EURO 2024 with the
9
See for example Article 4 lit. c) of the World Aquatics internationally recognised UN Guiding Principles on Business and
(“WAQ”) Constitution (2023 edition) (“The objectives of Human Rights, which have also been put on a legal footing in
World Aquatics are to promote safe Aquatics and the protection German law in the form of the Act on Corporation Due Dilligence
of Athletes from all forms of harassment and abuse”); Article 2.1 Obligations in Supply Chains, and to ensure that human rights
para. 3 and 13 of the FIG Statutes (“The objectives of the are respected, also by third parties.”; see also U. Haas and B.
FIG are to coordinate effort for safe and healthy physical and moral Hessert, ‘Sports Regulations on Human Rights –
developments in gymnastics and the practice of all sports activities Applicability and Self-commitment’ in C. Chaussard, C.
relating to it … to safeguard gymnasts/athletes and other Fortier and D. Jacotot (eds), Le sport au carrefour des droits
participants in gymnastics from any kind of harassment and – Mélanges en l’honneur de Gérald Simon (LexisNexis 2021)
abuse”). 287–307; A. Rigozzi, ‘Sports Arbitration and the
10 UN General Assembly, The Convention on the Rights of European Convention of Human Rights – Pechstein and
the Child, 20 November 1989, Treaty Series vol. 1577, p. beyond’ in C. Müller; S. Besson and A. Rigozzi (eds),
3 (“CRC”). New Developments in International Commercial Arbitration
11 Cf. Article 2.2 of the FIG Statutes (2023 edition); 2020 (Stämpfli 2020) 77-130.
Article 2 of the FIFA Statutes (2023 edition) in

9
recognize that children and minor athletes are they have been better educated and are more
below the age of eighteen years12, irrespective knowledgeable on their rights and
of national laws. Further, the autonomy of responsibilities in the same way as elite
sports organizations allows them to implement athletes). And, Article 19 para. 1 of the
statutory provisions related to the age limit of FIFA Regulations on the Status and Transfer
sportspersons that may be different to some of Players (“FIFA RSTP”) generally prohibits
national laws if this appears necessary to the the transfer of minor football players unless
protection of the integrity of a sporting permitted under the exceptions mentioned in
competition but also for the protection of the para. 2 of the provision.14 The aim of
minor athletes. The purposes of these Article 19 para. 1 of the FIFA RSTP is to
provisions are often to balance the rights of prevent human trafficking and exploitation of
minor athletes to participate in elite sporting young players among others.15
competitions against the importance of
safeguarding these athletes’ mental and The wellbeing of the persons at risk is
physical health, safety and wellbeing. For paramount to safeguarding in sport. Wellbeing
example, the World Anti-Doping Code as part of safeguarding “requires a culture in which
(“WADC”) defines minors as athletes below such values are not just promoted but implemented.
the age of 18, but then further qualifies this by Where standards are potentially breached, it is
referring to athletes below 16 as “protected important that participants feel able to make disclosures
persons” benefiting from specific protections13 to this effect”.16 Safe sport requires sports
and does not consider athletes between the age organizations to establish a reporting system
of 16-18 to be protected persons if they through which whistleblowers and/or
compete at the international level or are victims/survivors can easily and confidentially
included in a registered testing pool (the report any misconduct in order to initiate
implication being that even if they are 16 or 17, investigation against the reported person(s).17

12 See e.g. WADC (2021 edition), Appendix 1 15 See FIFA Commentary (2021 edition), p. 221: “The
Definitions; Article 19 para. 1 FIFA Regulations on the primary objective of article 19 is to protect the welfare of young
Transfer and Status of Players (October 2022 edition); players against exploitation and mistreatment. They aim to ensure
Article 3.11 of the WAQ Rules on the Protection from that minors are provided with a stable environment for training in
Harassment and Abuse (2023 edition). order that they may achieve their potential. At the same time, they
13
See e.g. WADC Definitions, Articles 10.3.1, 10.3.3, recognise the importance of education and of the family unit,
10.6.1.3, 10.14.1 and 20.5.12; CAS OG 22/08 IOC v. particularly for the many young players who do not turn
RUSADA / CAS OG 22/09 WADA v. RUSADA & professional. On the other hand, however, minors should be given
Kamila Valieva / CAS OG 22/10 ISU v. RUSADA, the opportunity to make the most of the sporting opportunities
Kamila Valieva & ROC, award of 17 February 2022,
available to them.”
paras. 195 et seq.; see also WADA, ‘WADA statement
16 Whyte Review, para. 96.
following CAS decision not to reinstate skater’s
17 See e.g. Article 6 of the FIG Policy and Procedures for
provisional suspension’ (14 February 2022), available at
https://www.wada-ama.org/en/news/wada-statement- Safeguarding and Protecting Participants in Gymnastics
following-cas-decision-not-reinstate-skaters- (2018); Article 5.2 of the WAQ Rules on the Protection
provisional-suspension. from Harassment and Abuse (2023 edition); WADA S
14 See e.g. CAS 2015/A/4312 John Kenneth Hilton v.
peak Up!: https://speakup.wada-ama.org/FrontPages/
Fédération Internationale de Football Association Default.aspx?gclid=CjwKCAjw5dqgBhBNEiwA7Prya
(FIFA), award of 9 August 2016; CAS 2016/A/4805 OEhnces1sBShDKLpnwRP_GoAk1W4j2TK3pgnAF5
Club Athlético de Madrid SAD v. Fédération -NqBKOn7XVEoORoC4cQQAvD_BwE; Swiss Sport
Internationale de Football Association (FIFA), award of Integrity:
1 June 2017; CAS 2021/A/7807 Sport Lisboa e Benfica https://www.sportintegrity.ch/en/organization/report
v. Fédération Internationale de Football Association -incident.
(FIFA), award of 28 September 2021.

10
Of course, such reporting mechanisms are only and equality of minor athletes at all levels of the
effective if sports organizations have sporting pyramid and beyond.21
investigative and disciplinary measures in place
to respond appropriately to each complaint.18 Whilst children and minors are particularly
Otherwise reporting systems are nothing more vulnerable, the guidance provided by the above
than a paper tiger or a blind alley. Ultimately, noted CRC principles shall also apply to all
only a comprehensive investigation and athletes of all ages. If the term “safeguarding”
resolution of all complaints can contribute to is often used in the context of the protection
the protection of athletes and the integrity of of minor athletes22 this does not mean that
sport. This is a tall order. athletes and other sportspersons who reach the
age of eighteen and beyond are no longer
When it comes to safeguarding in sports worthy of protection. On the contrary,
investigations and sports proceedings, sports safeguarding equally includes the adequate
organizations may take guidance from the protection of adult athletes. Thus, the
preamble and Article 19 para. 2 of the CRC application of legal protective measures for
which, inter alia, provides that “the child, by reason major aged athletes, especially those who are
of [their] physical and mental immaturity, needs special vulnerable or at-risk, does not differ greatly
safeguards and care, including appropriate legal from those of minors. An obvious difference is
protection” and “[s]uch protective measures should, as that athletes who have reached the age of
appropriate, include effective procedures for the majority are expected to have a higher level of
establishment of social programmes to provide necessary maturity and experience. In their case, the
support for the child and for those who have the care of participation of legal guardians in sports
the child, as well as for other forms of prevention and for investigations and proceedings is not required.
identification, reporting, referral, investigation, Nevertheless, adult athletes may also be
treatment and follow-up of instances of child vulnerable in sports investigations and sports
maltreatment described heretofore, and, as appropriate, procedures for reasons related to, for example,
for judicial involvement”.19 Accordingly, child gender, religion, culture, sexual orientation or
safeguarding in sport must not only respond to financial circumstances or intersectionality.
harm that has been caused or harm that is likely Any or all of these factors may hinder a person
to be caused (i.e. child protection) through the at risk – regardless of whether a minor or adult
prosecution of all kinds of wrongdoing, such as athlete (in the following, the term ‘persons at
physical, mental and psychological abuse, risk’ is used for minor and adult sportspersons,
harassment, discrimination, economic abuse, unless otherwise stated) – to seek justice before
or human trafficking,20 it must primarily focus association tribunals or sports arbitration
on preventive measures to protect minor tribunals. It shall be stressed that safeguarding
athletes from such harm and promote the in this sense thus not only encompasses the
wellbeing and welfare, personal development establishment of legal protections to prevent
harm against athletes, but also the

18 K. Gallafent and R. Bush, ‘Safeguarding’ in A. Lewis 21 M. Lang and M. Hartill, ‘Introduction’ in M. Lang and
and J. Taylor (eds), Sport: Law and Practice (4th edn, M. Hartill (eds), Safeguarding, Child Protection and Abuse in
Bloomsbury Professional 2021) para. B6.34. Sport (Routledge 2016), p. 3 et seq.; K. Gallafent and R.
Bush, ‘Safeguarding’ in Adam Lewis and Jonathan
19
Preamble and Articles 19 para. 2 of the CRC.
20 M. Lang and M. Hartill, ‘Introduction’ in M. Lang and
Taylor (eds), Sport: Law and Practice (4th edn, Bloomsbury
Professional 2021) para. B6.9.
M. Hartill (eds), Safeguarding, Child Protection and Abuse in 22 M. Lang and M. Hartill, ‘Introduction’ in M. Lang and
Sport (Routledge 2016), p. 3 et seq.; K. Gallafent and R. M. Hartill (eds), Safeguarding, Child Protection and Abuse in
Bush, ‘Safeguarding’ in A. Lewis and J. Taylor (eds), Sport (Routledge 2016), p. 4.
Sport: Law and Practice (4th edn, Bloomsbury Professional
2021) para. B6.9; Whyte Review, para. 96.

11
establishment of legal mechanisms, like to non-members.24 This has also been
investigations, to ensure that if and when harm confirmed in, e.g., CAS 2016/A/4607 in which
is committed to athletes, there are sufficiently the Sole Arbitrator held that:
robust regulatory mechanisms in place to verify “[the] contractual relationship between [sports medicine
the allegation, to satisfy the legal burden to specialist] and the Athlete as shown above, however,
establish its commission and to properly does by no way mean that the [sports medicine specialist]
discipline the perpetrators. also automatically entered into a concurrent legal
relationship with a third party (the [sports
C. Who are the perpetrators? organization]), thereby conferring disciplinary powers to
the [it]. This would only be true if – very exceptionally
Anyone can potentially pose a threat to minor – the contract between the Athlete and the [sports
athletes and other sportspersons: executive medicine specialist] had to be qualified as a contract for
staff, coaches, medical personnel, team the benefit of a third party. There is, however, no
members, club officials, volunteers, sponsors, evidence on file that the Athlete and the Appellant when
and other persons “outside” of their sports executing the contract between them had in mind to
community per se. In this context, it is confer upon the [sports organization] any disciplinary
important to understand that the investigatory competence with respect to the [sports medicine
and disciplinary jurisdiction of sports
specialist]”.25
organizations is limited to their direct and
indirect members. In other words, sports As a preventive measure, sports organizations
organizations can only investigate and may make use of their domiciliary rights to
prosecute alleged maltreatment and ensure that suspicious non-members can no
misconduct (i) that is sanctionable under their longer come near sportspersons in their
rules and regulations23 (ii) against persons who training and competition venues.26 Other tools
have agreed to comply with them. Persons to extend the investigatory and disciplinary
outside the sports organizations’ ratione personae jurisdiction of sports organizations include to
may be subject to, for example, criminal or have volunteers or part time employees agree
civil sanctions under the applicable national to abide by and sign Codes of Conduct or
law. Sports organizations, however, have no Letters of Engagement, which would
reach and means to impose sporting sanctions effectively bind them to the association’s safe
against persons who are neither their members sport rules and other regulatory mechanisms;
(e.g. family members of athletes) or employees, or to have the sportsperson’s support
who may de facto and in law fall outside the personnel sign a contract in form of a rules
scope of their policies. In this regard, it is also recognition contract in which they voluntarily
worth mentioning that the professional submit to the rules of a sports organization.
relationship between sportspersons and their Finally, it goes without saying that (i) clearly
own support personnel or the mere reference defining to whom a sporting association’s
to non-members in their rules and regulations athlete safeguarding policy applies is imperative
is not sufficient to extend the investigatory and to identify who is required to adhere to the
disciplinary jurisdiction of sports organizations organization’s policy27 and (ii) clearly defining

23
See section II.4. 26 See CAS 2016/A/4697 Elena Dorofeyeva v.
24 CAS 2016/A/4697 Elena Dorofeyeva v. International International Tennis Federation (ITF), award of 3
Tennis Federation (ITF), award of 3 February 2017, February 2017.
para. 92. 27 For example the US Centre for SafeSport policy
25 Ibid. applies to ‘covered individuals’ who are defined as “[a]ny
individual who: (a) currently is, or was at the time of a possible
violation of the Code, within the governance or disciplinary

12
when the policy applies is equally de rigueur as D. Sports rules and regulations and
the nature of sport requires athletes to travel to mandatory statutory provisions
and from competition, train in other countries,
stay in various overnight accommodations The “autonomy” of sports organizations
etc28. Some associations will look to have their
policy apply both in competition and out of Sports organizations generally have a legitimate
competition, whilst others will strictly try to interest to avoid the perpetration of all
govern the behavior of ‘covered persons’ on incidents that can disrupt or affect the life of
site at a given competition29. an association32 and to uncover the truth when
allegations regarding such incidents are made
All sports organizations would be well advised or uncovered. When a violation of their rules
to conduct due diligence on any and all and regulations occurs, sports associations may
individuals that it may choose to employ full or benefit from a certain degree of autonomy to
part time, including staff and officials, as well decide on the applicable disciplinary
as all non-paid individuals who act on behalf of consequences depending on the severity of the
or for the sports organization, including but violation - so long as these are clearly provided
not limited to board members and volunteers. for in their rules. Under certain circumstances,
Minimal prerequisites in this regard must be this can lead to a temporary or permanent ban
background checks, criminal checks, coaching from sport. Due to these potentially serious
certification, safe sport certification, and consequences for their members, including the
execution of agreements binding them to codes possible effect on their personality and
of conduct and discipline flowing from economic rights, the autonomy of sports
breached thereof, only to name a few.30 organizations is limited by national mandatory
Needless to say, a sports organization’s failure provisions insofar as they are, inter alia,
to have conducted suitable due diligence prior responsible for the implementation of clear
to employing an individual who is later found and unequivocal regulations that comply with
to be a perpetrator of maltreatment or other the legal principles of legality and predictability.
misconduct is case for civil laws suits31, In other words, sports rules have to be “properly
negative press and serious long term adopted, describe the infringement and provide, directly
reputational and financial repercussions. or by reference, for the relevant sanction”.33 In safe
sport in particular, clarity in rules is all the more

jurisdiction of an NGB or who is seeking to be within the 29 For example, the ITF Player Welfare Policy outlines
governance or disciplinary jurisdiction of an NGB (e.g. through “regulations that govern respectful behaviour of all credential
application for membership), (b) is an Athlete or Non-athlete persons on-site at ITF sanctioned tournaments.”
Participant that an NGB or the USOC formally authorizes, 30 Whyte Review, para. 487.

approves or appoints to a position of authority over Athletes or to 31 For example, Larry Nassar’s accusers and Gymnastics

have frequent contact with Athletes or (c) an NGB identifies as USA and Bertrand Charest’s accusers and Alpine
being within the Office’s jurisdiction.” Canada.
28 International Federations will typically look to their 32 Advisory opinion CAS 2005/C/976 & 986 Fédération

National Members’ rules to govern the out of Internationale de Football Association (FIFA) & World
competition or training periods. See for example Antidoping Agency (WADA), award of 21 April 2006,
Athletics Canada’s safeguarding rules which states, inter
para. 123.
alia, that Athletics Canada has jurisdiction of any 33 CAS 2014/A/3665, 3666 & 3667 Luis Suárez, FC
violations of the safeguarding code in “Incidents that occur
during Athletics Canada’s business, activities, or events including, Barcelona & Asociación Uruguaya de Fútbol (AUF) v.
but not limited to, competitions, practices, tryouts, training camps, Fédération Internationale de Football Association
travel associated with Athletics Canada’s activities, Athletics (FIFA), award of 2 December 2014, para. 73; CAS
Canada’s office environment, and any meetings”. 2018/A/5864 Cruzeiro E.C. v. Fédération
Internationale de Football Association (FIFA), award of

13
important because of the wide range of this principle is applicable by analogy to disciplinary
punishable behavior and the equally wide range proceedings”.35
of sanctions that could be imposed as a result. Ensuring conduct is proscribed by regulation.
It is further necessary that the violated
regulations were in force at the time the offense Instigating sports investigations into alleged
was committed and that the individuals to maltreatment and abuses of sportspersons
whom these rules and regulations apply have against the accused person hinges on the
access to them and have knowledge of their alleged misconduct being punishable under the
contents and how they are bound by them. 34 applicable sports rules and regulations. As
All these requirements are essential so that discussed above, there needs to be mechanisms
direct and indirect members of sports by which such allegations may be brought
associations know what behavior is expected of forward, and these presuppose that the
them (both in general and during the course of allegations will be about specific proscribed
investigations) and, in turn, what behavioral behavior that can effectively be prosecuted.
breaches may lead to disciplinary measures. How the regulations are worded and what
The conformity of sports rules and regulations behavior should be sanctioned falls within the
with the legal principles of legality and regulatory autonomy of sports organizations
predictability has been emphasized by CAS and may have implications for the level of
panels which held that: protection within different sports organization.
“[t]he purpose of disciplinary sanctions is to influence This has led to a fragmented regulatory
the behaviour of its members, in particular to encourage landscape.. In fact, some international sports
them not to engage in certain unwanted activity by federations have opted for a more general
threatening to sanction them. In order to achieve this provision on the protection of physical and
goal, there must be clarity for all stakeholders on what mental integrity, while others have
constitutes misconduct. Furthermore, equal treatment of implemented specific provisions on all forms
all members is only possible if there is legal certainty of maltreatment and abuse.36 While using such
with respect to the contents of the rule. In order to protect so-called “catch-all” provisions may serve a
the aforementioned interests, criminal law follows the purpose, it is advisable that sports
principles of nullum crimen, nulla poena sine lege scripta organizations implement specific regulations
et certa, pursuant to which no sanction may be imposed on all forms of possible wrongdoing against
unless there is an express provision describing in sportspersons as general provisions providing
sufficient clarity and specificity, not only the misconduct for “unsportsmanlike conduct” or “conduct
but also the applicable sanction. The Panel finds that that brought or is likely to bring the sport into
disrepute” pose the risk that a potentially
ambiguous wording may not comply with the

13 February 2019, para. 66; see also CAS 2022/A/9018 Federation (HFF) & Club Panthessalonkeios Athlitikos
UAEERF & Ismail Mohd v. FEI, award of 15 March Omilos Konstantinoupoliton PAOK (PAOK) &
2023, para. 88; M. Beloff et al., ‘The Court of Arbitration “Xanthi” Athletic Group Football Club (Xanthi FC) &
for Sport’ in A. Lewis and J. Taylor (eds), Sport: Law and CAS 2020/A/7035 PAOK v. HFF, award of 14 August
Practice (4th edn, Bloomsbury Professional 2021) para. 2020, para. 111 and CAS 2022/A/9018 UAEERF &
D2.127. Ismail Mohd v. FEI, award of 15 March 2023, para. 89
34 CAS 2022/A/8981 Steven & Jean Lopez v. World 36 See, for example, Article 24 of the FIFA Code of

Taekwondo, award of 5 September 2023, para. 98. Ethics (2023); Article 4.1.2 of the WAQ Rules on the
35 CAS 2017/A/5272 KF Skënderbeu v. Albanian Protection from Harassment and Abuse (2023 edition);
Football Association (AFA), award of 13 April 2018, Article 3 of the World Athletics Safeguarding Rules
para. 62 confirmed in CAS 2020/A/7019 Olympiacos (2023 edition) and the Appendix of the World Athletics
Safeguarding Policies.
Football Club (Olympiacos) v. Hellenic Football

14
principles of legality and predictability in the sports organizations have drafted regulations
eye of the adjudicatory body. For example, on maltreatment and abuse containing specific
some international sports federations have provisions on psychological abuse, physical
decided to introduce a specific offence for abuse, sexual harassment, sexual abuse and
“hazing”, whereas such misconduct may be neglect.41
punishable under other sports regulations as a
violation of psychological abuse.37 In general, In addition to specific provisions, it would
sports organizations may take guidance from nonetheless be judicious also to include a
international human rights treaties. Article 1 of catch-all provision for any conduct that could
the Declaration on the Elimination of Violence not have been foreseen at the time of the
against Women38 (“DEVAM”) defines drafting and adoption of the rules and
violence against women (and girls) as “any act of regulations.42 For example, Article 2.3 of the
gender-based violence that results in, or is likely to result Swiss Olympic Statutes on Ethics in Swiss
in physical, sexual or psychological harm or suffering to Sport (2022 edition), inter alia, provides that
women, including threats of such acts, coercion or “unsporting behaviour is deemed to include flagrant
arbitrary deprivation of liberty”. More sport- violations of fundamental value of sport in so far as they
specific guidance is offered to sports are not already covered by rules of play or competition
organizations by the IOC Consensus or other provisions of these Ethics Statutes”.
Statement39 and Tool Kit40 that the IOC has
drafted to assist all its members to set up, and Human rights considerations
implement their own respective safe sport
programs, rules and regulations. The Tool Kit Sports organizations do not act in a legal
provides extensive, definitions of all vacuum. Instead, their regulatory and
proscriptive harassment and abuse, templates, disciplinary autonomy, which might affect the
general and specific guidance in terms of professional life of the person under
regulations, investigatory tools and disciplinary investigation, is limited by mandatory statutory
mechanisms that are all imperative to provisions43 including civil law and data
establishing a robust safeguarding program. protection law. The latter is particularly
The Tool Kit also offers guidance on how to important with regard to information gathered
successfully implement this overall strategy in investigated matters that involve a
within each relevant stakeholder’s legal transnational context and/or information that
framework. Guided by the Tool Kit, many is shared by a sports organization with third

37 See e.g. Article 4.1.2 of the WAQ Rules on the Swiss Sport (2022 edition); Article 2 of the International
Protection from Harassment and Abuse (2023 edition). Biathlon Union (IBU) Code of Conduct (2021 version);
38 UN General Assembly, Declaration on the Elimination of guidance may be taken from Article 19 of the CRC;
Violence against Women, 20 December 1993, Article 2 of the DEVAM.
A/RES/48/104. 42 K. Gallafent and R. Bush, ‘Safeguarding’ in A. Lewis
39 Mountjoy et al., ‘The International Olympic and J. Taylor (eds), Sport: Law and Practice (4th edn,
Committee (IOC) Consensus Statement: Harassment Bloomsbury Professional 2021) para. B6.110. See also,
and abuse (non-accidental violence) in sport’, Br J Sports for example, Article 4 of the WAQ Rules on the
Protection from Harassment and Abuse (2023 edition);
Med (2016) 1, 3.
40 Duncan/Kirsty. IOC Toolkit for IFs and NOCs.
Article 6.4 of the UCI Code of Ethics (2021 edition) in
conjunction with Article 2 of Appendix 1 to the UCI
Safeguarding athletes from harassment and abuse in Code of Ethics (2021 edition); Article 2 of the Swiss
sport. 03 November 2017. Olympic Statutes on Ethics in Swiss Sport (2022
41 See Article 4 of the WAQ Rules on the Protection
edition).
from Harassment and Abuse (2023 edition) Article 2 of 43 CAS 98/200 AEK Athens and SK Slavia Prague v.
Appendix 1 to the UCI Code of Ethics (2021 edition); Union of European Football Associations (UEFA),
Article 2 of the Swiss Olympic Statutes on Ethics in award of 20 August 1999, para. 156

15
parties, such as national law enforcement organizations if they act as a state entity.50 The
agencies.44 In abuse and maltreatment cases – question revolving around the applicability of
as can also be observed in other sports-related human rights standards to private sports
matters like match manipulation cases – legal organizations is, at first glance, less problematic
literature often calls for human rights law to if sportspersons’ basic rights are protected
safeguard the rights of athletes and other through national constitutional law. In this
sportspersons without a thorough discussion case, it is, nevertheless, necessary to examine
on its applicability to private sports whether and to what extent national
organizations.45 This however is the essential constitutional law can have some kind of third-
first step in the discussion. While widely party effect on inter-individual legal
accepted human rights principles should relationships.51
inherently ensure that all human’s may benefit
from dignity, e.g. “all human beings are born free This debate becomes more complex and
and equal in dignity and rights”46, human rights are controversial when it comes to the application
primarily a protective privilege against the of international human rights, guaranteed by
interference of state in human rights that has regional (e.g. the European Convention on
been guaranteed by international human rights Human Rights (“ECHR”) and the American
conventions (so-called ‘negative obligations’).47 Convention on Human Rights) or international
States conversely hold an obligation to protect human rights conventions (e.g. the Universal
their citizens from any human right violations Declaration of Human Rights (1948), the CRC,
by third parties (so-called ‘positive the DEVAM, the Convention on the
obligations’).48 The so-called “tripartite Elimination of All Forms of Discrimination
typology of duties”49 in international human against Women52 and the Convention on the
rights law, i.e. the duties to respect, protect and Elimination of All Forms of Racial
fulfil human rights in sports-related matters, Discrimination53) to private sports
therefore applies directly to sports

44
B. Hessert, Sports Investigations Law and the ECHR Report of the United Nations High Commissioner for
(Routledge, 2023) pp. 217 et seq.; Emma Drake, ‘Data Human Rights, Intersection of Race and Gender
Protection in Sport’ in A. Lewis and J. Taylor (eds), Sport: Discrimination in Sport, A/HRC/44/26 (15 June 2020)
Law and Practice (4th edn, Bloomsbury Professional 2021) para. 17.
48 O. de Schutter, International Human Rights Law (3rd edn,
para. A4.182.
45 See e.g. L. Holzer, ‘What Does it Mean to be a Woman Cambridge University Press 2019) pp. 448 et seq.
49 Ibid., p. 292.
in Sports? An Analysis of the Jurisprudence of the Court
of Arbitration for Sport’ (2020) 20 Human Rights Law 50 See e.g. National Federation of Sportspersons’ Associations

Review, 387-411; M. Jones, ‘No Right Without a and Unions (FNASS) and Others v. France App nos
Remedy: Integrating Human Rights Protection into 48151/11 and 77769/13 (ECtHR, 18 January 2018).
51 See e.g. German Federal Constitutional Court
Sports Dispute Resolution’ (2022) 15(1) Australian and
New Zealand Sports Law Journal 1, 19; P. Wiater, BVerfGE 7, 198, 205 et seq.; BVerfGE 103, 89, 100; San
‘Rechtsgutachten zum Thema ‘Menschenrechtliche Francisco Arts & Athletics, Inc. and Thomas F. Waddell,
Rahmenbedingungen des Ausschlusses russischer und Petitions v. United States Olympic Committee and International
belarussischer Athlet*innen von internationalen Olympic Committee (‘USOC’), 483 US 522 (1987); R
Sportwettkämpfen’, p. 10, available at (Mullins) v Appeal Board of the Jockey Club [2005]
https://cdn.dosb.de/uploads/DOSB_Gutachten_Wiat EWHC 2197 (Admin), para. 35; CAS 2007/A/1312
er_fin.pdf. Jeffrey Adams v. Canadian Centre for Ethics in Sport
46 UN General Assembly, Universal Declaration of Human (CCES), award of 16 May 2008.
Rights, 10 December 1948, 217 A (III), Article 1. 52
UN General Assembly, Convention on the Elimination of
47 M. Freeman, Human Rights (4th edn, Polity Press 2022) All Forms of Discrimination Against Women, 18 December
p. 92; J. Gerards, General Principles of the European 1979, United Nations, Treaty Series, vol. 1249.
Convention on Human Rights (Cambridge University Press 53 UN General Assembly, International Convention on the

2019), p. 108; O. de Schutter, International Human Rights Elimination of All Forms of Racial Discrimination, 21 December
Law (3rd edn, Cambridge University Press 2019) p. 292; 1965, United Nations, Treaty Series, vol. 660.

16
organizations.54 This question is far from sports regulations in international sport59 or (iii)
conclusive and is still evolving. Arguably at the imposes obligations on direct and indirect
core of the discussion 55 are the self- members to comply with international human
commitment of sports organizations to rights law vis-à-vis other members of the
international human rights law56 and the association. Some provisions may even contain
sportspersons’ compulsory acceptance of several of mentioned functions of human
sports rules and regulations.57 As regards the rights provisions60. Often, sports federations
(voluntary) self-commitment of sports do not commit themselves to international
organizations to international human rights law human rights law in a way that international
within their association life, some sports human rights law is directly applicable to them
organizations have introduced provisions in internally.61 For the most part, general “catch-
their statutes and/or rules and regulations that all” references to international human rights
refer and bind them to international human law are non-binding on sporting federations.
rights law. In the event that a sports Yet, some sports organizations have
organization positively commits to contractually imposed a binding human rights
international human rights law and, thus, to the obligation on its members62 whereby any
tripartite typology of duties, question such as member who violates the human rights of
these arise: what is the extent of a sports another member can be sanctioned. However,
organization’s obligation to protect its such regulatory provisions neither specify to
members from human rights violations, which human rights conventions the members
including maltreatment and abuse?, and what are obliged to adhere in inter-member
legal remedies are available against sports relationships, nor which human rights could
organizations for lack of human rights possibly be infringed. Such human rights
protection? provisions are therefore incompatible with the
legal principles of legality and predictability. In
Human rights-related sports rules and the event of a dispute, it will ultimately be the
regulations generally require further adjudicatory body’s task to determine whether
interpretation to assess whether the reference or not the applicable human rights provision
to human rights law (i) binds sports creates binding human rights obligations for
organizations to international human rights law the sports organization concerned.
internally58, (ii) serves as guidance to promote
uniform interpretation and application of
54 See e.g. CAS 2020/O/6689 World Anti-Doping B. Hessert, Sports Investigations Law and the ECHR
Agency (WADA) v. Russian Anti-Doping Agency (Routledge, 2023) pp. 29 et seq.
(RUSADA), award of 17 December 2020, paras. 808 et 58 See for example Article 3 of the FIFA Statutes (2022

seq. edition) in conjunction with Article 13 of the FIFA’s

55 For the applicability of the ECHR relating to the Human Rights Policy (2017 edition); CAS 2020/A/6807
“severity test” see A. Rigozzi, ‘Sports Arbitration and the Blake Leeper v. International Association of Athletics
European Convention of Human Rights – Pechstein and Federations (IAAF), award of 23 October 2020, paras.
beyond’ in C. Müller; S. Besson and A. Rigozzi (eds), 320 and 321.
New Developments in International Commercial Arbitration 59 See for example. Comment to Article 8.1 of the

2020 (Stämpfli 2020) 77, 116 et seq. WADA Code.

56 U. Haas and B. Hessert, ‘Sports Regulations on 60 See for example Article 2.2 of the FIG Statutes.

Human Rights – Applicability and Self-commitment’ in 61 Cf. U. Haas and B. Hessert, ‘Sports Regulations on

C. Chaussard, C. Fortier and D. Jacotot (eds), Le sport au Human Rights – Applicability and Self-commitment’ in
carrefour des droits – Mélanges en l’honneur de Gérald Simon C. Chaussard, C. Fortier and D. Jacotot (eds), Le sport au
(LexisNexis 2021) 287–307. carrefour des droits – Mélanges en l’honneur de Gérald Simon
57 Mutu and Pechstein v Switzerland App nos 40575/10 and (LexisNexis 2021) 297 et seq.
67474/10 (2 October 2018, ECtHR) para. 115; 62 See for example Article 1 lit. b) in conjunction with

Article 5 lit. a) of the FIG Code of Ethics.

17
The autonomy of sport is thus generally limited investigations63. Preventive and repressive.
by mandatory statutory provisions including Each carries its own functions and challenges:
national constitutional law and, under certain Preventive sports investigations have the
conditions, international human rights law. objective of preventing sports rules violations
These limitations must be kept in mind when before they occur. The key element of
conducting investigations and proceedings preventive sports investigations is that they are
arising out of maltreatment and other sporting not specifically related to an alleged sports rule
misconduct. violation. Instead, all direct and indirect
members of the investigating sports
III. Balancing legal interests and rights in organization are subject to investigations on
sports investigations the mere basis of their membership in order to
protect, for example, the association life or the
Sport federations or associations who have wellbeing of other members.64 Preventive
enacted regulations, such as codes of ethics or investigatory measures in sports investigations
anti-doping, anti-corruption or safeguarding may include doping control tests, x-rays of
rules, shall within these various policies have bicycles prior to the start of a race or
provided for an investigative mechanism by monitoring of gambling sites and betting
which potential wrongdoing can be prevented operators.65 In safe sport cases, criminal record
or alleged wrongdoing can be looked into and checks, the establishment of a national register
then prosecuted where established. In either for misconduct in sport or a “safeguarding
case, the rules providing for such mechanisms license” are preventive in nature.66
and the process by which the investigation
would be launched, including inter alia the By contrast, the second category of sports
nomination of the independent and impartial investigations are “repressive”.
individuals tasked or nominated with taking it Such sports investigations encompass all
on, its detailed terms of reference, and the procedures that are carried out to find out the
requirements for the issuance of a final report, truth in relation to a specific allegation of a
should all be provided for in detail in the sports rule violation, such as allegations of
applicable regulations. In other words, sports abuse against a direct or indirect member of a
investigations cannot occur, be carried out or sports organization, or of match-fixing or
be concluded in a legal vacuum and must be match manipulation by athletes or officials.
conducted with due regard to all parties’ The regulatory and procedural requirements
interests. for the application of repressive investigatory
measures often varies from preventive
A. What are sports investigations? measures. Both may need to be taken into
consideration by sports organizations in the
The concept of sports investigations arguably course of investigations.67 Both may also be
refers to two distinct categories of imposed by the association’s governing
regulation itself. For example, under the

63 B. Hessert, Sports Investigations Law and the ECHR Federations (IAAF), award of 23 October 2020; CAS
(Routledge, 2023) pp. 61 et seq. 2020/A/7526 World Athletics (WA) v. Salwa Eid Naser
64 Ibid., p. 62. & CAS 2020/A/7559 World Anti-Doping Agency
65 See also CAS 2018/O/5794 Mokgadi Caster Semenya (WADA) v. WA & Salwa Eid Naser, award of 30 June
v. International Association of Athletics Federations & 2021.
CAS 2018/O/5798 Athletics South Africa v. 66 See e.g. Whyte Review, para. 487.

International Association of Athletics Federations, 67

B. Hessert, Sports Investigations Law and the ECHR
award of 30 April 2019; CAS 2020/A/6807 Blake (Routledge, 2023) p. 63 et seq.
Leeper v. International Association of Athletics

18
WADC, to which all Signatories must comply, interference into the investigated
national anti-doping organizations and sportspersons basic rights, the more necessary
international sports federations must conduct it is to expressly outline the investigatory
investigations against a sportsperson who is measures and the requirements for the
under suspicion or alleged of having application thereof in the rules and regulations
committed an anti-doping rule violation.68 of the investigating sports organization. It is
further advisable to address the consequences
The importance of properly drafted rule and regulations of non-participation for the persons involved
in sports investigations, including perpetrators
The rules and regulations of sports and victims/survivors, as well as for the
organizations may present an important potential outcome of the investigation in a clear
challenge to sports investigations if they do not and unambiguous manner. In addition, the
clearly provide for investigations to be weight and evidentiary value of admissions or
conducted whether preventive or repressive. written witness statements may also be limited
Although the autonomy of sport arguably if the information was not provided during
grants sports organizations the general power sports investigations without good reason.69 As
to conduct investigations into alleged sports discussed below, in appeals arbitration
rule violations, sports organizations shall adopt procedures before the CAS, the consequences
regulations specifically to govern these of the latter provision may, however, be less
investigations. Such specific provisions on severe in the light of the CAS panels’ de novo
sports investigations proceedings should, inter review pursuant to Article R57 para. 1 of the
alia, address (i) the possibility of investigations CAS Code of Sports-related Arbitration (the
being conducted internally or externally (ii) the “CAS Code”) which provides that “the Panel has
basic requirements to be met for an full power to review the facts and the law”), so long
investigation to be commenced (iii) the extent of course as the evidence is effectively given
and use of investigatory powers and (iv) the viva voce before the CAS (see further below).
outcome of the investigatory process in
relation to other applicable regulations. At all The value of investigations
stages of the investigation, investigators must
keep the rights and welfare of the at-risk Finally, the value of sports investigations must
victim(s) and witnesses in mind, as well as the be emphasized. As the burden of proof for the
rights and welfare of the individual being establishment of any sports rule violation
investigated. usually lies with a sports organization and given
the impact that sanctions arising from the same
Although sports organizations have a may have on the sportsperson, it is incumbent
legitimate interest in conducting investigations upon sports organization to adduce sufficient
to protect, for example, the integrity of sport and compelling evidence that the sports rule
or the mental and physical wellbeing of its violation in question effectively occurred to
athletes, as with most actions taken which may move forward with procedures before an
lead to sporting discipline, the application of adjudicatory body. The outcomes of
investigatory measures is generally subject to investigations – whether preventative or
the principle of proportionality. In due repressive – are likely the most critical
consideration of the principle of legal certainty, evidentiary elements that can be adduced in the
it may be argued that the more severe the

68See Articles 5.1 and 5.7 of the WADC and WADA’s 69 See e.g. Article 5.5 of the
International Standard for Testing and Investigations WAQ Rules on the Protection from Harassment and A
(“ISTI”). buse (2023 edition).

19
course of a hearing70. Sports investigations also investigations need not be reached to
contribute to legal peace and justice within the commence investigations.71 Sports
association and reinforce trust in sports organizations enjoy a wide margin of discretion
organizations. Additionally, the commitment to initiate preventive sports investigations
to seek out truth and justice can often have a against all athletes that are bound by their rules
healing or cathartic effect on victims in and regulations in the protection of the
safeguarding cases. That said, the value of integrity of sport, such as pre-game bag
sports investigations can only be sustained if searches72, the collection of urine and blood
investigations are carried out in a lawful samples73 or COVID-19 tests74. It therefore
manner and in a balanced respect of the rights comes of no surprise that threshold
of natural justice of all involved. considerations are not addressed in provisions
referring to preventive investigations. For
B. Undertaking sports investigations example, Article 5.2 of the WADA Code
provides that “[a]ny Athlete may be required to
The risks faced by sportsperson under provide a Sample at any time and at any place by any
investigation during sports investigations of Anti-Doping Organization with Testing authority over
any kind can derive from different factors, such him or her”. Another example is Article 6.1.7 of
as age, gender, race, language, sexual the International Cricket Council’s Minimum
orientation, religion or political opinion. Sports Standards for Players’ and Match Officials’
organizations need to be aware of such risks. Areas at International (‘ICC PMOA’ which
They, along with all the specificities of the provides as follows:
matter under investigation whether legal, “At each International Match, all National Cricket
administrative, humane or regulatory, must be Federations, Players, Player Support Personnel, Match
considered in a sports organization’s risk Officials and any other visitors to the PMOA agree and
assessment prior to the commencement of acknowledge that the ICC Anti-Corruption Manager
investigations. (or such other member of the ICC’s ACU) shall have
absolute authority, without being required to provide
The commencement of the investigation any explanation or reason, to require any person in the
PMOA to immediately submit themselves and/or any
The requirements for the commencement of clothing, baggage or other items in their possession, to be
sports investigations depends on its repressive searched by the ICC Anti-Corruption Manager,
or preventive nature. The latter can generally provided that such search is carried out in the presence
be conducted without any information of a of a third party who shall be a member of the venue
specific allegation of a risk to the integrity of stewarding / security team”.
sport. Sportspersons are subject to preventive
investigations by virtue of being bound by the In repressive sports investigations procedures,
sports regulations of the investigating sports a certain threshold must be reached to
organizations. In such circumstances, a certain investigate a specific sports rule violation. This
threshold for the commencement of sports
threshold is, however, fairly low.75 For an

70
For example: In preventative investigations, a 72 Ibid., p. 176.
Certificate of analysis or laboratory documentation 73 Article 5 of the WADA Code in conjunction with
packages. And in repressive investigations betting WADA’s ISTI.
syndicate, social media and banking evidence in match- 74 CAS 2020/A/7356 SK Slovan Bratislava v. Union des
fixing cases or viva voce or social media evidence from Associations Européennes de Football (UEFA) &
witnesses and victims in safeguarding cases. KI Klaksvik, award of 1 October 2020.
71 B. Hessert, Sports Investigations Law and the ECHR 75
For example, Chapter E, Article 3.1 of the
(Routledge, 2023) p. 73. International Biathlon Union Integrity Code requires

20
investigation to be initiated, it is sufficient that for completion, and the necessity for the
the investigating sports organization learn of a issuance of a final report with findings and
possible sports rule violation by its direct or recommendations where required and relevant.
indirect members, e.g., through its own In this regard, it is recalled that the
investigations, other members, state investigation into safe sport-related
authorities76, whistleblowers77, journalists78 or misconduct serves different purposes, i.e. (i) to
social media79. assess the legal merits of a complaint or
allegation (ii) to right the wrong inflicted on the
Carrying out the investigation victim where a complaint is established to the
required legal standard by effectively and
Once there is sufficient basis to start an proportionally prosecuting the perpetrator and
investigation, normally after an initial triage or (iii) to prevent future maltreatment of any of
preliminary assessment of the merits of the the organization’s members. With regard to
complaint, the whistleblower information or repressive investigations, safe sport
other80, the sports organization should be investigations often reveal that the abuse and
guided by its regulations with regards to the mistreatment may be historical and occurred
process to follow in terms of identifying who long ago, or taken place over many years and
will undertake the investigation, if it is an increased in egregiousness over time as a result
external individual – are they independent and of grooming, this often results in an internal
impartial, what resources (human, financial, repression of the trauma and delayed reporting.
forensic, scientific are required), who needs to Failure to report may in itself constitute a
be informed or notified of the same and called sports rule violation if a person, for example a
upon to cooperate in the same81, setting out coach or official, who is not the perpetrator,
and communicating clear confidentiality deliberately remains silent in order to protect
parameters, and drafting thorough and the offender.82 Sports organizations must
actionable terms of reference for the therefore take all potential circumstances and
investigation where necessary, including but scenarios into consideration when drafting and
not limited to scope of inquiry, reference to implementing their rules and regulations
applicable rules and regulations (potentially related to safe sport investigations, notably
including applicable human rights), timelines statutes of limitation.83

that “there are reasonable grounds to suspect that a Participant Federation (ARAF) and Vladimir Kazarin, award of 7
may have violated this Integrity Code, the [Biathlon Integrity April 2017.
Unit] may conduct an investigation”. 79 See e.g. E. N. Madalin, ‘Tolerance is Tricky Business:
76 CAS 2018/A/5989 IAAF v. Qatar Athleteics Isreal Folau at the Court of Arbitration for Sport and the
Federation & Musaeb Abdulrahman Balla, award of Moral Case for the Protection of Athlete’s Free
12 December 2019; CAS 2018/A/6048 Daniele Expression’ (2017–2018) Australian and New Zealand
Bracciali v. Professional Tennis Integrity Officers, award Sports Law Journal 53–76.
of 15 August 2022; CAS 2018/A/6049 Potito Starace v. 80 See Articles 11 and 12 of the ISTI and for example

Professional Tennis Integrity Officers, award of also see the ITF Safeguarding and Case Management
15 August 2022; CAS 2021/A/8531 Mohamd Zakaria Procedures and World Athletics Safeguarding Rules.
Khalil, Soufiane El Mesbahi & Yassir Kilani v. The 81 See Article 12.2.4 of the ISTI and Section F.2 of the

International Tennis Integrity Agency (ITIA), award of Tennis Anti-Corruption Program,

9 March 2023. 82 Cf. Articles 3.3.1 and 3.3.3 of the World Athletics
77 CAS 2011/A/2426 Amos Adamu v. Fédération Safeguarding Rules (2023 edition); it shall be noted that
Internationale de Football Association (FIFA), award of such reporting obligation does not apply to
24 February 2012. victims/survivors whose reports should generally be
78 See e.g. CAS 2015/A/4328 Tema Youth Football considered as “whistleblowing”.
Club v. Ghana Football Association (GFA), award of 13 83 See, for example, Article 8.1 of the
July 2016; CAS 2016/A/4480 International Association WAQ Rules on the Protection from Harassment and A
of Athletics Federations (IAAF) v. All Russia Athletics

21
 potential participation in future disciplinary
The completion of the investigation proceedings.

Typically, once an investigation is completed IV. The provisional suspension of the

and a detailed report issued which makes alleged rule violator and requests related
findings of wrongdoing, a sport organization thereto
will, with direct reference to the outcomes of
the investigation, be in a position to formally The rules of sports associations will normally
charge the accused and propose appropriate provide for either the mandatory provisional
discipline on the alleged perpetrator in suspension of the accused where the
accordance with the possible sanctions allegations are egregious or give the accused the
provided for in their applicable rules and option of accepting a voluntary provisional
regulations. The accused perpetrator must then suspension where the allegations are less
of course be given the right to exercise his or severe.
her right to a hearing to challenge the formal
allegations, whether before the relevant first In cases where a mandatory provisional
instance adjudicatory body, the ordinary suspension is imposed, there may be an
division or the appeals division of CAS if the opportunity for the accused to file a
rules provide for the same. In addition, victims preliminary measure request to lift the
and survivors who filed the complaint that provisional suspension pending the outcome
triggered the investigation must be informed of the matter. Regulations will typically clearly
of the outcome of the investigation, may provide to this opportunity in order to
receive a copy of the final report (possibly safeguard an accused’s rights to defend
redacted) if is not confidential and shall be themselves and to be heard86. However, there
informed as to whether they will have standing may be circumstances where such an appeal is
rights in appeals proceedings against the rightly not provided for in the regulations and
alleged perpetrator in any first instance a provisional suspension must stay in force
disciplinary decision (see discussion below).84 until a decision on sanction is issued87. The
Other victims/survivors/witnesses may also sporting association’s rules should expressly
be granted access to the final report and/or the provide for either, and where the regulations
first-instance decision under the requirements are silent on the issue, again to protect the
set out in the sports rules and regulations and accused’s procedural rights, the default should
in due consideration of the protection of be for the request for provisional measures to
privacy and personality rights, including be ruled admissible, and then for an
applicable data protection rights85 of all the adjudicatory body to rule on its merits.
individuals who were involved or provided
testimony in the course of the investigation. It is desirable, as it is the case in some anti-
The publication of such documents can be doping rules88, for an association to set out the
crucial for victims/survivors’ mental and requirements to be established for an accused
physical wellbeing and often allows them to to demonstrate why a provisional suspension
make informed decisions regarding their should be lifted. These may include, that the

buse (2023 edition); Article 8.1 Swiss Olympic Ethik- 86

See Article 7.4 WADC.
Statut des Schweizer Sports (2022 edition). 87 See Section F.3.e of the 2023 ITIA Tennis Anti-
84 See, for example, CAS 2021/A/7663 Marion Sicot v.
Corruption Program.
Union Cycliste Internationale (UCI), award of 27 88 See e.g. Rule 7.10.4 of the Athletes Integrity Unit-

February 2023; Article 24 para. 6 of the FIFA Code of World Athletics Anti-Doping Rules.
Ethics; Article 21 of the UCI Code of Ethics
85 See Article 21 para. 3 of the UCI Code of Ethics.

22
violation has no reasonable prospect of being standard suggests, a factfinder cannot at this
upheld, for example due to a serious flaw in the preliminary stage make an ultimate
case such as lack of jurisdiction, that there is a determination on the merits. Instead, when
“strong prima facie case” or “good arguable presented with the relatively low bar of the
case”89 such that the circumstances are likely to “good arguable case” standard, the factfinder
be that no disciplinary measure will be can only assess whether the requesting party
imposed, that the exceptional existence of has presented sufficient credible evidence to
other facts make it unfair under the entire provide a prima facie arguable basis for a case.91
circumstances of the case to impose a
provisional suspension as to do so would run Under Swiss law, provisional measures that
the risk of the accused suffering irreparable equate to the relief on the merits are considered
harm and, that the interests of the accused as “anticipated enforcement” measures.92
outweigh those of all the other parties Provisional relief of this nature can only be
involved, including the victim/survivor. granted restrictively and the standards to meet
for the applicant are much higher than for
It should be noted that the aforementioned conservatory or regulatory measures.93 Indeed,
criteria are assessed on a prima facie basis by “anticipated enforcement” provisional
CAS when making determinations on measures can be granted only when the claim
provisional measures or requests for the lifting appears “clearly well founded”94.This means
of provisional suspension. It is further that an individual who has been accused of
uncontroversial that an application for egregious safe sport rule violations is required
provisional relief must satisfy all three of the to demonstrate that they have a clearly well-
criteria under Article R37 para. 5 of the CAS founded claim to successfully overturn the
Code. More particularly, the applicant must provisional suspension.
demonstrate that (i) he/she has a likelihood of
success on the merits, (ii) he/she will suffer As to the criterion of irreparable harm, ‘[t]he
irreparable harm if the relief is not granted and Appellant must demonstrate that the requested
(iii) the balance of interests is in his/her favor. measures are necessary in order to protect his position
from damage or risks that would be impossible, or very
The “strong prima facie case” or “good arguable difficult, to remedy or cancel at a later stage’.95
case” standard derives from national European
jurisdictions and is used to determine if
preliminary measures should be lifted or
granted to prevent a risk of injustice.90 As the

89 The strong prima facie or good arguable case principle Mandatory Interlocutory Injunctive Relief from the Irish Courts,
has been widely recognized in most legal contexts in McCann FitzGerald, 26 March 2020, available
many jurisdictions to assess provisional measures, at https://www.mccannfitzgerald.com/knowledge/dis
injunctions or rulings on jurisdiction. For example, in putes/covid-19-the-test-for-mandatory-interlocutory-
Mareva injunctions so named having adopted the name injunctiverelief-from-the-irish-courts.
of the plaintiff company in a 1975 English Court of 91 High Court (IE) 14 October 2011 – [2011] IEHC 505

Appeal decision (Mareva Compania Naviera SA v. at paras. 6.7 and 6.9.

International Bulkcarriers SA. See also Brownlie v Four 92
Also called “performance measures”; see ARROYO,
Seasons Holding Inc 1 WLR 1992 [2018] (Brownlie) Arbitration in Switzerland, The Practitioner’s Guide, p.
and Goldman Sachs International v Novo Banco SA [2018] 939.
UKSC 34 (Goldman Sachs). 93 ATF 131 III 473, para. 2.3; see also ARROYO, op.
90 Ibid and High Court (IE) 14 October 2011 – [2011]
cit., p. 942-943).
IEHC 505, at para. 6.7, available at 94 ATF 131 III 473, para. 3.2.

https://www.unalex.eu/Judgment/Judgment.aspx?File 95 Sheikh Hazza Bin Sultan Bin Zayed Al Nahyan v FEI,

Nr=IE-82&FixLng=en. See also COVID-19: The Test for CAS 2014/A/3591, Order dated 23 May 2014, para. 21.

23
According to CAS case law, the risk must be immediately removed from the field of play or
actual and real, not just hypothetical.96 provisionally suspended.99

With regards to the balance of interest criteria, V. How to balance the rights of all parties
most sporting associations have a significant in disciplinary proceedings resulting from
interest in maintaining public confidence in the sports investigations
integrity of their sport and in avoiding the
irreparable damage that could be done to that It is a fundamental principle of sports
confidence if an individual accused of serious arbitration that all parties in any disciplinary
sport violations is improperly allowed to proceedings are entitled to the respect of their
continue to hold office, or coach or other while rights of natural justice. Adjudicators must be
their case is being heard. The balance of particularly conscious of these rights in
interest favoring the sporting association has proceedings arising from investigations,
thus been consistently recognized by the CAS notably in safe sport matters where the
within the context of provisional measures protection and safety of victims is paramount
applications in anti-doping97. Basic human but so too where the right of the accused to
rights principle would also outweigh the basic face their accused and be fully informed of the
personality and economic rights of the charges against them is vital.
perpetrator in favor of the rights of the
association and, more importantly, the victim. A. Standing to be a party in disciplinary
This is even more so when there is a possibility proceedings in first instance and before
of additional harm, be it mental or physical, the CAS in safeguarding cases
being caused to the victim. In fact, while an
argument often raised by the accused is that The first hurdle in safeguarding cases is the
provisional measures breach one’s right to earn question of which party has sufficient
a livelihood, case law and safe sport regulations legitimate interest to be a party in the
also generally provide that a sporting disciplinary proceedings. Unproblematic is that
association’s duty to protect children and the sports organization that is filing actions
athletes outweighs the duty of procedural against one of its members has standing to sue
fairness that may be owed to an accused98. The and, in turn, the member against whom
evolution of safeguarding rules, and the disciplinary actions are brought has standing to
assistance of the IOC Tool Kit have thus also be sued. More difficult is the question whether
paved the way for safeguarding rules and victims/survivors have standing in such
regulations expressly stating that where there is disciplinary proceedings. This question is
an apparent imminent danger or risk to an important, because – at least under Swiss law –
athlete the alleged perpetrator may be the standing to sue and the standing to be sued
is not a procedural but a substantive question

96 Fenerbahçe SK v. UEFA, CAS 2013/A/3139, Order which provides that: “Should it be determined, in urgent and
of 3 May 2013, paras. 6.5 and 6.6. serious situations, that conservatory measures need to be taken to
97 Legkov v FIS, CAS 2017/A/4968, para. 229; S. v. UCI safeguard a Covered Person (such as expelling an offender from a
& FCI, CAS 2002/A/378, order of 2 May 2002, p.4 Championship venue), such measures will be taken by the
Abdelrahman v Egyptian NADO, CAS OG 16/23, para Safeguarding Officer under the official authority of the Executive
7.11, Kreuziger v UCI, CAS 2014/A/3694, para. 7.15. Committee. Not following the usual disciplinary process in such
98 Smirnova and Skate Canada (C. Qualtrough May 2015) an instance would be justified under applicable Human Rights
See also Article 8 of the World Athletics Safeguarding legislation because the duty to protect outweighs the duty of
Rules. procedural fairness owed to a possible offender.”
99 See for example Article 7.2.6 of the ISSF Policy and

Safeguarding Procedures against Harassment and Abuse

24
with the consequence that the claim will be CAS 2015/A/3874 where the CAS panel held
rejected if the parties to the proceedings lack that “the mere fact that an individual is a victim does
standing to sue or standing to be sued.100 This not as such establish a standing to appeal a sanction
is a sensitive issue in safeguarding proceedings imposed on the offender. Such an interpretation would
because victims are personally affected by the have far-reaching consequences and could lead to the
atrocities done to them. The question therefore possibility of appeals from a potentially very large group
arises as to whether victims and survivors are of persons. Under such an interpretation, for instance,
“substantially affected” by first instance any player who is injured by a dangerous tackle or is
decisions so as to have standing to appeal bitten by another player would be able to appeal if he
before CAS as their membership rights may were unhappy with the sanction imposed on the
not be directly substantially affected in offender.104 Whether victims/survivors would
disciplinary proceedings against their have standing to appeal in CAS proceedings in
101
perpetrators. CAS jurisprudence offers some the absence of a specific provision in the sport
guidance regarding the standing to appeal in organization’s rules and regulations appears to
proceedings before it. The CAS panel in CAS be questionable because the victim/survivor
2016/A/4924 & 4943 held that “when an may not be directly affected by the outcome of
association’s measure affects not only the rights of the the first instance disciplinary procedure against
addressee, but also and directly those of a third party, their offenders. They would potentially be
that third party is considered ‘directly affected’ and thus directly affected if they would have a right to
enjoys standing. This is consistent with the general file their own internal complaint against the
definition of standing that parties, who are sufficiently perpetrator before association tribunals.105
affected by a decision, and who have a tangible interest However, the regulatory reality is that a victim’s
of a financial or sporting nature at stake may bring a complaint will not lead directly to disciplinary
claim, even if they are not addressees of the measure proceedings, it must first go through
being challenged”.102 The burden of proof for the investigation proceedings. Although the
standing to appeal rests on the outcome may be dissatisfactory, the
victims/survivors.103 The consequence of disciplinary decision by a sports organization
decisions in disciplinary matters for “victims” against the perpetrator does not dispose of the
was, for example, discussed in rights of the membership rights of

100
Spühler, Tenchio, Infanger (eds), Scheizerische 103 CAS 2018/A/5746 Trabzonspor Sportif Yatirim ve
Zivilprozessordnung (2nd edn, Helbing Lichtenhahn Verlag, Futebol Isletmeciligi A.S., Trabzonspor Sportif Yatirim
2013), Art. 236, para. 16; M. Beloff et al., ‘The Court of Futebol Isletmeciligi A.S. & Trabzonspor Kulübü
Arbitration for Sport’ in A. Lewis and J. Taylor (eds), Dernegi v. Turkish Football Federation (TFF),
Sport: Law and Practice (4th edn, Bloomsbury Professional Fenerbahçe Futbol A.S., Fenerbahçe Spor Kulübü &
2021) para. D2.61; Football Association of Serbia v. Fédération Internationale de Football Association
Union des Associations Européennes de Football (FIFA), award of 30 July 2019, para. 179; CAS
(UEFA), award of 24 January 2017, para. 61; 2021/A/8507 Mamdouh Abbas v. Egyptian Olympic
CAS 2020/A/6694 Bursaspor KD v. Henri Gregoire Committee, award of 20 September 2022, para. 74.
104 CAS 2015/A/3874 Football Association of Albania
Saivet, award of 4 August 2020, para. 79.
101 SFT 4A_564/2021, judgement of 2 May 2022, consid. (FAA) v. Union des Associations Européennes de
E.5.3. Football (UEFA) & Football Association of Serbia
102 CAS 2016/A/4924 & 4943 Paolo Barelli v. (FAS), award of 10 July 2015, para. 182.
105 Cf. CAS 2018/A/5746 Trabzonspor Sportif Yatirim
Fédération Internationale de Natation (FINA), award of
28 June 2017, para. 85; CAS 2018/A/5746 Trabzonspor ve Futebol Isletmeciligi A.S., Trabzonspor Sportif
Sportif Yatirim ve Futebol Isletmeciligi A.S., Yatirim Futebol Isletmeciligi A.S. & Trabzonspor
Trabzonspor Sportif Yatirim Futebol Isletmeciligi A.S. Kulübü Dernegi v. Turkish Football Federation (TFF),
& Trabzonspor Kulübü Dernegi v. Turkish Football Fenerbahçe Futbol A.S., Fenerbahçe Spor Kulübü &
Federation (TFF), Fenerbahçe Futbol A.S., Fenerbahçe Fédération Internationale de Football Association
Spor Kulübü & Fédération Internationale de Football (FIFA), award of 30 July 2019, para. 187.
Association (FIFA), award of 30 July 2019, para. 173.

25
victims/survivors.106 Consequently, if sports proceedings against perpetrators in safe sport
organizations fail to grant victims/survivors matters, their “procedural role” and the
rights to become a party in first instance capacity of their procedural involvement in the
disciplinary proceedings and/or appeals proceedings should also be specified.111
proceedings against their perpetrators, the
question of standing must be determined based In first instance, the vertical nature of
on the national mandatory statutory provisions disciplinary matters generally prevents victims
that apply subsidiarily to the disciplinary from having standing to sue (alone).
procedure in question, for example Swiss Irrespective of whether or not they filed the
law.107 initial complaint, victims must be expressly
granted the right under the sports
In the event that a victim is qualified as an organization’s regulations to join the sports
“indirectly affected” third party, the organization’s disciplinary action against their
entitlement of direct and indirect members to perpetrators as a victim plaintiff (ancillary
become a party to disciplinary proceedings falls party) which, inter alia, shall give them the right
within the regulatory autonomy of sports to file their own submissions, access the case
organizations.108 In other words, sports file and attend the hearing. If the victims are
organizations can expand the right to granted the right to appeal the first instance
participate in disciplinary proceedings to direct decision before the CAS, regardless of whether
and indirect members whose membership or not they were a party to the first instance
rights are not substantially affected from an proceedings, their participation in the appeals
association law point of view.109 Based on a arbitration proceedings falls under the
victim-friendly procedural approach, sports arbitration agreement in favor of CAS
organizations shall consider the issue of contained in the rules and regulations of the
“standing” of victims as part of their due respective sports organization. A victim’s
diligence when implementing safeguarding appeal against the first instance decision shall
policies. This requires clear and unequivocal always be directed against the sports
wording to avoid any discussions and disputes organization that rendered the first instance
of the victims’ standing and related procedural decision (due to the vertical nature of
rights.110 Accordingly, general wordings that disciplinary matters) and the alleged
grant, for example, “directly affected persons” perpetrator, who must be granted the
standing rights should be avoided. possibility to defend himself/herself in such
appeals arbitration proceedings. In turn, if the
If sports organizations decide to entitle victim files the appeal against the sports
victims/survivors to be parties to disciplinary organization as a respondent, but does not

106 CAS 2008/A/1583 Sport Lisboa e Benfica Futebol 2008/A/1584 Vitória Sport Clube de Guimarães v.
SAD v. UEFA & FC Porto Futebol SAD & CAS UEFA & FC Porto Futebol SAD, award of 15 July 2008,
2008/A/1584 Vitória Sport Clube de Guimarães v. para. 30; CAS 2016/A/4602 Football Association of
UEFA & FC Porto Futebol SAD, award of 15 July 2008, Serbia v. Union des Associations Européennes de
para. 31. Football (UEFA), award of 24 January 2017, para. 70.
107 CAS 2020/A/7356 SK Slovan Bratislava v. Union 109 U. Haas, ‘Standing to Appeal and Standing to be

des Associations Européennes de Football (UEFA) & Sued’ in M. Bernasconi and A. Rigozzi, International sport
KI Klaksvik, award of 1 October 2020, para. 63; U. Arbitration – 6th Conference CAS & SAV/FSA Lausanne
Haas, ‘Standing to Appeal and Standing to be Sued’ in 2016, 53, 70; SFT 4A_184/2023, judgement of
M. Bernasconi and A. Rigozzi, International sport 5 June 2023, consid. E.6.1.3.
Arbitration – 6th Conference CAS & SAV/FSA Lausanne 110 See e.g. CAS 2021/A/7663 Marion Sicot v. Union

2016, 53, 57. Cycliste Internationale (UCI), award of 27 February

108 CAS 2008/A/1583 Sport Lisboa e Benfica Futebol 2023.
SAD v. UEFA & FC Porto Futebol SAD & CAS 111 Ibid.

26
name the perpetrator as a respondent, this may than for standing, in the absence of an explicit
result in the appeal being dismissed on that provision in the sports organization’s rules and
ground alone due to the sports organization’s regulations, the victim/survivor will still have
lack of standing to be sued (alone). the burden to establish that the outcome of the
disciplinary procedure between the sports
In summary, relying on CAS jurisprudence and organization and the alleged offender will have
Swiss law, it appears that victims have no an influence on the relationship between the
standing to appeal the first instance decision victim/survivor and the sports organization.114
between the sports organization and their
perpetrators before CAS, unless the sports Finally, victims who decide not to become a
organization in question has extended a right party to CAS proceedings against their
to appeal to victims and survivors. perpetrators may nevertheless chose to
participate by submitting an amicus curiae brief
It is noteworthy that victims/survivors bound in accordance with Article R41.4 para. 6 of the
by the arbitration agreement between the CAS Code. 115 This may be the case if the CAS
parties to the arbitration before CAS may also panel considers the victims’ statement to be
become a party to pending CAS proceedings helpful for the determination of the appeal. In
through intervention pursuant to the affirmative, the CAS panel shall inform the
Articles R41.3 and R44.4 of the CAS Code. parties about their intention to ask the victim
These provisions are also applicable in CAS to submit an amicus curiae brief and invite the
appeals arbitration proceedings, cf. Article R54 parties to the file their positions thereon. The
para. 7 of the CAS Code. The participation in CAS panel will then decide whether such amicus
CAS proceedings through intervention curiae brief shall be admitted, taking into
requires, apart from the formal requirements112 account the interests of the parties and the
that the applicant has a legal interest in the circumstances of the individual case.116 If an
sense that the victim/survivor is “adversely amicus curiae brief is admitted, CAS panels
affected in its legal sphere or position by the outcome of enjoy a wide discretion in what form the amicus
the arbitration procedure”.113 Legal interest shall be curiae may assist the CAS panel, be it in writing
accepted if regulations provide for standing or verbally.117
rights of the victim/survivor. If this is not the
case, it is up to the victim/survivor to prove B. Legal aid
their legal interest. While the legal interest
threshold for an intervention may be lower

112 Cf. D. Mavromati and M. Reeb, The Code of the Court ‘How “Amicus Curiae” Works At The Court Of
of Arbitration for Sport – Commentary, Cases and Materials Arbitration For Sport (LawInSport, 9 December 2022),
(2015, Wolters Kluwer), Article R41, paras. 88 and 89; available at
Noth/Haas ‘Article R41 CAS Code’ in Arroyo (ed), https://www.lawinsport.com/topics/item/how-
Arbitration in Switzerland – The Practicioner’s Guide (2nd edn, amicus-curiae-works-at-the-court-of-arbitration-for-
2018, Wolters Kluwer), paras. 18 et seq. sport
113 Noth/Haas ‘Article R41 CAS Code’ in Arroyo (ed), 116 D. Mavromati and M. Reeb, The Code of the Court

Arbitration in Switzerland – The Practicioner’s Guide (2nd edn, of Arbitration for Sport – Commentary, Cases and
2018, Wolters Kluwer), para. 22. Materials (2015, Wolters Kluwer), Article R41, para. 100
114 Ibid. et seq.; Noth/Haas ‘Article R41 CAS Code’ in Arroyo
115 D. Mavromati and M. Reeb, The Code of the Court of (ed), Arbitration in Switzerland – The Practitioner’s
Arbitration for Sport – Commentary, Cases and Materials Guide (2nd edn, 2018, Wolters Kluwer), para. 23.
(2015, Wolters Kluwer), Article R41, para. 99; 117 M. Beloff et al., ‘The Court of Arbitration for Sport’

Noth/Haas ‘Article R41 CAS Code’ in Arroyo (ed), in A. Lewis and J. Taylor (eds), Sport: Law and Practice (4th
Arbitration in Switzerland – The Practicioner’s Guide (2nd edn, edn, Bloomsbury Professional 2021) para. D2.115.
2018, Wolters Kluwer), para. 23; see also M. Diaconu,

27
The realization of the time, energy and money their interests and their rights before such
that will need to be expended in order to try tribunals.
right a wrong that may effectively not be
righted in the end often prevents many athletes Legal aid is an important protective measure
or sports person from proceeding with for vulnerable athletes to guarantee their right
complaints that will ensue in investigations and of access to justice and disciplinary
then disciplinary proceedings. Athletes and proceedings. If and to what extent legal aid may
whistle-blowers, especially minors, are already be granted in sports proceedings before
vulnerable if they have been victims of association tribunals and arbitration tribunals is
maltreatment, if they are women, or if they are debatable, particularly in situations in which
from a nation whose culture does not seem to athletes are unable to seek justice before
condone the “outing” of these atrocities. ordinary courts in lieu of sports arbitration
Therefore, although the accuser’s rights must tribunals. The Swiss Federal Tribunal excludes
be respected, the victims, who can only be legal aid granted by the state in private national
referred to as “vulnerable” need legal, financial and international arbitration proceedings.
and procedural support to endure the However, this does not prevent the parties to
disciplinary proceedings. the proceedings or the arbitration institution
itself to establish a legal aid system on their
Legal aid is an important protective measure own. For example, the International Council of
for vulnerable athletes to guarantee their right Arbitration for Sport (“ICAS”) created a legal
of access to justice and disciplinary aid fund in 1994 which allows athletes and
proceedings. It is incumbent upon sports other natural persons to receive legal aid, i.e.,
organizations to safeguard athletes’ procedural assistance (i) for administrative costs, (ii) a pro
rights in proceedings before association bono counsel and (iii) for travel and
tribunals and/or sports arbitration tribunals. In accommodation costs, under specific
the case of first instance tribunals, some may conditions. Accordingly, sportspersons
have in the past argued that the procedural without the necessary financial means may, in
rights of the parties needed not be observed as principle, wish to seek justice directly before
strictly in their proceedings considering the the CAS ordinary division to avail themselves
tribunal’s decision can be appealed to state of legal aid. Other national and international
courts or arbitration tribunals after exhausting tribunals also offer this same pro bono
the internal dispute resolution mechanisms. assistance118. A specific example is Article 40 of
However, sport dispute resolution tribunals are the FIFA Code of Ethics which provides in its
becoming far more structured and as para. One that “[i]n order to guarantee their rights,
association tribunals are sometimes entrusted individuals bound by this Code and with insufficient
to make final and binding decision – notably in financial means may request legal aid from FIFA for
less egregious safe sport matters. Thus, the purpose of proceedings before the Ethics
fundamental procedural rights, such as the Committee”.
right to defend oneself against charges to be
heard and to benefit from an equal treatment Finally, credit must be given, in safe sport cases
of the parties, must be respected at first in particular, to international human rights
instance tribunals. The biggest challenge for groups, such as Terre des Hommes and
most athletes is securing legal representation Human Rights Watch who take a keen interest
that is affordable and qualified to represent in supporting victims of sporting misconduct
and provide much needed legal aid notably to

For example, the Sport Dispute Resolution Centre in

118

Canada.

28
athletes from third world countries or from before CAS for their mental wellbeing or other
countries where women’s rights are personal reasons, it may be that their testimony
repressed119. will not be admissible and not be considered by
the CAS panel in deciding the case.
C. De novo power in appeals proceedings
before the CAS A CAS panel’s de novo power can be limited in
very few cases. For example, if the matter
Article R57 para. 1 of the CAS Code provides under appeal concerns a different issue that
that the “Panel has full power to review the facts and was not discussed in the first instance
the law”, meaning that the CAS panel can procedure.122 In other words, a CAS panel’s
generally review the dispute between the power of review can never go beyond the
parties afresh (de novo). The de novo principle is a scope of the challenged decision. If the
fundamental feature of CAS appeals arbitration appealed decision imposed a sanction for
proceedings. discrimination, the alleged person may not be
sanctioned for another sports rule violation,
An issue may arise in relation to the de novo for example psychological abuse of
principle with regards to the victim-oriented sportspersons, if such allegation had not
approach that seeks to ensure that formed part of the discussion or charges
victims/survivors only testify once during the brought against the alleged perpetrator in the
proceedings before the judicial bodies of the previous instance.
sports’ organization and CAS.120 As all the
evidence presented in the first instance must The de novo principle may thus understandably
again be presented and argued before CAS, come into conflict when adjudicating safe sport
victims/survivors would in principle again matters before CAS if information and
have to provide testimony and be subjected to evidence that was already available during the
recounting the abuse, the shame and guilt first instance procedure is only presented in the
related to the same and once again fear that appeal proceedings. Article R57 para. 3 of the
they will not be believed or fear of reprisal of CAS Code provides that “[t]he Panel has
all kinds (see the discussion on protected discretion to exclude evidence presented by the parties if
witnesses below). There is however the it was available to them or could reasonably have been
opportunity for all parties to the appeals discovered by them before the challenged decision was
proceedings before the CAS to agree to accept rendered”. Based on the wording of this
the oral testimony at first instance or the provision, evidence that was already available
victim/survivor’s written witness statement (so before the previous instance is not per se
long as the Panel is satisfied that either or both inadmissible. Instead, the Panel holds the
were subject to cross examination in the first discretion of excluding such evidence. CAS
instance).121 Otherwise, should the victim or panels apply this provision restrictively and
survivor choose not to provide testimony tend to exclude newly submitted evidence only

119See McLaren Mali Investigation. 121 See also Court of Arbitration for Sport, Guidelines
120See R. Bush, ‘Safeguarding Proceedings – How to for the hearing of vulnerable witnesses and testifying
Balance the Rights of the Accused With Treatment of parties in CAS Procedures (December 2023) available at
the Abused?’ (LawinSport, 20 June 2022), available at https://www.tas-cas.org/fileadmin/user_upload/ICAS
https://www.lawinsport.com/topics/item/safeguardin _Guidelines_on_Protection_of_Witnesses__FINAL_.p
g-proceedings-how-to-balance-the-rights-of-the- df.
accused-with-treatment-of-the- 122 CAS 2022/A/9325 Al Merrikh Sport Club v.

abused?highlight=WyJyaWNoYXJkIiwiYnVzaCJd; Khartoum Local Football Association & Sudan Football

FIG, ‘Internal Guidelines – Special measures for Association with further references.
protecting vulnerable witnesses’ (2023), paras 16.

29
(i) if the previous is a genuine arbitral tribunal123
and (ii) “if there is a clear showing of bad faith because In all disciplinary proceedings related to safe
the party deliberately retain evidence, available to it, in sport, anti-corruption or anti-doping, the
order to bring it for the first time to CAS”.124 burden of proof, which is an issue of the merits
Consequently, any information or evidence under Swiss law125, rests with the association
collected during the investigation phase (which who has brought the charges forward.126
is often ongoing in safeguarding matters) but
not presented in the previous instance because In anti-doping cases, pursuant to Article 3.1of
it was not yet in the control, knowledge or the WADC the standard of proof has long
possession of the sanctioning authority should been to the ‘comfortable satisfaction’ of the
generally be admitted by a Panel to the case file, hearing panel. Generally, in safe sport and
unless the parties withheld the information in corruption matters the standard of proof that
an abusive and undue manner. needs to be satisfied by a balance of
probabilities. In other words, the alleged
In general, discussions about who knew what infraction must be established on the
at which stage of the procedure can easily be preponderance of the evidence127.
avoided if sports organizations implement The rule of thumb of course is that the
provisions similar to Article 13.1.1 of the standard of proof will vary depending on the
WADA Code which reads as follows: infraction and sport and shall be governed by
the applicable regulations which should
“The scope of review on appeal includes all issues
expressly set out the same. This principle has
relevant to the matter and is expressly not limited to the
long been established by CAS jurisprudence128.
issues or scope of review before the i
nitial decision maker. Any party to the appeal may E. Protection of victims and witnesses
submit evidence, legal arguments and claims that were
not raised in the first instance hearing so long as they Needless to say, in all disciplinary proceedings
arise from the same cause of action or same general facts but most notably those related to safe sport
or circumstances raised or addressed in the first instance matters, there are various safeguards that can
hearing”. be put in place to ensure that the right to
natural justice of all parties is preserved whilst
D. Burden and standard of proof carefully balancing the rights of, inter alia, the

123 M. Beloff et al., ‘The Court of Arbitration for Sport’ 126 A. Rigozzi and B. Quinn, ‘Evidentiary Issues Before
in A. Lewis and J. Taylor (eds), Sport: Law and Practice (4th the CAS’ in Michele Bernasconi (ed), International
edn, Bloomsbury Professional 2021) para. D2.99; Sports Law and Jurisprudence of the CAS (2014,
124 CAS 2022/A/9260 Al Naser Club Sports v. Aubin Editions Weblaw) 1, 21; B. Hessert, Sports
Kouakou, award of 19 July 2023, para. 55; see also e.g. Investigations Law and the ECHR (Routledge, 2023) p.
CAS 2022/A/8651 Edgars Gauracs v. UEFA, award of 63. See Article 3.1 of the WADC and for example
14 June 2023, para. 109; D. Mavromati and M. Reeb, The Section G.3.a of the TACP and Article 7.11 Athletics
Code of the Court of Arbitration for Sport – Commentary, Cases Integrity Unit Report, Investigation and Prosecution
and Materials (2015, Wolters Kluwer), Article R57, para. rules – Non-Doping.
52. 127 See Section G.3.1 of the TACP, which the Swiss
125 CAS 2011/A/2384 Union Cycliste Internationale Federal Tribunal at paragraph 8.2 of 4A_486/2022
(UCI) v. Alberto Contador confirmed was the correct standard of proof to apply as
Velasco & Real Federación Española de Ciclismo provided in the TACP irrespective of the seriousness of
(RFEC) & CAS 2011/A/2386 World Anti-Doping the allegations.
Agency (WADA) v. Alberto Contador Velasco & RFEC, 128 See CAS 2009/A/1920 FK Pobeda, Aleksandar

award of 6 February 2012, para. 93; A. Rigozzi and B. Zabrcanec, Nikolce Zdraveski v. UEFA and CAS
Quinn, ‘Evidentiary Issues Before the CAS’ in Michele 2011/A/2490 Daniel Köllerer v. ATP, WTF, ITF &
Bernasconi (ed), International Sports Law and Grand Slam Committee.
Jurisprudence of the CAS (2014, Editions Weblaw) 1, 15.

30
whistleblower, the victim and the accused to (i) challenge the evidence of the other party
examination and cross examination and through cross-examination, address the panel
(ii) confidentiality or anonymousness.129 and present their case in full, all the while
acknowledging the necessity to protect
It may often be the case that victims or witnesses.
witnesses/whistleblowers are minors, or
culturally undermined (women in many In safeguarding cases, CAS panels may
countries), or vulnerable130 individuals who for therefore wish to proceed with examinations in
various valid reasons simply do not want to be camera, testifying behind curtains with voice
persecuted for coming forwards and wish for scrambling devices if a hearing is in person,
their identity to remain confidential for fear of image and voice scrambling devices if a hearing
reprisal, being personally exposed to threats, is by videoconference.133 Alias’ or letters can be
insults, pressure and intimidation or other131. used to disguise the identity of the witnesses134,
and redacted submissions and or decision can
Conversely, all accused individuals had a right ensure that the identity of individuals remains
to face their accuser, to be fully informed of the confidential. In CAS 2009/A/1920 in
allegations brought against them and the particular, “the Panel made sure that the Appellants
evidence these allegations rely upon, and to received the minutes of the interrogations of the protected
subject them to cross-examination. witnesses and that the Appellants were able to directly
cross-examine the protected witnesses over the phone
Various CAS cases have highlighted the during the Hearing. A counsel of the CAS assured that
importance of coming up with alternatives the witnesses were properly identified and that they were
ways for a panel to receiving evidence in alone at the time of the examination-in-chief and the
sensitive safeguarding cases and illustrate ways cross-examination”.135
in which such challenges may be dealt with.
There is no golden rule. For the most part CAS panels have also held with regards to
arbitral tribunals hold a discretionary power anonymous witness statements that136:
with regards to the procedures followed at the “When facts are based on anonymous witness
hearing132 provided that such hearings are statements, the right to be heard which is guaranteed by
conducted in a fair manner with a reasonable article 6 of the European Convention of Human Rights
opportunity for all parties to present evidence,

129 See e.g. Court of Arbitration for Sport, Guidelines parties in CAS Procedures (December 2023) available
for the hearing of vulnerable witnesses and testifying at
parties in CAS Procedures (December 2023) available https://www.tas-cas.org/fileadmin/user_upload/ICAS
at _Guidelines_on_Protection_of_Witnesses__FINAL_.p
https://www.tas-cas.org/fileadmin/user_upload/ICAS df.
_Guidelines_on_Protection_of_Witnesses__FINAL_.p 134 CAS 2009/A/1920 FK Pobeda, Aleksandar

df. Zabrcanec, Nikolce Zdraveski v. UEFA, award of 15

130 Ibid., which considers witnesses and testifying parties April 2010; CAS 2021/A/8239 Oleksandr Sevidov v.
as vulnerable “when testifying may risk (re)traumatizing the Ukrainian Association of Football, award of 18 July
witness, present a threat to personal safety of the witness (and 2023.
possibly others) or create significant risk to reputation or of 135 Ibid., para. 75.

retribution. Minors and witnesses with a mental disability will also 136 CAS 2009/A/1920 FK Pobeda, Aleksandar
generally qualify as vulnerable witnesses.” Zabrcanec, Nikolce Zdraveski v. UEFA, award of 15
131 See CAS 2009/A/1920 FK Pobeda, Aleksandar April 2010, para. 72 and CAS 2019/A/6388 Karim
Zabrcanec, Nikolce Zdraveski v. UEFA, award of 15 Keramuddin v. Fédération Internationale de Football
April 2010, para. 73. Association (FIFA), award of 14 July 2020, paras. 125,
132 See e.g. Articles R44.2 and R44.3 of the CAS Code. 126 and 127.
133 See Court of Arbitration for Sport, Guidelines for

the hearing of vulnerable witnesses and testifying

31
(ECHR) and article 29 par. 2 of the Swiss
Constitution is affected. According to a decision of the Ultimately, it is up to the adjudicatory panel to
Swiss Federal Court dated 2 November 2006 (ATF establish a confidential process which balances
133 I 33) anonymous witness statements do however the rights of all parties so as to avoid costly
not CAS 2009/A/1920 FK Pobeda, Aleksandar appeals based on procedural breaches. A
Zabrcanec, Nikolce Zdraveski v/ UEFA - PAGE balance must always be struck between the
14 breach this right when such statements support the procedural rights of the party opposed to the
other evidence provided to the court. According to the evidence being adduced due to its anonymity,
Swiss Federal Court, if the applicable procedural code on the one hand, and the necessity to protect
provides for the possibility to prove facts by witness the life and personal safety of the witnesses and
statements, it would infringe the principle of the court’s victims on the other.
power to assess the witness statements if a party was
prevented from relying on anonymous witness V. Conclusion
statements”.
All interested parties hold an important
responsibility to espouse the integrity of sport
Adjudicatory panels may also wish to seek
and to protect its participants. In the context of
detailed will-say statements, thoroughly
sports law, the outcome of investigations, legal
detailed witness statements that can replace
disputes and disciplinary proceedings that
direct examination, which may or may not be
often arise from them requires a careful
anonymous, so long as an in-depth check of
balancing of interests including the sporting
the identity and reputation of the anonymous
association and all its stakeholders, the victim,
witness is conducted when relevant137. A panel
the accused and the witnesses, only to name the
may also request, for expediency and
most obvious. This article has highlighted the
procedural economy, but also to reduce that
importance of protecting human rights, clearly
amount of time a protected witness or
drafting and properly implementing robust
individual may be subject to examination and
regulations, upholding procedural fairness, and
cross-examination, to have such will-say
shielding vulnerable at-risk individuals, notably
statements considered as the equivalent of
minors, throughout such investigations and
direct examination.
legal proceedings to ensure that the rights of all
involved are safeguarded. Given the ever-
Of importance is Article R43 of the CAS Code
growing complexity of sport investigations and
and most other Sports Association disciplinary
disciplinary proceedings, this is a lofty goal; but
rules which provide that proceedings under the
one that is attainable.
same are confidential. However, Article R43 of
the CAS Code and of most sports associations’
disciplinary rules also provide for awards and
decisions to be made public. There is of course
a caveat to this general rule which may be used
in safe sport cases to protect the identity and
the sensitive nature of the evidence and
information adduced throughout the
proceedings, or in antidoping and anti-
corruption cases to protect minors in
particular.
137Ibid., CAS 2019/A/6388 Karim Keramuddin v.
Fédération Internationale de Football Association
(FIFA), para. 128.

32
___________________________________________________________________________
Caselaw of the Swiss Federal Tribunal on appeal against CAS
awards (2020-23)
Alexis Schoeb*
___________________________________________________________________________

I. The Swiss Federal Tribunal

A. Introduction
B. Types of awards appealable
II. Permissible grounds of appeal
A. Article 190(2)(a) of PILA: Improper appointment of an arbitrator or improper
constitution of the tribunal
B. Article 190(2)(b) of PILA: Juridictional defects
1. Appellate Review of CAS Jurisdiction
2. Validity of an Arbitration Agreement
3. An Arbitral Tribunal’s Determination of Its Own Jurisdiction
C. Article 190(2)(c) of PILA: Ultra, Extra or Infra petita
D. Article 190(2)(d) of PILA: violation of the right to be heard or violation of the equal
treatment principle
1. Equal Treatment
2. Right to be heard
3. Related duties of an arbitral tribunal
4. Surprise effect
E. Article 190(2)(e) of PILA: Procedural or Substantive Public Policy
1. Substantive Public Policy
a. European Convention on Human Rights / Swiss constitutional rights /
Athletes’ personality rights
b. Disciplinary sanctions (strict liability / proportionality / degree of proof)
c. Pacta sunt servanda
2. Procedural Public Policy
a. The res judicata principle
b. The ne bis in idem principle
c. Excessive formalism
d. Principle of timelines
___________________________________________________________________________

I. The Swiss Federal Tribunal (“CAS”) pursuant to its Code of Sports-

related Arbitration (the “CAS Code”).1
A. Introduction
This paper considers four years (2020-23) of The SFT is Switzerland’s highest court. It has
caselaw from the Swiss Federal Tribunal exclusive jurisdiction to hear appeals against
(“SFT”) on challenges against arbitral awards awards issued by arbitral tribunals seated in
issued by the Court of Arbitration for Sport Switzerland in connection with disputes

* Alexis Schoeb is a Swiss qualified attorney-at-law, 1 This paper reviewed SFT decisions from 1 January
arbitrator, and Partner at Peter & Kim based in both 2020 to 15.12.2023. During this period, the SFT
Sydney and Geneva (aschoeb@peterandkim.com; issued no less than 99 decisions on appeals against
LinkedIn). He specializes in international arbitration CAS awards [TBC on 15.12.2023]. Only three of
and sports law. The author would like to thank these appeals were successful to the annulment of the
Michael Totaro, attorney-at-law and senior associate corresponding CAS award.
at Peter & Kim, for his invaluable assistance in the
preparation of this publication.

33
involving at least one foreign party • preliminary or incidental (settling one or
(“international arbitrations”).2 Since the CAS more preliminary question of substance or
Code provides that the seat of all CAS Panels procedure).
is in Switzerland,3 where a CAS arbitration
involves at least one non-Swiss party, the SFT Simple procedural orders that are modifiable
is the only Swiss court authorised to hear or withdrawable during arbitration
challenges to the CAS award. proceedings are not appealable to the SFT.
The same applies to decisions on provisional
Switzerland’s Private International Law Act measures.5 Challenges to awards issued in the
(“PILA”), and in particular Chapter 12 of that context of appeal proceedings are in principle
Act, governs all international arbitrations only admissible after a party has exhausted all
seated in Switzerland. Article 191 of PILA internal channels for review available within
confers exclusive jurisdiction on the SFT to the arbitral system.6
hear an appeal against such an award. A CAS
award will qualify as this type of award if it In determining the admissibility of an appeal,
satisfies the requirements of Article 176 of the decisive factor is not the name/title of the
PILA. challenged decision but its content (substance
controls over form).7 For instance, the SFT
Article 176(1) of PILA provides that “[t]he has raised doubts about the admissibility of
provisions of this chapter shall apply to all an appeal against a CAS consent award – i.e.,
arbitrations if the seat of the arbitral tribunal is in an award that “merely ratifies a settlement
Switzerland and if, at the time of the conclusion of the agreement between parties” – although such a
arbitration agreement, at least one of the parties had document is issued in the form of an arbitral
neither its domicile nor its habitual residence in award.8
Switzerland”.
II. Permissible grounds of appeal
B. Types of awards appealable
Article 190(2) of PILA exhaustively lists out
Under Article 77(1)(a) of the Swiss Federal the permissible grounds for appeal against an
Tribunal Act (“SFTA”), in relation to Article international arbitration award:
190 of PILA, a challenge is available against
“awards of arbitral tribunals”. Under SFT “An arbitral award may be set aside only:
caselaw, the types of awards appealable are as a. where the sole member of the arbitral tribunal was
follows:4 improperly appointed or the arbitral tribunal
• final (bringing an end to arbitral improperly constituted;
proceedings for a substantive or b. where the arbitral tribunal wrongly accepted or
procedural reason); declined jurisdiction;
• partial (involving a quantitatively limited c. where the arbitral tribunal ruled beyond the claims
part of a disputed claim or one of multiple submitted to it, or failed to decide one of the claims;
claims at issue, or bringing an end to d. where the principle of equal treatment of the parties
proceedings for one or more or their right to be heard in an adversary procedure
respondents); were violated;

2 Article 191 of PILA states that “[t]he only appeal of irregular composition of the Tribunal or lack of
authority is the Swiss Federal Supreme Court”. Article 77 of jurisdiction of the Tribunal.
the SFTA, which sets the legal framework for appeals 6 4A_612/2020, para. 5.2.3 (confirming the decision

under the rules concerning appeals in civil matters. 4A_490/201).

3 Article R28 of the CAS Code. 7 4A_432/2022 and 4A_434/2022 (para. 3.3.1 and
4 4A_432/2022 and 4A_434/2022 (para. 3.3.1 and the references cited therein).
the references cited therein). 8 4A_432/2022 and 4A_434/2022 (para. 3.3.5).
5 Provisional orders dismissing a claim for lack of

jurisdiction can, however, be appealed on the grounds

34
e. where the award is incompatible with public of independence on the part of the CAS
policy”. itself,15 and constitution of an arbitral tribunal
that is in breach of the parties’ agreement.
Further, the SFT will accept an appeal only if
the grounds are sufficiently substantiated.9 Since CAS’ inception, numerous challenges
This means that an appellant’s appeal to CAS awards relying upon an alleged lack of
submission must clearly indicate the specific impartiality or independence have been
legal basis it is relying upon and how the CAS’ brought before the SFT. None of these
award or conduct allegedly constitutes a challenges were successful, however, until the
breach. Appeals lacking these details or Sun Yang case below.
requesting a general review on grounds of
mere criticism of a challenged award will not • 4A_318/2020 (WADA v. Sun Yang &
be admissible. FINA)

As a general rule, an appellant may not raise In Sun Yang, the SFT vacated a CAS award
new facts or evidence that were not raised (CAS 2019/A/6148) for circumstances –
during CAS arbitral proceedings on appeal to specifically, the content of several “tweets”
the SFT.10 The SFT is bound by any findings published on an arbitrator’s twitter account –
of fact in a CAS award,11 unless those facts that justified the removal of the arbitrator.
were established through a violation of the The decision shed light on two practical
principle of equal treatment, the right to be aspects of how an appeal alleging arbitrator
heard, or in a way incompatible with public bias will be assessed by the SFT.
policy.12
First, on the scope of the parties’ duty to
The SFT has summarily dismissed several investigate an appointed arbitrator, the SFT
appeals against CAS awards for not abiding held that while parties are expected to use the
by these strict rules.13 main internet search engines available and to
review any sources of information likely to
The following sections of this paper provide provide information on a possible risk of bias,
an overview of the SFT’s jurisprudence under they cannot be expected to continue scouring
Article 190 of PILA using selected cases and the internet throughout arbitration
issues that are (in the author’s opinion) proceedings, or to scrutinise messages posted
relevant to practitioners. on social networks by arbitrators during
arbitration proceedings. In addition, the SFT
A. Article 190(2)(a) of PILA: Improper held that the mere fact information is freely
appointment of an arbitrator or improper accessible on the internet will not
constitution of the tribunal automatically mean a party that has not
discovered that information after having
Article 190(2)(a) of PILA provides bases of performed research is in breach of its duty to
appeal on account of lack of impartiality or investigate.16
independence on the part of arbitrators,14 lack

9 Article 77(3) of the SFTA. 13 For instance: 4A_160/2020, 4A_202/2020,

10 Article 99(1) of the SFTA. 4A_290/2020, 4A_22/2021, 4A_284/2021,
11 The SFT is bound by any fact-finding in an arbitral 4A_516/2022 and 4A_264/2023.
award under Article 105(1) of the SFTA, even if 14 4A_287/2019 (para. 5); 4A_398/2019 (para. 7);

those facts were established in a manifestly inaccurate 4A_318/2020 (para. 7); 4A_166/2021 (para. 3);
manner or in breach of the law (in conjunction 4A_520/2021 (para. 5); 4A_484/2022 (para. 5);
Article 77(2) of the SFTA which excludes 4A_100/2023 (para. 6).
applicability of Article 105(2) of the SFTA). 15 4A_644/2020 (para. 4); 4A_232/2022 (para. 6).
12 Articles 190(2)(d) or (e) of PILA. 16 4A_318/2020, para. 6.5 (in this case, the SFT held

that Sun Yang could not be found at fault for failing

to carry out a search that included the word “China”,

35
 Guidelines. However, the IBA Guidelines do
Second, on how an arbitrator’s impartiality not have the full force of law and the
should be assessed, the SFT held that the circumstances of a specific case will be a
mere appearance of bias can be sufficient to determining factor.19
disqualify an arbitrator, citing the maxim
“justice must not only be done: it must be seen to be The SFT has held that parties to an
done”. Doubts as to an arbitrator’s impartiality arbitration have a duty to inquire into the
must, however, be objectively verifiable. existence of possible grounds for recusal that
Consistent with Sections 2(b) and (c) of the could affect the composition of an arbitral
IBA Guidelines on Conflicts of Interest in tribunal. A party cannot therefore simply rely
International Arbitration (“IBA Guidelines”), on a general declaration of independence
doubts will be justified if a reasonable third made by an arbitrator but must carry out
party, having knowledge of the relevant facts reasonable investigations to ensure that
and circumstances, would reach a conclusion arbitrator offers sufficient assurance of
that there is a likelihood the arbitrator at issue independence and impartiality.20
may be influenced by factors other than the
merits of a case. The SFT has thus held that, In case 4A_520/2021, the SFT held that the
while it is perfectly legitimate for an arbitrator appellant had waited, without valid reason,
to express opinions on social media, this does until the end of the arbitral hearing (i.e., 11
not mean an arbitrator can post anything he days after the ground for an appeal had
wants without giving rise to doubts as to his become known) before asking the members
impartiality.17 of the arbitral tribunal to amend their
declarations of independence. The SFT held
• 4A_644/2020 (Olga Zaytseva v. IOC) that the principle of good faith required the
appellant to either request a challenge to the
In case 4A_644/2020, the SFT held that arbitrator involved within the seven-day
when an arbitral tribunal lacks independence period laid out in Article R34 of the CAS
or impartiality, this can qualify as irregular Code after having become aware of this
composition of a tribunal under Article information, or – at the very least – to
190(2)(a) of PILA. However, under the discharge his duty of investigation by
principle of good faith, a party’s right to formally requesting CAS, within the
invoke a lack of independence or impartiality aforementioned time limit, to provide further
will turn stale if the party does not promptly details regarding the circumstances disclosed
assert it. Thus, a party cannot keep related by the arbitrator. For failing to take these
arguments “in reserve” and only raise them in steps, the SFT held that appellant was
the event of an unfavourable outcome to ineligible to challenge the regularity of
arbitral proceedings.18 composition of the arbitral tribunal, on
account of his having breached his duty of
• 4A_520/2021 (Marco Polo Del Nero v. investigation.21
FIFA)
The SFT also noted that an arbitrator is
Regarding the independence of a sole obligated to disclose without delay any facts
arbitrator or members of a tribunal, an that could give rise to legitimate doubts about
appellant may rely persuasively on the IBA his independence or impartiality, and this
obligation will continue until the end of the

as he could not have been expected to speculate from Twitter account, could not be seen as a failure to
the outset that an arbitrator would have a bias on comply with Sun Yang’s duty to investigate).
account of Sun Yang’s nationality. Sun Yang’s failure 17 4A_318/2020, para. 7.

to discover tweets published nearly ten months 18 4A_644/2020, para. 4.2.

before the arbitrator’s appointment, which were 19 4A_520/2021, para. 5.1.3.

drowned in a mass of posts on that arbitrator’s 20 4A_520/2021, para. 5.4.1.

21 4A_520/2021, para. 5.4.2.

36
arbitral proceedings. Nevertheless, a violation reason to believe are unknown to a party
of this duty disclosure will not automatically prospectively affected by them.25
constitute a ground for recusal in the absence
of other circumstances, since an arbitrator is In this case, the SFT held that the arbitrator
only required to disclose information that at issue could have reasonably believed in
might raise a legitimate doubt as to his good faith that the circumstances alleged in
neutrality.22 support of the recusal application were
known to the parties at the time of his
• 4A_100/2023 (GNK Dinamo v. Rene appointment: i.e., (i) the fact that he also acted
Poms) as an arbitrator in the CFF Arbitral Tribunal
was explicitly mentioned in his curriculum
In case 4A_100/2023, an Austrian football vitae accessible on CAS’ website and (ii) the
coach filed a claim against a Croatian football respondent was represented during the
club for improper termination of an arbitration proceedings by counsel who also
employment contract. One arbitrator was appeared on the same list of twelve
challenged due to his connection with the arbitrators for the CFF Arbitral Tribunal.26
Croatian Football Federation (“CFF”)
Arbitral Tribunal. The International Council The SFT found that the challenge FIFA
of Arbitration for Sport (“ICAS”) upheld the lodged should have been rejected by CAS and
challenge and removed the arbitrator. CAS should not have proceeded with a new
arbitrator. FIFA was not entitled to apply for
On appeal, the SFT held that since the the recusal, because the factual circumstances
decision arose from ICAS, a private alleged in support of its request could and
organization, it was not directly appealable to should have been discovered much earlier if
the SFT. However, the decision could be FIFA had complied with its duty of
reviewed in the context of an appeal against investigation.27
the CAS award, on grounds of irregular
composition of the arbitral tribunal under B. Article 190(2)(b) of PILA: Juridictional
Article 190(2)(a) of PILA.23 defects
In this respect, the SFT observed that if a
party finds itself deprived of an arbitrator it 1. Review of CAS Jurisdiction
initially chose and that arbitrator was validly
appointed by the relevant arbitration Article 190(2)(b) of PILA provides a basis for
institution, the party cannot be denied the appeal on jurisdictional issues, including
ability to seek review of a decision ordering questions relating to the existence or validity
recusal of the arbitrator.24 of an arbitration agreement and the
exhaustion of review channels available under
Furthermore, the SFT noted that an Article R47 of the CAS Code.28 To summarise
arbitrator’s duty of disclosure of facts or legislation and caselaw on point, CAS will
circumstances giving rise to doubts as to his have jurisdiction if a claim is arbitrable,29 an
or her independence or impartiality is not arbitration agreement exists that is valid in
absolute: the duty exists only with respect to form and substance under Article 178 of
facts or circumstances the arbitrator has PILA, and the claim submitted for arbitration
comes within the scope of that agreement –
all these elements must be present.30 A CAS
22 4A_520/2021, para. 5.5. 29 A dispute is arbitrable under Article 177 of PILA in
23 4A_100/2023, para. 6.2. international arbitration proceedings or under Article
24 4A_100/2023, para. 6.7.1. 354 of the Swiss Civil Procedure Code (“SCPC”) in
25 4A_10/2023, para. 6.7.2. domestic arbitration proceedings unless the parties
26 Ibid. have opted out of the SCPC.
27 Ibid. 30 4A_420/2022, para. 5.2).
28 4A_294/2022, para. 3.2.2.

37
award may be appealed if CAS has wrongly tribunal, to decide the underlying matter at
declared itself competent or incompetent to first instance. The SFT reiterated its view that
hear some or all of the claims involved. FIFA tribunals are not arbitral tribunals and
so their decisions on disputes are merely
The SFT has also held that compliance with expressions of will on the part of their
time limits to file an appeal before CAS’ association rather than arbitrations. After
appeals panel under R49 of the CAS Code is exhaustion of internal channels for review
not a jurisdictional issue but an admissibility within FIFA, these decisions can either be
issue, and thus does not qualify as a basis for challenged before national courts37 or, if a
appeal under Article 190(2)(b) of PILA.31 valid arbitration agreement exists, before an
Further, the SFT has held that arbitrability independent arbitral tribunal such as CAS.38
is an essential requirement for an arbitration It follows, as a general rule, that challenges
agreement to be valid and consequently for to the internal proceedings of a sports
arbitral jurisdiction.32 When assessing association will not qualify for appeals under
whether these requirements have been met, it Article 190(2) of PILA.39
is sufficient that the requirements are met at
the time an award is rendered.33 Further, the SFT held that to the extent the
appellant appealed the FIFA decision to CAS
The SFT has held that if an appellant in the case and did not challenge FIFA’s
demonstrates that the doctrine of lis jurisdictional basis, CAS’ jurisdiction could
pendens is triggered (i.e., the same case, as no longer be challenged. If CAS had upheld
between the same parties, is brought before its jurisdiction in a challenge to a FIFA
another authority), a breach of the lis pendens tribunal’s decision, the jurisdiction of that
principle may be invoked as a ground for initial FIFA tribunal could not be challenged
appeal under Article 190(2)(b) of PILA.34 before the SFT under Article 190(2)(b) of
PILA (which permits appeal against the
The SFT has also held that an award issued jurisdiction of CAS only), except under the
after the expiration of an arbitrator’s limited grounds of violation of public policy
mandate is not automatically void but can be pursuant to Article 190(2)(e) of PILA.40
annulled on appeal under Article 190(2)(b) of
PILA.35 In case 4A_22/2023, the SFT • 4A_232/2022 (Evgeny Ustyugov v.
analysed Article R59(5) of the CAS Code and IBU)
concluded that non-compliance with the
deadline laid out in this provision will not The SFT applied similar reasoning to decide
automatically deprive arbitrators of their a challenge to a decision issued by CAS’ Anti-
authority to rule on the merits of a dispute.36 Doping Division (“CAS ADD”).

• 4A_344/2021 and 4A_346/2021 (Eric In case 4A_232/2022, an appellant argued

Garcin v. Chinese Football that the CAS Appeal Arbitration Division
Association) had lacked jurisdiction to hear an internal
appeal from CAS ADD after CAS ADD had
In cases 4A_344/2021 and 4A_346/2021, allegedly wrongly found it had jurisdiction to
the appellant did not appeal CAS’ jurisdiction hear the matter. The SFT held that an appeal
directly but rather appealed the jurisdiction of for lack of jurisdiction is available only against
the previous instance, namely the FIFA an arbitral tribunal. That means an appeal

31 4A_287/2019 (para. 4); 4A_626/2020 (para. 3.4); 36 4A_22/2023, para. 6.4.

4A_406/2021 (para. 4.1-4.2); 4A_2/2023 (para. 3.3). 37 Under Article 75 of the Swiss Civil Code (“SCC”).
32 4A_200/2021, para. 4.2. 38 4A_344/2021 and 4A_346/2021, para. 5.2; see also
33 4A_200/2021, para. 4.2. 4A_180/2023, para. 3.3.
34 4A_140/2022, para. 5.4.2-5.4.3. 39 See also 4A_2/2023, para. 3.3.
35 4A_22/2023, para. 6.1.2. 40 4A_344/2021 and 4A_346/2021, para. 5.4.

38
against the jurisdiction of a first instance of consent. The SFT has held that CAS legal
tribunal such as CAS ADD’s can be heard by aid provides a mechanism for enabling a party
the SFT only if that tribunal can be to proceed through CAS proceedings despite
characterised as a genuine arbitral tribunal. financial hardship. The fundamental
guarantee of access to a judge does not
In the case, the SFT found that CAS ADD require that legal aid arrangements put in
had acted as an internal body, based on the place by CAS overlap in every respect with
delegation of powers it received. In other state provided legal aid in court proceedings.
words, CAS ADD had acted as a disciplinary Thus, certain alleged deficiencies in the CAS
body rather than a genuine arbitral tribunal.41 system – in particular the fact that a CAS pro
bono lawyer is not remunerated, contrary to
2. Validity of an Arbitration Agreement Swiss law (cf. Article 122(1)(a) of CPC) – will
not be dispositive.44
Concerning the validity of an arbitration
agreement, the SFT has held, consistent with 3. The Arbitral Tribunal’s Determination of
European Court of Human Rights Its Own Jurisdiction
(“ECtHR”) caselaw, that arbitration is
available in sporting matters notwithstanding Article 186 (1) of PILA provides that an
the absence of freely expressed consent by a arbitral tribunal may decide on its own
party. In these so-called forced arbitrations, jurisdiction. It may do so on an ex officio
however, arbitral tribunals must be able to basis.45
provide assurance of the requirements laid
out in Article 6(1) of the European In case 4A_420/2022 (Nantes v. Cardiff City),
Convention on Human Rights (“ECHR”), the SFT held that arbitrators must determine
i.e., of independence and impartiality. In the that a dispute is arbitrable under Article 177
Mutu, Pechstein, and Platini cases, the ECHR of PILA, that the arbitration agreement is
held that CAS does provide such an valid in form and substance consistent with
assurance of independence and impartiality. Article 178 of PILA, and that the claims
Accordingly, the SFT has held that forced asserted during proceedings are covered by
arbitration before CAS is permissible.42 the arbitration agreement. In particular, when
considering whether an arbitral tribunal has
Under Swiss law, the decisive factor in jurisdiction in a matter, the tribunal must
determining the validity or existence of an determine, among other things, the objective
arbitration agreement is whether the parties scope (or ratione materiae) and subjective scope
to it have expressed the willingness to commit (or ratione personae) of the arbitration
certain disputes to an arbitral tribunal for agreement. The tribunal must assess which
resolution, to the exclusion of state court disputes are covered by the agreement and
jurisdiction.43 But the intent of the parties to which parties are bound by it.46
have a sports arbitration tribunal decide
specific disputes, to the exclusion of court Under Article 186(2) of PILA, jurisdictional
jurisdiction, can be inferred not only from the challenges must be raised by a party prior to
wording of an agreement but also from the submission of any defences on the merits.
actions and circumstances. According to the SFT, this rule arises the
implied duty of good faith, so if a respondent
A party’s limited financial capacity will not proceeds on the merits without making a
constitute a sufficient basis for finding an jurisdictional objection, a tribunal will have
arbitration agreement unenforceable for lack

41 4A_232/2022, para. 5.9. 44 4A_166/2021 (para. 4.4.2).

42 4A_600/2020 (para. 5). 45 4A_564/2020 (para. 6.2).
43 4A_194/2022 (para. 4.4.3); 4A_294/2022 (para. 46 4A_420/2022 (para. 5.2).

3.1.2).

39
jurisdiction for this reason alone.47 Regarding measures cannot be equated with unreserved
the timing and manner for raising such an acceptance of a case on its merits, or with
objection, Article R55(1) of the CAS Code acquiescence to CAS’ jurisdiction.50
requires that jurisdictional objections be
raised in the respondent’s answer. A party The SFT has, however, held that when the
that enters into an adversarial arbitration intent of the parties to refer a dispute to
without making a reservation on the merits arbitration and thus to avoid the jurisdiction
(Einlassung) recognises, by such an act, the of courts is sufficiently evident, the principle
arbitral tribunal’s jurisdiction to decide the of utility (Ütilitätsgedanke) applies. That means
matter and definitively forfeits any right to a pathological clause can be construed in such
contest the tribunal’s jurisdiction.48 a manner that allows the arbitration
agreement to be upheld.51
• 4A_564/2020 (Club Deportivo Tulua v.
Club Atlético Nacional) • 4A_618/2019 (Franck Herman
Blahoua Betra v. Hellenic National
Within the period reviewed by this paper, the Council for Combating Doping)
SFT vacated one CAS Award involving a
determination of jurisdiction. The SFT has also clarified the scope of CAS’
review of its jurisdiction in the event of
In case 4A_564/2020, the SFT noted that the default by a respondent.
only relevant question for appeal in light of In case 4A_618/2019, the SFT noted that
Article R47 of the CAS Code was whether the when a respondent fails to appear in arbitral
applicable regulations provided for an proceedings, the arbitral tribunal must review
entitlement to review by CAS of the its jurisdiction ex officio, “in the light of the
challenged decision. The SFT held that when information available to it, but without having to go
a party challenges CAS’ jurisdiction, the party further or carry out its own investigations”. 52
need not point to an alternative body that
would have jurisdiction instead:49 The SFT held that “in the light of the information
available to it” does not mean that an arbitral
“Contrary to CAS’ holding, there is however no need tribunal could never, in default proceedings,
to resolve the question of which authority would be carry out inquiries to determine whether it
competent to hear this dispute in the event that there has jurisdiction to decide the dispute. While
is no channel for appeal to CAS in a case”. an arbitration tribunal is not required to do
so, nothing prevents a tribunal from
“Contrairement à l'avis du TAS, point n'est en gathering additional information and
revanche besoin de résoudre la question de savoir performing its own investigations to confirm
quelle autorité serait compétente pour connaître du whether it has proper jurisdiction.53
présent litige dans l'hypothèse où il n'existerait en
l'occurrence pas de voie d'appel au TAS”. The SFT thus found that a tribunal was
entitled to undertake factual inquiries of its
According to the SFT, a party’s silence on a own accord into matters relevant to its
question of jurisdiction, at a provisional jurisdiction in a situation where a respondent
measures stage, will not by itself imply that has failed to participate in arbitral
the party has tacitly accepted CAS’ proceedings.54
jurisdiction. The mere fact of the party’s
responding to a request for provisional • 4A_420/2022 (Nantes v. Cardiff City)

47 4A_618/2019 (para. 4.4.1); 4A_564/2020 (para. 50 4A_564/2020 (para. 6.3.2).

6.3.1). 51 4A_564/2020, para. 6.5.2.
48 4A_618/2019 (para. 4.4.1); 4A_564/2020 (para. 52 4A_618/2019, para. 4.4.1.

6.3.1). 53 4A_618/2019, para. 4.4.2.

49 4A_564/2020 (para. 6.1). 54 Ibid.

40
 off claim at issue presupposed that FIFA had
Last but not least, in case 4A_420/2022, the itself been competent to hear the claim, as
SFT addressed the limits of the scope of an CAS’ jurisdiction could not be broader than
arbitration agreement and FIFA’s jurisdiction the jurisdiction of a body that had ruled in the
to hear set-off claims for damages under tort first instance.58 The answer to the question
against contractual claims governed by an before the SFT thus turned on whether
arbitration agreement. The matter involved a FIFA’s regulations governing the jurisdiction
player transfer agreement. of the FIFA Players’ Status Chamber and
proceedings before it required that body to
In the case, the SFT stressed that if an declare itself competent to examine the claim
arbitration agreement is worded to for damages asserted by the appellant.59 At
encompass all disputes relating to a contract, the end of an interesting analysis, the SFT
it should be interpreted, under principles of found that FIFA’s role was not to settle civil
good faith, to mean that the parties did not disputes between football stakeholders that
intend for claims arising from various legal have nothing to do with the application of
aspects of their contractually governed football regulations, and so the FIFA Players’
relationship to be adjudicated separately – i.e., Status Chamber had correctly rejected
some by an arbitral tribunal and others by jurisdiction to rule on the tort set-off claim.60
other authorities.55 Nevertheless, a claim
submitted to arbitration must still fall within C. Article 190(2)(c) OF PILA: Ultra,
the scope of the parties’ arbitration Extra or Infra petita
agreement. In the case, the SFT held that
even though the wording of the arbitration No CAS award has ever been set aside for
agreement at issue was not restrictive – i.e., it being ultra, extra or infra petita under Article
covered not only disputes “arising out” of a 190(2)(c) of PILA. This ground for appeal is
player transfer agreement, but also those the least frequent one invoked by appellants
merely “in connection with” it – a tort claim seeking SFT review. Within the period this
arising from a player’s death after completion paper considered, only three challenges to
of a transfer could not reasonably qualify as CAS awards relied on such ground.61
being within scope of the arbitration
agreement. This was primarily because the In case 4A_198/2020, the SFT held that only
transfer agreement did not obligate the the conclusions of the parties are relevant
respondent to arrange the flight during which to a determination on a whether a ruling of an
the footballer tragically lost his life.56 The tort arbitral tribunal has been ultra, extra or infra
claim raised by the appellant was clearly petita. However, this ground for appeal under
distinct from the counterparty’s claim for PILA will not allow a party to argue that an
damages on the basis of the transfer contract. arbitral tribunal has failed to decide an issue
In other words, the appellant’s claim for set- that was important for the resolution of the
off did not relate to the relationship governed dispute (although this may be an issue that
by the arbitration agreement and so it should can be argued under the right to be heard, see
not have been considered by the arbitral Section 4 below).62 In particular, the SFT held
tribunal.57 that an award which rejects “all other or
further submissions” will have
The SFT then further emphasised that CAS’ sufficiently dealt with the conclusions of
determination of jurisdiction to review a the parties. In addition, an award by which
determination on the arbitrability of the set- an appeal is upheld means that the Panel

55 4A_420/2022, para. 5.4.3. 60 4A_420/2022, para. 5.5.5.4.

56 Ibid. 61 4A_198/2020 (para. 4), 4A_300/2021 (para. 8) and
57 Ibid. 4A_256/2023 (para. 5).
58 4A_420/2022, para. 5.5.5. 62 4A_198/2020, para. 4.1.
59 4A_420/2022, para. 5.5.5.

41
deemed that such appeal was admissible. CAS In case 4A_166/2021 (André Cardoso v. UCI),
has found such a matter to be admissible and an appellant argued that CAS legal aid
thus, implicitly, any objection of provided to him had been inadequate,
inadmissibility - raised by the opposing party constituting a breach of his right to be treated
- was dismissed (i.e. without the need for a equally. The SFT rejected this argument,
specific decision in that regard).63 holding that the appellant had failed to show
a recognisable violation of his right to be
In case 4A_256/2023, the SFT highlighted treated equally. Specifically, the appellant had
that under the principle a maiore minus, an failed to show how such a right would imply
arbitral tribunal will not rule ultra, extra or infra the entitlement he had claimed to a legal
petita if it awards less than what a party has representative of his free choosing and
sought by way of relief or sanctions.64 In this payments for that chosen representative.69
case, the SFT held that in imposing a
disciplinary sanction on a party that was less 2. Right to be Heard
severe than what one of the other parties had
requested, the arbitral tribunal clearly had not The SFT has held that the right to be heard
exceeded its limits of decision-making power under Article 190(2)(d) of PILA is a
and, consequently, had not ruled ultra petita.65 fundamental guarantee in adversarial
proceedings. It is essential for a party to be
D. Article 190(2)(d) of PILA: violation of able to fully participate in arbitral proceedings
the Right to be heard or violation of the and to present its arguments and evidence
equal treatment principle adequately, provided it does so in a timely and
proper manner.70
1. Equal treatment
In case 4A_54/2022, the SFT held that “[…]
According to the SFT, the principle of equal in the field of arbitration, it has been accepted that
treatment under Article 190(2)(d) of PILA each party has the right to express their views on the
means that an arbitral tribunal must conduct essential facts for the judgment, to present their legal
arbitral proceedings in a way that provides the argumentation, to propose their means of proof on
parties with the same opportunity to present relevant facts, and to participate in the sessions of the
their cases.66 As adversarial process, arbitral tribunal (ATF 142 III 360 consid. 4.1.1
arbitration must give each party the chance to and the references cited). However, the right to be
understand its opponent’s case, scrutinize heard does not include the right to speak orally”.71
and debate the evidence presented by its
opponent, and counter that evidence with its According to the SFT, the right to be heard
own evidence.67 Further, equal treatment when relied upon as a ground for appeal must
applies at all stages of arbitral proceedings, not be used to seek a review of how
with the exception of a tribunal’s substantive law was applied by a tribunal.
deliberations.68 Thus a party challenging an arbitral award on
this ground cannot simply criticise the

63 4A_198/2020, para. 4.3. holding that an arbitral tribunal may refuse to admit
64 4A_256/2023, para. 5.1. evidence, without violating the right to be heard, if the
65 4A_256/2023, para. 5.3. evidence is unsuitable as a basis for a conviction, if a
66 See for instance 4A_667/2020 (para. 5.1); fact to be proven has already been established, if it is
4A_380/2021 (para. 4.1) irrelevant, or if the tribunal, by making an anticipated
67 Ibid. assessment of the evidence, comes to the conclusion
68 See for instance 4A_166/2021 (para. 5.1). that its conviction has already made and that admission
69 4A_166/2021, para. 5.2.2. of the evidence can no longer alter its conviction.);
70 See for instance 4A_486/2019 (para. 8.1); 4A_166/2021 (para. 5.1); 4A_54/2022 (para. 4.1);
4A_438/2020 (para. 4.1); 4A_666/2020 8 (para. 5.1; 4A_300/2023 (para. 6.1); 4A_464/2023 (para. 3.1).
highlighting that the right to be heard does not include 71 4A_54/2022, para. 4.1.

a right to plead orally); 4A_667/2020 (para. 5.1 ;

42
reasoning of a CAS tribunal,72 but must athlete “merely argued that the Panel could not base
sufficiently demonstrate that an alleged its reasoning, directly or indirectly, on the MASH
omission was of such a nature that it rule. In so doing, he is really only attacking the
influenced the outcome of the dispute in a reasoning of the arbitrators. However, he loses sight of
material way.73 In turn, if an award is totally the fact that the arbitrators found that the athlete not
silent on a substantive submission that is only significantly exceeded his MASH height, but
apparently important to the resolution of a above all ran at a greater height than he would have
dispute, it is up to the tribunal that issued the if he had had intact biological legs, even with a
challenged award or the respondent to justify generous margin of appreciation for the various shapes
this omission in its submissions during the and sizes of the human body. However, the appellant
appeal proceedings. They may do so by leaves this second finding intact. He does not establish
demonstrating that the omitted issue was not how the fact that the studies that led to the MASH
relevant to resolution of the case or, even if it rule did not take into account the body proportions of
were relevant, that the issue and its individuals of African or Afro-American origin could
importance was implicitly refuted by the have altered the arbitrators’ assessment that the
arbitral tribunal.74 appellant was running at a higher height with his
prostheses than he would have been if he had been born
The SFT usually concludes either that the with intact legs, even with a generous margin of
appellant has failed in such a demonstration appreciation”.76
or that the panel duly took into account –
expressly or impliedly – the allegedly omitted 3. Related Duties of an Arbitral Tribunal
issue:75
In its caselaw, the SFT concludes from the
In case 4A_618/2020 (Blake Leeper v. IAAF), existence of a right to be heard under Articles
the SFT found that the appellant had failed to 182(3) and 190(2)(d) of PILA that a duty
demonstrate his argument that arbitrators exists for an arbitral tribunal to examine and
had failed to consider an issue – i.e., the deal with all relevant issues. While an arbitral
allegedly discriminatory nature of the tribunal is not required to deal with every
“MASH” rule – was of such a nature that it argument put forward by parties if some of
influenced the outcome of the dispute. The the issues involved are not essential to the
72 See for instance the matter Sun Yang 4A_406/2021 4A_486/2022 (para. 5.1); 4A_170/2023 (para. 5.1.1);
(para. 6.3.2; noting that the Appellant, under pretext 4A_176/2023 (para. 4.1); 4A_184/2023 (para. 5.1);
of an alleged violation of his right to be heard, sought 4A_300/2023 (para. 6.1).
to re-discuss certain substantive issues relating to the 74 4A_536/2018 (para. 4.1); 4A_248/2019 (para. 8.1);

formalities of the doping control because he was not 4A_62/2020 (para. 4.1); 4A_384/2020 (para. 6.1);
happy with the way they were disposed of). 4A_478/2020 (para. 4.1); 4A_618/2020 (para. 4.2);
73 4A_536/2018 (para. 4.1); 4A_248/2019 (para. 8.1); 4A_666/2020 8 (para. 5.1); 4A_667/2020 (para. 5.1);
4A_422/2019 (para. 3.1); 4A_462/2019 (para. 6.1); 4A_306/2021 (para. 4.1); 4A_406/2021 (para. 6.1);
4A_62/2020 (para. 4.1); 4A_198/2020 (para. 4.1.2); 4A_484/2021 (para. 4.1); 4A_504/2021 (para. 5.1);
4A_384/2020 (para. 6.1); 4A_478/2020 (para. 4.1); 4A_520/2021 (para. 6.1); 4A_542/2021 (para. 5.1);
4A_618/2020 (para. 4.2); 4A_666/2020 8 (para. 5.1); 4A_10/2022 (para. 4.1); 4A_54/2022 (para. 4.1);
4A_667/2020 (para. 5.1); 4A_166/2021 (para. 5.1; 4A_242/2022 (para. 4.1); 4A_246/2022 (para. 5.1);
holding that the right to be heard is not an end in 4A_312/2022 (para. 3.1); 4A_420/2022 (para. 7.1);
itself and that there is no interest in annulling the 4A_432/2022 (para. 6.1); 4A_434/2022 (para. 7.1);
contested decision if it is not clear that a non-breach 4A_436/2022 (para. 5.1); 4A_438/2022 (para. 5.1);
of the appellant’s right to be heard would have 4A_486/2022 (para. 5.1); 4A_170/2023 (para. 5.1.1);
changed the outcome in proceedings); 4A_306/2021 4A_176/2023 (para. 4.1); 4A_184/2023 (para. 5.1);
(para. 4.1); 4A_406/2021 (para. 6.1 and 6.3.2 ff.); 4A_300/2023 (para. 6.1).
4A_484/2021 (para. 4.1); 4A_504/2021 (para. 5.1); 75 See for instance the matter Sun Yang 4A_406/2021

4A_520/2021 (para. 6.1); 4A_542/2021 (para. 5.1); (para. 6.3.2 ff.) ; 4A_484/2021 (para. 4.3);
4A_10/2022 (para. 4.1); 4A_54/2022 (para. 4.1); 4A_10/2022 (para. 4.2); 4A_106/2022 (para. 4.4);
4A_242/2022 (para. 4.1); 4A_246/2022 (para. 5.1); 4A_432/2022 (para. 6.3); 4A_434/2022 (para. 7.3);
4A_312/2022 (para. 3.1); 4A_420/2022 (para. 7.1); 4A_438/2022 (para. 5.1); 4A_486/2022 (para. 5.1);
4A_432/2022 (para. 6.1); 4A_434/2022 (para. 7.1); 4A_180/2023 (para. 4.2); 4A_300/2023 (para. 6.1).
4A_436/2022 (para. 5.1); 4A_438/2022 (para. 5.1); 76 4A_618/2020, para. 4.4.

43
outcome of a dispute, this duty is however arguments, and evidence presented by the
breached when, through inadvertence or parties, or that the right to be heard has been
misunderstanding, the tribunal fails to take fully honoured (as the parties themselves may
into consideration allegations, arguments, admit at the end of an evidentiary hearing
evidence, and offers of proof presented by before an arbitral tribunal) – are not decisive
one of the parties that are material to and the SFT will take into account the actual
formulation of an award.77 circumstances of each case.80

In case 4A_10/2022 (Aleksandr Shustov v. In case 4A_406/2021, the SFT confirmed

World Athletics & Russian Athletics Federation), that a newly constituted tribunal
the SFT held that arbitrators are not (subsequent to the removal of one of the
obligated to discuss all arguments raised arbitrators from a previous tribunal panel)
by the parties, so they could not be faulted, does not need to repeat all previous
pursuant to the right to be heard, for having procedural steps and may thus limit the
not refuted, even implicitly, an argument parties’ submissions without breaching their
objectively devoid of any relevance.78 right to be heard:81

In case 4A_184/2023, the SFT held that a “[…] It should be noted from the outset that,
challenged CAS award showed that an according to jurisprudence, there is no general principle
arbitrator had indeed considered arguments in international arbitration that all procedural acts
which the appellant argued had been critical, should be repeated when an arbitrator has been
but the arbitrator had rejected these, at least recused and replaced.
implicitly (the arbitrator correctly set out and
detailed the arguments developed by the Article R36 of the Code provides that, unless
appellant, then rejected them). In this respect, otherwise agreed by the parties or decided by the Panel,
the SFT noted that parties cannot expect to the proceedings shall continue without repetition of the
receive an explicit explanation of every procedural acts performed prior to the arbitrator’s
aspect of an arbitrator’s reasoning. dismissal. In the present case, the new Panel, even
Moreover, the SFT held that whether or not though it was under no obligation to do so, offered the
an arbitrator’s reasoning in an award is parties the opportunity to present their arguments once
correct is irrelevant to the issue of whether an again on the admissibility of the appeal and on the
appellant’s right to be heard has been substantive issues. It also held a new hearing and
violated.79 allowed the parties to question witnesses during the
hearing. The Panel did its utmost to respect the
It is noteworthy that the SFT considers that parties’ right to be heard”.82
style clauses (“boiler plates” clauses) inserted
into awards – e.g., certifying that the tribunal It should also be noted that many appeals
has taken into account the allegations, relying on the violation of the right to be

774A_536/2018 (para. 4.1); 4A_248/2019 (para. 8.1); 4A_436/2022 (para. 5.1); 4A_438/2022 (para. 5.1);
4A_422/2019 (para. 3.1); 4A_462/2019 (para. 6.1); 4A_486/2022 (para. 5.1); 4A_170/2023 (para. 5.1.1);
4A_486/2019 (para. 8.1); 4A_548/2019 & 4A_176/2023 (para. 4.1); 4A_184/2023 (para. 5.1);
4A_550/2019 (para. 6.2.1); 4A_62/2020 (para. 4.1); 4A_464/2023 (para. 3.1).
4A_198/2020 (para. 4.1.2); 4A_384/2020 (para. 6.1); 78 4A_10/2022, para. 4.1.

4A_478/2020 (para. 4.1); 4A_618/2020 (para. 4.2); 79 4A_184/2023, para. 5.3.

4A_666/2020 8 (para. 5.1); 4A_667/2020 (para. 5.1); 80 4A_536/2018, para. 4.2 (in French: “[…] on concédera

4A_306/2021 (para. 4.1); 4A_332/2021 (para. 5.1); au recourant qu'un tribunal arbitral ne saurait se prémunir
4A_406/2021 (para. 6.1); 4A_484/2021 (para. 4.1); définitivement d'un tel grief par la simple insertion de clauses de
4A_504/2021 (para. 5.1); 4A_520/2021 (para. 6.1); style certifiant que les allégations, arguments et moyens de preuves
4A_542/2021 (para. 5.1); 4A_564/2021 (para. 5.1); présentés par les parties ont tous été pris en compte […],
4A_10/2022 (para. 4.1); 4A_54/2022 (para. 4.1); respectivement que le droit d'être entendu a été entièrement
4A_242/2022 (para. 4.1); 4A_246/2022 (para. 5.1); respecté, de l'aveu même des parties à l'issue de l'audience”).
4A_312/2022 (para. 3.1); 4A_420/2022 (para. 7.1); 81 4A_406/2021 (para. 6.2.2).

4A_432/2022 (para. 6.1); 4A_434/2022 (para. 7.1); 82 4A_406/2021, para. 6.2.2.

44
heard fail because an appellant has failed to
raise an objection sufficiently during arbitral • 4A_332/2021 (World Athletics v.
tribunal proceedings when the tribunal could Shelby Houlihan)
have rectified the issue. The SFT has held that
it is contrary to the implied duty of good faith In case 4A_332/2021, at the close of
to invoke a procedural breach only in the hearings, a CAS tribunal sought confirmation
context of an appeal, when the breach could that the parties had no objections regarding
have been pointed out and addressed earlier the conduct of the arbitration and that their
during arbitral proceedings. Thus, the SFT right to be heard had been respected. After
considers that a failure to raise an objection confirming it had no objections to the
related to these rights during arbitral tribunal, a party nevertheless later appealed to
proceedings can bar an appellant from raising the SFT alleging a breach of her right to be
a related objection on appeal.83 heard. The SFT held that regardless of
whether at the beginning, middle, or at the
• 4A_170/2023 (Yves Jean-Bart v. FIFA) end of the merits hearing, the appellant never
complained of a possible violation of her
In case 4A_170/2023, FIFA appealed a CAS right to be heard.85 Accordingly, it had
award alleging that a CAS tribunal had in fact forfeited her entitlement to raise this issue on
refused to hear the purported victim because appeal to the SFT.
it knew she was not able to travel to
Switzerland but nevertheless suggested it 4. Surprise effect
could hear her in person in Switzerland with
security measures in place, instead of by In several decisions,86 the SFT noted that “it
videoconference that might distort her voice is appropriate to ask the parties when the arbitral
– a method of taking evidence that the CAS tribunal intends to base its decision on a norm or a
platform adopted for hearings by legal consideration that has not been discussed during
videoconference could not provide. the procedure and whose relevance to the parties is not
evident”. Arbitral tribunals must therefore
The SFT rejected FIFA’s argument. It held avoid creating a so-called “surprise effect”
that by simply alleging that the solution (“effet de surprise”) with respect to the legal
provided by CAS videoconferencing was grounds they base their decisions upon.
“rather unfortunate” (“plutôt regrettable” in the
original French) and by acknowledging, at the In caselaw before the period reviewed by this
end of the proceedings, that its right to be paper, the SFT held that this concept can be
heard had been respected, FIFA had not interpreted as a limitation implicit in the
raised a concrete objection during principle iura novit curia (or iura novit arbiter).
proceedings, thus forfeiting its right under to The SFT set aside a CAS award for having
Article 182(4) of PILA to appeal this issue to offered a legal reason for decision that could
the SFT.84 not have been reasonably expected by the

83
See for instance 4A_486/2019 (para. 8.1-8.3); the foreseeability of a legal holding is a matter of
4A_332/2021 (para. 5.1); 4A_406/2021 (para. 6.2.2); appreciation and that the SFT adopts a restrictive
4A_170/2023 (para. 5.1.2). Since legislative approach to application of the “surprise effect” rule,
amendment on 1 January 2021, Article 182(4) of PILA factoring in the particulars of the challenged
has expressly provided that “[a] party that continues with proceedings and the need to avoid a substantive review
the arbitration proceedings without objecting immediately to a of an award; 4A_504/2021 (para. 5.1; reiterating that
breach of the rules of procedure of which it is aware or which it this approach also applies to factual findings);
would have been aware had it exercised due diligence may not 4A_616/2021 (para. 4.1; stating that “[…] contrary to
invoke this breach at a later point in the proceedings”. what the appellant seems to believe, it is not for the Swiss Federal
84
4A_170/2023, para. 5.2.2. Tribunal to review whether the arbitral tribunal took all the
85 4A_332/2021, para. 5.3. evidence into account and understood it correctly. Even an
86 4A_62/2020 (para. 4.1); 4A_384/2020 (para. 6.1); obviously incorrect finding or one that is contrary to the file does
4A_306/2021 (para. 4.1), in which the SFT held that not in itself constitute a violation of the right to be heard”).

45
parties, and accordingly they were denied an such an extent that it can no longer be
opportunity to make submissions on that reconciled with the relevant legal order and
issue.87 (4A_400/2008 para. 3). system of values. These principles notably
include contracting fidelity (pacta sunt
That said, the SFT has adopted a strict servanda), respect for principles of good faith,
approach to this issue, as illustrated by case prohibition of abuse of rights, prohibition of
4A_300/2021.88 There the SFT held that an discriminatory or spoliatory measures,
appellant had failed to show the extent to protection of persons who are civilly
which an alleged violation of his right to be incapable, and prohibition on excessive
heard had impacted the outcome of tribunal commitment,91 if this constitutes an obvious
proceedings, and so his appeal was rejected.89 and serious violation of personality rights.92
For a breach of substantive public policy to
E. Article 190(2)(e) of PILA: Procedural be recognised, the results of an arbitral
or Substantive Public Policy decision, not just the reasoning behind it,
must run contrary to substantive public
Violation of public policy is a basis for appeal policy.93
under Article 190(2)(e) of PILA . According
to the SFT, public policy under Article According to the SFT, a violation of
190(2)(e) of PILA includes only those procedural public policy occurs whenever
fundamental principles that are widely fundamental and generally recognised
recognized and that underlie any system of principles of procedure have been
law according to the prevailing conceptions disregarded, leading to an intolerable
in Switzerland.90 Further, in analysing appeals contradiction with the sense of justice, so that
relying on this basis, the SFT distinguishes the decision appears incompatible with the
between two types of public policy – values recognised in a state governed by the
procedural and substantive. rule of law. An erroneous or even arbitrary
application of the applicable procedural
The SFT has held that an award is contrary to provisions will not, however, automatically
substantive public policy if it violates constitute a violation of procedural public
fundamental principles of substantive law to policy.94
87 4A_400/2008 para. 3. 5.1); 4A_10/2022 (para. 5.2); 4A_54/2022 (para.
88 4A_300/2021, para. 7.1. 5.1.1); 4A_242/2022 (para. 5.1); 4A_246/2022 (para.
89 4A_300/2021, para. 7.2.3. 6.1), “sporting succession”; 4A_420/2022 (para.
90 4A_316/2021 (para. 5.1); 4A_380/2021 (para. 5.1); 8.1.1), noting that a violation of substantive public
4A_406/2021 (para. 7.1); 4A_484/2021 (para. 5.1); policy on account of corruption can only be upheld if
4A_542/2021 (para. 6.1); 4A_632/2021 (para. 5.1); facts of corruption have been established and an
4A_10/2022 (para. 5.2); 4A_54/2022 (para. 5.1); arbitral tribunal has refused to take these into account
4A_242/2022 (para. 5.1); 4A_246/2022 (para. 6.1); in formulating its award (para. 8.2.2); 4A_432/2022
4A_420/2022 (para. 8.1); 4A_432/2022 (para. 7.1); (para. 7.1.1); 4A_434/2022 (para. 8.1.1); 4A_484/2022
4A_434/2022 (para. 8.1); 4A_484/2022 (para. 6.1); (para. 6.1); 4A_486/2022 (para. 7.1); 4A_528/2022
4A_486/2022 (para. 7.1); 4A_22/2023 (para. 7.1); (para. 4.1); 4A_22/2023 (para. 7.1.1); 4A_170/2023
4A_170/2023 (para. 6.1); 4A_184/2023 (para. 6.1). (para. 6.1.1); 4A_176/2023 (para. 5.1); 4A_180/2023
91 cf. Article 27(2) of the SCC. (para. 4.1); 4A_184/2023 (para. 6.1.1); 4A_300/2023
92 4A_486/2019 (para. 3.2); 4A_70/2020 (para. 7.1); (para. 5.1).
4A_564/2021 (6.1.1). 94 4A_486/2019 (para. 3.3); 4A_548/2019 and
93 4A_398/2019 (para. 9.1); 4A_70/2020 (para. 4A_550/2019 (paras. 7.2-7.3), noting that it is not for
7.1); 4A_600/2020 (para. 7.1); 4A_618/2020 (para. the SFT to lay down rules concerning passive
5.1); 4A_660/2020 (para. 3.1); 4A_666/2020 (para. legitimation or the possibility of bringing a third party
6.1.1); 4A_200/2021 (para. 5.1.1); 4A_406/2021 (para. before the CAS to examine the conformity of arbitral
7.1); 4A_484/2021 (para. 5.1); 4A_542/2021 (para. proceeding in the light of these rules; 4A_416/2020
6.1); 4A_564/2021 (6.1.1); 4A_616/2021 (para. 5.1), (para. 3.1); 4A_476/2020 (para. 3.1); 4A_644/2020
holding for instance that the concept of “sporting (para. 5.2); 4A_666/2020 (para. 6.2); 4A_668/2020
succession” is not against substantive public policy, (para. 4.1); 4A_200/2021 (para. 5.1.2), noting that the
because it should be regarded as a disciplinary issue requirement of two instances or two levels of
rather than a contractual issue; 4A_632/2021 (para. jurisdiction is not a matter of procedural public policy

46
 The SFT held that the award did not deal with
1. Substantive Public Policy the question of what a woman or an intersex
person is and that the result reached by the
a. European Convention on Human Rights CAS was not incompatible with the guarantee
/ Swiss constitutional rights / Athletes’ of human dignity because, in certain contexts,
personality rights such as in competitive sport, it can be
accepted that biological characteristics may,
• 4A_248/2019 / 4A_398/2019 - ATF 147 exceptionally and for the purposes of fairness
III 49 (Mokgadi Caster Semenya v. and equality of opportunity, overshadow a
IAAF & Athletics South Africa) person’s legal sex or gender identity.

In cases 4A_248/2019 and 4A_398/2019, The SFT also held that restricting the access
the SFT noted that a violation of any of the of female athletes with “46 XY DSD”97, who
provisions of the ECHR or the Swiss have “naturally an insurmountable advantage over
Constitution will not automatically qualify as other women to certain competitions does not appear
ground for appeal listed exhaustively in to be contrary to the human dignity of these athletes”.98
Article 190(2)(e) of PILA. An appellant The SFT pointed out that an athlete with “46
therefore cannot rely directly on such a XY DSD” can refuse to undergo the required
violation. The principles underlying the hormonal treatment, and while it is true that
provisions of the ECHR or the Swiss such a refusal will result in the impossibility
Constitution may, however, be taken into for the athlete to taking part in certain
account in the context of public policy – athletics competitions, it cannot be accepted
within the meaning of Article 190(2)(e) of that this consequence alone will constitute a
PILA – in order to give a concrete expression violation of the appellant’s human dignity.99
to this concept.95 According to the SFT, the
determinative factor is whether or not the Further, the SFT held that there was no
result of the arbitrators’ legal assessment is violation of substantive public policy in the
compatible with the caselaw definition of case because the result of the CAS award,
substantive public policy.96 which weighed the various interests involved,
was not untenable.
In these two cases, the appellant argued that
a CAS award had infringed upon her human It is interesting to note that at the end of its
dignity, contending the award conveyed decision, the SFT emphasised that its analysis
gender stereotypes by endorsing the idea that was carried out “within the limits that the caselaw
only women with biological characteristics imposes on its discretion”, and concluded that the
corresponding to a stereotypical woman are contested CAS award was not incompatible
allowed to compete freely in a sport’s with substantive public policy within the
women’s category. meaning of Article 190(2)(e) of PILA,
“whichever way one looks at it”.100

within the meaning of Article 190(2)(e) of PILA; system, in which the development of chromosomal,
4A_332/2021 (para. 6.1); 4A_564/2021 (6.1.2); gonadal, or anatomical sex is atypical. “46 XY” is one
4A_420/2022 (para. 8.1.2); 4A_432/2022 (para. 7.1.2); of the DSD groups, corresponding – in essence – to
4A_434/2022 (para. 8.1.2); 4A_436/2022 (para. 5.2); people with XY chromosomes instead of XX
4A_486/2022 (para. 8.1); 4A_22/2023 (para. 7.1.2); chromosomes.
4A_170/2023 (para. 6.1.2); 4A_184/2023 (para. 6.1.2); 98 4A_248/2019 / 4A_398/2019 - ATF 147 III 49,

4A_2/2023 (para. 4.1). para. 11.1.

95 4A_248/2019 / 4A_398/2019 - ATF 147 III 49, 99 4A_248/2019 / 4A_398/2019 - ATF 147 III 49,

para. 9.2. para. 11.2.

96 4A_248/2019 / 4A_398/2019 - ATF 147 III 49, 100 4A_248/2019 / 4A_398/2019 - ATF 147 III 49,

para. 9.1. para. 12. The limitations on the SFT’s authority to

97 “DSD” stands for Differences in Sex Development review appeals led to the ECtHR faulting Switzerland
or Disorders of Sex Development, which regroups in its decision Semenya vs. Switzerland (Affaire Semenya c.
congenital conditions affecting the reproductive Suisse, Requête no 10934/21, decision of 11 July 2023).

47
 b. Disciplinary sanctions (strict liability /
• 4A_406/2021 (WADA v. Sun Yang & proportionality / degree of proof)
FINA)
• 4A_528/2022 (Heiki Nabi v. Estonian
With regard to high-level sport, the SFT Anti-Doping and Sports Ethics
recognises that the rights of personality Foundation)
(Article 27 et seq. SCC) include the right to
health, bodily integrity, honour, professional In case 4A_528/2022, the SFT held that strict
esteem, sporting activity, and, in the case of liability in anti-doping matters did not
professional sport, the right to development constitute a violation of substantive public
and economic fulfilment. Depending on the policy under Article 190(2)(e) of PILA.106
circumstances of a case, an infringement of a
sportsperson’s personality rights may be The SFT noted that since the disciplinary
contrary to substantive public policy. sanctions involved were a private law matter
According to SFT caselaw, however, a under Swiss law, the application of such
violation of Article 27(2) of the SCC101 will disciplinary sanctions was not to be assessed
not automatically be contrary to substantive against criminal law principles such as the
public policy: the alleged violation must be a presumption of innocence or the principle in
serious and clear-cut violation of a dubio pro reo.107
fundamental right.102
Regarding the issue of an anti-doping ban’s
An appeal arguing incompatibility with proportionality, the SFT held that a breach of
substantive public policy, within the meaning public policy can be found only if a sanction
of Article 190(2)(e) of PILA and related would constitute an obvious and serious
caselaw, will not qualify as a sufficient basis violation of personality. In the case, the SFT
for appeal if it seeks only to establish a noted that the two-year ban from
conflict between the contested award and a competition imposed might have been
guarantee under a treaty or a rule of Swiss law, “drastic” for a professional wrestler, but it did
even one of constitutional rank.103 not constitute a violation of the athlete
personality rights.108
The SFT has also held that it is not “self-
evident” that criminal law principles and • 4A_542/2021 (Ricardo Terra Teixeira
corresponding guarantees contained in the v. FIFA)
ECHR apply to disciplinary sanctions
imposed by associations governed by private With regard to disciplinary sanctions, the SFT
law, such as a sports federation.104 The SFT will only intervene against a decision rendered
has noted that seeking to apply the rules on the basis of a discretionary power if that
governing criminal searches mutatis mutandis decision leads to a manifestly unjust result or
to anti-doping proceedings “could prevent the shocking inequity.109
system put in place to combat the scourge of doping in
sport from functioning properly”.105 In case 4A_542/2021, an appellant criticised
the vagueness of a sanction that prohibited

This case, at the time of publication of this paper, is 106 4A_528/2022, para. 4.3.1.
still pending before the Grand Chamber of the 107 4A_528/2022, para. 4.3.3.
ECtHR. 108 4A_528/2022, para. 4.3.4.
101 Article 27(2) of the SCC provides: “No person may 109 4A_542/2021, para. 6.3.2; See also 4A_484/2022

surrender his or her freedom or restrict the use of it to a degree (para. 6.3 : “With regard to disciplinary sanctions imposed in
which violates the law or public morals.” the field of sport, it should be remembered that the Swiss Federal
102 4A_406/2021, para. 7.3. Tribunal only intervenes in decisions handed down by virtue of a
103 4A_406/2021, para. 7.5. discretionary power if they lead to a manifestly unjust result or
104 Ibid. shocking inequity.”) and 4A_486/2022 (para. 7.3).
105 Ibid.

48
him from engaging in “any kind of football- restricted to such a degree that his or her
related activity”. The SFT held that the economic existence is endangered.111 In the
appellant’s argument was not entirely case, the SFT rejected a player’s attempt to
baseless, conceding that this wording could compare his situation with the well-known
theoretically invite abuse. The SFT made Matuzalem case (ATF 138 III 322), because
clear that such a prohibition could not be the player could in fact continue to pursue a
equated with a blank cheque to the relevant professional activity – albeit limited – in the
international federation (FIFA), supporting tennis sector and derive income from that.112
the unlimited application of this prohibition
to any activity even if it were unrelated to the Regarding the degree of proof used in
areas governed by the FIFA or its affiliated sanctions proceedings of this nature, the SFT
associations, i.e., organised football held that adopting a lower standard of proof
competitions. than applies in criminal proceedings to cases
of match-fixing would not constitute a breach
The SFT concluded that problems with the of procedural public policy. The fact that
challenged CAS award did not rise to a level anti-doping regulations lay down a stricter
that justified vacating it, as it was not standard of proof than for convicting
incompatible with substantive public policy, someone of an offence is not dispositive.
particularly in view of the seriousness of the Given the difficulties inherent in proving
acts the appellant was accused of having corruption and manipulation of sporting
committed. The SFT noted that the sanction events and the limited investigative powers of
imposed was capable of being interpreted in sports federations’ judicial bodies, the
an arguably appropriate way (in French: “la standard of proof adopted by the Uniform
sanction prononcée est susceptible d'être interprétée Tennis Anti-Corruption Program (i.e. the
d'une manière soutenable”). In this respect, the "preponderance of the probabilities") did not
SFT noted that it was “hard to imagine that offend notions of justice.113
FIFA would take it upon itself to encourage a
particular sponsor not to use his services, or even to c. Pacta sunt servanda
prohibit him from entering a stadium as a mere
spectator, attending matches played by his grandson or The principle of pacta sunt servanda generally
watching a football match in his living room”, which falls within the ambit of substantive public
is pure speculation. The SFT then also policy under article 190(2)(e) of PILA.114 That
referred to the concessions made in the said, the SFT often holds that practically all
Platini case (judgment 4A_600/2016, para. legal disputes resulting from a breach of
3.7.3) if FIFA “were to have the temerity to apply contract are excluded from the scope of the
in a quibbling manner a sanction whose purpose is pacta sunt servanda principle’s protection.115
defined a little too broadly”.110
In case 4A_618/2020 (Blake Leeper v. IAAF),
• 4A_486/2022 (Potito Starace v. the SFT held that pacta sunt servanda is violated
Professional Tennis Integrity Officers) if an arbitral tribunal refuses to apply a
contractual clause while finding that it is
In case 4A_486/2022, the SFT held that a binding on the parties, or conversely if the
restriction on a person’s economic freedoms tribunal requires the parties to comply with a
is excessive (i.e., within the meaning of Article clause that it has found not to be binding. In
27(2) of the SCC) only if that person’s case 4A_660/2020, the SFT held that an
economic freedoms are eliminated or arbitral tribunal will breach the principle of

1104A_542/2021, para. 6.3.2. 113 4A_486/2022, para. 8.2.

111 4A_486/2022, para. 7.1; see also 4A_484/2022, 114 4A_380/2021 (para. 5.1); 4A_484/2021 (para. 5.1);
para. 6.1. 4A_632/2021 (para. 5); 4A_242/2022 (para. 5.2);
112 4A_486/2022, para. 7.4; see also 4A_484/2022, 4A_300/2023 (para. 5.2).
para. 6.4. 115 4A_660/2020, 3.2.2.

49
contractual fidelity if it applies a contractual of PILA. Whether sports disciplinary law is also
provision or refuses to apply it and, in so subject to this principle, which is specific to criminal
doing, contradicts the result of its own law, is another matter, which is not self-evident and
interpretation as to the existence or content appears very doubtful […]”.121
of the contract. However, the process of
interpreting a contractual clause and the legal The SFT has not definitively ruled out the
consequences drawn from it do not fall under application of this principle to arbitral
this principle and therefore are not covered proceedings, but it has dismissed appeals
by Article 190(2)(e) of PILA.116 brought against CAS awards relying on this
principle after an analysis of how the
2. Procedural Public Policy principle would apply to the specific facts of
the cases involved.
a. The res judicata principle
• 4A_462/2019 (KS Skënderbeu v.
The SFT has held that an arbitral tribunal UEFA)
violates procedural public policy if it rules
without taking into account the res judicata In case 4A_462/2019, the SFT held that the
effect of an earlier decision or if it departs in ne bis in idem principle is breached only if there
its final award from an opinion it has has been a repeat of proceedings (i.e., the 'bis'
expressed in a preliminary award deciding a aspect of the principle). If there is a
preliminary substantive question.117 Res sufficiently close material and temporal link
judicata prohibits re-litigation, in new between the proceedings at issue in respect of
proceedings between the same parties, of an the same constellation of facts, so that they
identical claim that has been finally decided. may be regarded as two aspects of a single
A dispute is identical when, in two sets of system, there is no duplication of proceedings
proceedings, the parties submit the same contrary to the ne bis in idem principle.122
claim, with the same request(s) for relief, and
rely on the same complex of facts.118 In the case, the SFT upheld the validity of
UEFA’s two-phase procedure – in relation to
The res judicata principle applies only to the match-fixing allegations and its Betting Fraud
operative part of an award but not to factual Detection System – from the perspective of
and legal findings.119 Thus, for instance, CAS the ne bis in idem principle. It held that the
Panels are not bound by a previous UEFA’s administrative and disciplinary
interpretation of a contractual clause.120 procedures were sufficiently closely linked to
each other to be considered as two aspects of
b. The ne bis in idem principle a single system.123

The SFT characterises the ne bis in idem • 4A_486/2022 (Potito Starace v.

principle as a corollary or negative version of Professional Tennis Integrity Officers)
res judicata. This principle is included in the
notion of public order within the meaning of In case 4A_486/2022, the Tennis Integrity
Article 190(2)(e) of PILA. That said, the SFT Unit (TIU) opened its own investigation and
has expressed doubts about whether this sanctioned a tennis player for attempted
principle is also applicable to sports match-fixing after the player’s national
disciplinary proceedings, considering that: authority had acquitted him of all related
“[i]t is one thing for a violation of the ne bis in idem charges.
principle to fall within the scope of Article 190(2)(e)

1164A_618/2020, para. 5.4.1. 120 4A_536/2018, para. 3.3.2.

117 4A_256/2023, para. 6.1.2. 121 4A_462/2019, para. 5.1; 4A_486/2022, para. 6.1.
118 4A_256/2023, para. 6.1.3. 122 4A_462/2019, para. 5.4.
119 4A_536/2018, para. 3.1.1. 123 4A_462/2019, para. 5.4.

50
The SFT observed that there was a appeal for failure to make a timely advance of
sufficiently close material and temporal link costs did not constitute excessive formalism
between the proceedings instituted against or a denial of justice if the party involved had
the appellant by the judicial bodies of the been appropriately notified of the amount to
national and international tennis associations. be paid, the deadline for payment, and the
The two proceedings were instituted within a consequences of non-compliance with this
few weeks of each other following suspicions deadline. The SFT also held that CAS did not
of match-fixing. According to the SFT, they display excessive formalism by ruling that
were closely linked, since they both sending a statement of appeal or an appeal
contributed to efforts against match-fixing in brief by fax was inadmissible.127 In the same
tennis and to the preservation of the sport’s matter, the SFT also held that the CAS
image. However, the SFT emphasised that a tribunal’s issuance of a termination order in
system put in place by international sports connection with the appellant’s appointment
federations to combat the scourge of match- of an arbitrator after the deadline was not
fixing would be jeopardised if their judicial excessive.128
bodies were deprived of the possibility of
carrying out their own investigations into an In case 4A_666/2020 (Wydad v. FIFA,
athlete simply because the latter had Chikatara and El Gouna), the appellant
previously been exonerated by his or her requested the reasons for a FIFA DRC
national federation.124 decision belatedly but claimed that he had
demonstrated an “intention to act” against the
c. Excessive formalism FIFA DRC decision by immediately
appealing it to CAS. The SFT held that “[f]or
The SFT has held that the defect of excessive reasons of equal treatment and legal certainty, the
formalism will exist if an arbitral tribunal rules on appeal procedures must be strictly complied
applies procedural rules with such strictness with. To decide otherwise in the case of a particular
that no proper interest could support the arbitration procedure would be to forget that the
action, resulting in that procedural rule respondent is entitled to expect the arbitral tribunal to
becoming an end in itself and preventing or apply and comply with the provisions of its own rules.
complicating the application of law in an It is therefore inconceivable that non-compliance with
unbearable way.125 a procedural rule that makes a request for a statement
of reasons an essential prerequisite for the
The SFT, however, has questioned the extent admissibility of an appeal to the CAS should be
to which excessive formalism can qualify as a penalised more or less severely, depending on the
violation of procedural public order under appellant’s subsequent conduct”.129 The SFT
Article 190(2)(e) of PILA. It has suggested highlighted that the appellant had been aware
that it may be content to consider the types of the relevant provisions of the FIFA Rules
of excessive formalism alleged by an Governing the Procedures of the Players’
appellant only in deciding an appeal, without Status Committee and the Dispute
progressing further in analysis to the effects Resolution Chamber. The appellant knew
of the alleged formalism. In a number of that a notification of the decision was
cases it has summarily found that CAS had imminent, it could be validly communicated
not engaged in any excessive formalism.126 to him by email, and he was required to
request a reasoned decision within ten days if
For instance, in case 4A_416/2020 (Santos he wished to contest it. The appellant also
Futebol Clube c. Huachipat SADP), the SFT acknowledged that he had received the
held that a sanction of inadmissibility of decision by email, but claimed he had not

124 4A_486/2022, para. 6.4. 1274A_416/2020, para. 3.3.3;

125 4A_416/2020, para. 3.3.2. 1284A_416/2020, para. 3.3.4.
126 4A_416/2020, para. 3.3.1; 4A_666/2020, para. 129 4A_666/2020, para. 6.4.3.

6.4.1.

51
read it because it had been filtered into his
spam folder.130 In case 4A_22/2023 (Enrique Lopez Pérez v.
Tennis Integrity Unit), the SFT held that in the
In case 4A_436/2022, the SFT held that a light of all the circumstances involved, it
tribunal’s refusal to allow a party to raise a appeared that the duration of the arbitration,
new argument at a hearing was merely an i.e. less than two years, was not unreasonable
application of the procedural rule set out in and in no way led to an intolerable
Article R56 of the CAS Code. The arbitrator contradiction with the sense of justice. The
did not engage in excessive formalism for SFT further held that “although this is a long time
making the ruling since the appellant could compared to other cases decided by the CAS, it is still
have requested permission to supplement his reasonable for cases involving the manipulation of
pleadings when the underlying documents at sporting events, which generally involve a more
issue were produced about five months complex investigation procedure”.
before the hearing, but the appellant had
waited until the hearing to raise the
argument.131

In case 4A_254/2023, the SFT held that

under Article R31 of the CAS Code, the
admissibility of a statement of appeal depends
on whether it had successfully uploaded that
statement to CAS’ electronic filing platform.
It was also not possible to tailor the severity
of sanctions for non-compliance with the
requirements provided for under Article R31
of the CAS Code. The SFT further noted that
the appellant’s counsel, if he really had
experienced problems with CAS’s electronic
platform, could and should have ensured that
his submission had been uploaded either by
immediately contacting CAS or by logging
onto that platform and checking the docket
for the case to see whether document was
actually in the library of uploaded
documents.132

d. Principle of timeliness

The SFT has never ruled that an alleged

breach of the timeliness principle (principe de
célérité) will qualify for violation of procedural
public order. According to the SFT, whether
a case has been judged within a reasonable
timeframe depends on all the circumstances
of the case and, in particular, its breadth and
complexity both factually and legally, the
nature of the procedure and the interests at
stake, and the behaviour of the parties as well
as the tribunal.133

130 Ibid. 132 4A_254/2023, para. 5.4.

131 4A_436/2022, para. 5.2. 133 4A_22/2023, para. 7.3.2.

52
___________________________________________________________________________

Jurisprudence majeure*
Leading Cases
Casos importantes

*
Nous attirons votre attention sur le fait que la jurisprudence qui suit a été sélectionnée et résumée par le Greffe du
TAS afin de mettre l’accent sur des questions juridiques récentes qui contribuent au développement de la jurisprudence
du TAS.
We draw your attention to the fact that the following case law has been selected and summarised by the CAS Court
Office in order to highlight recent legal issues which have arisen and which contribute to the development of CAS
jurisprudence.
Llamamos su atención sobre el hecho de que la siguiente jurisprudencia ha sido seleccionada y resumida por la
Secretaría del TAS con el fin de poner de relieve las recientes cuestiones jurídicas que han surgido y que contribuyen
al desarrollo de la jurisprudencia del TAS.

53
___________________________________
CAS 2019/A/6594 On 21 November 2018, FC Nantes and Mr
Cardiff City Football Club Limited v. Mark McKay, Managing Director of the
SASP Football Club de Nantes company Mercato Sports (UK) Ltd
26 August 2022 (“Mercato”) entered into a contract entitled
___________________________________ “Contrat d’Agent Sportif” (the “Agency
Agreement”), whereby Mr Mark McKay was
Football; Validity of a transfer agreement; authorised to “negotiate the definitive transfer of the
Scope of appeals arbitration proceedings; Player with clubs in the Premier League football
Discretion of the federations to determine championship”.
the disputes submitted to them and de
novo powers of the CAS; Principle “le juge On 17 and 18 January 2019, representatives of
de l’action est le juge de l’exception”; CCFC and FC Nantes exchanged emails and
Principles of interpretation of a contractual text messages with Mr Mark McKay and his
clause; Interpretation of the conditions father Willie McKay, whereby they informally
precedent agreed on the broad contractual terms of a
transfer of the Player to CCFC.
Panel
Prof. Ulrich Haas (Germany), President On 18 January 2019, the Player signed an
Mr Andrew de Lotbinière McDougall KC employment contract with CCFC (the “CCFC
(France) Employment Contract”) for a duration of
Mr Nicholas Stewart KC (United Kingdom) three and a half seasons, valid until 30 June
2022. Also on 18 January 2019, FC Nantes
Facts provided CCFC with a draft transfer
agreement, following which CCFC proposed
The present appeal procedure concerns a certain amendments thereto.
dispute between Cardiff City Football Club
Limited (the “Appellant” or “CCFC”), a On 19 January 2019, at 15:24 CET, the Player’s
former member of the English Premier League agent provided FC Nantes with a copy of the
and registered with the Football Association of agreement terminating the FC Nantes
Wales (the “FAW”), and SASP Football Club Employment Contract (the “Termination
de Nantes (the “Respondent” or “FC Agreement”), signed by the Player, and at 15:27
Nantes”), registered with the Ligue de Football CET, FC Nantes sent back a countersigned
Professionel (the “LFP”) and the Fédération copy. At 15:31 CET, FC Nantes returned a
Française de Football (the “FFF”), related to the countersigned copy of the Transfer Agreement
late Mr Emiliano Raúl Sala Taffarel (the to CCFC, providing for the transfer of the
“Player”), a professional football player who Player from FC Nantes to CCFC for a transfer
tragically died in a plane crash across the fee of EUR 17,000,000 (EUR 6,000,000 to be
English Channel in the night between 21 and paid “within five days of the Player registering with
22 January 2019 together with Mr David [CCFC]”, EUR 6,000,000 on 1 January 2020
Ibbotson, the pilot of the aircraft (the “Pilot”). and EUR 5,000,000 on 1 January 2021),
variable payments and a sell-on fee of 20%.
On 20 July 2015, the Player and FC Nantes The Parties then uploaded the Transfer
entered into an employment contract (the “FC Agreement and the CCFC Employment
Nantes Employment Contract”), valid until 30 Contract into FIFA’s Transfer Matching
June 2020. System (“TMS”) for the Player’s International
Transfer Certificate (“ITC”) to be released by
the FFF in favour of the FAW. At 17:38 CET, On the same day, CCFC and the Player’s Agent
CCFC confirmed in TMS that all information reopened negotiations to agree on a new set of
had been entered and that all documents had terms of the employment relationship that
been uploaded. CCFC then submitted the would also be acceptable to the Premier
CCFC Employment Contract for registration League. At 21:08 CET, the Player’s Agent
with the Premier League and it received a agreed on a series of proposed changes to the
confirmation of receipt from the Premier CCFC Employment Contract. CCFC
League at 18:04 CET. At 18:11 CET, FC maintains that it was envisaged that the new
Nantes “matched” the information regarding terms would be discussed with and offered to
the Player’s transfer in TMS, following which the Player at the training ground prior to the
the transfer status in TMS changed to “Waiting Player’s first training session with CCFC on 22
for ITC request”. According to FC Nantes, such January 2019, after he returned from Nantes.
ITC request had to be filed by the FAW, and According to CCFC, it was open to the Player
as from the change of transfer status, neither at that time to either agree the new terms of the
CCFC nor FC Nantes were expected to CCFC Employment Contract to enable the
complete any further actions in TMS. Around transfer to complete or bring the negotiations
20:00 CET, both CCFC as well as FC Nantes with CCFC to an end and return to play for FC
made public announcements as to the Player’s Nantes. At 21:35 CET, CCFC sent the
transfer to CCFC. proposed changes to the CCFC Employment
Contract in an email to the Premier League.
On 21 January 2019, at 11:01 CET, the FAW The Premier League did not respond to that
sent a request to receive the Player’s ITC in email and has since confirmed in writing that
TMS from the FFF. At 12:00 CET, the Premier the Player was never registered with the
League informed CCFC that the CCFC Premier League.
Employment Contract could not be registered
as it stood and that it had to be amended before In the night between 21 and 22 January 2019,
it could be registered. At 14:08 CET, the LFP but after 21 January 2019 at 21:35 CET, the
informed the FFF that it had homologated the Player died in a plane crash over the English
Termination Agreement. At 14:14 CET, FC Channel.
Nantes sent an invoice and bank details to
CCFC for the first instalment of the transfer On 25 September 2019, following a claim for
fee, in the amount of EUR 6,000,000. At 17:17 payment filed by FC Nantes, the Players’ Status
CET, the FFF issued the Player’s ITC and Committee of FIFA (the “FIFA PSC”) issued
uploaded the Player’s player passport issued by a decision (the “Appealed Decision”),
the FFF. One minute later, the FFF also determining that the conditions precedent set
uploaded the Player’s player passport issued by forth in the Transfer Agreement had been
the Argentinian Football Federation (the complied with, so that the transfer had been
“AFA”). At 18:30 CET, the FAW confirmed completed and that CCFC was required to pay
receipt of the Player’s ITC and registered the the first instalment of the transfer fee in an
Player with CCFC, following which the amount of EUR 6,000,000 to FC Nantes. The
transfer status in TMS changed to “Closed – FIFA PSC considered that it had no
awaiting payment”. According to FC Nantes, at jurisdiction to address CCFC’s subsidiary set-
that moment the Player had become a CCFC off claim.
player and all conditions precedent in the
Transfer Agreement had been satisfied.

55
On 20 November 2019, CCFC filed an appeal Nantes in connection with the Agency
with CAS, challenging the Appealed Decision. Agreement concluded with FC Nantes for the
In the course of the proceedings before the purposes of arranging the sale of the Player,
CAS, the Parties mutually agreed to extend and that this tort claim was to be set-off against
time limits on various occasions and for any payment obligation with respect to the
relatively long periods of time, in part related transfer fee.
to the COVID-19 pandemic and the resulting
difficulties for the Parties in liaising with expert According to the Appellant, prior to
witnesses. considering the substance of CCFC’s civil
tortious claim against FC Nantes, the Panel
On 4 October 2021, the CAS Court Office preliminarily needed to consider whether (i)
informed the Parties that the Panel has decided CAS had jurisdiction to hear CCFC’s tort
to bifurcate the proceedings and, therefore, to claim; and (ii) whether a tortious liability could
preliminarily deal with the following legal be offset against a contractual liability under
issues (the “Bifurcated Issues”) on the merits: the applicable law. For the Appellant, these
(1) if the transfer agreement entered into by the requirements were complied with, regardless
Parties was valid (with all conditions precedent of the law to be applied; for the Respondent,
being complied with); (2) if the CAS / FIFA however, these requirements were not fulfilled.
PSC was competent to decide on the set-off
with a damage claim; and (3) under the law For the Panel, while the substance of CCFC’s
applicable – as a matter of principle – if a claim tort claim fell outside the scope of the
for transfer fee could be set-off against a tort Bifurcated Issues, the two preliminary issues
claim. identified by the Appellant coincided with
Bifurcated Issues (2) and (3). This led the Panel
On 3 and 4 March 2022, a hearing was held in to first address these two preliminary issues
Lausanne, Switzerland. before dealing with the payment obligation of
CCFC to FC Nantes.
Reasons

For the Panel, the key issue to be adjudicated 1. Scope of appeals arbitration proceedings
and decided in the present procedure was
whether the conditions precedent set forth in Both Parties expressly shared the view of the
the Transfer Agreement had been satisfied, as Panel that the latter was only empowered to
a consequence of which the transfer had been decide upon the substance of the tort claim if
completed, triggering a payment obligation of the FIFA PSC had been competent to do so,
CCFC to FC Nantes of a transfer fee of EUR and vice versa, that the Panel could not
17,000,000. adjudicate the substance of the tort claim if the
FIFA PSC lacked the requisite mandate.
However, the Appellant argued that even if
such payment obligation existed, it was not The Panel observed that CAS proceedings
required to pay any transfer fee to the before the Appeals Arbitration Division were
Respondent because the latter was liable for to be distinguished from those before the
the Player’s death since the return flight Ordinary Arbitration Division in the sense that
between Nantes and Cardiff during which the the scope of the former was limited to issues
Player’s death had occurred had been that had fallen within the competence of the
organised by agents and sub-agents of FC first instance proceedings, while in ordinary

56
arbitration proceedings there had been no that provisions concerning set-off claims did
previous instance. not apply to counterclaims and vice versa.

2. Discretion of the federations to determine This notwithstanding, the Appellant was of the
the disputes submitted to them and de novo view that the FIFA PSC was competent based
powers of the CAS on the principle “le juge de l’action est le juge de
l’exception”, whereby the judge that is
The Panel recalled that although private competent for the main action is also
associations had a wide discretion to determine competent to decide on objections thereto,
what types of disputes and between which irrespective of whether the issue raised as an
persons/entities those disputes should be objection falls within the competence of
submitted to its internal dispute resolution another judge.
bodies, this did however not mean that a CAS
panel was bound by any conclusion of the The Panel recalled that, as a consequence of
first instance dispute resolution body with the principle “le juge de l’action est le juge de
regard to its competence to deal with a dispute. l’exception”, a claim could be raised by set-off as
If the CAS panel found that the first instance a defence against a main action filed in court
body had wrongly denied its mandate to even if another court would have been
adjudicate and decide on a claim, it was, competent to decide on that claim had the
pursuant to Article R57 of the CAS Code, latter been filed separately. This principle was
free to either adjudicate and decide on the applicable in domestic arbitration proceedings
claim itself or to refer the case back to the on the basis of Article 377(1) CCP and thus it
previous instance. could in any case apply in the context of
international alternative dispute resolution
3. Principle “le juge de l’action est le juge de proceedings, including before association
l’exception” tribunals such as the FIFA adjudicatory bodies,
only by analogy. Any transposing of Article
The Panel first observed that neither the FIFA 377(1) CCP was therefore to be made with
Regulations on the Status and Transfer of care, taking due account of the specifics of the
Players (the “FIFA RSTP”) (June 2018 edition) proceedings before association tribunals.
nor the FIFA Rules Governing the Procedures
of the Players’ Status Committee and the The Panel also observed that it was not clear
Dispute Resolution Chamber (edition 2018) whether Article 377(1) CCP gave the arbitral
(the “FIFA Procedural Rules”) specifically tribunal discretion to accept jurisdiction over
dealt with the question whether and to what the set-off claim. According to the Appellant,
extent the FIFA adjudicatory bodies had a the French and Italian versions of the rule
mandate to decide on set-off claims. Although providing that the arbitral tribunal has
the FIFA Procedural Rules foresaw the jurisdiction to decide the set-off defense had to
possibility of filing counterclaims without any take precedence over the German version
particular prerequisites (other than stating that the arbitral tribunal may adjudicate
jurisdiction), it followed, inter alia, from Article the set-off defense. The Panel noted that this
377(1) of the Swiss Code of Civil Procedure question was disputed among legal scholars
(the “CCP”), which – in the ambit of domestic and that Swiss jurisprudence had yet to decide
arbitration – clearly distinguishes between a which of the different language versions
set-off (para. 1) and counterclaims (para. 2), should take precedence.

57
However, it held that it did not have to decide another indication that the organisation of the
the dispute, as on either view of Article 377(1) flight was independent of the Transfer
CCP, the FIFA PSC would not have been Agreement. Consequently, the Panel also
bound to adjudicate the set-off claim. Should found that under the law of England and Wales
jurisdiction be considered mandatory, even the relevant test to be applied for a tribunal to
legal authorities favouring this position allowed adjudicate and decide on the set-off claim was
for exceptions to this principle, an important not satisfied.
one being that a very specialised dispute
resolution body like the FIFA PSC with a very The Panel thus concluded that (i) CCFC was
restricted subject-matter competence could procedurally precluded from availing itself of
not adjudicate by way of set-off a claim that the alleged set-off claim, and (ii) in answer to
would otherwise fall outside its jurisdiction question no. 3 of the Bifurcated Issues, the
ratione materiae. Should jurisdiction not be substantive prerequisites for a set-off were not
considered mandatory, in view of the fulfilled. As a consequence, the Panel was not
principles of procedural efficiency and required to adjudicate and decide on the
procedural fairness, the fact that there was substance of CCFC’s tort claim.
insufficient legal and/or factual connection
between the main claim and the set-off claim 4. Principles of interpretation of a contractual
and that the main claim was ripe for clause
adjudication while the set-off claim was far
from it, weighed strongly against the Coming to the merits of the case, the
specialised dispute resolution body having remaining issue to be resolved by the Panel was
jurisdiction to adjudicate the main claim, i.e. Bifurcated Issue no. 1, i.e. if the Transfer
FIFA PSC, accepting to adjudicate the set-off Agreement entered into by the Parties was
claim. valid (with all conditions precedent being
cumulatively complied with).
On a purely subsidiary level the Panel also
addressed question no. 3 of the Bifurcated In this regard, the key provision was Clause 2.1
Issues, i.e. whether under the applicable law of of the Transfer Agreement, which provided
England and Wales the substantive that the Transfer Agreement was conditional
prerequisites for a set-off were fulfilled in the upon: (2.1.1.) the player completing
case at hand. The Panel recalled that in order successfully medical examination with CCFC;
for a set-off claim to be admissible under (2.1.2.) FC Nantes and the Player agreeing all
English law, the cross claim had to be so the terms of a mutual termination of FC
closely connected with the plaintiff’s demands Nantes contract of employment with the
that it would be manifestly unjust to allow him Player; (2.1.3.) the mutual termination of FC
to enforce payment without taking into Nantes contract of employment with the
account the cross-claim. In the present case, Player being registered by the LFP; and (2.1.4.)
however, the Panel held that the organisation the LFP and the FAW having confirmed to
of the fatal flight giving rise to the tort claim CCFC and FC Nantes that the Player has been
was not part of FC Nantes’ contractual duties registered as a CCFC player and that the
under the Transfer Agreement and was, thus, Player’s International Transfer Certificate has
unrelated to the contract. Furthermore, as been released. The consequences of non-
addressed in more detail below, the Player’s fulfilment of any of such conditions precedent,
transfer had been completed by the time the set forth in clause 2.2 of the Transfer
flight was organised. For the Panel, this was Agreement, were that the Transfer Agreement

58
was to be null and void and no payment was to account when interpreting and assessing the
be due from CCFC to FC Nantes. contents of the contract. Under English law
this was not permitted, while under Swiss law
It was not contested that clause 2.1.1 of the this was, as a matter of principle, permissible.
Transfer Agreement had been complied with, However, the Panel considered that, even
but CCFC disputed that the conditions under Swiss law, the various draft versions of
precedent in clauses 2.1.2, 2.1.3 and 2.1.4 were the Transfer Agreement were irrelevant, since
satisfied. Before assessing these three they did not provide much clarity as to the
conditions precedent, and as the Parties had subjective intention of the Parties with the
put great emphasis on the question what law conditions precedent.
applied to the interpretation of the conditions
precedent in the Termination Agreement, the The Panel further found that the regulatory
Panel first addressed this question. matrix in light of which the interpretation took
place – independently of the law applicable –
The Appellant was of the view that the dispute was the RSTP, since – obviously – the
should primarily be decided in accordance with conditions in clauses 2.1.2 - 2.1.4 of the
the law of England and Wales, while the Transfer Agreement more or less mirrored the
Respondent was submitting that any transfer- various steps to be taken according to the
related matter arising out of the Transfer FIFA RSTP (Articles 5 and 13 FIFA RSTP and
Agreement should be subject to the FIFA Articles 4 and 8 of Annexe 3 FIFA RSTP) in
RSTP and subsidiarily Swiss law. order to transfer a player. Consequently,
irrespective of whether Swiss law or the law of
The Panel recalled that under the law of England and Wales applied to clauses 2.1.2 -
England and Wales, a contract had to be 2.1.4 of the Transfer Agreement, the same
interpreted objectively by asking what a conclusion was to be reached on the
reasonable person, with all the background interpretation of the conditions precedent set
knowledge which would reasonably have been out therein.
available to the parties when they entered into
the contract, would have understood the 5. Interpretation of the conditions precedent
language of the contract to mean. According to
Swiss law, on the contrary, Article 18 of the The condition precedent set forth in clause
Swiss Code of Obligations first and foremost 2.1.2 of the Transfer Agreement provided for
sought to establish the subjective intention of “FC Nantes and the Player agreeing all the terms of a
the parties and – in case the latter could not be mutual termination of FC Nantes contract of
determined – fell back on an objective employment with the Player”. According to the
interpretation of the contract. The Panel found Termination Agreement concluded on 19
that the differences between contractual January 2019, the validity of the agreement was
interpretation under the law of England and subject to (i) the Player being transferred
Wales and Swiss law, however, did not come permanently to CCFC, and (ii) the ITC having
into play in the case at hand, since no clear been issued by the FFF to the English Football
subjective intention could be inferred and, Association. These conditions had to be fully
thus, also from a Swiss law perspective, the met by no later than 22 January 2019,
objective interpretation prevailed. According otherwise the termination would have been
to the Panel, a concrete difference between void.
both laws related to the question of whether or
not drafts of a contract might be taken into

59
CCFC was maintaining that the obvious registered as a [CCFC] player and that the Player’s
business common sense interpretation of International Transfer Certificate has been released”.
clause 2.1.2 of the Transfer Agreement was not
that the clause could be satisfied by the Player CCFC maintained that the correct
and FC Nantes merely agreeing terms of a interpretation of this clause 2 provided that the
termination agreement but, self-evidently, that Player was to play for CCFC given the use of
they gave effect to those terms. Since the the words “[CCFC] player”. However, as of 19
conditions precedent in the Termination January 2019, the only competition in which
Agreement were not fulfilled by 22 January CCFC remained entitled to play during the
2019 or at all, FC Nantes could not give effect 2018/19 season was the Premier League. It
to clause 2.1.2 of the Transfer Agreement. followed that, as a matter of business common
The Panel noted that the text in clause 2.1.2 of sense, for the Transfer Agreement to have
the Transfer Agreement coincided with the practical effect, the Player had to be registered
wording of Article 8(2)(3) of Annex 3 to the with the Premier League but this was not the
FIFA RSTP and that the latter did not require case at the time of the Player’s death, since the
that the mutual termination agreement was CCFC Employment Contract had to be
validly enforced, but simply that it was agreed renegotiated following the Premier League’s
upon. The Panel found that the Player had refusal to register the CCFC Employment
been transferred permanently to CCFC, the Contract. FC Nantes contended that clause 2.1
FFF had issued the Player’s ITC to the FAW, of the Transfer Agreement did not include any
and the FAW had registered the Player as a express provision that the Player had to be
CCFC player, as a consequence of which the registered with the Premier League in order for
conditions precedent in the Termination the transfer to be completed.
Agreement had been fulfilled on 21 January
2019. The Panel recalled that from a regulatory
standpoint (i.e. the FIFA RSTP), a transfer was
The condition precedent set forth in clause considered executed and finalised once a player
2.1.3 of the Transfer Agreement provided that was registered with the new association. This
“the mutual termination of FC Nantes contract of was only possible when the new association
employment with the Player is registered by the LFP”. had received the player’s ITC from his former
The Panel found that also the wording of association. The Panel found that the Parties to
clause 2.1.3 of the Transfer Agreement was the Transfer Agreement had not deviated from
clear: the agreement to mutually terminate the this approach. The Panel interpreted the word
employment relationship between FC Nantes “registered” in clause 2.1.4 as referring to
and the Player was to be registration by the FAW and held that there
registered/homologated by the LFP, i.e. the was no reasonable objective construction of
LFP was to verify the legality of the clause 2.1.4 of the Transfer Agreement that the
Termination Agreement. It was not required completion of the transfer also required the
that LFP assessed or examined whether the registration of the Player with the Premier
terms of the Termination Agreement had League. It was undisputed that the Player had
actually been complied with. been registered with the new association on 21
January 2019, i.e. before the Player’s death.
The condition precedent set forth in clause Upon registration, the Player had been at the
2.1.4 of the Transfer Agreement provided as disposal of the CCFC (and no longer at the
follows: “[T]he LFP and the FAW have confirmed disposal of FC Nantes).
to [CCFC] and FC Nantes that the Player has been

60
For the Panel, this interpretation was not
contradicted by the fact that the requirement
for registration was followed by the wording
“and that the Player’s ITC has been released”, as the
release of the ITC and the registration of a
player were two sides of the same coin. The
same approach was applied in Article 8(2)(5) of
Annex 3 to the FIFA RSTP, which provided
that “[o]nce the ITC has been delivered, the new
association shall confirm receipt and complete the
relevant player registration information in TMS”. The
language used in clause 2.1.4 of the Transfer
Agreement in fact reflected the relevant
provision in the FIFA RSTP and the standing
practice of the football industry.

As a consequence, since the Player’s transfer

from FC Nantes to CCFC had been completed
and because all conditions precedent in clause
2.1 of the Transfer Agreement had been
satisfied prior to the Player’s death, CCFC’s
payment obligations towards FC Nantes were
triggered.

Decision

Based on all the above, the Panel found that

FC Nantes’ claim for the first instalment of the
transfer fee was upheld. The Panel also found
that FIFA’s rejection to adjudicate and decide
on CCFC’s set-off claim was upheld, because
either FIFA had no mandate over that claim
irrespective of whether it had discretion to
reject jurisdiction over such claim.
Consequently, also the Panel had no mandate
to adjudicate and decide on the set-off claim.
The Appealed Decision was therefore
confirmed.

61
___________________________________ New Palermo and FIFA collectively referred to
CAS 2020/A/7314 as the “Respondents”.
Horacio Luis Rolla v. Palermo Football
Club S.p.A & Fédération Internationale de On 7 May 2014, the Single Judge of the FIFA
Football Association (FIFA) Player’s Status Committee (“FIFA PSC”)
12 April 2023 decided to reject a claim filed by the Creditor
against the Old Palermo (“FIFA PSC
___________________________________
Decision). The Agent was claiming the
amounts related to his professional services for
Football; Contractual dispute; Player’s
the transfer of the player Mr [E.] to the Italian
agent standing to appeal against a FIFA
club SSC Napoli.
Disciplinary Committee decision related to
his debtor; Burden and standard of proof of
On 18 September 2014, the Agent appealed
establishing a sporting succession between
against the FIFA PSC Decision before the
two entities; Criteria for the establishment
Court of Arbitration for Sport (“CAS”). On 25
of a sporting succession between two
May 2015, the Agent and the Old Palermo
entities; Creditor’s duty of diligence to
decided to settle the dispute (“Settlement
preserve his interests and consequences of
Agreement”). The Settlement Agreement
a lack of diligence
replaced the FIFA PSC Decision and was
incorporated in a CAS consent award (“CAS
Consent Award”). The Settlement Agreement
Panel
stated, among others, that “Palermo shall pay the
Mr Rui Botica Santos (Portugal), President
Agent the amount of €1,000,000 (one million euros)”.
Prof. Miguel Cardenal Carro (Spain)
Mr José Juan Pintó (Spain)
On 19 October 2018, as per the Agent’s
request, FIFA Disciplinary Committee (FIFA
Facts
DC) passed a decision against the Old Palermo
(“FIFA DC Decision against the Old
Mr Horacio Luis Rolla (“Appellant”, “Agent”
Palermo”), by means of which, among others,
or “Creditor”) is an intermediary duly
it granted a final deadline of 90 days to comply
licensed as Player’s Agent by the Argentinian
with the Settlement Agreement.
Football Federation, which is a member
association of FIFA.
The Old Palermo appealed to CAS against this
decision. On 30 October 2019, CAS confirmed
Palermo Football Club S.p.A. (“First
the FIFA DC Decision against the Old
Respondent” or “New Palermo”) is an Italian
Palermo.
football club affiliated to the Federazione
Italiana Giuoco Calcio (“FIGC”), which is a
On 31 October 2019, the FIGC informed
member association of FIFA.
FIFA DC that the Old Palermo had been
declared bankrupt by the Ordinary Court of
The FIFA (“FIFA” or “Second
Palermo and that, as of 25 October 2019, it was
Respondent”) is the international governing
no longer affiliated to the FIGC. Immediately
body of football.
after, FIFA DC informed the Agent that due
to the disaffiliation of the Old Palermo from
The Agent, New Palermo and FIFA are
the FIGC, it was not in position to further
collectively referred to as the “Parties” and
proceed with the case. Since Old Palermo lost
its indirect membership to FIFA, FIFA DC not possible to establish the sporting successor
could not impose sanctions on it. between the Clubs. As a result, New Palermo
was not responsible for Old Palermo’s debt
On 12 November 2019, the Agent requested and the disciplinary procedure was closed.
FIFA DC to start disciplinary proceedings
against the New Palermo as sporting successor On 23 July 2020, in accordance with Article
of the Old Palermo (New Palermo and Old R47 of the Code of Sports-related Arbitration
Palermo are collectively referred to as the (“CAS Code”), the Appellant filed its
“Clubs”). statement of appeal with the CAS challenging
the above decision.
The Agent argued that the New Palermo is the
sporting successor of the Old Palermo and, for Reasons
this reason, was liable for the payment of the
consolidated obligations of his predecessor This appeal was related to the challenging of
since it could not receive his credit. the FIFA DC decision passed on 21 May 2020
(“Appealed Decision” or “FIFA DC Decision
On 1 April 2020, FIFA DC opened disciplinary related to the New Palermo”), discharging the
proceedings against the New Palermo for New Palermo from the liability concerning the
alleged sporting successor and potential debts incurred by the Italian club US Città di
violation of Article 64 FIFA Disciplinary Code Palermo S.p.A. (“Old Palermo” or “Debtor
edition 2017 (“FDC”) and Article 15.4 FDC Club”), on the basis that there is no legal or
edition 2019. In this context, New Palermo sporting succession between the referred
was invited to provide its position regarding Italian football clubs.
the Creditor’s allegations.
The Appellant inter alia prayed the relief that
On 8 April 2020, the FIGC informed FIFA “Società Sportiva Dilettantistica Palermo or Palermo
DC about the fact that the New Palermo, Football Club S.p.A, or who, at the time of issuing the
which was participating in the amateur league, decision, becomes de sports successor of US Cittá di
became an affiliated member of the FIGC on Palermo S.p.A., is responsible for paying [the
26 July 2019. Furthermore, FIGC informed Creditor] the sums owned according to the award (…)
that New Palermo was not considered the legal CAS 2014/A/3755”.
successor of the Old Palermo, since there was
no legal connection or continuity between the The First Respondent inter alia made the
Clubs. New Palermo informed the Agent to following prayers for relief: “a) REJECTING
claim his credit in the bankruptcy proceedings the Appellant’s requests to their entirety; b)
of the Old Palermo. CONFIRMING the FIFA Decision”.

In this respect, FIFA DC requested the Agent FIFA inter alia made the following prayers for
to clarify the actions taken, if any, to recover relief: “(a) Confirm that the Appellant lacks the
his credit from the Old Palermo under the required standing to appeal and (…) to reject the
bankruptcy proceedings. The Agent confirmed appeal on this basis; Alternatively to point (a); (b)
that he has exclusively claimed his credit under Reject the Appellant’s appeal in its entirety; (c)
the FIFA DC proceedings. Confirm the decision rendered by the FIFA
Disciplinary Committee on 21 May 2020”.
On 21 May 2020, FIFA DC concluded that,
based on the documentation received, it was

63
1. Player’s agent standing to appeal against a on a substantive issue related to the existence
FIFA DC decision related to his debtor or not of sporting successor between the
Clubs. This explains why the Agent was treated
FIFA and New Palermo claimed that the as a “party” to the FIFA DC proceedings.
Appellant lacked the required standing to
appeal and challenge the Appealed Decision The above conclusion was not in contradiction
before CAS. The Respondents stated that with the case CAS 2011/A/2377. The Panel
Article 58.1 FIFA Statutes established two highlighted that in that case, the creditor’s club
requirements for the appeal of a FIFA DC was not a party to the proceedings conducted
decision: (i) the Appellant must have been a before the FIFA DC. The proceedings before
party in the FIFA disciplinary proceedings; and FIFA DC were solely related to a matter of
(ii) the Appellant must have a direct legal disciplinary nature and did not concern the
protected interest in filling the appeal. potential liability of the club under
“investigation”.
The Panel emphasised that the lack of standing
to sue or standing to appeal was an issue related As to whether the Appellant had a direct
to the merits of the case (CAS 2009/A/1869; interest in the FDC proceedings, the Panel
CAS 2015/A/3959; CAS 2015/A/4131 and agreed that the primary and main objective of
Swiss Federal Tribunal (“SFT”) SFT 128 II 50, the FIFA Disciplinary Code (FDC) mechanism
55) and that the prerequisite of the two was not to assist creditors in recovering their
requirements was not in question but only credits. This was only a secondary aspect (and
whether the said requirements were met in the one of the intended results) of the disciplinary
present case. The Panel’s views are the system. There should be no doubts that the
following: crucial objective of the system was to protect
the full compliance by the affiliates of the
As to whether the Appellant participated in the decisions rendered by FIFA. However, this
FIFA DC proceedings, the Panel noted that was correct on the assumption that FIFA DC
the procedural acts and actions showed that was called to have a pure disciplinary
the Appellant participated, and was treated, as intervention. As explained in CAS
a party during the FIFA disciplinary 2011/A/2377, disciplinary proceedings before
proceedings. The Appellant was involved in FIFA DC should have been restricted to
the FIFA DC decision making process and, matters of disciplinary nature in the
moreover, he was also invited to appeal the relationship between a party and FIFA.
decision to CAS.
Looking to the Appellant’s prayers for relief,
As explained in CAS 2016/A/4837 and CAS the Panel concluded that there were also
2017/A/5359, disputes taken by FIFA bodies requests against New Palermo and not
can be qualified of “horizontal” and “vertical” exclusively against FIFA. FDC addressed and
disputes. In the present case, the dispute at dismissed the Agent’s claim related to the
FIFA DC involved both disputes, because sporting succession of the Clubs. To conclude
FIFA DC was requested to decide about the that there was no sporting succession, FIFA
sporting succession of the Clubs and the DC acted as a FIFA’s adjudicatory body and
enforcement of the Settlement Agreement not as a simple FIFA’s disciplinary body. FIFA
against New Palermo. FIFA DC was not only decided the “horizontal” dispute between the
requested to enforce a previous “obligation Agent and the New Palermo, and this
already decided” but was also asked to decide explained the Appellant’s direct interest in the

64
present appeal. Even if the Panel would have sporting succession of the Clubs. A dispute
considered that the Appellant was not the that required the intervention of FIFA as an
direct addressee of the Appealed Decision it adjudicatory body. This was the reasoning
was clear that from a material point of view the behind of the case CAS 2017/A/5460, in
FIFA decision affected him. The closing of the which the Sole Arbitrator concluded that CAS
FIFA disciplinary proceedings without having had no jurisdiction to decide the appeal. The
allowed the creditor to appeal – concluding fact that the “sporting succession” provision
that New Palermo was not the successor of the was integrated in Article 15 of the FDC and its
Old Palermo – would have caused res judicata wording referring the “sporting successor” as a
on the issue without any possibility of revision non-compliant party may suggest that FIFA
of the decision. The Creditor would have lost enlarged FIFA DC’s competence to decide on
any [chance] to recover its debt by the sporting the matter. Otherwise, the “sporting
successor of its non-compliant debtor. This succession” regime would be inserted and
result would have been unacceptable within treated in the RSTP.
the sporting system and against the principle of
revision of the decisions. 2. Burden and standard of proof of establishing
a sporting succession between two entities
Considering the above, the Panel concluded
that the two cumulative requirements were met Continuing its analysis, the Panel found that
and that the Appellant had standing to appeal. there was no doubt that the Appellant carried
This was also supported by the fact that the the burden of proof in establishing the New
omission of the FIFA Disciplinary Code as to Palermo was the sporting successor of Old
who has standing to appeal a FIFA DC Palermo and that New Palermo was liable to
decision rendered under Article 15.4 FDC pay the sums established in the Settlement
2019 / 64 FDC 2017 directly to CAS should be Agreement. This understanding was confirmed
interpreted in a way to guarantee the creditors by Article 8 of the Swiss Civil Code (“SCC”)
access to justice in their interest to obtain and as it is referred by CAS Arbitrator Jordi
enforcement of a FIFA or CAS decision. This López in the article published in CAS Bulletin
interpretation was also in line with the principle 2020/2.
of in dubio contra stipulatorem.
Having noted the above the Panel will assessed
Furthermore, the Panel highlighted that the the applicable standard of proof. In the context
Appellant’s standing to sue derived also from: of this matter, the Panel defined as appropriate
(i) Article 75 Swiss Civil Code in the way that standard “comfortable satisfaction”. In
the Appellant was affected by a decision of an practical terms, the party bearing the burden of
association; and (ii) the principle of good faith, proof must establish the facts having in mind
as the grounds of the Appealed Decision were the seriousness of the invoked allegations.
issued on the Creditor’s request. Depending of the elements that integrate the
criteria to establish “sporting succession”, the
To be consistent with FIFA’s answer in these proof required to “comfortable satisfy” the
CAS proceedings, FIFA DC would have Panel can vary along a sliding scale being closer
needed to reject the Agent’s request based on to “balance of probability” (for less relevant
the fact that his claim was not related to the “elements”) or close to “beyond a reasonable
pure enforcement of a FIFA/CAS decision but doubt” (for more relevant and important
rather to the enforcement of a CAS consent “elements”).
award that required a previous decision on the

65
3. Criteria for the establishment of a sporting not create a general and strict obligation for all
succession between two entities cases of new clubs, but set indicatively some
criteria that were being taken into
First turning its attention to the rationale of consideration by FIFA and CAS in order to
Article 15.4 of the FDC 2019, the Panel noted decide whether a club shall be deemed as a
that most jurisdictions recognized in their legal sporting successor of another club or not.
systems, as a rule, that a legal entity is not
responsible for obligations incurred by a third The Panel did not consider itself to be bound
party. However, there were still legal systems by prior decisions of FIFA and CAS regarding
that introduced the figure of “disregarding the this matter also because, as stated in CAS
legal personality” in order to be able, in a 2020/A/7902, the analysis of “sporting
balanced and effective way, to hold entities succession” should be made on a case-by-case
that, fraudulently or in abuse of rights, used basis. However, the Panel considered
different identities to avoid the fulfilment of important to take previous CAS decisions,
their obligations. Similarly, FIFA instituted the which are relevant, into due consideration, for
rule of Article 15.4 FDC to provide legal reasons of legal predictability and stability.
protection to certain sports creditors who, due Consistency of interpretations was desirable
to the debtor club facing insolvency / whenever possible and justified, in order to
bankruptcy, extinction or simply dissipation of establish and increase the level of confidence
assets, no longer enjoyed FIFA protection for and legal certainty of the existing system.
the good collection of their credit(s)).
Article 15.4 of the FIFA DC included the
Article 15.4 FDC provided efficient means to following non-exhaustive list of factors that
obtain the payment of monetary claims against should be taken into account in the criteria
the “sporting successor” of a non-compliant when making the assessment of “sporting
debtor. This provision was also the result of succession”: headquarters; Name; Legal Form;
the codification of FIFA and CAS Team Colours; Players; Shareholders,
jurisprudence. The concept of “sporting stakeholders, ownership, management;
succession” was mainly implemented to avoid Category of competition concerned.
abuse. This rationale was clear in FIFA
Circular 1681. Although the manifestation of However, these were not the exclusive ones
an “abusive situation” was not provided for in that can be taken into consideration. The
Article 15.4 FDC, the understanding that this relevant provisions state, “among others” and, the
subjective element was required was somehow Appellant invoked the following in support of
supported and underlined by FIFA and CAS his allegations: reference to the founding year;
jurisprudence (CAS 2020/A/7902, para. 78; History and objectives; Intention of New
FIFA DC decision 150129 PST of 25 Palermo in identifying itself with the history of
November 2019, para. 18). the city’s club: “Club Palermo”; Nickname;
Team crest / logo; Stadium; Contact offices;
In light of the above, the Panel was of the view Supporters and historic sports idols, including
that to assess the existence of “sporting the social media and the inauguration of the
succession” it was also important to “Palermo Museum”.
understand the reasons and the subjective
motivations that led to the emergence of the New Palermo pleaded other arguments in
new club. This was exactly the reason why the support of the rejection of the existence of
provision contained in Article 15.4 FDC did sporting succession, which the Panel must also

66
take into consideration. One of these concerned a similar case, the Panel opted to
additional factors is the “co-existence of the Clubs rank the factors identified into three categories,
during a certain period”. i.e.: (i) minor importance; (ii) relevant; and (iii)
important. The above assessments can be
As CAS Arbitrator Jordi López stated in the summarised as follows (( + ) = in favour of
above-referred CAS Bulletin article, the sporting succession; ( - ) = not in favour of
starting point for the analysis of sporting sporting succession; (0) = neutral / irrelevant):
succession must be the meaning of “sports
club”, taking into consideration that “a club has Factor Minor Relevant Important
importance
a series of specific features that identify and distinguish
it from other clubs, including its name, clothing colours, Headquarters (+)

crests and other emblems, fans, history, sports Name / (+)

achievements, its town or city and stadium, among other Nickname

factors. Such circumstances or characteristics develop Legal Form (-)

over a long period of time and tend to be permanent and Team (+)
shape an image of what the general public understands Colours
or considers to be a club” [free translation of
Team Crest / (+)
original text in Spanish]. Later in the said Logo
article, the said author identified the following
Transfer of (-)
main characteristics of a “sports club” [free Players /
translation once more]: the new entity refers Technical
Staff
publicly to the date of the founding of the
previous entity, adopts the history and Shareholders, (-)
Ownership &
attainments of the previous entity, continues to Management
play matches in the same city and stadium, with
colours and other emblems that are similar to Category of (-)
Competition
those of the entity succeededThe entity that Concerned
supposedly succeeds and the entity that is
Stadium / (+)
succeeded have the same registered office and Training
CEOThe name of the new entity includes parts Centre
of the name of the old entity or can be Reliance on (+)
confused with, or is identical to, the name of the bankrupt
club’s History
the old entityThere is a certain coincidence and Memory
between the squads and technical staff of the
Reliance on (+)
two entitiesThe contact details of both entities, the same
such as their telephone number, fax number or Supporters
postal address are the sameA national and Historic
Sports Idols
association has, in practice, treated a club as the
successor of another club, or the successor Acquisition (-)
of sporting
club has acquired the rights to participate in the assets from
competition that were formerly held by the the bankrupt
club succeeded. club

Reliance on (-)
These factors should be considered, in an open the sporting
credits of the
and careful manner, “on a case by-case basis”, as bankrupt club
stated above. As in case 2020/A/7092, which

67
 Co-existence (0) in casu. The most evident examples are the
of the Clubs
in the same transfer of federation rights between clubs (cf.
period CAS 2007/A/1355) or the transfer of a
The reason(s) (+) significant number of players, which gives the
behind the new club a continuity with the identity of the
appearance of
the new club
old club. In this case, the factors considered to
be important and relevant were, a sufficient
Total 2+ 3+|1- 3+|5-
basis for a determination that sporting
continuity between the Clubs existed. The
The Panel could also add an additional (or Panel was aware that this case reflected a new
complementary) intangible criterion, which the reality, which had never been addressed by
Panel considered to be of great importance: i.e. FIFA, i.e. sporting continuity between Clubs by
the transfer or use, by New Palermo, of a virtue of their umbilical connection with the
significant part of Old Palermo’s goodwill, as history and memory of the city in which they
there could be no doubt that a very substantial were based and the special link between them
part of the said goodwill, e.g. public recognition and their supporters. The Panel unanimously
and the support of the supporters was clearly recognised that there was no evidence or
transferred, either voluntarily or involuntarily, indication that the new club arose in improper
from Old Palermo to New Palermo. This circumstances, or with the intention to evade
goodwill defines much of what a football club the “weight” of the old club’s financial
was, and the fact was that New Palermo obligations.
benefitted from the said goodwill factors since
it started to operate, and did nothing to The aim of New Palermo, as a club in the city
expressly distance itself from or differentiate of Palermo, was to give continuity to the values
itself in relation to Old Palermo. and memories of the clubs that “served” the
city of Palermo, which included Old Palermo.
In casu, the reasoning and criterion to be This effect and objective may not have been
followed was based on a criterion of the overall present in the intention of the shareholders of
and qualitative assessment of the factors which New Palermo, but was clearly visible in the
were indicative of the existence of sporting intention of the Municipality of Palermo,
succession and not of the consideration, because of the terms and conditions it imposed
ranking and counting of the number of regarding the selection of the club of the city
relevant factors for and against the existence of of Palermo. The Panel had no doubt that it was
sporting succession. In that case, the important the status of a “city club” that gave New
thing, in casu, was to establish whether the Palermo extra visibility and sporting success in
important and relevant factors that indicated such a short period of time.
the existence of sporting succession, did, or did
not, suffice to comply with the requirements of In casu, sporting succession was not a
Article 15.4 FDC and established sporting consequence of a movement linked to or
continuity between the Clubs. associated with the old club’s supporters. In
casu, the sporting succession was a
Stated in greater detail, this meant mere consequence of a requirement imposed by the
confirmation whether the existence of some Municipality of Palermo, which New Palermo
factors classed as “important” could, because consciously accepted. This imposition took
of their intensity, be a sufficient basis for a care to protect all financial interests of the
determination that sporting succession existed, Municipality of Palermo (e.g. the transfer of the

68
overheads and the responsibility for the
management of the Stadium and for the If, on the one hand, there was a bona fide
Stadium employees), but did not take into creditor, whose credit must be assumed by the
consideration the interests of others possibly successor club, on the other hand it should also
prejudiced by the bankruptcy of Old Palermo. be considered that that there was a bona fide
Likewise, it probably did not take into entity that appeared to have been “surprised”
consideration the consequences for the Club, by the appearance of the unknown credit.
of the identity “allocated” to it, or even Surprised, because it was only on 12
“imposed” on it, in terms of the applicable November 2019, that New Palermo was joined
FIFA regulations. Although, it was true that as a party in FIFA proceedings for payment of
the said identity enabled New Palermo to make a debt, which had been at issue in FIFA since
sport-linked financial gains. As a consequence at least 2014.
of the sporting succession, New Palermo was
able to assume, acquire, capture and enjoy a The answer to this issue is complex, but cannot
number of potential benefits and synergies. ignore the general principle of good faith, and
These benefits and synergies were associated the general principles of legal certainty and the
with the economic and social dynamics of the predictability of the law. All the more so
city of Palermo and were reflected, inter alia, in because in this case, New Palermo did not act
the rapid attraction of a significant number of in a suspect manner in order to circumvent the
supporters, the increased value of its image and law and regulations and to avoid its
brand as a club of the city, increased ticketing responsibilities, while having the benefit of the
revenue, the attraction of sponsorship and enjoyment and use of the assets or benefits of
advertising and merchandising revenues. This the old club. For that reason, there were
approach is in line with the decision in CAS decisions of FIFA and CAS, which although
2011/A/2611. they held for the existence of sporting
succession, found that this should not have
For all the reasons stated above, the Panel given rise to any liability on the part of the
considered that the prerequisites for the successor club, because of a lack of improper
existence of sporting succession between the conduct on the part of the new club, or
Clubs, appeared to be complied with. because of a manifest lack of diligence on the
part of the creditor with regard to the claiming
4. Creditor’s duty of diligence to preserve his and safeguarding of its credit.
interests and consequences of a lack of
diligence The upholding of the Agent’s credit right
should be considered to be an “alternative”
The existence of sporting succession between procedure of last resort. An alternative
the Clubs having been established, the Panel subsidiary procedure that could not and should
had to consider whether New Palermo was not be seen as an opportunity for creditors to
liable to pay the debt owed by Old Palermo to refrain from pursuing the recovery of debts
the Agent. In other words, what are the owed to them from the original debtor.
regulatory consequences of this sporting
succession for New Palermo? In order to According to the principles of good faith and
clarify this issue, the Panel heard the Parties legal certainty, even if New Palermo had been
regarding the importance and relevance of aware of the potential risk arising from the
CAS 2011/A/2646, both at the hearing, and in assumption of liabilities in consequence of the
the Post-Hearing Briefs. sporting succession, it had no way to be aware

69
of the existence of the Agent’s credit. Firstly,
because the credit was not claimed in the Based on the foregoing, and after taking into
bankruptcy proceedings; and secondly, due consideration all the evidence produced
because there was no mention of the credit and all arguments made, the majority of the
within the ambit of the procedure launched by Panel came to the conclusions that there were
the Municipality to select the new club. The sufficient objective element to consider New
Agent could not, and should not, have been Palermo as the sporting successor of the Old
unaware of the legal relevance of the measures Palermo; that the New Palermo did not act in
required in order to claim credits in bankruptcy bad faith to avoid liabilities from the Old
proceedings. In addition to not having taken Palermo; The New Palermo was not
any steps to claim his credit in the Old Palermo responsible for paying the Appellant the sums
bankruptcy proceedings, the Agent also failed owned according to the Consent Award issued
to take any extra-judicial steps to claim or in the procedure CAS 2014/A/3755, due to
safeguard his credit, prior to filing his claim the Agent’s lack of diligence in claiming his
with FIFA. credit under the Old Palermo bankruptcy
proceedings. As a consequence, the appeal and
The foreseeability of conduct, which in this all further claims or requests for relief were
case was manifested negatively by the Agent’s dismissed.
failure to claim his credit in the bankruptcy
proceedings, had to be taken into Decision
consideration to the creditor’s discredit. Only
then would the new club hypothetically would The appeal filed by Mr Horacio Luis Rolla on
have been in a position to be subsumed to the 23 July 2020 against the decision issued by the
creditor’s rights and to seek to be indemnified FIFA Disciplinary Department on 21 May
by and to recover the payment of the debt 2020 was dismissed. The decision issued by the
from the original debtor. As decided in Case FIFA Disciplinary Department on 21 May
2011/A/2646, lack of diligence on the part of 2020 was confirmed.
the creditor in the claiming and safeguarding of
its credit in the bankruptcy proceedings, led the
majority of the Panel to conclude that the said
credit could not be raised against and
recovered from New Palermo. The Panel
underlined that this decision should be based
on the evidence which was available to it at the
time of the Appeal. Even if the Appellant
could still register his credit under the pending
bankruptcy proceedings of Old Palermo, this
fact could not be taken into consideration to
disregard his lack of diligence.

This position was confirmed by the decision in

CAS 2019/A/6461, which confirmed that the
creditor’s lack of diligence should not
contribute to failure to comply with the
decision of FIFA, in this case, the decision of
the CAS.

70
___________________________________ December 2019, Necaxa and the Player signed
CAS 2021/A/7912 the Sports Employment Termination
Olympiakos Nicosia v. Club Necaxa Agreement (the “Termination Agreement”).
15 March 2023
___________________________________ On 31 January 2020, the Player, signed an
employment contract with Olympiakos and
Football; Transfer – Training was subsequently registered with Olympiakos
compensation; Entitlement to training on 3 February 2020.
compensation; Waiver of training
compensation rights; Categorization for On 23 September 2020, Necaxa filed a claim
the purpose of training compensation; against Olympiakos before FIFA’s Dispute
Burden of proof for the purpose of Resolution Chamber (the “FIFA DRC”).
categorization Throughout the proceedings before the FIFA
DRC, Necaxa claimed to be entitled to receive
Panel from Olympiakos the sum of EUR 45,000 as
Mr. Ulrich Haas (Germany), Sole Arbitrator training compensation, plus 5% interest per
annum as from the due date.
Facts
On 18 February 2021, the FIFA DRC rendered
Olympiakos Nicosia (the “Appellant” or its decision (the “Appealed Decision”), which
“Olympiakos”) is a football club with partially accepted the claim of Necaxa and
registered office in Nicosia, Cyprus. decided that Necaxa was entitled to receive
Olympiakos is affiliated to the Cyprus Football EUR 41,095.89 as training compensation plus
Association (the “CFA”), which, in turn, is a 5% interest per annum on that amount as from
member of the Fédération Internationale de 5 March 2020 until the date of effective
Football Association (“FIFA”). payment. Olympiakos did not participate in the
FIFA DRC proceedings.
Impulsora del Deportivo Necaxa S.A. de C.V.
(the “Respondent” or “Necaxa”) is a Mexican The FIFA DRC underlined in the Appealed
football club with its seat in Aguascalientes, Decision that while “in accordance with the
Mexico. It is affiliated to the Mexican Football information included in TMS, the Respondent belonged
Federation (the “Federación Mexicana de to the category IV club at the moment the player was
Fútbol Asociación, A.C”. or “FMF”), which is registered with it, i.e. on 3 February 2020” and since
a member of FIFA. such categorization was contested, “the DRC
may decide to reallocate clubs playing in the highest
Collectively, the Appellant and the Respondent division of the relevant association to the highest category
will be referred to as the Parties. available”. The FIFA DRC therefore
recategorized Olympiakos to category III.
P. a football player of Chilean nationality born Training compensation was consequently due.
on 2 June 2000 was registered with Nexaca
from 14 August 2018 until 9 January 2020. On 27 April 2021, pursuant to Article R48 of
According to the Sports Employment Contract the Code of Sports-related Arbitration (the
(the “Employment Contract”) between “Code”), Olympiakos filed a Statement of
Necaxa and the Player, the Player would have Appeal at the Court of Arbitration for Sport
been under contract until the last match of the (the “CAS”) appealing the FIFA Dispute
tournament of Clausura 2023. On 31 Resolution Chamber Decision.
 that the Appellant and the Player entered into
Reasons an employment relationship on 31 January
2020, and he has been registered with the
The main dispute in these proceedings Appellant since 3 February 2020. Therefore,
concerned the category of the Appellant and the Player was transferred between clubs of
the subsequent consequences regarding two different associations – FMF to the CFA
training compensation entitlements for the – before the end of the calendar year of his
Respondent. 23rd birthday.

Olympiakos held that Necaxa waived its right In this respect, the Appellant availed itself of
to claim training compensation as the agent of Article 2 para.2 lit. b Annex 4 of the FIFA
the Player sent an email to Olympiakos RSTP, arguing that it was a Category IV club,
affirming that: “Necaxa … will NOT ask any to escape liability from training compensation.
payment regarding training compensation. It has been
agreed before”. Olympiakos further added that in On the same point, the Respondent was of the
accordance with the wording of the opinion that it was entitled to training rewards
Termination Agreement, Necaxa’s as it agreed with the assessment of the FIFA
entitlements to seek training compensation DRC that Olympiakos was in fact a Category
were eliminated. Finally, Olympiakos III club at the time of the registration of the
underlined that the CFA rightfully categorized Player.
Olympiakos in the Category IV and that FIFA
was wrong in moving it to the Category III The Sole Arbitrator underlined that in light of
since Olympiakos had only just been promoted Article 20 FIFA RSTP, in conjunction with
to the First Division. Article 1 para. 1 and Article 2 para. 1 of Annexe
4 FIFA RSTP, training compensation is
On its hand, Necaxa argued that the FIFA payable, as a general rule, for training incurred
DRC Decision should be upheld as it did not between the ages of 12 and 21 when a player is
waive its right to claim training compensation registered for the first time as a professional
in any way (via an alleged email from the agent before the end of the season of the player’s
or the Termination Agreement). Additionally, 23rd birthday or when a professional is
Necaxa underlined that the FIFA DRC was transferred between clubs of two different
within its rights to recategorize Olympiakos to associations before the end of the season of the
Category III as Olympiakos participated in the player’s 23rd birthday.
First Division and therefore could not be a
Category IV club. With all of the above in mind, the Sole
Arbitrator came to the conclusion that the
1. Entitlement to training compensation entitlement of the Respondent to receive
training compensation was, in principle,
The Sole Arbitrator recalled that it was triggered.
undisputed that the Player was registered with
the Respondent as indicated in the player 2. Waiver of training compensation rights
passport issued by the FMF between 14
August 2018 and 30 July 2019 as well as The Appellant relied on an email of the Player’s
between 14 August 2019 and 9 January 2020, agent to Olympiakos to remonstrate that the
so for a total of 500 days in the seasons of his Respondent waived its claim for training
19th and 20th birthday. It is also uncontested compensation. In that email, the Player’s agent

72
wrote, inter alia, that he was “… getting the and the Respondent was terminated by mutual
confirmation from Necaxa that they will NOT ask agreement. A termination of the employment
any payment regarding training compensation. It has contract by mutual agreement is not
been agreed before”. The Appellant provided a tantamount to a termination without just cause
Witness Statement from the Player’s Agent. and, therefore, does not affect a claim for
training compensation.
The Respondent contested such agreement
and the existence of any waiver from its part. However, the Sole Arbitrator noted that the
Parties disagreed on the Category of
With all this in mind, the Sole Arbitrator Olympiakos at the date of registration of the
underlined that a club may renounce its right Player with it, between Category III, according
to training compensation or sign a binding to the Respondent, and Category IV, according
waiver of this right in favour of the new club. to the Appellant.
Such waiver, however, cannot be accepted
lightly. He recalled that as per the FIFA On this point, the Sole Arbitrator recalled that
Commentary to the RSTP, “[…] the waiver must following article 4 of Annex 4 of the FIFA
be explicit. […] only the party entitled to training RSTP, member associations are responsible
compensation (i.e. the relevant training club) can waive for dividing their clubs into a maximum of four
it”. categories and to keep the data up to date. The
Sole Arbitrator underlined that when
Having examined all the evidence and categorising their clubs, the national
arguments provided by the Parties, the Sole federations shall take into consideration a
Arbitrator determined that he could not accept club’s financial investment in training players.
such alleged waiver. Indeed, the Sole The Sole Arbitrator took note that FIFA has
Arbitrator noted that it was difficult to see issued Circulars to member associations in
what incentive the Respondent would have to order to provide further guidance on this issue.
agree to a waiver of its claim for training In particular, FIFA Circular 1673 of 28 May
compensation vis-à-vis the Player. 2019 advised the member associations that
Furthermore, The Sole Arbitrator underlined CFA only had two training categories (instead
that there was a presumption that the of four), namely Category 3 and 4, in which it
Termination Agreement fully and exhaustively needs to place its clubs.
reflects the agreement between the Parties and
that as such, had the Player and the The Sole Arbitrator further took note that
Respondent agreed to such waiver, one would FIFA Circular 799 provided the type of costs a
expect that such an important and unusual national association should consider when
agreement would be incorporated into the determining a club’s financial investment in
Termination Agreement. The Sole Arbitrator training of young players.
found that no clause in the Termination
Agreement implicitly hinted to a waiver. With regards to the categorization of clubs, the
Sole Arbitrator emphasized that as per FIFA
3. Categorization for the purpose of training Circular 1249 and Article 5 para. 4 of Annex 4
compensation of the RSTP, the categorisation of the clubs by
their national associations can be reviewed by
The Sole Arbitrator took note that it reminded FIFA and consequently can be re-categorized
undisputed among the Parties that the by FIFA. The Sole Arbitrator underlined that
employment relationship between the Player there needs to be a manifest discrepancy

73
between the categorisation of the national substantiate its position by referring to the
federation and the rules / guidelines issued by categorisation issued by the CFA, i.e. the entity
FIFA. The latter is only the case if the decision primarily responsible for this task. Once this
of the national federation is “clearly was done, the Sole Arbitrator took note that it
disproportionate”. was up to the Respondent to contest such
submissions in a substantiated manner. The
4. Burden of proof for the purpose of Sole Arbitrator underlined that the
categorization Respondent needed to demonstrate (and to
substantiate) that the decision made by the
The Appellant argued that it was a Category IV CFA was “clearly disproportionate.
club based on the assessment made by the
CFA which held, in a Witness Statement, that The Sole Arbitrator observed the elements
Olympiakos was not an established first provided by the Parties, and came to the
division club as it spent the majority of its conclusion that the CFA has not manifestly
competition history in the second division. The exceeded the flexibility available to it when
Appellant also argued that comparing to most placing the Appellant into the Category IV. He
of the other CFA’s first division clubs, its determined that the Appellant lacked the level
expenditure for young players was significantly of professionalism to be qualified as an
lower. established first division club within the
meaning of the FIFA regulations and
The Respondent considered that said guidelines and that evidence on file did not
assessment was wrong and that since justify a re-categorization of the Appellant to
Olympiakos was in first division it could not be training Category III.
a Category IV club.
Decision
The Sole Arbitrator observed that except
where the arbitral agreement determined In view of the foregoing, the Sole Arbitrator
otherwise, an arbitral tribunal shall allocate the upheld the appeal. The decision issued on 18
burden of proof in accordance with the rules February 2021 by the FIFA Dispute
of law governing the merits of the dispute, i.e. Resolution Chamber was set aside and
the lex causae. Following Swiss jurisprudence, consequently the claim of Necaxa against
the Sole Arbitrator found that it was, in Olympiakos for training compensation
principle, the obligation of the party that bears regarding the transfer of the Player was
the burden of proof in relation to certain facts dismissed.
to also submit them to the court/tribunal in a
sufficient manner.

The Sole Arbitrator therefore determined that

since the Appellant availed itself of Article 2
para. 2 lit. b Annexe 4 FIFA RSTP in order to
escape liability from training compensation,
the burden of proof that it was a category 4
club rested on the Appellant.

The Sole Arbitrator was of the opinion that the

Appellant had met its burden to sufficiently

74
___________________________________ “FIFA”) is the international governing body
CAS 2021/A/8060 for football.
Association Sporting Club Bastiais & SC
Bastia v. Fédération Internationale de FSV Mainz 05 (the “Second Respondent”, the
Football Association (FIFA) & FSV Mainz “Creditor” or the “Mainz”) is a German
05 football club based in Mainz, Germany,
25 April 2023 affiliated to the German Football Association
___________________________________ (Deutscher Fußball Bund) (the “DFB”), which in
turn is affiliated to FIFA.
Football; Disciplinary sanction for failure
to comply with a previous FIFA decision; On 29 August 2016, “SC Bastia” and the
Applicable version of the regulations and Creditor concluded a loan agreement (the
principle of non-retroactivity; Violation of “Loan Agreement”) for the loan of the player
the right to be heard; Competence of the A. (the “Player”). For commercial purposes, it
FIFA DC to issue the Appealed Decision; was assumed that “SC Bastia” was the legal
Definition of “club”; Distinction between entity “Société Anonyme Sportive
sporting succession and sporting Professionnelle – Sporting Club Bastia” (the
continuity “SASP”). Under the Loan Agreement, “SC
Bastia” agreed to pay to the Creditor the
Panel amount of EUR 350,000 in ten monthly
Mr Rui Botica Santos (Portugal), President instalments (the “Loan Fee”), being the first
Prof. Mathieu Maisonneuve (France) instalment due on 5 September 2016 and the
Mr José Juan Pinto (Spain) last instalment due on 5 June 2017. The SASP
was the commercial company named
Facts “Sporting Club Bastia” that used to manage the
first football team of the Association. The
Association Sporting Club Bastiais (the “First creation of this legal entity was due to the
Appellant” or the “Association”) is a French French legislation regarding the administration
club affiliated with the French Football of the first team when their activities met
Federation (the “FFF”), which runs all amateur certain thresholds. Article L122-1 of the
teams of the football club named “SC Bastia”. French Code du Sport requires the first
football team to be managed by a commercial
Société Coopérative d’Intérêt Collectif (SCIC) legal entity linked to the Association through a
Sporting Club Bastia (the “Second Appellant” management contract (the “Management
or “SCIC”) is a French commercial company Contract”) which defines the role of each
affiliated with the Ligue de Football contractual party. The SASP failed to comply
Professionel (the “LFP”). SCIC is the legal with the Loan Agreement.
entity named “Sporting Club Bastia” that deals
with the professional football team of the On 12 April 2017, given the failure to comply
Association and was affiliated to the LFP when with the full payment of the Loan Fee, the
its first team acceded to the professional Creditor initiated a claim before the FIFA
competitions for season 2021/22. Player’s Status Committee (the “FIFA PSC”).
On 3 October 2017, the Single Judge of the
The Fédération Internationale de Football FIFA PSC issued a decision (the “FIFA PSC
Association (the “First Respondent” or Decision”) that ordered the “SC Bastia” to pay
the Creditor “(…) overdue payables in the amount
of EUR 210,000 (…)”. On 9 October 2017, the before the season 2021/2022 started, the SCIC
FIFA PSC Decision was notified to “SC got affiliated to the LFP as this was mandatory
Bastia”. “SC Bastia” has never appealed or in order to compete in the professional
challenged the FIFA PSC Decision. competition.

At the end of the 2016/2017 season, the On 17 February 2021, since the outstanding
football team managed by the SASP was amounts due to the Creditor were not paid, the
relegated to National 1 (3rd Division) after a latter requested the initiation of disciplinary
financial audit made by the Direction proceedings against the First Appellant. On 23
Nationale du Contrôle de Gestion (“DNCG”). February 2021, FIFA Disciplinary Committee
(the “FIFA DC”) opened disciplinary
On 5 September 2017, and as per the proceedings against “SC Bastia”.
bankruptcy proceedings, the SASP was
judicially liquidated and automatically lost its On 8 April 2021, the Single Judge of the FIFA
affiliation to the LFP. The Creditor claimed its DC passed its decision (the “Appealed
credit in the bankruptcy procedure but has Decision” or the “FIFA DC Decision”),
never received any payment. After the establishing that “SC Bastia” had failed to
liquidation of the SASP, the Association comply in full with the decision passed by the
continued to manage the reserve team which Single Judge of the Players’ Status Committee
used the name “SC Bastia” and the colours of on 3 October 2017. “SC Bastia” was ordered
said club. to pay to FSV Mainz 05 EUR 210,000 plus 5%
interest p.a. until the date of effective payment
During the sporting seasons 2017/2018 and and to FIFA a fine of CHF 22,500.
2018/2019, the team of the Association
competed in amateur competitions, namely in On 3 June 2021, the FIFA DC communicated
the National 3 (French 5th division). At the the grounds of the Appealed Decision, which
end of the sporting season 2018/2019, the can be summarised as follows: a) A “club” is as
team of the Association won the competition a sporting entity that goes beyond the legal
and was promoted for the next season. entity that operates it and its obligations must
be respected; b) A “club” is identified by
On 15 May 2019, the SCIC was created. certain elements such as its name, colours,
fans, history, sporting achievements, shield,
During the sporting season 2019/2020, the trophies, stadium, roster of players, historic
SCIC managed the reserve team (which had figures, etc; c) A “new club” must be
formerly been managed by the Association) considered the sporting successor of another if
which played in the National 2 (French 4th the “new club” created the impression that it
division) and won the competition, therefore it wanted to be legally bounded and associated
was promoted for the next season. During the with the “old club” and the competent
sporting season 2020/2021, the SCIC managed federation threated the two clubs as successor
the reserve team which played in the National of one another; d) On 7 August 2017, after the
1 (French 3rd division) and won the Association recovered the sporting rights from
competition, therefore it was promoted for the the liquidated ASAP (i.e. on 15 May 2019), the
next season. During the sporting season Association then transferred those sporting
2021/2022, the SCIC managed the reserve rights to the newly created entity SCIC, which
team which played in the Ligue 2 (French 2nd currently operates the club SC Bastia; e) The
division). After being promoted to Ligue 2, legal entity SCIC is the same sporting entity

76
called “SC Bastia”, which it has just changed its The Respondents argued that the applicable
administration due to financial problems; f) version of the FDC was the FDC 2019 because
FIFA DC found that there were no elements it was the one in force at the date of the FIFA
that could indicate that the Creditor remained disciplinary proceedings. For their part, the
passive during the SASP’s bankruptcy Appellants submitted that it had to be the
proceedings and hence it had sufficient version in effect at the date of the SASP’s
elements to conclude that the Creditor was liquidation (FDC 2017). The Appellants’
diligent in claiming its credit; and g) SCIC has argument was based on the fact that the FDC
to be held liable for the debt incurred by the 2019 had introduced Article 15 (4), according
former management of the “SC Bastia”. to which the sporting successor of a non-
compliant party had also to be considered a
On 22 June 2021, the Appellants filed a non-compliant party and thus subject to the
statement of appeal (the “Statement of obligations under the provision. For the
Appeal”) with the CAS. Appellants, it was a new incrimination created
after the disciplinary offense had been
A hearing was held on 21 April 2022 in committed; therefore, under the in mitius
Lausanne. retroactivity principle, it was the FDC 2017
that had to apply to the case at hand. Since the
Reasons FDC 2017 did not contain any provision on
“sporting successor”, the Association, SCIC
For the Panel, the present Appeal had been and SASP were to be considered separate legal
filed against the Appealed Decision by which entities, and no liabilities between them
the FIFA DC had found the Appellants guilty applied.
of failing to comply with the decision passed
by the FIFA PSC on 3 October 2017, based on For the Panel, it could not be said that the
the fact that the Appellants and the SASP were offense in question had only been committed
considered to be the same sporting club. The at a certain specific isolated time. On the
main issues were therefore whether (i) the contrary, the offense at issue here was a
Appellants could be considered to be the same continuous action – liability for the debts of a
club as “SC Bastia” which had been ordered to third party – that continued over time. For this
pay an amount to the Second Respondent by reason, it was the Panel’s view that the version
the PSC Decision, and, if so, (ii) what were the applicable had to be that of the date of the
legal consequences of this finding. assessment of the disciplinary offense and not
the version existing at the date when the
However, before turning to these questions, Appellants’ liability was considered to begin.
the Panel had to address some preliminary
issues, namely (i) the applicable edition of the More importantly, the Panel could not see how
the FIFA Disciplinary Code (the “FDC”); (ii) the retroactivity in mitius could apply to the
the violation of the right to be heard during the present case, since cases of sporting
CAS proceedings; and (iii) the incompetence of succession, had also been regularly decided
the FIFA DC to decide the dispute. before the introduction of the FDC 2019.
Article 15(4) FDC 2019 was only a codification
1. Applicable version of the regulations and of the jurisprudence of the FIFA DC and CAS
principle of non-retroactivity prior to the implementation of this provision.
It was therefore not material whether the FDC
2017 or FDC 2019 applied to the matter at

77
hand. Mutatis mutandis what had been said for Appellants had had the opportunity to address
the sporting succession also applied to sporting the question in their Appeal Brief.
continuity.
In any case, as long as the Appellants had had
In line with the above, the Panel held that the the opportunity to present their arguments and
FDC 2019 applied to the case at hand. views before the Panel, their right to be heard
had been respected.
2. Violation of the right to be heard
3. Competence of the FIFA DC to issue the
According to the Appellants, their right to be Appealed Decision
heard had been violated in the face of the
Panel’s decision not to allow a second round of The Appellants argued that the FIFA DC was
written submissions targeted at answering – in not competent to issue the Appealed Decision,
writing – to FIFA’s argument that the SASP, based on two main arguments: (i) the FIFA
the Association and the SCIC were the same PSC should have closed the proceedings
club “SC Bastia” and that therefore it was not against the SASP on the basis of Article 55 of
a question of “sporting succession” but rather the FDC 2019 providing that proceedings may
of “sporting continuity” which implied a joint be closed when a party is under insolvency or
liability of all those entities. bankruptcy proceedings (lit. b) and a club is
disaffiliated from an association (lit. c) because
The Panel emphasized that the CAS Code did the SASP had indeed been liquidated and
not contain any provision by virtue of which a disaffiliated from the LFP; and (ii) a “new
CAS panel would be forced to allow a second claim” against a different entity should have
round of written submissions. Despite this, the been brought first by the Creditor before the
CAS panel was always obliged to respect the FIFA PSC instead of requesting the
parties’ right to be heard and – when justifiable enforcement of the FIFA PSC Decision before
– could make adjustments to the procedure in the FIFA DC.
accordance with Article R56 of the CAS Code.
A second round of written submissions could With regard to the first argument, the Panel
be admitted in situations of evident exceptional explained that Article 55 of the FDC 2019 gave
circumstances in order to avoid delays in the FIFA a certain discretion as it merely opened a
procedure. However, the parties could also “possibility” and not an “obligation” for
orally address, debate, and rebut the position procedures to be closed. Moreover, a
and arguments presented by their counterparts distinction had to be made between the
in relation to the case in dispute during a recognition of the debt and its execution.
hearing. Proceedings initiated before the FIFA Players’
Status Committee (PSC) related to the
In addition, the Panel highlighted that the recognition of a debt, whereas the proceedings
Appealed Decision had already addressed the before the FIFA Disciplinary Committee (DC)
alleged new argument presented by FIFA in related to the enforcement of the FIFA PSC
relation to the “sports continuity”. As a result, decision. The absence of a similar rule as
the argument that the Association and the Article 55 of the FDC 2019 in the RSTP as well
SCIC were to be regarded as the same sporting as in the FIFA Rules governing the procedures
entities as “SC Bastia”, could not have come as of the Players’ Status Committee and the
a surprise to the Appellants. Therefore, the Dispute Resolution Chamber, confirmed that
FIFA’s deciding bodies were competent as

78
long as they were asked to address the issue of with determining if the Appellants were or not
the recognition of the claim. It was only when liable for the SASP’s sporting debts and, if that
they were seized with a request for the was the case, what would be the correct
enforcement of the claim, that the FDC came sanction for the non-compliance of the FIFA
into play and that disciplinary proceedings had PSC Decision.
to be closed if a party declared bankruptcy. The
Panel also clarified that it was not relevant that The Panel concluded that the FIFA DC was
the SASP had lost its affiliation with the LFP. indeed competent to issue the Appealed
The important element was that the Decision against the Association and the SCIC,
Association had never lost its affiliation to the since (i) the PSC Decision had been issued
FFF. The Panel reminded that FIFA’s indirect against “SC Bastia”, not making reference to
membership came not from the membership any specific legal entity, (ii) the dispute at stake
of a club to its national professional league was a merely vertical dispute and (iii) based on
managing entity, but to its national football the wording of Article 53 FDC 2019 the FIFA
association and, in this case, said affiliation had DC was competent, as no other body had the
never been lost. competence to decide on the matter of failure
to respect decisions.
With regard to the second argument, the Panel
explained that it was clear that a club that might Having concluded its examination of the
possibly be considered as the sporting preliminary issues, the Panel turned its
successor of the original debtor was never a attention to the analysis of the substance of the
party in the proceedings which recognized said appeal.
debt, as otherwise there would essentially be no
need to prove any sporting succession. As a 4. Definition of “club”
result, the Appellants’ argument could never
justify that a club seeking payment of a debt According to the FIFA DC, in casu, there had
recognized in a final and binding decision been no sporting succession, but rather a
would have to bring said case first before the phenomenon of pure and simple continuity of
FIFA PSC. The Panel also reminded that the the sporting activity of the club “SC Bastia”. In
PSC Decision had been issued against “SC other words, the club had never become
Bastia” and not against the SASP. Therefore, extinct or stopped its activity and, therefore, a
said decision concerned the “club” in itself as new entity could not succeed it. For the
the entity which comprised both the Appellants, on the other hand, it did not make
Association and the SASP, and had become sense to speak of sporting continuity or
final and binding since it had not been sporting succession as there were separate
appealed by any of those Parties. Therefore, entities.
there is was doubt that the FIFA DC had had
the power to impose sanctions on the In analyzing the reasoning of the FIFA DC, the
Appellants as (i) the Association was affiliated Panel looked at the distinction to be made
with the FFF and, by virtue of this link was an between sporting succession and sporting
indirect member of FIFA; and (ii) the SCIC continuity and first restated the definition of
was the current entity affiliated to the LFP and, “club” that had been upheld in the CAS case
via the Association, also an indirect member of law. According to the latter, a club is a sporting
FIFA. Furthermore, it was important for the entity identifiable by itself that, as a general
Panel to note that FIFA had merely acted in a rule, transcends the legal entities which operate
vertical dispute since it was concerned only it. Thus, the obligations acquired by any of the

79
entities in charge of its administration in another one, it was not always sufficient that
relation with its activity must be respected. The the club remained active to establish with
identity of a club is constituted by elements certainty that sporting continuity existed. In
such as its name, colors, fans, history, sporting cases where in the reality and concept of a club
achievements, shield, trophies, stadium, roster there fitted together an association/supporting
of players, historic figures, etc. that allow it to entity and a commercial sport
distinguish from all the other clubs. The company/corporate entity, both of which took
continuity and permanence over time of the advantage of common elements, it was still
sports institution prevails over the change of possible that the entities managed to create a
administrator, even in the case of change of meaningful separation between each other
management companies completely different which suited the distinct legal personalities of
from each other. both. However, for this to happen, they had to
consistently act independently and according
The Panel thus held that the concept of “club” to their own interests, giving third parties the
went far beyond the corporate entities that idea that they were distinct from each other
managed it, the existence of which resulted and that they did not assume each other’s
from the constant professionalization of clubs responsibilities.
and inherent creation of legal obligations of
incorporation of commercial companies that In casu, the Panel explained that when the SASP
aimed to provide these entities, in general, with had collapsed, the Association had regained the
a more robust management structure. sporting participation rights it had assigned to
that entity when it had been set up. The
5. Distinction between sporting succession and Association had started to manage a first team
sporting continuity identified as “SC Bastia”, the composition of
which bore some similarities to the
Coming then to the distinction between composition of the reserve team of that same
sporting succession and sporting continuity, club. In addition, the Loan Agreement, which
the Panel explained that there was sporting had given rise to the issue of the FIFA PSC
succession, on the one hand, when a new Decision, did not precise, in any of its points,
entity, taking advantage of various elements of the contractual legal entity associated to the
a club (symbol, colors, history, club “SC Bastia”. On the contrary, only the
supporters/fans, members, history, athletes, name “SC Bastia” was identified as a party,
shareholders, among others ...), sought to which referred neither to the SASP, nor to the
continue the activity of said club which, for Association specifically, but to the club in
various reasons, had ceased its commercial general. The Panel considered that, also for this
activity. Sporting continuity, on the other hand, reason, the proceedings before the FIFA PSC,
was a situation in which a club, despite the which had culminated in the issuance of the
disappearance of any corporate entities FIFA PSC Decision, had been brought against
associated with it, remained in business, even the entity “SC Bastia” and not against the
taking over the sporting rights of the entity that Association or the SASP specifically. Also for
had ceased to exist, without any interruption in this reason it was clear that the Appealed
its membership of the respective national Decision was directed against the club “SC
federation, through at least one entity that Bastia”, failing to directly refer to the SASP or
subsisted. However, when a club had lost its to the Association. Although one could indeed
professional management structure, whether theorize that the SCIC could be the sporting
corporate or not, and later reestablished successor of the SASP, this would be irrelevant

80
to the present case, since the Loan Agreement, BASTIA”, a name that was already used by the
the FIFA PSC Decision and the Appealed former SASP and that also appeared in the PSC
Decision were all addressed to the club “SC Decision and the Appealed Decision. Both the
Bastia” club and not to the SASP. The Panel Association and the SCIC relied on, and
thus concluded that the present case was not commonly used, the name “SC Bastia”, as was
one of sporting succession. evident from their website, their social
networks, their registration in the TMS system
The Panel then turned to the question whether and before the FFF. Considering the context
there was a situation of sporting continuity of sporting continuity, the Panel was of the
between the club “SC Bastia” and the opinion that this factor was very relevant, since
Appellants. According to the Panel, two (i) the name of SCIC was the same name as the
matters were relevant to determine whether the name of the club “SC Bastia” which had been
entities that now managed the club “SC Bastia” condemned by the PSC Decision and (ii) this
should be held liable on account of the Loan entity had the clear intention to remain
Agreement and the PSC Decision: (i) the club’s associated with that same club, assuming its
characteristic elements and their use by the name in its entirety, without any change, thus
entities concerned; and (ii) the attitudes and also benefiting from the same support of the
behaviors of these entities and the effects these supporters, members and fans. The Panel also
have on third parties which have a relation, noted additional elements indicative of the
business or other, with them. Association and the SCIC’s intention to
continue the club’s activity such as the use of
With regard to the first matter, the Panel the club’s colors, the club’s official emblem,
concluded that the Association had never the fact that the “SC Bastia” first team had not
broken with its past, having kept all the start its journey in the last division of the
elements that had always characterized the club French Football League System as would have
“SC Bastia”, such as the colors, the emblem, be expected from an absolutely new club, but
the members, the fans, and especially the had rather remained in the national leagues,
history, which it had always claimed and had and so on. Finally, and more importantly, the
never stopped invoking as its own. The Panel noted that the Appellants had taken
Association had never been extinguished and advantage of and used all the elements that
had constantly remained affiliated to the FFF, characterized the memory and history of the
so there was no doubt that it fitted fully into club “SC Bastia”. Indeed, the Appellants had
the concept and universality that is the club drawn on the same achievements, titles,
“SC Bastia”. moments and stories that had marked the
existence of “SC Bastia” and all this was visible
The main question was whether or not SCIC in the historical description contained in their
had also been integrated into what was to be website which was telling a continuous story
understood as the “SC Bastia” club, or from 1905 to the present day.
whether, on the contrary, it could legitimately
be considered an independent entity to which Considering all the above, the Panel held that
the responsibilities of that club could not be the existence of sporting continuity between
imputed. The Panel noted that the the Appellants and the club “SC Bastia” was
headquarters of “SC Bastia” had been the same evidenced at the level of the characterizing
for many years, and were also the headquarters elements.
of the SCIC and of the Association. The SCIC
used the name “SPORTING CLUB

81
With regard to the second matter, the Panel the provisions of international conventions on
had to determine the “appearance” of these fundamental rights. Considering the worldwide
entities in the eyes of third parties with whom scope of such sports rules and the
they related, as well as the “consistency” of the requirements of the principle of equality of
behaviors which had created such competitors before the law, CAS could not, on
“appearance”. In the eyes of the Panel, there the other hand, disregard the rules of
was a notorious intention of the Appellants to international federations, in particular FIFA,
be recognized as the “SC Bastia” club, on the grounds that they violated, as argued in
especially with the benefits that such could the present case, a national public policy alien
imply. Said behavior was clearly consistent and to the lex causae, which by definition varied
coherent with the appearance they wanted to according to the nationality of the parties in
give to bona fide third parties. The Panel was dispute.
also satisfied that business partners, sponsors
or even clubs which entered into business with Decision
the Appellants, or even competed against
them, would not have any reasons to doubt Based on all the above, the Panel dismissed the
that this was the same club called “SC Bastia” appeal and found that the Appealed Decision
and would trust the appearance that the should be confirmed in the part in which it
Appellants intentionally tried to be identified considered the Association and SCIC as the
with. In this regard, the Panel noted that the entities that ensured the sporting continuity of
protection of legitimate expectations was a “SC Bastia” and, consequently, the Appellants
general principle of law which could not be had to be considered as the entities responsible
considered to be outside the scope of the lex for the payment of the obligations assumed by
sportiva. Therefore, bona fide third parties had to the club “SC Bastia”.
be protected from any legal intricacies which
limited their rights in favor of those which tried
to take advantage of the benefits of a certain
appearance but failed to honor the
responsibilities that come with it. In short, the
Appellants could not dispel their appearance of
being fully identified with the club “SC Bastia”,
which was why these entities had to be
considered not as the successors, but as the
same “club” that had entered into the Loan
Agreement with the Second Respondent and
which had been condemned by the FIFA PSC
Decision.

The Panel also reminded that FIFA’s rules, like

those of other international sports federations,
were certainly not supreme rules that CAS
could never question. They could, and indeed
had to, do so on the basis of general principles
of law or international public policy, within the
meaning of Swiss arbitration law, or even the
fundamental rules of European Union law or

82
___________________________________ contract termination by the knowledge and
CAS 2021/A/8471 concern of SFA.
Al-Hilal Khartoum Club v. Jesi Last 4. If the Club terminates this Contract without
6 February 2023 having just cause, the Club shall pay to the
___________________________________ Player compensation equal to the total amount
of: MONTH SALARY.
Football; Termination of an employment 5. If the Player terminates the Contract without
contract with just cause by the player; having just cause, the Player shall pay to the
Club’s abusive conduct; Compensation for Club compensation equal to the total amount of:
damages; Invalidity of a derogatory MONTH SALARY”.
contractual clause
On 2 May 2021, the Club’s Executive
Panel Director sent the Player via WhatsApp a draft
Mr Manfred Nan (the Netherlands), President of a mutual termination agreement,
Mr Michele Bernasconi (Switzerland) proposing to terminate the Employment
Mr Olivier Carrard (Switzerland) Contract and agreeing to pay the Player an
amount of USD 7,500.
Facts
On the same date, the Player invited the Club
Al-Hilal Khartoum Club (the “Appellant” or to discuss this matter with his agent. This was
the “Club”) is a professional football club with followed by numerous letters in which the
its registered office in Omdurman, Sudan. The Club tried to persuade the Player to accept its
Club is registered with the Sudan Football amicable proposal, failing which it would
Association (the “SFA”), which in turn is avail himself of the “facilitated unilateral
affiliated to the Fédération Internationale de termination conditions” provided for in the
Football Association (“FIFA”). Employment Contract, without success.

Mr Jesi Last (the “Respondent” or the On 7 May 2021, the Player put the Club in
“Player”), is a professional football player of default and granted it a 15-day deadline to
Zimbabwean nationality. proceed with the payment of USD 5,000,
corresponding to the outstanding salaries of
On 24 September 2020, the Parties concluded March and April 2021.
an employment contract (the “Employment
Contract”) for a period of three years, valid On 27 May 2021, the Player sent the Club a
as from 20 October 2020 until 19 October second default notice, (i) reiterating his
2023. Pursuant to the Employment Contract, request for payment of USD 5,000; (ii)
the Player was entitled to (i) a sign-on fee of reminding the Club that the salary for
USD 45,000 net; (ii) USD 2,500 net as May 2021 would fall due soon; (iii) urging the
monthly salary, to be paid by the end of each Club to reinstate him to full training with the
month; and (iii) housing and first team; and (iv) requesting the Club to
car/transportation. In addition, Article 10(3)- return his passport.
(5) of the contract provided as follows:
On 1 June 2021, the Club paid the Player the
“3. This Contract may be terminated by either party, monthly salaries of March, April and May
without consequences for the terminating party, 2021.
where there exists just cause at the time of the
On 17 June 2021, the Player repeated his
request to be allowed to train with the team. On 6 October 2021, the FIFA DRC issued
the operative part of its decision in the matter
On 21 June 2021, the Player informed the (the “Appealed Decision”), by which it
Club that he had left Sudan because he was partially accepted the Player’s claim. It ordered
not allowed to train with the first team the Club to pay the Player USD 2,500 net as
anymore and because he was vacated from his outstanding remuneration and USD 152,193
accommodation. He indicated that he was net as compensation for breach of contract,
willing to come back, provided that the Club plus interest.
confirmed that (i) he was part of the first team
and was able to train with the group; (ii) the On 4 November 2021, notified the Appealed
Club would provide him with Decision with grounds to the Appellant.
accommodation; and (iii) the Club counted
on his services for the remainder of the On 25 November 2021, the Club filed a
Employment Contract. Statement of Appeal with the Court of
Arbitration for Sport (CAS) against the
On 28 June 2021, the Player, noting that the Appealed Decision, in accordance with the
Club refused to act on his letter, unilaterally Code of Sports-related Arbitration (the “CAS
terminated the Employment Contract in Code”).
writing for just cause based on Article 14 of
the FIFA Regulations on the Status and Reasons
Transfer of Players (FIFA RSTP).
The main dispute in these proceedings
On 2 July 2021, the Player filed a claim concerned the existence of a just cause of
against the Club before the FIFA Dispute unilateral termination of the Employment
Resolution Chamber (the “FIFA DRC”). He Contract for the Player within the meaning of
maintained that he had just cause to terminate Article 14 of the FIFA RSTP, and the financial
the Employment Contract, claiming USD consequences thereof.
2,500 net as outstanding salary over the
month of June 2021, and compensation for The Club argued that the Player did not have
breach of contract in the amount of USD just cause for termination, since it had
160,000 net (i.e. the residual value of the complied with all its contractual obligations,
contract), plus interest. and stated that the Player had abandoned his
employment without valid reason and
The Club filed a counterclaim for an alleged sufficient notice. It requested the annulment of
termination without just cause and requested the FIFA DRC’s decision and claimed a
compensation in the amount of USD 160,000. compensation of USD 160,000.
During the proceedings before the FIFA
DRC, the Player signed an employment The Player submitted that he had just cause for
contract with the Zimbabwean club Ngezi termination, since the Club had breached its
Platinum Stars FC, valid from contractual obligations and acted in an abusive
1 September 2021 until 31 December 2023. manner aimed at forcing him to leave. He
This contract provided for a sign-on fee of sought the confirmation of the FIFA DRC’s
approximately USD 1,710.97, as well as a decision and the dismissal of the appeal.
total remuneration of approximately USD
6,095.33.

84
This led the Panel to examine whether the Club
had engaged in an abusive conduct, the usual 2. Compensation for damages
regulatory principles governing the calculation
of the compensation for damages and the The Club submitted that it should receive a
validity of a derogatory contractual clause. compensation of USD 160,000, and did not
owe anything anymore to the Player.
1. Club’s abusive conduct
The Player requested the confirmation of the
The Club denied the existence of a just cause compensation of USD 152,193 awarded in the
for termination and emphasised that it had Appealed Decision, while pointing that his
fulfilled all its contractual obligations. It salary of June 2021 remained unpaid. It also
accused the Player of having left his position asserted that any reduction of his entitlements
and the country without reasonable grounds should not be considered, failing any subsidiary
and sufficient notice. prayers for relief of the Club on this point.

The Player maintained that the Club had The Panel stated that, in light of the conclusion
repeatedly and severely breached its that the Player had just cause for termination,
contractual obligations related to training and the Club’s claim for compensation should be
accommodation, was no longer interested in dismissed. It also noted that the salary of June
his services and adopted an abusive stance 2021 was still due to the Player, and decided to
aimed at forcing him to agree to a mutual grant it. It then undertook to determine the
termination. amount of compensation due to the Player.

The Panel recalled that a player can terminate The Panel recalled that an aggrieved player is
his employment contract early for just cause entitled to claim compensation for damages
under Article 14(2) of the FIFA RSTP when under Article 17 of the FIFA RSTP, which
his club adopts an abusive conduct aimed at establishes the principle of “positive interest”.
forcing him to terminate or change the terms Such compensation includes the residual value
of his contract. In this case, he can no longer of the contract that was prematurely
be reasonably expected to continue his terminated, subject to any financial gains made
employment relationship, and is not bound by after early termination, and can be adjusted if
any formal prerequisites with respect to its necessary at the adjudicatory body’s discretion.
default notices.
The Panel observed that the Parties agreed in
The Panel observed that, in the present case, this case that the residual value of the
the Player had been pressured to accept a Employment Contract was USD 160,000 net,
mutual termination agreement through various and that the Player had signed a new
communications, while being excluded from employment contract with Ngezi Platinum
training sessions and evicted from his Stars FC after the early termination, valid as
apartment without reason. It held that this was from 1 September 2021 until 31 December
a clear and typical case of abusive conduct that 2023, for a total amount of USD 7,803.30. It
qualified as a just cause for termination, thus found that the Player was at the very least
regardless of the Player’s subsequent entitled to request the Club to pay a
behaviour. It also emphasised that the Player compensation for breach of contract in the
had shown great patience, and offered to amount of USD 152,193 (i.e. USD 160,000 -/-
return if the situation improved. USD 7’807). Given that this was the amount of

85
compensation awarded to the Player by the
FIFA DRC in the Appealed Decision, it
considered that it was barred from awarding a
higher amount of compensation. It also saw no
reason to award a lower amount of
compensation, especially since the Club did
not clearly and explicitly advance any specific
subsidiary arguments and prayers for relief in
that respect.

3. Validity of a derogatory contractual clause

The Panel considered it appropriate, as a

precautionary measure, to examine the validity
of Article 10 of the Employment Contract,
which allowed both parties to terminate their
employment relationship without just cause
with compensation equivalent to only one-
month salary. It observed that the Club’s
position on this issue had evolved over time
and was inconsistent, as it had first attempted
to rely on it prior to the FIFA DRC
proceedings, and had then distanced itself
from it during the CAS proceedings, at least
with regard to its main claims, and save a few
isolated paragraphs.

The Panel considered that such a derogatory

contractual clause should be declared invalid in
view of Article 13 of the FIFA RSTP, which
aims to guarantee contractual stability.
Moreover, it cannot be invoked in one case and
set aside in another, at the risk of contravening
the principle of good faith.

Decision

In light of the foregoing, the Panel dismissed

the appeal. It retained that the decision issued
by the FIFA Dispute Resolution Chamber on
6 October 2021 should be upheld.

86
___________________________________ in addition to a fine in the amount of US$
CAS 2021/A/8531 5,000.
Mohamed Zakaria Khalil, Soufiane El
Mesbahi & Yassir Kilani v. The Between 19 July and 14 November 2017, the
International Tennis Integrity Agency Players respectively lost single and double
(ITIA) matches against their partners at the ITF F1,
9 March 2023 F5 and F6 Futures Tournament in Morocco.
___________________________________
Between 2014 and 2018, the Belgian Federal
Tennis; Match-fixing and other corruption Public Prosecutor’s Office carried out
offences; Burden of proof; Standard of investigations into a suspected organised
proof; Standard applicable to the criminal network that was believed to be
admissibility of evidence; Assessment of operating to fix tennis matches worldwide. In
evidence; Applicability of the Tennis Anti- 2018, the Belgian Police executed search
Corruption Program; Definition of warrants and arrested a number of individuals.
corruption offences; Proportionality of the In 2018, during a search at the property of Mr
sanction Grigor Sargsyan (“GS”), an Armenian national
residing in Belgium, the Belgian Police seized
Panel several mobile telephones belonging to GS, the
Mr Philippe Sands KC (United Kingdom), content of which was downloaded. The
President messages extracted from the telephones
Prof. Sophie Dion (France) belonging to GS revealed discussions between
Mr Romano Subiotto KC (United Kingdom) GS and a former Moroccan tennis player called
Younes Rachidi (“YR”) and an Egyptian tennis
Facts player called Karim Hossam (“KH”). These
concerned the nature of the fixes, the money
Mr Khalil, Mr El Mesbahi and Mr Kilani were to be paid to the players and intermediaries and
amateur tennis players respectively born on 19 available betting odds.
July 1999, 22 February 2001 and 10 August
2000 in Morocco, jointly referred to as the In 2019, the Belgian Federal Prosecutor’s
“Players” or the “Appellants”. Office charged GS with membership of a
criminal organisation, fraud, money
The International Tennis Integrity Agency laundering, violations of the law on games of
(“ITIA” or the “Respondent”) is an chance.
independent body in charge of promoting,
encouraging and safeguarding the integrity of In 2020, the ITIA was granted access to certain
tennis worldwide. It is established in London, evidence collated by the Belgian authorities,
United Kingdom. including transcripts of interviews, the
contents of forensic downloads of mobile
The appeal was brought against a decision telephones, in particular those belonging to GS
rendered by the Anti-Corruption Hearing and records of money transfers.
Officer (“AHO”) on 7 December 2021, which
found the Players guilty of match-fixing and Further to ITIA’s own investigation of the
other corruption offences and imposed on evidence collated by the Belgian authorities,
each of the Players a ban for a period of 9 years the ITIA sent on 15 June 2021, a notice of
charge to the Players (the “Notice of Charge”).
 signed for an ITF International Player’s
The AHO was appointed to decide upon the Identification Number (IPIN), the TACP is
cases regarding the Players. not limited to “professional” players and there
is no exclusion for minors either; even if the
On 7 December 2021, the AHO rendered the evidence had been obtained unlawfully, this
decision with respect to the Players (the would not render such evidence inadmissible,
“Decision”) whereby the latter were found to given that Article G.3.c of the TACP provides
have (i) contrived or alternatively attempted to that charges under the TACP may be
contrive the outcome or another aspect of the established by any reliable means; match-fixing
relevant matches (Section D. 1. d of the TACP) does not require the ITIA to establish that the
and (ii) failed to report corruption offences Players in fact received the sums agreed for the
(Section D. 2. a of the TACP). Accordingly, it match they agreed to fix; The Players’
was decided that they should serve a ban of 9 involvement in the fixes agreed between the
years and pay a fine of US$ 5000. corruptors (i.e. GS and YR) was evident since:
(i) the messages between the corruptors
On 30 December 2021, the Appellants filed contained references to YR liaising and
with the Court of Arbitration for Sport (the conferring with the Players about what aspects
“CAS”) a Statement of Appeal against the of their matches they agreed to fix and for what
Respondent with respect to the Decision, amount; (ii) the scores of those matches were
pursuant to Articles R47 and R48 of the CAS consistent with the aspects of the fixes agreed;
Code of Sports-related Arbitration (“CAS and (iii) the messages refered to the Players
Code”). more than once, indicating that the Players
agreed to be involved in the fixes.
Reasons
In light of the Parties’ submissions, the Panel
The Appellants argued that the Decision which should first determine whether, in its view, the
was based on illegally obtained evidence i.e. Appellants committed the alleged violation of
evidence obtained from Belgian authorities in Sections D.1 and D.2 of the TACP. Before
violation of the secrecy of criminal going through the evidence for each of the
investigations, should be quashed. The TACP Appellants, the Panel will first recall specific
is only applicable to professional tennis events evidentiary issues.
and to players participating to such professional
events. However, the matches at stake were 1. Burden of proof
not part of a professional tennis event within the
meaning of Article B.10 of the TACP and The principles in relation to the burden of
Annex 1, and the Appellants were not players proof define which party has the obligation to
competing in such professional events since they persuade the Panel as to the establishment of
were amateur tennis players. The Appellants an alleged fact.
further denied any involvement in the fixes.
Based on common understanding, it was The Panel held that except where an agreement
required to establish that the Players benefitted would determine otherwise, the arbitral
from a financial reward in order for the match- tribunal shall allocate the burden of proof in
fixing offence to be established. accordance with the rules of law governing the
merits of the dispute, i.e. the lex causae.
The Respondent maintained that the Players Accordingly, pursuant to Section G.3.a. of the
agreed to be bound by the TACP when they TACP, “[t]he PTIO [“Professional Tennis

88
Integrity Officer”] … shall have the burden of of criminal investigations and, as a result,
establishing that a Corruption Offense has been should be quashed. The Respondent submitted
committed”. Therefore, the burden of proving that the evidence obtained by Belgian criminal
the alleged facts lied with the International authorities was wholly admissible.
Tennis Integrity Agency (ITIA). That said,
according to the principle actori incumbit probatio, The Panel reminded that the admissibility of
each party shall bear the burden of proving the the evidence is governed by the law applicable
specific facts and allegations on which it relies. to the procedure and that the Parties agreed –
This is all the more relevant when, while with respect to the applicable provisions – on
assessing the evidence, the CAS panel has to the CAS Code. Since the provisions of the CAS
bear in mind that corruption is, by nature, Code, the PILA and the TACP are silent in
concealed as the parties involved will seek to relation to the question of admissibility of the
use evasive means to ensure that they leave no evidence before the CAS, the Panel had regard
trail of their wrongdoing. In addition, the more to Article 182(2) of the PILA according to
detailed are the factual allegations, the more which – absent any agreement of the Parties –
substantiated must be their rebuttal. As a the arbitral tribunal shall determine the law
result, the Players have a certain duty to applicable to the procedure either directly or by
contribute to the administration of proof by reference to a law or to arbitration rules. In this
presenting evidence in support of their line of context, the Panel was guided by Section G.3.c.
defence. of the TACP. As a result, the Panel held that
the standard applicable to the admissibility of
2. Standard of proof the evidence was whether the evidence
adduced by the parties may be said to be
Pursuant to Section G.3.c. of the TACP, “the “reliable” within the meaning of Section G.3
standard of proof shall be whether the PTIO has TACP. Hence, even if the evidence from
established the commission of the alleged Corruption national criminal authorities had been obtained
Offense by a preponderance of the evidence”. Under by illegal means, the AHO still had the
the preponderance standard, the burden of discretionary power to validly rely on such
proof is met when the party bearing the burden evidence to demonstrate the existence of the
convinces the fact finder that there is a greater alleged offenses. In this respect, the Panel
than 50% chance that the fact claimed is reminded that Article 182(3) of the PILA that
established. In applying this standard, the states “regardless of the procedure chosen, the arbitral
Panel assessed the evidence before it bearing in tribunal shall guarantee the equal treatment of the
mind the seriousness of the offences with parties and their right to be heard in adversarial
which the Players had been charged. While this proceedings”, provides limits to the procedural
did not affect the applicable standard, the rules chosen by either the parties or the
Panel was of the view that it should have a high arbitrators and that further limits to the law
degree of confidence in the quality of the applicable to the procedure derive from the
evidence upon which its findings were based. procedural public order. Against this
background, the Panel considered that Section
3. Standard applicable to the admissibility of G.3.c TACP was in line with the law of
the evidence international arbitration, which generally
provides that “the arbitral tribunal is not bound to
The Appellants contended that the Decision follow the rules applicable to the taking of evidence
was based on evidence obtained from Belgian before the courts of the seat”.
criminal authorities in violation of the secrecy

89
4. Evaluation of evidence and doubles matches that were held between
19 July and 14 November 2017 at the 2017 ITF
The Panel held that absent any provision as to Futures Tournament in Morocco. For its part,
the assessment of evidence in the CAS Code, the Respondent contended that each of these
the principle of free evaluation (“libre matches qualified as an “Event” within the
appréciation des preuves”) was applicable in meaning of the TACP.
international arbitration in general, and in CAS
proceedings in particular. Pursuant to Section The Panel noted that according to Section B.10
G.3.c. TACP: “[…], facts relating to a Corruption of the TACP, the term “Event” “refers to those
Offense may be established by any reliable means, as professional tennis matches and other tennis
determined in the sole discretion of the AHO”. The competitions identified in Appendix 1”. Based on
evidence brought forward by the parties shall the provision, the Panel considered that the
therefore be freely evaluated and both direct TACP applied to professional tennis matches
and circumstantial evidence shall be as well as to those other tennis competitions
considered by the Panel. Direct evidence is that were listed in Appendix 1 to the TACP
evidence that directly proves a fact. and include the “ITF Pro Circuit” and
Circumstantial evidence requires a trier of fact therefore the relevant ITF Futures
to draw an inference to connect it with a Tournaments. Consequently, the Panel
conclusion of fact. The Panel reminded that in concluded that the relevant ITF Tournament
a case involving alleged acts of corruption, in Morocco qualified as an “Event” within the
circumstantial evidence might be especially meaning of the TACP.
pertinent since corruption is, by nature,
concealed. In this regard, the Panel held that Similarly, the Appellants contended that the
considered altogether, the exchange of TACP applied only to players who were able to
messages (screenshots and text messages) participate in professional competitions. The
between the corruptor and the Players appear Respondent objected to such view considering
to be reliable and sufficient evidence of the that the Appellants were covered by the TACP.
Players’ involvement in match-fixing,
especially where the evidence was According to Section C TACP, “[a]ll Players
corroborated by the correspondence between […] shall be bound by and shall comply with all of the
(i) the terms of the fix and the match results, provisions of this Program and shall be deemed to accept
(ii) the amount mentioned in the messages and all terms set out herein as well as the Tennis Integrity
the payment data once the matches were over, Unit Privacy Policy. […] It is the responsibility of each
and (iii) a betting alert showing that suspicious Player […] to acquaint himself or herself with all of
bets were placed on the relevant matches. Such the provisions of this Program […]”. The Panel
evidence should lead to the conclusion that the underlined that the term “all Players” did not on
Players contrived the outcome or one aspect of its face exclude minors. Indeed, in order to play
the relevant matches (Section D. 1. d of the the tournaments at stake, which were
TACP) and failed to report the offer that were organised under the jurisdiction of the ITF,
made to them (Section D. 2. a of the TACP). players should register for and hold an ITF
International Player’s Identification Number
5. The Applicability of the TACP (IPIN), which required the players’ signature of
the Player Welfare Statement confirming his
The Appellant argued that the TACP was only agreement with the rules of tennis, including,
applicable to professional tennis “Events”, specifically, the TACP. In the case of minors,
which was not the case for the relevant singles the IPIN registration process informed the

90
player that the minor’s parent or legal guardian high), by considering the gravity of the
should sign the IPIN on the minor’s behalf offences and whether the players were guilty of
with the result that the minor players were distinct offences on a number of separate
subject to the rules of the TACP. occasions, and assess the player’s level of
culpability and the impact on the integrity of
6. Definition of corruption offences the sport of tennis; (ii) second, having
determined the category, the CAS panel might
Contrary to the Respondent, the Appellants use the corresponding starting point to reach
contented that it was required to establish that the sanction within the category range; and (iii)
the Players benefitted from a financial reward third, the panel might then consider any
in order for the match-fixing offence to be adjustment from the starting point for any
established. aggravating factors e. g. the lack of credible
alternative interpretation as to the evidence,
The Panel held that in order for a corruption the players’ continuous denial of any
offence to exist, a mere attempt to contrive a involvement in match fixing, the lack of
match was actually sufficient (Section D.1.d of remorse; or mitigating factors e. g. the players’
the TACP). Similarly, the fix might cover not young age at the time of the relevant facts. The
only the outcome of a match but also one aspect Panel also considered that the principle of
of a particular match. Finally, it was not deterrence was of significant importance when
necessary to show the existence of a financial it came to assessing the adequate sanction for
reward, whether money or benefit or other corrupt conduct.
consideration, for a corruption offence under
the TACP to exist. Decision

7. Proportionality of the sanction In light of the above considerations, the Panel

found that it was not able to conclude that the
The Panel recalled that whilst a hearing before period of ineligibility imposed on the
the CAS is a hearing de novo, the measure of Appellants i.e. a ban for a period of 9 years, was
the sanction imposed by a disciplinary body in “evidently and grossly disproportionate to the
the exercise of the discretion allowed by the offence”. Furthermore, the Panel found that
relevant rules should be reviewed only when the amount of the fine imposed on each of the
the sanction is evidently and grossly Appellants i.e. a fine in the amount of US$
disproportionate to the offence. Moreover, a 5,000, was proportionate in the context of the
CAS panel applies its independent assessment matter, in particular in light of the ineligibility
of the proportionality and appropriateness of period imposed on them.
the sanctions imposed in light of the
established facts. The appeal filed by Mr Mohamed Zakaria
Khalil, Mr Soufiane El Mesbahi and Mr Yassir
In this respect, the fact that the offenses of Kilani on 30 December 2021 were dismissed.
match fixing require some degree of planning The decision rendered by the Anti-Corruption
or premeditation was relevant to the Panel. It Hearing Officer on 7 December 2021 was
appeared also appropriate to the Panel to take confirmed.
further guidance in the ITIA 2021 Guidelines
that provide, in principle, for a three-step-
approach: (i) first, the CAS panel shall
determine the offense category (light, medium,

91
___________________________________ EUR 7,000 payable on the 20th of the
CAS 2022/A/8574 following month for the previous month.
Marcos Lavín Rodríguez v. FC Voluntari
c) Clause XV stated as follows:
15 March 2023
___________________________________ “b) Non-observance of the contractual clauses by
either party results in the obligation of the defaulting
Football; Contractual disputes – party to pay damages equivalent to the value of the
termination of the employment contract; contract. […]”.
Just cause; Article 14 and 14bis of the FIFA
RSTP; Compensation for breach of On 19 July 2021, the Club demoted the Player
contract payable to a club to its second team for a short period of time.
The Club argued that said demotion was a
Panel disciplinary measure following the Player’s
Mr Lars Hilliger (Denmark), Sole Arbitrator unacceptable conduct. .
Facts By letter of 30 July 2021 (the “Default Letter”),
the Asociación de Futbolistas Españoles (the
Marcos Lavín Rodríguez (the “Player” / the “AFE”) on behalf of the Player put the Club in
“Appellant”) is a professional football player of default for the amount of EUR 15,262.43
Spanish nationality. representing 2 monthly salaries (May and June
2021), several match bonuses and plane tickets
FC Voluntari (the “Club” / the “Respondent”) reimbursement. The Player further complained
is a Romanian professional football club about his demotion to the second team. The
affiliated with the Federaţia Română de Fotbal Player granted 15 days for the Club to remedy
(the “FRF”), which in turn is affiliated with the its default. On 6 August 2021, the Club paid
Fédération Internationale de Football EUR 6,638 to the Player.
Association (“FIFA”).
By letter of 21 August 2021 (the “Termination
Collectively, the Player and the Club will be Letter”), the AFE, on behalf of the Player,
referred to as the Parties. terminated the Contract arguing that the
amount requested in his default letter had not
On 3 September 2020, the Player and the Club been paid.
entered into an employment contract (the
“Contract”) valid until 30 June 2022 regarding On 1 September 2021, the Club contested the
the Player’s employment with the Club as a contents of the default letter and termination
professional football player. letter arguing that on 30 July 2021, it was only
in debt of EUR 5,500 toward the Player which
In accordance with the Contract, the Player is less than two monthly salaries and that on 5
was entitled to inter alia: August 2021, the Club had paid all the
a) Pursuant to Clause III 1.1, for the period outstanding amounts to the Player.
01.10.2020 - 30.06.2021, a monthly salary of
EUR 6,500 payable on the 20th of the On 3 September 2021, the Player filed a claim
following month for the previous month. with the Dispute Resolution Chamber of FIFA
(the “FIFA DRC”) against the Club for breach
b) Pursuant to Clause III 2, for the period of contract claiming that he had just cause of
01.07.2021- 30.06.2022, a monthly salary of terminate the Contract under Article 14bis of
the FIFA Regulations on the Status and “Code”), the Player filed a Statement of Appeal
Transfer of Players (the “FIFA RSTP”), at the Court of Arbitration for Sport (the
requesting EUR 20,504.37 as outstanding “CAS”) appealing the FIFA Dispute
amounts corresponding to the salaries of June, Resolution Chamber Decision.
July and part of August 2021, bonuses related
to match played, two round trip tickets and Reasons
compensation for breach of contract of the
amount of EUR 76,532.62, plus 5% interests The main dispute in these proceedings
p.a. concerned the existence of a just cause of
unilateral termination of the Employment
In reply to the claim, the Club lodged a Contract for the Player within the meaning of
counterclaim for breach of contract and Article 14 and 14bis of the FIFA RSTP, and
requesting EUR 60,290.24 plus 5% interest p.a. the financial consequences thereof.
The Club held that following the default letter,
it paid all that was due to the Player and that at The Player held the DRC decision was wrong
the date of termination less than two monthly and that he had just cause to terminate the
salaries were due to the Player. The Club contract as at the date of termination, the Club
considered that the criteria of Article 14bis of had not fully complied with its payment
the FIFA RSTP were not met, and that obligations as set out in the Default letter and
therefore the Player did not have just cause to that during the duration of the Contract, his
terminate the Contract. salaries were continuously paid substantially
late and he was excluded from the first team.
On 4 August 2022, the FIFA DRC determined
that the Club´s debt towards the Player The Club held that there was no just cause at
(roughly one month) was not sufficient to the time of termination as less than two
justify early termination of the Contract, monthly salaries were due to the Player. The
whether in accordance with Article 14 or 14bis Club explained the partial and random
of the FIA RSTP. It therefore determined that payments as a result of the COVID-19
while the Player was still entitled to payment of pandemic and the consequential financial
his outstanding remuneration until he date of difficulties. The Club held that the Player was
termination of the Contract, in the amount of only sent to the second team for a temporary
EUR 15,216.55 plus interest, in application of period and that in any case, his contract did not
article 17 (1) of the FIFA RSTP, the Club was specify for which team he would play. The
entitled to a compensation. Club does not dispute the assessment of the
In this respect, the FIFA DRC determined that amount of compensation payable by the Player
the Club was in principle entitled to EUR to the Club.
72,259 but observed that the Club committed
several irregularities during the execution of In light of the facts and the circumstances of
the performances, such as the non-payment of the case, as well as considering the Parties’
the agreed bonuses, as well as demoting the submissions, the Sole Arbitrator observed that
Player to the second team. As a consequence the main issues to be resolved were whether
to this, the FIFA DRC decided to reduce the the Player had just cause to terminate the
amount of compensation to EUR 15,000. Contract on 21 August 2021 and to determine
the financial consequences of the Player’s
On 4 January 2022, pursuant to Article R48 of termination of the Contract, if any.
the Code of Sports-related Arbitration (the

93
1. Just cause received a total amount of ER 73,762.43. The
Sole Arbitrator noted that the Club held that it
The Parties agreed that the Contract had been had paid EUR 65,934.04 with some payments
unilaterally terminated by the Player on 21 made in Lei, some in Euros, mostly made by
August 2021, but disagreed on whether it was bank transfers and some made by cash. The
with or without just cause. Sole Arbitrator also took note that the Player
acknowledged receiving that amount, but
To start with, the Sole Arbitrator recalled that argued that only EUR 58,500 should be taken
pursuant to article 337 par. 2 of the Swiss Code into account and that the rest were additional
of Obligations, just cause exists whenever the “out of contract bonuses”.
terminating party cannot be expected in good
faith to continue the employment relationship In this regard, the Sole Arbitrator did not find
and that following CAS jurisprudence, only himself sufficiently convinced that the
material breaches of a contract can possibly be payments in question were in fact to be
considered just cause for the termination of an considered as out-of-contract bonuses made
employment contract. by the Club in addition to the payments which
fell due pursuant to the Contract.
The Sole Arbitrator underlined that it was up
to the Player to discharge the burden of proof As such, the Sole Arbitrator found that on the
to establish that the Contract was in fact date of the Default Letter, the amount of EUR
terminated with just cause based on the 73,762.43 had fallen due to the Player in
circumstances of the case. accordance with the Contract, while the Club
discharged its burden of proof to establish that
2. Article 14 and 14 bis of the FIFA RSTP it had paid the amount of EUR 65,934.04,
which means that the outstanding amount due
The Sole Arbitrator recalled that the Player to the Player on 30 July 2021 pursuant to the
based the termination on Article 14 bis of the Contract was EUR 7,828.39.
FIFA RSTP arguing that he had put the Club
in default of outstanding amounts, i.e. EUR Based on the above, and as “two monthly salaries”
15,262.43 and granted it a 15-days deadline to of the Player on the date of the Default Letter
comply which he agreed the Club failed to do amount to EUR 13,000 pursuant to the
so. Contract, the Sole Arbitrator concluded that
on the said date, the Club had not failed to pay
The Club, on its side, disputed that the at least two salaries to the Player, therefore he
Contract was terminated with just cause since could not rely on article 14 bis of the FIFA
the Club, with its payment of 5 August 2021, RSTP to justify just cause for the termination
had fulfilled all payment obligations by the date of the Contract.
of the Default Letter, which, according to the
Club, amounted to EUR 5,500, and further Additionally, the Sole Arbitrator underlined
argued that the Player´s contractual salary for that the fact that a player is not considered to
July 2021 only fell due on the day before the have just cause for the termination of a
termination. contract pursuant to Article 14bis of the FIFA
RSTP, is of no importance to the assessment
Based on the submissions of the Parties, the of whether a player anyway can be considered
Sole Arbitrator determined that at the date of to have just cause to terminate a contractual
the Default Letter, the Player should have

94
relationship with a club based on the of August 2021, before the termination of the
circumstances of the particular situation. Contract.

The Sole Arbitrator took note that the Player The Sole Arbitrator found no just cause under
claimed that he could not be expected in good article 14 of the FIFA RSTP.
faith to continue the employment relationship Based on the above considerations, the Sole
with the Club as a) the Club continuously paid Arbitrator finds that the Player terminated the
his salaries substantially late, which alone Contract on 21 August 2021 without just cause
should be considered as just cause to terminate
the Contract; b) the Club continuously tried to 3. Compensation for breach payable to a club
pressure the Player to reduce his contractual
salary; and c) the Club excluded the Player As the Player was held liable for the early
from its first team based on the Player not termination of the Contract, the Sole
accepting a reduction of his contractual salary Arbitrator found that the Club was entitled,
or an early termination of the Contract, as under Article 17 (1) of FIFA RSTP, to receive
suggested by the Club. financial compensation for breach of contract.

The Sole Arbitrator acknowledged that it was The Club did not appeal the Appealed
undisputed that the Player´s salaries were, to a Decision and confirmed in its Answer that it
large extent, paid by the Club after their did not dispute the compensation awarded.
respective due dates, and often in smaller The Player on his side submitted that no
instalments, which, according to the Club, was compensation should be due to the Club as the
the result of its poor financial situation. residual amount of the Contract was in fact
However, the Sole Arbitrator also took note of saved by the Club as a result of the termination
the efforts of the Club to fulfil its payment of the Contract and held that money saved
obligations towards the Player, that not all could not constitute damages. The Player
delays were substantial, neither in time nor in further held that any amount of compensation
amount, and that the Player apparently was payable to the Club should be reduced to zero
informed about the nature and reason behind on the basis of Article 44 of the Swiss Code of
such smaller and delayed payments and never Obligations, considering the degree of fault on
complained in writing about it until the Default the Club.
Letter.
The Sole Arbitrator initially took note that the
Based on that and on the specific injured party is entitled to a whole reparation
circumstances of the present dispute, the Sole of the damage suffered according to the
Arbitrator found that the Player had in fact no principle of “positive interest”, under which
just cause to terminate the contractual compensation for breach must be aimed at
relationship based on the Club´s late payment reinstating the injured party to the position it
of his salaries and dismissed the other would have been in had the contract been
allegations of the Player on the basis that those performed until its expiry.
where insufficiently documented.
Regarding the arguments of the Player, the Sole
As to the Player being sent to the second team, Arbitrator underlined that even if the Club
the Sole Arbitrator noted that the Player was could be considered having “saved” the
only absent from the first team for two official residual amount, the Club was at the same time
matches and was called back at the beginning suffering from not having the Player employed.

95
The Sole Arbitrator explained that following
such logic, professional football clubs would
never be entitled to receive any compensation
from players terminating their contractual
relationships with the said club, which is clearly
not the intention behind Article 17 of the FIFA
RSTP.

Based on that, and even if the Club did in fact

commit several irregularities during the Parties’
contractual relationship, the Sole Arbitrator
found no basis for reducing the amount of
compensation payable by the Player to the
Club any further than the already substantial
reduction decided by the FIFA DRC.

Decision

The appeal filed on 15 March 2023 by Marcos

Lavín Rodríguez against the decision issued
on 9 December 2021 by the Dispute
Resolution Chamber of the Fédération
Internationale de Football Association was
dismissed. The decision issued on 9 December
2021 by the Dispute Resolution Chamber of
the Fédération Internationale de Football
Association was confirmed.

96
___________________________________ On 20 March 2019, the Athlete signed a 2-page
CAS 2022/A/8582 document, titled “IPC Athlete Eligibility
Dawid Lange v. International Paralympic Agreement” (the “Eligibility Agreement”),
Committee (IPC) which, to the extent relevant, contained the
11 May 2023 following provisions:
___________________________________ “This Eligibility Agreement (Agreement) is an
important document […] that governs my participation
Para powerlifting; Doping (DHCMT, in IPC and IPC sport competitions which exclude the
Metandienone, Oxandrolone and Paralympic Games and the Paralympic Winter Games
Clomifene); CAS jurisdiction based on (IPC Competitions).
procedural conduct of the parties; Validity This Agreement commences on the date I sign below
of Eligibility Agreement; Binding and […] continues […] in full force and effect until I
character of competition entry form
cease to compete in IPC Competitions (Term).
containing a reference to anti-doping rules
of an international federation; IPC right to I understand that to be eligible to be licensed to
initiate further proceedings against athlete participate in IPC Competitions, and in consideration
despite IPC not having appealed second of the acceptance of my participation in IPC
instance decision Competitions, I agree to the terms outlined in this
Agreement, including:
Panel […]
Ms Annett Rombach (Germany), Sole
Arbitrator 7. to comply with the IPC Anti-Doping Code and,
in particular, not to take, possess or traffic any
Facts substance or use methods prohibited by the
applicable World Anti-Doping Code
Mr. Dawid Lange (the “Athlete” or the Prohibited List.
“Appellant”) is a Polish national who […]
competes in the sport of Para powerlifting.
I understand that my failure to adhere to any of the
The International Paralympic Committee (the terms set out in this Agreement will result in
“IPC” or the “Respondent”) is the global disciplinary action as determined by the IPC. […]
governing body of the Paralympic Movement I confirm that I have read and acknowledge all the
and, in particular, the Paralympic Games and provisions of this Agreement and that my signature
Paralympic Winter Games. In addition, the below is authentic and is the signature of the participant
IPC is the international governing body for a named above”.
number of Para sports, including the sport of
Para powerlifting. The IPC has its registered On 25 March 2019, the Athlete was licensed by
office in Bonn, Germany. the IPC to compete in IPC competitions.

In March 2019, the Polish Sports Association On 7 April 2019, the Athlete participated in the
for the Disabled “START” (“PZSN START”) Men’s +107kg category at the Polish
proposed the Athlete’s participation in the Weightlifting Individual Championships for
Eger 2019 World Paralympic World Cup in People with Disabilities in Bydgoszcz, Poland
April 2019, organized by the IPC (the “2019 (the “Competition”), organized by PZSN
IPC World Cup”). START. A urine sample, collected from the
Athlete in-competition by the Polish Anti-
Doping Agency (“POLADA”), returned an 19:00 CET on 30 September 2021 and in
Adverse Analytical Finding (“AAF”). Namely, accordance with Article 7.9.1 of the 2018 IPC
the A Sample contained: ADC, he was provisionally suspended from
Dehydrochloromethyltestosterone participating in a range of sporting activity.
(“DHCMT”) metabolites, a Metandienone
Metabolite, Oxandrolone metabolites and On 20 October 2021, the Appellant requested
Clomifene and its metabolite. All these that both the IPC’s jurisdiction to bring a case
substances and the metabolites are Prohibited against him for the AAF (the “Jurisdictional
Substances under the World Anti-Doping Issue”) and his request that the Provisional
Agency (“WADA”)’s 2019 Prohibited List. Suspension imposed upon him be lifted (the
“Provisional Suspension Issue”) be considered
On 28 April 2019, the Athlete competed in the as preliminary issues:
2019 IPC World Cup.
On 9 December 2021, a Single Member of the
On 30 December 2019, the Athlete was IPC Independent Tribunal rendered a decision
charged with an Anti-Doping Rule Violation on the Preliminary Issues (the “Appealed
(“ADRV”) pursuant to the POLADA Anti- Decision”), holding that the IPC had had
Doping Rules (the “POLADA ADR”) in jurisdiction to bring the case against the
relation to the AAF. Athlete and that the Provisional Suspension
should remain in place pending a resolution of
On 22 July 2020, a First Instance Disciplinary the matter.
Panel of the POLADA ruled that the Athlete
had violated the POLADA ADR and imposed On 30 December 2021, the Appellant filed a
a disciplinary sanction of a four-year period of Statement of Appeal with the Court of
Ineligibility on him (the “First Instance Arbitration for Sport (CAS) against the
Decision”). Appealed Decision, in accordance with the
Code of Sports-related Arbitration (the “CAS
Further to an appeal by the Athlete against the Code”).
First Instance Decision, on 17 February 2021,
a Second Instance Disciplinary Panel of the Reasons
POLADA ruled that the POLADA ADR did
not apply to the Athlete and that the First The Parties’ dispute centres on the question
Instance Decision should be repealed, and the whether the IPC had jurisdiction and results
disciplinary proceedings instituted by management authority to bring its own
POLADA against the Athlete discontinued disciplinary proceedings under the 2018 IPC
(the “Second Instance Decision”). Neither ADC against the Athlete in respect of the
WADA nor the IPC, despite being informed AAF returned by the sample taken from the
of their respective right to appeal the decision Athlete at the Competition on 7 April 2019.
before the Court of Arbitration for Sport While the Athlete argues that the Eligibility
(“CAS”), elected to appeal against the Second Agreement is not valid and enforceable, that
Instance Decision. he is not bound by the IPC ADC and that the
IPC neither has jurisdiction nor authority to
On 30 September 2021, the IPC notified the manage, prosecute and adjudicate the alleged
Athlete of the AAF and advised him that ADRV, the IPC does not contest the facts
subject to Article 7.9.3 of the 2018 IPC Anti- relied upon by the Athlete in this context, but
Doping Code (the “2018 IPC ADC”), from maintains that the situation does not prevent

98
it from exercising results management had not been explained to him. He did not
authority and jurisdiction over the Athlete speak English, and he had not been aware, and
under the 2018 IPC ADC because these did not understand the contents of the
responsibilities were validly conferred upon it Eligibility Agreement. Further, his signing of
by the Athlete’s express agreement, through the Eligibility Agreement had been on the basis
the Eligibility Agreement. that it was a “mere formality”. Conversely, the
Respondent underlined that the Eligibility
1. CAS jurisdiction based on procedural Agreement is valid and applicable. The Athlete
conduct of the parties had failed to advance any evidence
demonstrating that when he signed the
To start with, the Sole Arbitrator examined the Eligibility Agreement, the terms of the
question of CAS jurisdiction, noting that the Agreement had not been explained to him, or
Appealed Decision was designated as a that he had made any enquiries as to the
decision on “preliminary matters”, and that meaning and obligations under the Eligibility
such types of decisions on “preliminary Agreement. The Athlete had voluntarily signed
matters” were not expressly listed in Article the Eligibility Agreement and it had not been
13.2 of the 2021 IPC ADC as subjects of the obligation of the other parties, nor of the
appeal to CAS. That furthermore, the Athlete’s representatives or colleagues, to
Eligibility Agreement provided for a differing ensure that he understood the terms he was
jurisdictional rule, i.e. in favour of an IPC agreeing to.
independent tribunal, to the exclusion of any
appeal to an arbitral body. The Sole Arbitrator The Sole Arbitrator, in line with the Appealed
held that never-the-less, jurisdiction of the Decision’s finding, held that in order for the
CAS had been established for the present case Athlete to successfully refute the validity of the
through the Parties’ conduct and submissions. written agreement between himself and the
Specifically, one the one hand, the Parties had, IPC, by which the Athlete had conferred
in the course of the CAS proceedings, jurisdiction and results management authority
expressed their consent to arbitrate under the on the IPC for events in which he participates,
CAS’ rules e.g. by filing an appeal to CAS and the Athlete would have had to adduce specific
by making pleadings, on the Respondent’s end, evidence corroborating his allegations leading
on the merits of the case without objecting to to nullity. A high burden was required for an
CAS’ jurisdiction. Additionally, the Parties had individual to prove that he or she was unaware
confirmed CAS jurisdiction by execution of of the terms of an eligibility agreement (due to
the Order of Procedure. e.g. lack of understanding of the terms of the
eligibility agreement because of insufficient
2. Validity of Eligibility Agreement language skills, or that the terms of the
agreement had not been explained). Otherwise
In the following, the Sole Arbitrator turned to a dangerous precedent would be set in that it
the Appellant’s argument that the Eligibility would be too easy for an individual to argue
Agreement did not constitute a proper basis that terms and conditions of the Eligibility
for a referral of the Athlete to the IPC’s Agreement – which go to the very core of
jurisdiction, as such agreement was invalid. In participation in competitions - should not
support of this argument the Athlete apply. Furthermore, any athlete who does not
contended that while he had been presented understand the terms of an eligibility
with the second page of the Eligibility agreement or is unsure of the meaning of any
Agreement, the meaning of such document of its terms would have to seek advice to that

99
extent. An athlete who, faced with those obligations under the Eligibility Agreement
problems, simply signed the unknown and the 2018 IPC ADC were accepted, it
document would act grossly negligently. would result in the Athlete and other athletes
being entitled to dope freely in non-IPC
3. Binding character of competition entry form competitions if those competitions did not
containing a reference to anti-doping rules of explicitly prohibit doping in/or in between
an international federation IPC competitions. This would be a perverse
outcome that would be damaging to the
Having held that the Eligibility Agreement was sporting integrity of the IPC’s competitions.
valid and binding on the Athlete, the Sole Fundamentally, in order for the 2018 IPC
Arbitrator addressed the central question of ADC to operate, it was necessary for anti-
the proceedings i.e. whether the IPC had doping authorities to have jurisdiction over
jurisdiction and results management authority those athletes who are bound by the 2018 IPC
to bring its own disciplinary proceedings ADC outside the short time period covering
against the Athlete under the 2018 IPC ADC their competitions. Otherwise, such provisions
in respect of the AAF resulting from the of the 2018 IPC ADC would be rendered
sample taken from the Athlete at the entirely inoperable and pointless.
competition in question. In this context the
Athlete argued that the event in question was The Sole Arbitrator determined that despite
not a competition organised by the IPC for the fact that the IPC had not organized the
which the IPC had not been responsible in Competition in question, nor was it
terms of sample collection during the responsible for sample collection during the
competition. Accordingly, the IPC had no Competition, the IPC had never-the-less
jurisdiction and no anti-doping authority for established jurisdiction and results
the competition, nor was it responsible for management authority for the event given that
results management. The doping control the Athlete, prior to the Competition, had
performed on the Athlete was ordered by signed a valid and enforceable individual
PZSN START and conducted by POLADA, agreement, the Eligibility Agreement, by which
without any involvement by the IPC. PZSN the Athlete had, on the one hand, conferred
START was the only body responsible for results management authority and jurisdiction
results management. The Athlete was neither on the IPC, and, on the other hand,
subject to the POLADA ADR nor to the IPC acknowledged his obligation “to comply with the
ADC, because the Competition was not a IPC Anti-Doping Code”. Furthermore, despite
competition organized by the IPC, and the the fact that according to the preamble to the
Athlete was not an International-Level Athlete. Eligibility Agreement, it “governs [the Athlete’s]
Even if the Eligibility Agreement were to be participation in IPC and IPC sport competitions”, the
considered valid, it would not apply in the Athlete could not successfully argue that his
present case, because it was limited in scope to duty to comply with the IPC ADC was event-
IPC competitions. In the IPC’s view, the specific, i.e. temporarily limited to ongoing IPC
situation did not prevent it from exercising competitions as in the scope section of the
results management authority and jurisdiction 2018 IPC ADC, it was clarified that the IPC
over the Athlete under the 2018 IPC ADC ADC shall be effective during “the time of
because these responsibilities had been preparation for competition”. Furthermore, to deny
expressly conferred upon the IPC by the the Athlete’s permanent duty to obey to the
Athlete, through the Eligibility Agreement. applicable anti-doping rules would also defeat
Further, if the Athlete’s interpretation of his the very purpose of the fight against doping.

100
Efficient doping control, a secure level playing adjudicatory body. This is because the subject
field for all athletes and the protection of matter before the POLADA adjudicatory body
athletes’ health would be severely endangered and the subject matter in the IPC proceedings
if athletes’ only duty was to comply with the differed in that the former dealt with the
IPC ADC during a competition. In conclusion, question of whether POLADA (or the IPC)
by means of the Eligibility Agreement the had jurisdiction over the Athlete under either
Athlete was bound to the 2018 IPC ADC to the POLADA ADR or the World Para-
the extent that, at the time of the Competition, Athletics Rules and Regulations, while the IPC,
he had to comply with the IPC ADC, and any in order to establish jurisdiction over the
violation of these rules permitted the IPC to Athlete for the alleged ADRV, exclusively
bring disciplinary proceedings against the relied on the Eligibility Agreement. Therefore,
Athlete under the 2018 IPC ADC. the proceedings before the IPC were entirely
independent from those before the POLADA
4. IPC entitlement to initiate further adjudicatory body, and it was not a condition
proceedings against athlete despite IPC not for the IPC to appeal the decision of the
having appealed Second Instance Decision POLADA adjudicatory body prior to initiating
proceedings before the IPC Tribunal.
Lastly, the Sole Arbitrator addressed the
Athlete’s argument that the IPC, by not Decision
appealing the Second Instance Decision,
accepted such decision and waived its right to On the above grounds the Sole Arbitrator
initiate new proceedings before its own decided to dismiss the Appeal and confirmed
Independent Tribunal. In turn, the IPC the decision of the Single Member of the
contested having (tacitly) accepted the Second International Paralympic Committee
Instance Decision by not appealing it. It Independent Tribunal rendered on
highlighted that neither the first, nor the 9 December 2021.
second instance panel had sight of the
Eligibility Agreement, and as a result little The Sole Arbitrator further clarified that while
weight should be attributed to the Appealed the Appellant had requested for the
Decision’s ruling that the IPC ADC do not Provisional Suspension imposed on him by the
apply because, without considering the IPC to be set aside, he did not further any
Eligibility Agreement, no informed decision on arguments but for the IPC’s lack of
whether or not the IPC ADC applied to the jurisdiction. While appreciating the Athlete’s
case could be made. Rather, the IPC had arguments regarding the length of the
separate jurisdiction to POLADA and proceedings, the Sole Arbitrator underlined
subsequently chose to bring a case against the that the evidence supporting the alleged
Athlete in accordance with its own jurisdiction. ADRV - the alleged ingestion of multiple
prohibited substances known to (illegally)
The Sole Arbitrator found that indeed, the IPC increase sporting performance - was
had the right to initiate proceedings on a overwhelming and remained uncontested.
different basis than the POLADA ADR or the Given that at stake was a suspension of four
World Para-Athletics Rules and Regulations, years, the Respondent’s interest in the
e.g. on the basis of the Eligibility Agreement adjudication of the alleged ADRV outweighed
concluded with the Athlete prior to the event, the Appellant’s interest in expeditious
such Eligibility Agreement having played no proceedings with the result that the Provisional
role in the proceedings before the POLADA Suspension had to be upheld.

101
___________________________________ crimes related to the illegal trade and use of
CAS 2022/A/8592 doping substances for football players at the
USD Lavagnese 1919 v. Fédération professional club Spezia Calcio s.r.l (“Spezia
Internationale de Football Association Calcio”). Although the investigation into those
(FIFA) allegations was subsequently closed without
17 April 2023 (operative part of 20 June 2022) prosecution, it uncovered potential breaches of
___________________________________ Italian immigration law involving the transfer
of 13 football players under the age of 18 from
Football; Registration of minor players in Nigeria to Italy.
breach of Article 19 RSTP; Purpose of
Article 19 RSTP; Substantive and The Police Report identified 13 players who
procedural contents of Article 19 RSTP; had been brought into Italy from Nigeria, four
Responsibility of an amateur club to of whom were registered with Lavagnese. A
familiarise itself with Article 19 RSTP; De summary of the relevant details of the four
novo power of the CAS to determine Lavagnese-registered players who are known as
sanctions; Assessment of the Players 1, 2, 4 and 5, is as follows:
proportionality of the sanction
Play Name I Date of Entry Date of Transfer
er T into Italy FIGC to Spezia
Panel No C Registr
Ms Leanne O’Leary (United Kingdom), ation
1 [A.] N 30/09/2013 20/02/ Yes
President / (16 years old) 2014 29/08/20
Mr Jacopo Tognon (Italy) A (17 14
years
Ms Anna Bordiugova (Ukraine) old)
2 [B.] N 30/09/2013 20/02/ Yes
/ (16 years old) 2014 29/08/20
Facts A (17 14
years
old)
This is an appeal against the decision of the 4 [C.] N 26/08/2014 03/09/ Yes
FIFA Appeals Committee passed on 11 / (16 years old) 2015 19/01/20
A (18 16
November 2021. It arises from an investigation years
undertaken by the FIFA Regulatory and old)
5 [D.] N 26/08/2014 31/07/ Yes
Compliance Department into the Appellant’s / (17 years old) 2015 28/07/20
alleged involvement in a scheme known as the A (18 16
years
“Nigeria System”, and the subsequent old)
adjudication of alleged breaches of Articles 9,
19 (1) and 19 (4) of the FIFA Regulations on Following receipt of information about the
the Status and Transfer of Players (“RSTP”) by alleged Nigeria System, FIFA’s TMS Global
the FIFA Disciplinary Committee. Transfer and Compliance Team wrote to
Lavagnese, requesting further details of the
USD Lavagnese (“Lavagnese” or the registration of Player 1 and Player 2. On 24
“Appellant”) is an amateur football club August 2018, Lavagnese indicated that Player 1
situated in Lavagna, Italy. It is affiliated to the was in Italy for study reasons under the
Federazione Italiana Giuoco Calcio (the supervision of a tutor, that Player 1 had never
“FIGC”). been registered with another club and that
Player 1 had been registered by the FIGC as an
In February 2018, the Italian Police amateur. On 12 March 2019, Lavagnese
commenced an investigation into allegations of indicated that Player 1 and Player 2 were
registered with the FIGC, both had registered transfer of a minor player and the first
for the first time in Italy and the players had registration of a foreign minor player required
been registered following FIGC’s procedure. approval from the FIFA Sub-Committee in
accordance with Article 19 (4) of the FIFA
On 25 November 2020, FIFA’s Regulatory RSTP. Players 1 and 2 did not satisfy any of the
Enforcement Department put the club on exceptions listed in Article 19 (2) of the FIFA
notice that FIFA was investigating potential RSTP. The wording of the exception was clear
breaches of Articles 9, 19 and Annexes 2 and 3 that the figure of guardian/tutor could not
of the FIFA RSTP, and seeking information encompass the notion of parent included in
regarding the registration of five Nigerian Article 19 (2) (a) of the FIFA RSTP. Regarding
players. On 8 December 2020, Lavagnese Players 4 and 5, the Appeal Committee noted
responded that it was not involved in the that there was no evidence of the players’
Nigeria System; it had never been investigated participation in organized football with
by the La Spezia Public Prosecutor’s Office; its Lavagnese while under the age of 18, and the
company and representatives were not findings of the Disciplinary Committee in that
mentioned in investigation and court regard were set aside. On the issue of the
documents; Lavagnese had fulfilled its proportionality of the sanction, the Appeal
obligations properly; and the Nigeria System Committee noted that the breaches regarding
was completely unknown to the club. Players 1 and 2 were confirmed, and the
violations annulled against Players 4 and 5.
On 26 April 2021, FIFA informed Lavagnese Taking into account the circumstances of the
that the matter in relation to Players 1, 2, 4 and case, and the materials at Lavagnese’s disposal
5 had been transferred for consideration by the to familiarise itself with the scope of Article 19
FIFA Disciplinary Committee. On 30 June (e.g. the FIFA RSTP, its Commentary and CAS
2021, the FIFA Disciplinary Committee decisions) and the reference in the FIGC
concluded that the allegations were proved and Guide to the FIFA Regulations, the Appeal
banned Lavagnese from registering new Committee decided to halve the registration
players, both nationally and at an international ban to two registration periods and confirm the
level, for four entire and consecutive fine of CHF 4,000.
registration periods. It also ordered Lavagnese
to pay a fine of CHF 4,000. On 8 January 2022, the Appellant filed an
appeal against the Appealed Decision.
On 10 September 2021, Lavagnese filed an
appeal to the FIFA Appeal Committee. By its On 24 May 2022, a hearing took place by
decision dated 11 November 2021 (the video-conference.
“Appealed Decision”), the latter partially
upheld Lavagnese’s appeal. The Appeal Reasons
Committee concluded that given the lack of
evidence linking Lavagnese to Spezia Calcio in The Panel considered that there were two
the Nigeria System, the Disciplinary issues for determination in this case, namely:
Committee had erred in finding that Lavagnese whether Lavagnese had breached Articles 19
was a part of such System. Moreover, although (1), 19 (4), 9 (1) and Article 1 (1) of Annexe 2
FIGC had been delegated with authority to and Article 1 (3) of Annex 3 of the RSTP; and
approve amateur foreign minor registrations if so, whether the sanction imposed by the
for an amateur club instead of the FIFA Sub- Appeal Committee was proportionate.
Committee, nonetheless, the international

103
Lavagnese submitted that it was not liable for 19 (1) and (3) and, in effect, prohibited the
a breach of Article 19 (1) because it was an registration of minors under the age of 18.
amateur club with no experience in Article 19 (4) was the procedural element
international football or knowledge of FIFA which outlined the procedure to follow when
regulations, and as an amateur club was processing an international transfer or
required to follow the rules of its national registration of a minor that relied on an
association only. It had followed and received exception in Article 19 (2) or a player’s first
an exception from FIGC upon whom it had a registration under article 19 (3). The process
legitimate expectation to guide it correctly. required a national association to seek approval
from the FIFA Sub-Committee that
Before considering the substance of the considered such applications. A national
Parties’ arguments, the Panel considered it association, however, was not obliged to
helpful to outline generally the scope and submit a transfer application for approval if it
purpose of the FIFA RSTP provisions that had been granted an exemption from doing so
protect minors. from FIFA. The exemption was limited to the
registration of an amateur player with an
1. Purpose of Article 19 RSTP amateur club. FIGC had applied and had been
granted such an exemption, with the effect that
The Panel reminded that although the it could approve the registration application
regulations regarding minors had been itself if satisfied that the requirements of an
modified since 2001, the key aim of the exception under Article 19 (2) were met.
provisions nonetheless remained the same: to
protect the welfare of young players and It was undisputed that Lavagnese had followed
minimise potential for commercial exploitation the FIGC procedure for obtaining registration
or abuse of minors in the process. Article 19 of of Players 1 and 2 in late-2013, and that the
the FIFA RSTP was a very important registrations had been issued on the basis of
provision that sets the key principles the exception under Article 19 (2) (a), namely
designated to protect the interest of minor that the players had moved with their parents
players. The general prohibition contained in to Italy for non-football related reasons. In the
article 19(1) FIFA RSTP was based on the fact Panel’s view, however, the exception did not
that, while international transfers might in very apply and the registrations had incorrectly been
specific cases, be favourable to a young player’s approved by FIGC, as the players had come to
sporting career, they were very likely to be Italy on tourist visas to play football in a
contrary to their best interest as minors. The tournament, accompanied by an adult
interest of protecting the adequate and healthy connected to Spezia Calcio. The players’
developments of a minor as a whole had to parents had not moved but had remained in
prevail over purely sporting interests. The Nigeria and it appears that a legal guardian had
established exceptions needed to be applied in only been appointed under Italian law after the
a strict, rigorous, and consistent manner. players’ arrival in Italy and not before. Even
assuming the exception in Article 19 (2) (a)
2. Substantive and procedural contents of applied to include a legal guardian – the Panel
Article 19 RSTP did not consider it necessary to make a finding
in that regard – the players had not moved with
The Panel also noted that Article 19 contained a legal guardian to Italy for a non-football-
both a procedural and a substantive element. related reason. The players had moved to play
The substantive element was set out in Article football. Those facts alone, in the Panel’s view,

104
were sufficient to confirm that the exception Player 1 and Player 2 were not registered with
under Article 19 (2) (a) never applied, and the any football club or association in Nigeria. On
registrations ought not to have been made. that basis, it appeared that, to the best
knowledge of Lavagnese, on the date of
3. Responsibility of an amateur club to request for and the registration with FIGC, the
familiarise itself with Article 19 RSTP players were not registered with any football
club or association in Nigeria and therefore an
In the Panel’s view, it may have seemed unfair ITC was not required. Therefore, based on the
to hold an amateur club in the Appellant’s evidence available to it, the Panel found that
circumstances accountable when it appeared Lavagnese had not breached Article 9 (1) of the
not to have known of Article 19 and to have FIFA RSTP.
relied on FIGC to seek approval from the
FIFA Sub-Committee. Nonetheless, even as an The next issues for the Panel to consider were
amateur club, it had the responsibility to the CAS de novo power to determine sanctions
familiarise itself with Article 19 (1) since it and the proportionality of the sanction in the
might be sanctioned for a breach of Article 19 present case.
(1) irrespective of the national association’s
actions or knowledge of the regulation. While, 4. De novo power of the CAS to determine
ordinarily, reliance on regulatory guidance sanctions
provided by a national association would
suffice, insofar as Article 19(1) was concerned, Lavagnese contended that the sanction was
an amateur club could not rely on the grossly disproportionate when considering the
registration granted by a national association as sanctions imposed in comparable cases
a defence to an allegation of an Article 19 (1) involving large professional clubs that were
breach, particularly if the circumstances operated by paid employees, had registered
showed that the registration application should many minor players across a lengthy period,
never have been made. It was incumbent on an and had intentionally violated FIFA rules
amateur club to make reasonable enquiries as regarding minors for financial advantage.
to how a player had come to be in the country Furthermore, Lavagnese’s players were
and consider for itself whether it should apply engaged on contracts of one-year duration
for a foreign minor player’s registration. only. If the transfer ban of two registration
periods was confirmed, Lavagnese would lose
For the reasons set out above, the Panel found many of its players now playing in its first team
that the Appellant was liable for a breach of and would not be able to register new ones.
Article 19 (1). There had been no application
for approval made to the FIFA Sub- The Panel observed that in the present case,
Committee and, accordingly, Lavagnese had the FIFA Appeal Committee had set aside the
also breached Article 19 (4) and Article 1 (1) of violations in respect of Players 4 and 5, and
Annex 2 and Article 1 (3) of Annex 3. upheld the infringements of the FIFA RSTP in
respect of Players 1 and 2. On the issue of
In respect of the alleged breach of Article 9 (1), sanction, the FIFA Appeal Committee had
the Panel noted that the information submitted taken into consideration that there had been no
by Lavagnese to FIGC for the players’ evidence on file to link Lavagnese to the
registrations included affidavits from the Nigeria System, and that Players 1 and 2 had
mother and father of each of the players, all been “irregularly registered” with FIGC. It had
dated 5 December 2013, which stated that also noted that registration bans had been

105
imposed in previous cases involving division competitions as well as the fact that
professional clubs but that the bans had not the cases regarding professional clubs had
been systematically linked to the number of typically involved many more infringements
players involved. and a greater number of minor players, also
had be taken into account when assessing the
The Panel also observed that except for the proportionality of the sanction.
alleged breach of Article 9 (1), it had confirmed
Lavagnese’s liability for breaches of the FIFA The Panel therefore concluded that the
RSTP in respect of Players 1 and 2 and had sanction imposed on Lavagnese were grossly
now to consider whether the sanction imposed disproportionate and that it was appropriate to
on Lavagnese was proportionate. To that end, reduce the registration ban to one registration
the Panel was mindful that, while it should not period ban. It confirmed the fine of CHF
easily tamper with the sanction imposed in the 4,000.00.
first instance decision, its de novo power of
review allowed it to find that sanctions were Decision
disproportionate and to determine more
appropriate sanctions. The Panel recalled that Based on all the above, the Panel partially
sanctions imposed in any disciplinary upheld the appeal. It confirmed the FIFA
proceeding were case specific and turned on Appeal Committee’s decision, save for the
the facts, and the interests at stake had to be registration ban which was reduced to one
balanced in respect of the principle of period.
proportionality.

5. Assessment of the proportionality of the

sanction

In assessing the proportionality of the sanction

in the present case, the Panel came to the
conclusion that an amateur club that was
registering a foreign minor player had to be
curious as to the circumstances in which the
player had come into the country and consider
for itself whether registering the player would
breach Article 19 of the FIFA RSTP.
Violations of Article 19 had to be taken
seriously and when allegations of an Article 19
breach were proved, then the sanctions against
professional and amateur clubs had to be
significant to deter similar conduct in the
future. Moreover, imposing a tough sanction
was sending a strong signal, not only to the
perpetrator, but to other potential violators of
this provision. Be that as it may, the fact that
the sanction were imposed upon an amateur
club that evolved in a very different context
than professional clubs participating in highest

106
___________________________________ informed the Player that an employment
CAS 2022/A/8621 contract and an image rights agreement needed
Nikola Djurdjic v. Chengdu Rongcheng to be signed.
Football Club LTD
30 December 2022 On 22 January 2020, the Club and the Player
___________________________________ had reached a verbal agreement on the Player’s
employment contract and image right
Football; contractual dispute; agreement. However, in the late-night hours,
Interpretation of an arbitration clause; Mr. Patel allegedly came into the Player’s hotel
Request for a partial award; Admissibility room to explain that the image right agreement
of documents filed after the expiry of a time would need to be executed with a third-party
limit; Presentation of new claims at appeal company called Supervision Management ran
level; Scope of res judicata; Determination by Mr. Patel himself. Mr. Patel allegedly
of the existence of a just cause to terminate informed the Player that the deal depended on
an employment contract; Calculation of this technicality.
compensation for breach of contract;
Criteria for the granting of a declaratory On 23 January 2020, the Club and the Player
relief. signed an employment contract valid as from
23 January 2020 until 22 January 2022. On the
Panel same date, Supervision Management and the
Prof. Ulrich Haas (Germany), Sole Arbitrator Club signed the image rights agreement (the
“IRA”) with the written consent of the Player.
Facts Still on the same date i.e., the Player signed the
following consent:
Mr. Nikola Djurdjic (the “Appellant” or the
“Player”) is a professional Serbian football “I hereby retain Supervision Management BV (…),
player. represented by Mr. Sunir Patel, to act as my sole and
exclusive representative to represent, advice and counsel
Chengdu Rongcheng Football Club LTD (the me in all negotiations and contracts with regards to
“Respondent” or the “Club”) is a Chinese commercial deals and image rights throughout the
football club that is affiliated with the People’s Republic of China”.
Chinese Football Federation (“CFA”) that in
turn is affiliated with the Fédération After the 2020 season, the Player alleged that
Internationale de Football Association the Club tried to force a premature termination
(“FIFA”). of both another foreign player and the Player.
This was allegedly done by failing to notify
On 18 January 2020, after the Club issued inter both players of when they were expected to
alia an offer to the Player, the latter met with return to the Club, then making unreasonable
the Club’s team, and passed the necessary requests on their return date – e.g., due to the
medical tests. The Club made an offer to Chinese travel restrictions arising out of the
remunerate the Player the following sums: global pandemic, the two players were in
EUR 1 million in 2020; EUR 1.2 million in mandatory quarantine for a total of 21 days.
2021; EUR 1.45 million in 2022; and the When the players returned to training on 4
possibility of doubling these amounts if the February 2021, they were told that they were to
Club got promoted to the Chinese Super train with the second team, without an
League (the “CSL”). However, at such time, explanation.
Mr. Patel – on behalf of the Club – also
On 12 April 2021, the Club and the Chinese On 11 August 2021, the Player signed a new
club Zhejiang Professional FC (“Zhejiang employment agreement with the Swedish club,
FC”) signed a loan agreement by means of Degerfors IF (“Degerfors”). On 16 August
which the Player was temporarily transferred 2021, the Player lodged a counterclaim against
until 31 July 2021. The Player noted that he was the Club before FIFA for unlawful termination
cut from the Respondent’s first team without of the Contract.
an explanation or a meeting with the Club’s
coach. On 8 June 2021, right after Zhejiang FC On 18 October 2021, the Club informed Mr.
played the last match of the first stage of the Patel inter alia that “in light of Nicola, Durdic has
2021 season, the Player was informed that he terminated the Employment Contract between he and
was on vacation. The Player was aware that his Rongcheng FC without just cause, it is impossible for
contractual obligation under the loan Rongcheng FC to execute the right from the image rights
agreement with Zhejiang FC was until 31 July agreement normally”. On 25 October 2021,
2021, and he was required to return to the Club Supervision Management replied inter alia that
within 7 days after the expiry of the said loan “player Djurdjic and RONGCHENG FC are
agreement. On 26 June 2021, the Club currently involved in a FIFA procedure in which
allegedly wrote to the Player to request him to parties are blaming each other the unilateral and
return to its premises until 1 July 2021. wrongful termination of the Player’s employment
contract. In the event FIFA would conclude that
On 6 July 2021, the Club signed the foreign RONGCHENG FC unilaterally terminated the
player Mr. [F.] on the team, which made it said employment contract, you will understand that such
impossible for the Player to be registered for could also have an impact upon your current
the season. On 26 July 2021, the Player sent the termination of the Image Right Agreement”. In this
Club a letter requesting the Club to confirm respect, it is to be noted that on 12 January
whether it needed his services. The Player had 2022, the Club won the promotion/relegation
stressed that if the termination documents playoffs and secured the promotion to the
were not provided by 29 July 2021, he expected CSL.
to “show up at the [C]lub on 1 August 2021 in order
to resume training and honour his contract”. On 25 November 2021, the FIFA DRC issued
the Appealed Decision. On 24 February 2022,
On 13 July 2021, the Club lodged a first claim the Player notified the Club as follows:
against the Player before the FIFA DRC.
However, since it failed to complete the claim “As already ruled by FIFA, your club terminated the
as requested by FIFA, the file was closed. On Contract without just cause. Clearly, this was done,
20 July 2021, the Club again lodged the (same) inter alia, to avoid the scenario described in Article
claim against the Player before the FIFA DRC. 10.2. (that the Player Contract survives such
termination or expiry).
On 30 July 2021, the Player wrote to the Club
and stressed that he had not received any Moreover, after FIFA informed your club and the
answer. On 2 August 2021, the Player went to Player that the investigation-phase was closed [on 7
the Club’s premises accompanied by two (2) September 2021] and that new submissions would
witnesses, but was informed by the Club then [not] be admitted to the case file, your club informed
that the claim that the Club had lodged before Supervision Management that it would not extend the
the FIFA DRC in July 2021 was sufficient to IRA to 2022, which triggered the application of
establish that the Contract was terminated and clause 10.2. In light of the foregoing, we (…) invite
the Player could seek new employment. you to perform the payment of EUR 1,647,058 net
(…).
108
Apart from this, we once again invite you to make the d. EUR Claim based on the IRA
payment of EUR 496,525.47 plus 5% interest p.a. 2,522,075.00 for the year 2022
Interest of 5%
from 10 August 2021 (EUR 509,992.87 in total) pa from 13 July
as ordered by FIFA (…)”. 2021

Indeed, on 30 January 2022, the Player/the

Appellant filed an appeal before the CAS 1. Interpretation of an arbitration clause
against the Appealed Decision and submitted
his Statement of Appeal according to Article The arbitration clause contained in the
R48 of the Code of Sports-related Arbitration Contract provides for jurisdiction in favour of
(2020 edition) (the “CAS Code”). On 25 the CAS and it was undisputed that the CAS
February 2022, the Player informed FIFA that was competent to decide on disputes arising
the Club had failed to pay the amounts due from the Contract, i.e. claims “a., b. and c”. in
under the Appealed Decision. On the same the above chart. What was in dispute between
day, FIFA replied to the Appellant “that the the Parties, however, was whether the CAS was
present proceedings are declared suspended as long as the competent to adjudicate the claim arising from
proceedings before the CAS are pending”. the IRA, i.e. claim “d”. in the above chart.

Reasons Article 12 of the IRA provided as follows: “This

Agreement is governed by, and shall be construed in
The award at hand could be seen as two-fold accordance with, the laws of the Switzerland. All
in the sense that the Appellant’s appeal disputes with respect to this Agreement, including,
contained various procedural requests on the without limitation its validity, construction and
one hand and requests for relief as to the merits performance, shall belong to the exclusive jurisdiction of
of the dispute on the other hand. These two the courts of Lausanne, Switzerland”.
aspects would be addressed in turn. As a
preliminary note, it was recalled that the The Swiss Federal Tribunal (“SFT”) defined an
Appellant had filed the following claims under arbitration agreement in the case SFT
two different agreements: 4A_342/2019 as follows (free translation): “An
arbitration agreement is an agreement by which two or
S/No Amount Description of Claim more specific or identifiable parties agree to submit one
Claimed
a. EUR Claim awarded in the
or more existing or future disputes to binding arbitration
496,525.47 Appealed Decision (and in accordance with a directly or indirectly determined
Interest of 5% based on the Contract) legal order, to the exclusion of the original state
pa from 10 and not appealed by the jurisdiction (…). It is decisive that the will of the parties
August 2021 Appellant is expressed to have certain disputes decided by an
b. EUR Claim based on Article
181,818.00 2(4) of the Contract arbitral tribunal, i.e. a non-state court”.
Interest of 5% because of Club’s
pa from 13 promotion to the CSL on The Appellant was of the view that the term
January 2022 12 January 2022 (based “the courts of Lausanne” did not only cover state
on the Contract) courts in Lausanne, but also included arbitral
c. EUR Claim based on Article
2,082,922.13 1(3) in conjunction with
tribunals having their seat in Lausanne.
Interest of 5% Article 2(1) of the
pa from 13 July Contract for the period The Sole Arbitrator disagreed with such
2021 from 23 January 2022 to construction of the clause. The term “courts”
23 January 2023 typically refers to state courts. In addition, the
Sole Arbitrator noted that – unlike the clause
109
contained in the Contract – Article 12 of the the IRA because the IRA was part of the
IRA did not provide for an “express waiver to the Contract. The Sole Arbitrator noted that
national courts”. Furthermore, the clause in nothing in the Contract pointed in such
Article 12 of the IRA did not foresee – e.g. – direction. Instead, Article 6 of the Contract
first-instance proceedings before the FIFA provided: “[The Player] and [the Club], or an
adjudicatory bodies. Absent any clear affiliated appointed by Party B, will conclude a separate
indication or evidence submitted by the Agreement for the use of Party B’s image rights in
Appellant that the parties to the IRA intended China”.
the term “courts of Lausanne” to cover also
arbitral tribunals, the Sole Arbitrator was not Contrary to what the Appellant stated, it
prepared to construe the provision as granting followed from Article 6 of the Contract that
a mandate to CAS to adjudicate disputes any regulation pertaining to the use of the
arising from the IRA. While the word “Court” Appellant’s image rights will not be dealt with
appeared in the English version of CAS’ name, in the Contract, but remained reserved for a
CAS was not a court in the proper sense under “separate” contract. Furthermore, the Sole
domestic law but rather an arbitral tribunal. Arbitrator noted that the parties to the
Contract and to the IRA were different.
Even, if one were to follow Appellant’s
argument that the plural “courts” refer to both With regard to the argument that Article 8(2)
state courts and arbitral tribunals, this would of the Contract extends to the disputes arising
not have been of any help to the Appellant, from the IRA, the Sole Arbitrator referred to
since a key requirement of a valid arbitration SFT 142 III 239 (consid. 5.2.3), where the SFT
clause in Swiss law was that it excluded all held (free translation): “According to the group of
recourse to state courts (which was not the case contracts theory, when several contracts are materially
here). Furthermore, there was simply no connected, such as the framework agreement and the
indication on file that the parties to the IRA various related contracts, but only one of them contains
wanted to give a potential claimant the option an arbitration clause, it is to be presumed, in the absence
either to resort to state courts or to an arbitral of an explicit rule to the contrary, that the parties
tribunal. intended to make the other contracts in the same group
subject to that arbitration clause as well”.
Finally, the Sole Arbitrator was minded by the
jurisprudence of the SFT that a strict threshold In the case at hand, there could have been no
must be applied in determining whether the doubt that the Contract and the IRA were
parties wanted to resort to arbitration (contrary materially connected. Thus, the question arose
to the interpretation of the scope of an whether in light of this interconnection
arbitration agreement). In SFT 4A_342/2019, between the contracts, the dispute resolution
consid 3.2, the SFT stated as follows (free clause contained in the Contract extended to
translation): “When interpreting an arbitration the IRA.
agreement, its legal nature must be taken into account;
in particular, it must be noted that the waiver of a state It follows from the above jurisprudence of the
court severely restricts the avenues of appeal. According SFT, however, that such extension cannot be
to the case law of the Federal Supreme Court, such a assumed automatically, but only absent any
waiver cannot be assumed lightly, which is why a indications to the contrary. In the case at hand,
restrictive interpretation is required in case of doubt”. the fact that the IRA contained a separate and
different dispute resolution clause spoke
The Appellant argued that the CAS was against extending the scope of Article 8(2) of
competent to decide on the claim arising from the Contract to disputes arising from the IRA.
110
In light of Article 12 of the IRA, there was no something in dispute between the Parties. This
indication on file that the parties to the IRA also followed from Article R27 of the CAS
and the Contract (that again are not identical) Code according to which the CAS’ mandate is
wanted to submit all disputes arising from to decide “sports-related disputes”. As the non-
these contracts to the CAS. appealed part of the Appealed Decision had
become final and binding and no longer was in
To conclude, the Sole Arbitrator found that – dispute between the Parties, the Sole Arbitrator
absent any arbitration agreement of the Parties was not empowered in an appeal arbitration
in favor of the CAS – CAS was incompetent to proceeding to render a partial award on claims
adjudicate any claims arising from the IRA. that became final and binding.
Thus, Appellant’s claim for payment in the
amount of EUR 2,522,075.00 including Finally, the Sole Arbitrator found that the
interest had to be rejected. Appellant’s request was directed against the
wrong respondent as the Player was in essence
2. Request for a partial award seeking to overturn the decision of the FIFA
Disciplinary Committee to suspend the
The Player requested the CAS to issue a partial enforcement proceedings pertaining to the
award in relation to the unchallenged part of (final and binding portion of the) Appealed
the Appealed Decision. The Player claimed to Decision. The proper recourse in such
have a legitimate interest to obtain a partial circumstances would have been to lodge an
award. Furthermore, he pointed to Article 188 appeal against the decision of the FIFA
of the PILA, which provides that an arbitral Disciplinary Committee. To conclude,
tribunal may render partial awards, unless the therefore, the Sole Arbitrator found that the
parties have agreed otherwise. The Player was Appellant’s request for a partial award had to
aware of Article 24(5) lit. b of the FIFA RSTP, be rejected
which reads as follows: “The time limit [within
which the debtor must pay the full amount 3. Admissibility of a submission filed after the
due] is also paused by an appeal to the Court of expiry of a time limit
Arbitration for Sport”.
It was uncontested that the Appellant missed
The Sole Arbitrator acknowledged that there the deadline to timely submit his Reply. The
was a “non-appealed portion” of the Appealed Appellant’s counsel explained that the reasons
Decision and that the Respondent did not for such late uploading were due to medical
appeal the FIFA decision at all. The non- reasons i.e., huge vertigo problems. The
appealed portion of the Appealed Decision counsel of the Appellant filed medical reports
that had became final and binding, thus, related to support his submissions. The Sole
to: “EUR 496,525.47 as compensation for breach of Arbitrator saw the evidence submitted by the
contract plus 5% interest p.a. as from 10 August 2021 Appellant and had no reason to doubt the
until the date of effective payment”. accuracy and veracity of the submissions of the
Appellant’s counsel. Thus, in view of the
The Sole Arbitrator found that CAS did not extraordinary circumstances in the case at
have competence to issue a partial award in hand, the Sole Arbitrator found that the
respect of this non-appealed portion of the Appellant’s counsel was excused for having
Appealed Decision. The Sole Arbitrator’s missed the filing deadline. The Sole Arbitrator
mandate was limited to the matter in dispute further found that the delay was minimal (1
before him. Thus, for the Sole Arbitrator to day) and that no prejudice was caused by such
issue a decision there had to have been delay to the Respondent’s right to be heard.
111
 Appellant only changed the quantum in
4. Presentation of new claims at appeal level relation to the requests, the matter in dispute
had not changed. The core of the claims filed
It follows from the de novo-principle enshrined before the FIFA DRC and the CAS being
in Article R57 of the CAS Code that the Parties identical, the Sole Arbitrator was mandated to
may introduce, in principle, new facts and adjudicate both claims.
evidence before the CAS that were not
available at the previous instance. Thus, the With regards to the Appellant’s claims referred
Appellant was not barred from availing himself b. and c., the main the issues to be resolved by
of the fact that the Respondent got promoted the Sole Arbitrator were as to whether the Club
to the CSL on 12 January 2022. However, terminated the Contract? Did the Club had
Article R57 of the CAS Code does not ‘just cause’ to terminate the Contract? If not,
empower an appellant to change the matter in what was the amount of damages that the
dispute vis-à-vis the first instance. Article R47 Player was entitled to?
of the CAS Code provides that an appellant
must have exhausted the internal legal 5. Scope of res judicata
remedies before lodging an appeal to the CAS.
Consequently, an appellant, in principle, It is true that the Respondent did not appeal
cannot submit a matter in dispute for the Appealed Decision. It is equally true,
adjudication in CAS appeals arbitration however, that the binding effect of the
proceedings that was not before the previous Appealed Decision was limited to the operative
instance. part of such decision only and not to its
reasoning. This followed from the simple fact
The Sole Arbitrator concurred insofar with the that the Parties, when submitting to the FIFA
findings in CAS 2012/A/2874, where the adjudicatory bodies, agreed to be bound by
panel found that “New claims advanced in appeal, such decision as if the latter was rendered by
hitherto not claimed in the previous litigation, are in state court. Consequently, the binding effect of
principle inadmissible. However, the Panel finds that the Appealed Decision would not go beyond
claims that could, for legitimate reasons, not have been the res judicata effects of a decision by a state
advanced in the previous litigation, but were likely to court (or an arbitral award). Since the operative
have been claimed in the absence of such legitimate part of the Appealed Decision did not state
reasons at that time, do fall under the de novo that the Respondent terminate the Contract
competence of CAS Panels and should hence be with just cause, the Sole Arbitrator was not
considered as admissible”. Considering the bound by the respective reasoning of the FIFA
aforementioned, the Sole Arbitrator concluded DRC.
that the scope of review of CAS was not
unlimited, but – instead – was restricted to the 6. Determination of the existence of a just
scope of the procedure before the FIFA DRC. cause to terminate an employment contract
Thus, claims made in appeal proceedings in
front of CAS could not cover matters outside Despite of the above, the Sole Arbitrator
the scope of the appealed decision, unless found that he had no reason to depart from the
exceptions like those mentioned in CAS findings of the Appealed Decision. The
2012/A/2874 were present. Respondent could not establish any breach of
the Player on or before the date the Club first
However, in casu, the two damage heads left to lodged a claim against him for breach of
be adjudicated in these CAS proceedings had contract on 13 July 2021. The Sole Arbitrator
already submitted before FIFA. As the observed that the Club had – by then –signed
112
a contract with Mr. [F.] with the consequence arbitration proceeding. Furthermore, the Sole
that the Player could no longer be registered Arbitrator found that the bonus in question
with the Club. Furthermore, the Respondent was “a benefit” within the meaning of Article
stopped paying the salaries due under the 17(1) of the FIFA RSTP. The only remaining
Contract as of 8 July 2021. On 26 July 2021, question was whether such benefit would have
the Player sent the Club a letter requesting the been due to the Player (in case the Contract
Club to state whether his services were still would not have been terminated by the Club).
required by the Club and set a deadline until 29 The Respondent submitted that this was not
July 2021. The Player then showed up at the the case, since the bonus was “performance-
Club’s premises where he was told by the Club related”, the promotion was achieved after the
that the Contract had been terminated and that Contract was terminated (i.e. on 12 January
the Player could seek new employment. It was 2022) and because the promotion was
only on 11 August 2021 that the Player entered completely unrelated to the Player’s
a new employment contract with the Swedish performance.
club Degefors. To conclude, the Sole
Arbitrator found that it was the Respondent The Sole Arbitrator was not prepared to follow
that unlawfully terminated the Contract this. The Club unlawfully terminated the
without just cause, and upheld the Appealed Contract on 13 July 2021. Without such
Decision in this regard. termination the Player would have trained and
played with the Respondent. Consequently, it
7. Calculation of compensation for breach of cannot be excluded that the Player would have
contract maybe contributed to the Respondent’s
promotion to the CSL had the Contract
In case a club terminated an employment continued until the end of the season. Since the
contract without just cause, Article 17(1) of the Respondent – contrary to good faith –
FIFA RSTP provides the consequences in prevented the condition from materializing by
favor of a player. In the case at hand, it is terminating the Contract without just cause,
undisputed that the Contract did not include a the Club should be treated as if the condition
provision by means of which the parties had had materialized in full.
beforehand agreed upon an amount of
compensation payable in the event of breach It followed from the above that the Player was
of contract. Consequently, the amount of entitled to the bonus in the amount of “Euro
compensation payable by the Club to the 181,818 (…) before tax, which shall be amounting to
Player had to be assessed in application of the 100,000 euros after tax withheld in China)”. The
other parameters set out in Article 17(1) of the Player claimed the amounts brut (i.e. before
FIFA RSTP. The Player submitted that when tax) and the Respondent did not object to this.
calculating the residual value of the Contract, Consequently, and – since the Player was no
the bonus provided for under Article 4(2) of longer resident in China – the amount shall be
the Contract and the automatic extension of awarded brut. The Appellant submitted that
the term of the Contract according to Article the bonus fell due on 12 January 2022, to
1(3) of the Contract needed to be taken into which the Club did not object. Hence, the Sole
account: Arbitrator found that the bonus fell due on 12
January 2022. Furthermore, the Sole Arbitrator
It was uncontested that the Club was found that – absent any contrary submission
promoted to the CSL. As explained above, this by the Respondent – the Appellant is entitled
fact (not available before the first instance) to interest at 5% p.a. on the aforementioned
should be taken into account in this appeal
113
amount as of 13 January 2022 until the date of Consequently, the Sole Arbitrator found that
effective payment. the 2022 season (i.e. the period between
a. 23/01/2022 and 22/01/2023) provided for in
b. With regard to the question of the Player’s Article 1(3) of the Contract should be taken
entitlement to the extended term of the into account when calculating the residual
Contract, the Contract provided for an value of the Contract. The Player had
automatic extension in Article 1(3), which requested the amount brut and the Respondent
reads: “3. The Term has an option year from did not object to this. The Sole Arbitrator,
23/01/2022 (day/month/year) to 22/01/2023 thus, found that the Player was entitled to EUR
(day/ month/year). The option year will be 2,181.818 brut. However, the Player had to –
activated when Party B reaches one or multiple of according to Article 17(1) (ii) of the FIFA
the following targets: (…) - In case Party A is RSTP – deduct the amounts due under the new
promoted to the CSL (CSL) during the duration of contract with Degerfors. The Player submitted
Party B’s contract”. that his alternative income at Degerfors for the
relevant period amounted to “SEK
The Respondent sought to argue that the 1,047,096.77 gross, which equals EUR
Contract was only extended for the optional 98,895.8786” and that, therefore, the “residual
year if three (3) conditions are satisfied, viz, (i) value of the Contract in the period from 23 January
the Player reaches a target i.e., the Player should 2022 until 22 January 2023 amounts to EUR
be playing for the Club, (ii) the Club is 2,082,922.13 gross”. These submissions
promoted to the CSL, and (iii) the promotion remained uncontested by the Respondent.
should happen during “the duration” of the Furthermore, the Appellant claimed 5%
Player’s Contract. The Sole Arbitrator interest p.a. on the amount of EUR
disagreed with this reading. Article 1 of the 2,082,922.13 as of 13 July 2021, i.e., the date
Contract very clearly stipulated that “the option upon which the Contract was terminated
year will be activated when [the Player] reaches one or without just cause. Again, these submissions
multiple of the following targets”, which included have remained uncontested by the Respondent
that the Club was promoted to the CSL during and, therefore, the Sole Arbitrator would
the Contract Term. Article 1 did not provide award the aforementioned claim for interest.
that the option was only activated in case the
Player “plays for the Club”. 8. Criteria for the granting of a declaratory
relief
The Respondent also claimed that the
extension of the Contract – in addition – The Appellant did not make a specific request
required that the Contract had not expired for declaratory relief. However, in his
otherwise by the time the promotion was submissions he inter alia stated “the Player
secured. The Sole Arbitrator did not concur respectfully requests that the CAS expressly
with this view. The Club would not escape its acknowledges that he shall ultimately receive the total
obligation arising from the Contract by simply amount of 3,163,195.21 (plus interest), net”.
breaching and terminating the latter on 13 July The Sole Arbitrator interpreted this request of
2021. The term “duration of Party B’s contract” in “acknowledgement” to mean that the Player
Article 1(3) of the Contract referred to the requested the CAS to find that in case taxation
ordinary term of the Contract or to instances and other public expenses imposed on the
in which the Club would have been entitled to Player in Serbia exceeded a certain amount, he
terminate the Contract according to Article 7 would be entitled to claim further damages
of the Contract. from the Club.

114
The Sole Arbitrator found that such claim was
premature since it was unknown what taxes
and other expenses the Appellant will pay in
Serbia on the amounts awarded to him under
this Award. Furthermore, the Sole Arbitrator
found that the request was not sufficiently
substantiated.

Finally, the Sole Arbitrator did not concur with

the Appellant that the Respondent should bear
taxes and other public expenses incurred by the
Appellant in Serbia. No such guarantee
followed from the Contract. In particular,
Article 2(6) of the Contract was drafted in light
of the Chinese taxes and expenses. Thus, the
provision sought to guarantee certain net
amounts in case the Player was submitted to
taxes and public expenses in China. The
provision, however, was mute in respect of
taxes and other expenses that the Player should
pay in other countries. Consequently, the Sole
Arbitrator found that the Player’s request for
declaratory relief should be dismissed.

Decision

In light of the foregoing, the Sole Arbitrator

inter alia decided that the appeal filed on 30
January 2022 by Nikola Djurdjic against the
decision rendered on 11 January 2022 by the
FIFA Dispute Resolution Chamber was
partially upheld. Point 4 of the operative part
of the decision issued on 11 January 2022 by
the FIFA Dispute Resolution Chamber was
amended as follows: Chengdu Rongcheng
Football Club LTD had to pay to Nikola
Djurdjic (a) an amount of EUR 181,818, plus
interest of 5% per annum from 13 January
2022 until the payment was effectively made
(b) an amount of EUR 2,082,922.13, plus
interest of 5% per annum from 13 July 2021 until
the payment was effectively made. All other
and further motions or prayers for relief were
dismissed.

115
___________________________________ Collectively, Sellier, Udinese and FIFA are
CAS 2022/A/8737 referred to as the “Respondents”. Hellas
Hellas Verona FC S.p.A v. FC Sellier and Verona, Sellier, Udinese and FIFA are referred
Bellot Vlasim & Udinese Calcio S.p.A & to as the “Parties”.
Fédération Internationale de Football
Association (FIFA) On 17 September 2020, Udinese and Hellas
7 March 2023 Verona concluded a loan agreement (the
___________________________________ “Loan Agreement”) regarding the Czech
professional football player [A.] (the “Player”)
Football; Contribution for solidarity; Legal from Udinese to Hellas Verona as from 17
interest; Standing to be sued; Claim in September 2020 until 30 June 2021. The Loan
connection with the reimbursement of a Agreement included an obligation for Udinese
payment of solidarity contribution to accept to convert the Player’s loan into a
opposing two clubs affiliated to the same permanent transfer to Hellas Verona if certain
national football association conditions were subsequently met. On 1 July
2021, the Player became permanently
Panel registered with Hellas Verona in exchange for
Mr Lars Hilliger (Denmark), President the payment of “EUR 3,000,000 at the start of
Mr Michael Nicholson (United Kingdom) the season 21/22; and EUR 3,000,000 at the start
Mr Patrick Lafranchi (Switzerland) of season 22/23”.

Facts On 31 December 2021, Sellier lodged a claim

[before the Dispute Resolution Chamber
Hellas Verona FC S.p.A. (“Hellas Verona” or (DRC) of the FIFA Football Tribunal] against
the “Appellant”) is a professional Italian Hellas Verona, requesting, inter alia, solidarity
football club affiliated with the Federazione contribution payment in connection with the
Italiana Giuoco Calcio (the “FIGC”), which in transfer of the Player from Udinese to Hellas
turn is affiliated with the Fédération Verona. According to the [undisputed] player
Internationale de Football Association passports, the Player was registered as a
(“FIFA”). professional (on loan) with Sellier from 24 July
2014 to 25 January 2015 and again from 19
FC Sellier and Bellot Vlasim (“Sellier” or the February 2015 to 30 June 2015, i.e. 318 days of
“First Respondent”) is a professional Czech the season of his 20th birthday. Sellier held that
football club affiliated with the Football it was entitled to EUR 27,226.03.
Association of the Czech Republic (the
“FACR”), which in turn is affiliated with FIFA. By letter dated 31 January 2022, Hellas Verona
acknowledged Sellier’s entitlement to solidarity
Udinese Calcio S.p.A. (“Udinese” or the contribution in connection with the temporary
“Second Respondent”) is a professional Italian transfer and subsequent permanent transfer of
football club affiliated with the FIGC. the Player to Hellas Verona and provided in
that respect proof of payment of solidarity
FIFA (the “Third Respondent”) is the world contribution to Sellier in the amount of EUR
governing body of football, based in Zurich, 2,178.08 made on 25 March 2021.
Switzerland.
Furthermore, Hellas Verona stated, inter alia,
that it was entitled and obligated – according
to the FIFA Regulations on the Status and would become permanent at the first Serie A
Transfer of Players (the “FIFA RSTP”) – to point scored by Hellas Verona during the
deduct the relevant solidarity contribution of 2020/2021 season as from 2 February 2021.
5% from the compensation paid to Udinese in
connection with the permanent transfer of the In continuation, and taking into consideration
Player to Udinese, since the Loan Agreement Art. 1 (1) of Annexe 5 of the RSTP as well as
did not stipulate the transfer compensation to the information contained in the above-
be net of solidarity contribution. However, mentioned passports, the FIFA DRC found
Hellas Verona argued that the deduction of that Sellier was entitled to 8.71% of any
solidarity contribution was precluded due to solidarity contribution generated by the
the FIGC regulations and the national transfer of the Player. Considering that the
“clearing house” system, after which the entire total solidarity contribution generated by the
transfer compensation had to be transferred loan and permanent transfer of the Player from
into the FIGC “clearing house” for onward Udinese to Hellas Verona corresponded to
transfer to Udinese. EUR 175,000, of which Sellier was entitled to
receive 8.71%, i.e. EUR 15,242,50, the FIFA
In application of the FIFA RSTP’s DRC decided that the residual amount to be
prescriptions on the solidarity contribution paid to Sellier was EUR 13,064.42 (Sellier
system applicable to domestic transfers, Hellas having already acknowledged having received
Verona requested, inter alia, that Udinese was EUR 2,178.08).
called upon as an intervening party to the
matter and should be ordered to reimburse it The FIFA DRC then found that Hellas Verona
the relevant proportion of the (overpaid) had not provided evidence in support of its
transfer compensation that was not deducted allegations that it had been prevented from
for the solidarity contribution, in line with deducting 5% solidarity contribution from the
FIFA’s jurisprudence. Hellas Verona further loan compensation because of the regulations
held that if Udinese was not included in the and payment system in place at national level
proceedings, then FIGC should be involved at the time of issuing the payment of the loan
instead because it had failed to regulate this compensation to Udinese, and that Udinese
specific matter. should reimburse it for the relevant proportion
of the loan compensation that was not
The FIFA DRC initially confirmed its deducted for the solidarity contribution.
competence and the application of the August
2020 edition of the FIFA RSTP. The FIFA The FIFA DRC recalled that a player’s new
DRC further noted that the obligation to pay club is ordered to remit the relevant
solidarity contribution on national transfers proportion(s) of the 5% solidarity contribution
with an international dimension was to the club(s) involved in the player’s training
introduced with the June 2020 edition of the in strict application of Art. 1 and 2 of Annexe
FIFA RSTP, which came into force on 1 July 5 of the FIFA RSTP, even if the new club and
2020, and according to Art. 26 (2) of the the former club agreed otherwise in the
applicable FIFA RSTP, solidarity contribution relevant transfer or loan agreement. As such,
disputes “shall be assessed according to the regulations the FIFA DRC noted that a potential
that were in force when the contract at the centre of the reimbursement by Udinese could not be
dispute was signed, or when the disputed facts arose”. discussed since the Loan Agreement did not
The Loan Agreement was concluded on 17 contain a clause according to which Hellas
September 2020 and indicated that the loan Verona and Udinese agreed to shift the

117
distribution of the relevant solidarity of Udinese in these proceedings falls within the
contribution to Udinese. Finally, the DRC scope of the present appeal, given that one of
rejected Hellas Verona’s request to involve the the Appellant’s requests for relief during the
FIGC. FIFA proceedings was for FIFA to call
Udinese as a party to the matter. However,
On 11 February 2022, the FIFA DRC rendered FIFA ignored this request in its legal
the Appealed Decision and inter alia decided considerations. It must be noted that in the
that Sellier’s claim was partially accepted, that Loan Agreement, the Appellant and Udinese
Hellas Verona had to pay to Sellier EUR did not agree that the relevant transfer
13,064.42 as solidarity contribution and that compensation was to be net of solidarity
any further claim of Sellier was rejected. On 18 contribution. The fact that the Appellant paid
March 2022, the Appellant filed its Statement 100% of the transfer compensation to Udinese
of Appeal in accordance with the Code of instead of 95% is sufficient to prove that
Sports-related Arbitration, 2021 edition (the Udinese is obliged to reimburse the overpaid
“CAS Code”) and on 23 March 2022, the transfer compensation to the Appellant. This is
Appellant paid the then outstanding solidarity in line with FIFA jurisprudence in so-called
contribution in the amount of EUR 13,064.42 “100 minus 5” cases.
to the First Respondent.
In support of its requests for relief, the First
Reasons Respondent inter alia submitted that as Hellas
Verona has already fulfilled its payment
The main dispute concerned Hellas Verona’s obligation, it has no legal and legitimate interest
request that Udinese Calcio S.p.A be involved in the appeal, which is therefore absolutely
in the proceedings so that the latter club shall inadmissible. Furthermore, and in any case, the
be ordered to reimburse to Hellas Verona any appeal did not contain any prayers for relief
and all amounts paid or due to be paid by against Sellier, and Hellas Verona confirmed its
Hellas Verona to Sellier as solidarity entitlement as decided by the DRC.
contribution in connection with the transfer of
the Player from Udinese to Hellas Verona. In support of its requests for relief, the Second
Respondent submitted, inter alia that the it was
In support of its requests for relief, the never a party to the FIFA proceedings, which
Appellant submitted inter alia that at the time a) were not directed against it; b) did not deal
of the transfer of the Player, the national with its conduct; and c) was only meant to
“clearing house” system in place for the establish the obligation of Hellas Verona as the
payment of transfer fees between Italian clubs new club of the Player to pay the solidarity
for a domestic transfer did not allow any contribution to Sellier as per the FIFA RSTP.
deduction for solidarity contribution, which is The Second Respondent did not have standing
why the Appellant had to pay the entire to be sued and the appeal should be dismissed.
compensation to Udinese. The Appellant then The Second Respondent added that in any
held that Udinese should be confirmed as a case, the precondition for any appeal
party to these proceedings, even if the club was procedure is, inter alia, a legitimate interest of
not a party before the FIFA DRC, since, the party appealing the challenged decision. As
according to the applicable FIFA regulations, Hellas Verona had fulfilled its payment
it is Udinese, as the Player’s former club, that obligation towards Sellier, Hellas Verona has
should bear the relevant financial burden of the no legitimate interest in contesting the
solidarity contribution to Sellier. The inclusion Appealed Decision. Furthermore, FIFA

118
correctly established its lack of competence to because of the national regulations, and b) that
consider the alleged dispute between Hellas the Loan Agreement did not contain any clause
Verona and the Second Respondent. First of providing for a shift in the distribution of the
all, FIFA is competent to hear the disputes relevant solidarity contribution. In any case,
relating to the solidarity contribution between since the request for reimbursement only
clubs belonging to the same association concerned two Italian clubs, consequently
provided that the player at the basis of the lacking the necessary international dimension
dispute is transferred between clubs belonging for FIFA to hear the dispute, the DRC would
to different associations, which condition is not have been competent to hear and,
not fulfilled in the present case. With regard to ultimately, decide on Hellas Verona’s
the question of who should ultimately bear the reimbursement request. FIFA did not deny
financial burden of the solidarity contribution that a former club can be obliged to refund the
in question, the Second Respondent inter alia relevant proportion of the solidarity
asserted that the Italian clearing house is not contribution when there is a legal basis
acting in contradiction to the applicable FIFA pursuant to the FIFA regulations. However, it
regulations, but it is making use of its must be recalled that this approach is only to
discretionary power to decide that the transfer be followed in disputes where the international
compensation between two Italian clubs is element is present.
always net of solidarity contribution. Pursuant
to Art. 2 (1) of Annexe 5 of the FIFA RSTP, 1. Legal interest
“the new club shall pay the solidarity contribution to the
training clubs”, and Hellas Verona, as the new The First and Second Respondents submitted
club, does not have the possibility to shift the that since Hellas Verona complied with the
financial burden to the Second Respondent. Appealed Decision, the said club has no
This is not provided for in the applicable legitimate interest in contesting the Appealed
regulations of the FIGC. This follows, inter alia, Decision.
from Art. 2 (2) of the FIFA RSTP which reads
inter alia, “[t]he transfer of players between clubs Art. 59 par. 1 of the Swiss Civil Procedure
belonging to the same association is governed by specific Code (SPC) reads that “The court shall consider an
regulations issued by the association concerned in action (…) provided the procedural requirements are
accordance with article 1 paragraph 3 below, which satisfied” and Art. 59 par. 2(a) of the SPC sets
must be approved by FIFA”. out the procedural requirement that “the plaintiff
(…) has a legitimate interest”. Additionally, Article
In support of its requests for relief, FIFA 60 of the SPC provides that the court must
submitted, inter alia, that as far it is concerned, examine ex officio whether the procedural
the case revolved around the issue as to requirements of Article 59 of the SPC are
whether the DRC had jurisdiction to deal with satisfied or not and the Panel noted that the
Hellas Verona’s request that Udinese be criterion of legal interest is matter of
ordered to bear the financial burden of paying admissibility.
the solidarity contribution awarded to Sellier,
through the reimbursement of the said Legal interest as an admissibility condition has
contribution allegedly “overpaid” by Hellas also been confirmed by CAS jurisprudence,
Verona. The Appealed Decision correctly such as in CAS 2016/A/4602, and the Panel
addressed that a) that Hellas Verona had failed noted that such a legitimate interest must
to provide evidence that it had been prevented already exist at the time the appeal is filed and
from deducting the 5% solidarity contribution must still exist when the judgment is issued, as

119
confirmed by the Swiss Federal Tribunal (cf. Although the wording of Art. 75 of the SCC is
SFT 146 III 416, consid. 7.4; SFT 111 Ib 182 ambiguous with regard to challenges against
consid. 2a; SFT 109 II 165 consid. 2). If a decisions made by an association other than
legitimate interest that initially existed ceases to resolutions of a general assembly, it is
exist during the course of the process, the uncontested that the said provision applies
application or appeal becomes groundless and mutatis mutandis to decisions of other organs of
is to be dismissed as without relevance. the association. The wording of Art. 75 of the
SCC implies that an appeal, in principle, must
However, the Panel understood that the appeal be directed against the association that
was (at least in essence) directed against the rendered the challenged decision (cf. BGE 136
DRC’s findings on whether or not to include III 345, no. E.2.2.2; RIEMER, BK-ZGB, Art.
Udinese in the proceedings before it. It is 75, no. 60; SCHERRER/BRÄGGER, BSK-ZGB,
undisputed that the Appellant did in fact Art. 75, no. 21).
request FIFA to include Udinese in the
proceedings as an intervening party and to However, CAS jurisprudence allows for an
order Udinese to reimburse the Appellant for exception to the above rule, in particular where
the relevant proportion of the transfer the appealed decision is not of a disciplinary
compensation that was not deducted for the nature, i.e. where the sports association merely
solidarity contribution. However, such a acts as an adjudicatory body in relation to a
request was not upheld by the FIFA DRC dispute between its members. Thus, when
since, inter alia, as explained by FIFA during deciding who is the proper party to defend an
these proceedings, the dispute between the appealed decision, CAS panels proceed by a
Appellant and the Second Respondent fell balancing of the interests involved and by
outside the competence of the FIFA DRC. As taking into account the role assumed by the
such, the Panel found that the primary scope association in the specific circumstances.
of the appeal was in fact the alleged jurisdiction Consequently, one must ask whether a party
of the FIFA DRC. Consequently, the Panel “stands to be sufficiently affected by the matter at hand
found that the Appellant has a legitimate in order to qualify as a proper respondent within the
interest with regard to the question concerning meaning of the law” (cf. CAS 2017/A/5227, para.
the DRC’s competence of the FIFA DRC. It 35). Similarly, the CAS panel in 2015/A/3910
followed that the appeal was admissible. at para. 138 held as follows: “[T]he Panel holds
that in the absence of a clear statutory provision
2. Standing to be sued regulating the question of standing to be sued, the
question must be resolved on basis of a weighing of the
The Panel initially noted that the question of interests of the persons affected by said decision. The
standing to be sued (or to sue) is an issue of question, thus, is who (…) is best suited to represent
substantive law (cf. CAS 2020/A/6694; CAS and defend the will expressed by the organ of the
2016/A/4602; CAS 2013/A/3047; CAS association”.
2008/A/1639). The Panel further referred to
Art. 75 of the Swiss Civil Code (the “SCC”), In the present case, the Panel understood that
which reads that “Any member who has not the appeal was (at least in essence) directed
consented to a resolution which infringes the law or the against the finding of the FIFA DRC on
articles of association is entitled by law to challenge such whether or not to include Udinese in the
regulation in court within one month of learning proceedings before the DRC.
thereof”.

120
In this regard, as the Appellant did already fulfil at hand in such a way that it qualified the club
its payment obligations towards Sellier and as to act as a proper respondent in these appeal
the appeal did not contain any prayers for relief proceedings. Furthermore, the Panel found
against Sellier, the Panel found that Sellier was once more that the circumstance that a similar
not affected by the matter at hand in such a issue regarding the question of distribution and
way that it qualified it as a proper respondent. reimbursement of the solidarity contribution
The Panel further found that the circumstance originating from the second instalment of the
that the First Respondent was probably transfer compensation as set out in the Loan
entitled to receive a solidarity contribution Agreement might arise was not sufficient to
originating from the second instalment of the change this. As such, the Panel found that the
transfer compensation, as set out in the Loan Udinese has no standing to be sued.
Agreement, was not sufficient to qualify it as a
proper respondent in the present dispute. As 3. Claim in connection with the reimbursement
such, the Panel found that Sellier has no of a payment of solidarity contribution
standing to be sued. opposing two clubs affiliated to the same
national football association
With regard to the Udinese, the Panel noted
that the said club was never a party to the FIFA Initially, the Panel acknowledged the wordings
proceedings, which did not deal with the of Art. 20, Art. 22 lit. d), e) f) and Annexe 5(1)
conduct of the club and which procedure was (1) of the FIFA RSTP.
only initiated by Sellier in order to establish the
obligation of the Appellant as the Player’s new The Panel found that the dispute between the
club to pay the solidarity contribution to Sellier Appellant and the Second Respondent, both
in accordance with the provisions of the FIFA before the DRC and before the CAS, was
RSTP. essentially a dispute regarding a claim for
reimbursement of the solidarity contribution,
And even though the Appellant’s requests for which the Appellant never disputed Sellier’s
relief during these appeal proceedings were to was entitled to.
some extent directed against Udinese, the
relevance of such requests was, in any case, The Panel noted that since both Hellas Verona
depending on whether the Panel ultimately and Udinese are Italian clubs affiliated with the
finds that the DRC was wrong in not including FIGC, the said dispute was only of a national
the Second Respondent in the procedure dimension. The fact that the alleged claim for
before it, which, according to the Appellant, reimbursement originated from a claim for
was the real scope of these appeal proceedings. solidarity contribution from a Czech football
club against an Italian club regarding a Czech
Furthermore, and even if the Panel was to player’s transfer did not give the present
uphold the Appellant’s appeal in this regard, dispute between two Italian clubs a sufficient
the Panel noted that it would probably have international dimension with regard to the
found that the prudent thing to do in such case possible jurisdiction of FIFA and the
would then be to refer the dispute back to the application of FIFA rules applicable to clubs
DRC in order to give Udinese the opportunity belonging to different associations. As such,
to state its case. and pursuant to Art. 22 (f), and even pursuant
to Art. 22 (d) and (e), if the dispute was to be
Based on the above, the Panel found that considered a dispute relating to solidarity
Udinese was not directly affected by the matter contribution, the Panel found that FIFA was in

121
fact not competent to hear and decide on the of an international dimension in order to give
dispute between the Appellant and the Second FIFA competence to hear and decide the
Respondent. dispute was in fact fulfilled.

The Panel noted that the Appellant submitted In addition to the above, the Appellant
that the FIFA DRC did not base its dismissal submitted that in case FIFA did not have
of the Appellant’s request to have Udinese jurisdiction to hear the present dispute
included in the FIFA proceedings on the between two clubs affiliated with the same
(alleged) incompetence, but only referred to a) national association pursuant to the FIFA
the Appellant not having “provide[d] evidence in RSTP, this constituted a lacuna in the applicable
support of its allegations that it had been prevented from rules, which had to be filled by FIFA and/or
deducting the 5% solidarity contribution”, which was the CAS. As domestic transfers with an
in any case irrelevant, and b) that the Loan international dimension were included in the
Agreement did “not contain a clause according to system of FIFA solidarity contribution, FIFA
which the [Appellant] and [Second Respondent] should also be competent to hear and decide
agreed to shift the distribution of the relevant solidarity on disputes in relation hereto, not least in order
contribution from the former to the latter”. to safeguard the principle of procedural
economy.
In this regard, the Panel noted that FIFA
confirmed that in international disputes in FIFA submitted that there was no lacuna in the
which the parties to a transfer agreement have rules as the amended applicable rules were very
truly agreed to shift the financial obligation of clear. It was also important for FIFA to stress
the solidarity contribution, and where it is that, as confirmed by the CAS, when a dispute
requested to do so, the DRC can render a is considered to be of a national/internal
decision in which it would order the former nature, one of the consequences was that the
club to reimburse the solidarity compensation rules and regulations of the association
that it might have received from the Player’s concerned had to be applied to the matter and
new club. As it was undisputed that the Loan the deciding bodies in accordance with the
Agreement did not include any provision relevant provisions were to rule on the issue. If
according to which the parties to the Loan FIFA’s deciding body would be dealing with
Agreement agreed to shift the obligation to such an internal matter, the internal
distribute the relevant solidarity contribution competence of a FIFA member association
to Sellier, and since the Panel did not find any would be violated. Moreover, FIFA was not
applicable FIFA provision that would in any “the only remedy” for clubs in such disputes
case have allowed to implead the Second without a sufficient international dimension.
Respondent by a process analogous to a third
party notice, the Panel appreciated why the The Panel was not convinced that there existed
DRC apparently based its dismissal of the a lacuna in the applicable rules regarding FIFA’s
Appellant’s request, inter alia, on the lack of competence to hear disputes between two
contractual basis for the reimbursement. national clubs regarding the possible
reimbursement of solidarity contributions. In
As the FIFA DRC, already because of such this regard, the Panel agreed with the Sole
lack of contractual basis, was not in a position Arbitrator in CAS 2016/A/4441 that one of
to include the Second Respondent, the Panel the consequences of the dispute being of a
appreciated why the FIFA DRC decided that it national/internal dimension was that “the rules
did not have to analyse whether the requisition and regulations of the association concerned must be

122
applied to the matter and the deciding bodies in
accordance with the relevant provisions are to rule on the
issue. If FIFA’s deciding body would deal with such an
internal matter, the internal competence of a FIFA
member association would be violated”. If FIFA was
to be competent to hear and decide on such
disputes between clubs affiliated with the same
national association, in addition to violating the
internal competence of the member
association, it would also have as a
consequence that the national provisions
regarding solidarity contribution might not be
applied, which, at least in the Panel’s view, was
not the intention. Based on the above, the
Panel found that the FIFA DRC was correct in
dismissing the Appellant’s request for
inclusion of the Second Respondent in the first
instance procedure before FIFA. As such, the
Panel found no grounds to deal with the
alleged unjust enrichment of the Second
Respondent or on the issue of whether the
FIGC provisions regarding solidarity
contribution were in conflict with the FIFA
regulations on the same issue.

Decision

The appeal filed on 18 March 2022 by Hellas

Verona FC S.p.A. against the decision
rendered by the DRC of the FIFA Football
Tribunal on 11 February 2022 was dismissed
and such decision was confirmed. All other and
further motions or prayers for relief were
dismissed.

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___________________________________ personal responsibility to advise the ITF of
CAS 2022/A/9033 their whereabouts on a quarterly basis, to
International Tennis Federation (ITF) v. maintain that information accurate and
Mikael Ymer complete at all times, and to make themselves
17 July 2023 available for testing at such whereabouts.
___________________________________
Players who fail to meet these requirements are
Tennis; Doping (whereabouts failure); liable to have a Whereabouts Failure recorded
DCO’s duty to locate athletes; Athlete’s against them. The International Standard for
obligation to comply with anti-doping Results Management (“ISRM”) define a
regulations in connection with Whereabouts Failure as a failure to file or
whereabouts requirements; Concept of maintain accurate and complete information
negligence under the International on an athlete’s whereabouts enabling the
Standard for Results Management; athlete to be located for testing at the times and
Sanction of ineligibility; Disqualification of locations indicated (a “Filing Failure”) or a
results failure by the athlete to be available for testing
at the location and time indicated in the 60-
Panel minute time slot identified in the Whereabouts
Mr Romano Subiotto KC (United Kingdom), Filing for the day in question (a “Missed Test”).
President
Mr Jeffrey Benz (USA) Article 2.4 TADP provides that a player in the
Mr Nicholas Stewart KC (United Kingdom) IRTP commits an Anti-Doping Rule Violation
(“ADRV”) if he/she accrues any combination
Facts of Three Missed Tests and/or Filing Failures
within a 12-month period.
The International Tennis Federation (the
“Appellant” or “ITF”) is the international On 5 December 2019, the ITF notified the
governing body for the sport of tennis, Player that he had been selected for inclusion
recognized as such by the International in its IRTP with effect from 1 January 2020.
Olympic Committee, and is a signatory to the
World Anti-Doping Code (the “WADA The Player had three Whereabouts Failures (22
Code”). April 2021, 10 August 2021, 7 November
2021) recorded against him in the 12 months
Mikael Ymer is a 24-year-old professional prior to 7 November 2021. At first instance,
tennis player from Skara, Sweden, whose the Player accepted his first two Whereabouts
highest individual ATP ranking was No. 67 (as Failures, but contested his third Whereabouts
of 19 September 2022) (the “Respondent” or Failure, arguing that (a) the Doping Control
the “Player”). He is also Sweden’s top male Officer (“DCO”) who attempted to locate the
tennis player. Player did not make a reasonable attempt to do
so, and (b) no negligence on the part of the
Article 5.4.2.2 of the Tennis Anti-Doping Player contributed to the Whereabouts Failure.
Programme (“TADP”) (which reflects Article
4.8 of the International Standard for Testing More particularly concerning the third
and Investigations (“ISTI”)) provides for an Whereabouts Failure, the Player was scheduled
International Registered Testing Pool to play at the 2021 Open International de
(“IRTP”) of tennis players, who have a Tennis de Roanne from 8-14 November (the
“Event” or the “Roanne Tournament”). On or Unsuccessful Attempt Report and a Mission
around 5 November 2021, International Summary and sent them to IDTM.
Doping Tests & Management (“IDTM”) had
instructed one of its DCOs to collect urine and By letter dated 12 November 2021, the ITF
blood samples Out-of-Competition in the formally notified the Player of this apparent
period between 5 November 2021 and 8 Missed Test.
November 2021 from the Player and another
player. The DCO went online to the Anti- On 26 November 2021, the Player’s legal
Doping Administration and Management representative responded to that letter,
System (“ADAMS”) database to see the asserting that a Missed Test should not be
declared location of the Player in that period. recorded against the Player because he was
He noted that the Player had said that, between moved to a different hotel by the tournament
6 am and 7 am on 7 November 2021, he would organiser, but the Player’s agent (who updated
be at the ‘Hôtel Ibis Styles Roanne Centre Gare the Player’s whereabouts on his behalf) did not
46 Cr de la Republique Roanne FRANCE receive news of that change and therefore did
42300’. The DCO intended to test him in that not make the necessary update.
60-minute time slot on that day.
By letter dated 3 December 2021, the ITF
At 5:50 am on 7 November 2021, the DCO informed the Player that it had considered his
checked the Player’s ADAMS account to see if response and was recording a Missed Test and
he had changed or updated his whereabouts therefore a third Whereabouts Failure against
information at all, but he had not. him.

The DCO arrived at ‘Hôtel Ibis Styles Roanne Pursuant to Article 7.7.7 TADP, the ITF
Centre Gare 46 Cr de la Republique Roanne referred the three Whereabouts Failures within
FRANCE 42300’ at 5:55 am local time on 7 a 12-month period to the independent Review
November 2021. The DCO introduced Board, which reviewed the file and determined
himself to the hotel receptionist and explained that the Player had a case to answer for breach
to him the ITF hotel testing procedure and of Article 2.4 TADP.
showed his credentials. The hotel receptionist
checked the guest list and informed the DCO On 27 January 2022, the ITF sent a Charge
that the Player was not on the list, and that Letter to the Player, formally charging him in
nobody with that name had checked in or was accordance with Article 7.13 TADP with
expected to check in on 7 November. The commission of an ADRV under Article 2.4
DCO stayed in the reception area until the end TADP because he appeared to have
of the hour slot and Mr Ymer did not show up. committed the three Whereabouts Failures
In the last five minutes of the hour, the DCO within a 12-month period. The ITF enclosed
called each of the two telephone numbers copies of the relevant documentation and
listed in the Player’s whereabouts filing: the correspondence concerning the Whereabouts
first call rang once before the DCO heard a Failures, and gave the Player twenty days (i.e.
message in Swedish and the call was until 16 February 2022) to respond to the
transferred to an automatic inbox, and the charge and to request a hearing before the
second call rang four times before the DCO Independent Tribunal established in
heard a message in English and the call was accordance with the Tennis Anti-doping
transferred to an automatic inbox. The DCO’s Programme.
calls were not returned. The DCO filled in an

125
On 17 February 2022, Mr Jacobs responded to the CAS award was issued (TADP Article
the Charge Letter on the Player’s behalf, using 10.13).
the TADP portal. The Player denied the
violation. The Player contested the third alleged
Whereabouts Failure. He recalled that, under
On 23 June 2022, the Independent Tribunal in Annex B.2.4 ISRM, a “Missed Test” finding
disciplinary proceedings brought by the ITF requires the ITF to prove (i) that the DCO did
against the Player decided (the “Decision”) what was reasonable in the circumstances to
that the Player had not violated Article 2.4 of locate the Player, and (ii) that the Player was
the TADP. The Independent Tribunal found, negligent. The Player submitted that the DCO
in connection with the third Whereabouts who attempted to test him did not do what was
Failure, that the DCO did all that was required reasonable under the circumstances to locate
of him to locate the Player, but that no the athlete on 7 November 2021, when the
negligence could be attributed to the Player or Player was at the only other designated athlete
his agent, finding that: hotel, the Kyriad Hotel, and not the Hotel Ibis.
The Player concluded that, consistent with
“On a general point of view, it has been established that Annex B.2.4 ISRM, the 7 November 2021
no reproach can be made against the Player for the Whereabouts Failure should be set aside,
delegation of his whereabouts duties. More specifically, because he was not negligent and because the
as the Player did not know the name of the hotel he was DCO did not do what was reasonable under
supposed to stay in on the 7 November 2021, he had the circumstances to locate him.
no compelling reason to inform his agent and ask him
to amend his whereabouts after he received the 1. DCO’s duty to locate athletes
information that he was at the wrong hotel. The Player
also confirmed that his agent usually tells him that he Concerning the issue of whether the DCO
is staying at official hotels, rather than specifically took reasonable steps in the circumstances to
mentioning the name of the hotels”. locate the Player, this Panel endorsed the
findings of the Independent Tribunal, namely
The ITF appealed the Decision’s finding of no that the player’s information for his
negligence in these proceedings before the Whereabouts Filing indicated that he would be
CAS. located at the Hotel Ibis on 7 November 2021
between 06:00 am and 07:00 am, that the DCO
A hearing took place on 25 April 2023 in did all that was required of him to locate the
person at the CAS Court Office in Lausanne, Player at the Hotel Ibis, and that it was not the
Switzerland. duty of the DCO to try to find the athlete in
another location than the athlete’s specified
Reasons location.

According to the ITF, the Player should be This Panel concluded, in line with the findings
found to have committed an Anti-Doping Rule of the Independent Tribunal, that the
Violation in breach of 2021 TADP Article 2.4 requirements of Article B.2.4(c) ISRM were
as a result of three Whereabouts Failures on 22 satisfied.
April 2021, 10 August 2021 and 7 November
2021 and should be sanctioned with a two-year 2. Athlete’s obligation to comply with anti-
period of Ineligibility in accordance with 2021 doping regulations in connection with
TADP Article 10.3.2, commencing on the date whereabouts requirements

126
Concerning the issue on appeal, namely 3. Concept of negligence under the
whether the Player was negligent in not International Standard for Results
updating his whereabouts in order to enable Management
the DCO to carry out the intended test, the
Panel recalled that the obligation on athletes to The Panel further noted that the concept of
comply with the antidoping regulations was negligence as employed in Article 3.6 ISRM
personal, as reflected in the express terms of implied unintentional carelessness, which, in
Article 1.3.1.1 TADP, and that it has turn, required one to define the standard by
consistently been held that the whereabouts which to judge whether an athlete had been
regime represented a powerful and effective careless. The Panel noted that only the highest
means of deterring and detecting doping in priority athletes were included in the IRTP, and
sport, that it was crucial to know where athletes found it reasonable to expect these athletes to
were located at any particular time, and that the be on high alert with respect to complying with
regime was necessarily strict. the whereabouts requirements, and particularly
so if two whereabouts failures had already
The Panel noted that an athlete in the occurred in any period of less than 12 months.
International Registered Testing Pool might
seek third party assistance to comply with the In the circumstances of this case, the Panel
onerous whereabouts requirements. In doing found it reasonable to expect that a tennis
so, CAS held (CAS 2016/A/4643) that an player in the IRTP would not have delegated
athlete shall delegate the relevant tasks to a the filings task entirely to a third party, but that
qualified person, instruct the delegate properly such a player would have verified the
or set clear procedures he/she shall follow in whereabouts filing made for that day, and
carrying out the delegated tasks, and exercise would thus have realized that his stay at the
supervision and control over the delegate in Hotel Kyriad, rather than the Hotel Ibis, did
the carrying out of the tasks. not correspond with his whereabouts filing for
that day, enabling him to correct the filing, or,
The Panel made it clear that delegation to assist at the very least, that such a player would have
in complying with the whereabouts made this verification on being told that he was
requirements was not tantamount to delegating not staying at the hotel to which he had initially
the athlete’s responsibility to comply with travelled.
those requirements. The athlete remained
personally responsible, and could not delegate The Panel wished to stress that whether the
the requirement to comply, just as, more person to whom the whereabouts filings tasks
generally, reliance on a doctor or on the were delegated was negligent or there was a
athlete’s entourage could not do away with the failure to inform that person of a change was
athlete’s obligation to comply with the irrelevant in the assessment made. The key
antidoping regulations. The distinction was issue was that the Player, like any other
one that is well known in French law, between international-level athlete, could not be
an “obligation de moyen” and an “obligation de discharged of his whereabout duties by
résultat”: where an athlete might choose the delegating away his obligation to comply with
means, he/she was required personally to the applicable regulations; but this was what he
achieve the result, namely, in this case, effectively did by relying without taking the
compliance with the applicable antidoping steps one would expect a hypothetical tennis
regulations. player to take at the very least. As a result, the

127
Panel was not satisfied on a balance of 2021/A/8391; CAS 2020/A/7528) to 24
probability that the Player’s behaviour was not months (CAS 2020/A/7526 & 7559; CAS
negligent and did not cause or contribute to his 2020/A/6763) depending on the degree of
failure to be available for testing. fault of the athlete. As a result, the majority of
the Panel found that the Player should be
4. Sanction of ineligibility declared ineligible for 18 months from the date
of adoption of this award.
Concerning the question of ineligibility, the
Panel recalled that the whereabouts regime is a 5. Disqualification of results
cornerstone of the fight against doping, and
that its rules must be applied strictly. Concerning the question of disqualification,
According to Article 10.3.2 TADP, the athlete which would apply from 7 November 2021
will be sanctioned with a maximum two-year until the date of adoption of this award, the
ban after the third violation of this rule. This Panel had not seen any evidence suggesting
ban can be reduced to one year depending on that the Player’s results had been influenced by
the athlete’s fault. any doping. Evidence of the tests prior to and
following 7 November 2021 adduced by the
The standard by which respect of the rules Respondent were all negative. Furthermore,
shuold be assessed is the hypothetical the Player was exonerated by the Independent
experienced tennis player, a threshold that can Tribunal’s decision of 23 June 2022 until the
reasonably be expected to be met by all athletes date of this Award and there was no basis for
who are included in the IRTP, who are acutely him to have not participated in competitions
aware of the risk of ineligibility at the third from that time onward. Given the facts and
whereabouts violation within a 12-month circumstances here, the Panel was of the view
period. The Panel recognized that compliance that effectively extending his sanction another
with the regime was onerous, and that athletes seven months by disqualifying these results
could therefore seek assistance in ensuring would simply be unfair.
compliance. However, whereas an athlete
might choose the means, he/she was required For all these reasons, the Panel ruled that the
personally to achieve the result, namely, in this Player should not suffer any disqualification of
case, compliance with the applicable his results prior to this Award.
antidoping regulations.
Decision
The Panel found that the Player failed in
ensuring his compliance with the anti-doping The Appeal filed by the International Tennis
regulations by failing to verify his whereabouts Federation against Mr Mikael Ymer with
filing for 7 November 2021, and by assuming respect to the decision of the Independent
that any discrepancy between his actual and Tribunal of 23 June 2023 was partially upheld.
declared whereabouts would be corrected by The decision rendered by the Independent
his agent or by the tennis authorities. The Panel Tribunal on 23 June 2023 was set aside.
found that his degree of fault was high,
although the third Whereabouts Failure could Mr Mikael Ymer was found to have committed
be described as the result of culpable an anti-doping violation under Article 2.4 of
negligence. In this respect, the Panel took into the Tennis Anti-Doping Programme and
account the recent CAS case law imposing sanctioned with a period of ineligibility of 18
sanctions ranging from 18 months (CAS

128
(eighteen) months, starting from the date of
notification of this Award.

No results occurring between the time of the

third missed test on 7 November 2021 and the
date of this award was disqualified.

129
___________________________________ moderately severe pain. It is a centrally acting
CAS 2022/A/9113 analgesic which works by binding to opioid
Nairo Alexander Quintana Rojas v. Union receptors in the brain to block the perception
Cycliste Internationale (UCI) of pain and also gives to rise to a euphoric
5 June 2023 (operative part of 3 November effect. It can have side effects, including
2022) dizziness, drowsiness, and nausea. It can also
___________________________________ be habit-forming. It is a prodrug with two
active metabolites O-desmethyltramadol (M1)
Cycling; Doping (Tramadol); Nature and and N-desmethyltramadol (M2). It is the M1
value of the UCI Medical Rules; Validity of metabolite that is the principal contributor to
sanctions under the Tramadol Control; the opioid effect of the drug.
Absence of an obligation of B-sample in
Tramadol Control and use of a laboratory UCI issued its “Cycling Regulations” (the
not accredited by WADA; Right to be “UCI Cycling Regulations”) which governed
heard and Tramadol Control the UCI and the sport of cycling. Part XIII of
the UCI Cycling Regulations was introduced as
Panel of 1 March 2019 and was headed “Medical
Mr James Drake KC (United Kingdom), Rules” (the “UCI Medical Rules”). Chapter III
President; of the UCI Medical Rules was concerned with
Mr Juan Pablo Arriagada (Chile) “Protection and Promotion of the Rider’s
Mr Olivier Carrard (Switzerland) Health”, and Section 6 of Chapter III was titled
“In-Competition Prohibition of Tramadol”
Facts (which was referred to by the Parties as the
“Tramadol Control”) which provided,
Mr Nairo Alexander Quintana Rojas (“the amongst other things, for a ban on the use of
Appellant” or the “Rider”) is a cyclist from tramadol in-competition.
Colombia who competes in the sport of cycling
in the discipline of road cycling. Among other The 2022 Tour de France was held from 1
notable events, the Rider has competed in the through 24 July 2022. The Rider participated in
Tour de France, the Giro d’Italia (which he the event, finishing in sixth place overall.
won in 2014) and the Vuelta a Espana (which Immediately following the 7th and 11th stages
he won in 2016). of the event, 8 and 13 July 2022 respectively,
the Rider underwent control testing pursuant
Union Cycliste Internationale (the to the UCI Medical Rules by which he
“Respondent” or the “UCI”) is the provided dried blood samples (the “Samples”).
international federation for cycling and the The sample taken on 8 July was No. 101177
world governing body for the sport of cycling (“Sample 101177”) and that taken on 13 July
recognized by the International Olympic 2022 was No.101050 (“Sample 101050”). The
Committee. It has its headquarters in Aigle, testing was carried out for UCI by the
Switzerland. International Testing Agency (the “ITA”)

Collectively, the parties will be referred to as The Samples were sent by the ITA to the
the Parties. Laboratory of Clinical Pharmacology and
Toxicology in Geneva (“LCPT”) for analysis.
Tramadol is a synthetic opioid analgesic The analysis indicated the presence of
prescribed for the treatment of moderate to tramadol for both Samples. LCPT sent the
Samples for review to the Centre of Research
and Expertise in anti-Doping Sciences at the The main dispute in these proceedings
University of Lausanne (“REDS”). concerned the category of the Appellant and
the subsequent consequences regarding
By letter dated 17 August 2022, the UCI training compensation entitlements for the
Medical Director, notified the Rider that he Respondent.
had “been informed that the dried blood samples you
provided on 8 and 13 July 2022 during the Tour de The Rider held that the UCI Medical Rules
France 2022 revealed the presence of tramadol and its were only a set of suggestion and guidelines
two metabolites”. Further, the Rider was “hereby and could not serve as basis for a sanction
formally notified that this constitutes an infringement of against him. He held that he could only be
the UCI Medical Rules which prohibit tramadol in sanctioned in application of the World Anti-
competition and which results in the disqualification of Doping Code (the “WADC”). The Rider also
all results obtained during the Tour de France 2022”. contested the chain of custody of the Samples,
and that his fundamental right as an athlete for
In the same letter, the UCI Medical Director the “b-sample opening” was violated since the
issued the following decision (the “Appealed Tramadol Control did not provide for this.
Decision”): “[…]According to Article 13.3.068 let. Additionally, the Rider argued that the Samples
a (in fine) of the UCI Medical Rules, the mere presence had not analysed by a WADA Accredited
of tramadol and its metabolites is sufficient to establish laboratory. Finally the Rider was off the
an infringement of the in-competition prohibition of opinion that his right to be heard had been
tramadol. It is therefore not necessary to establish intent, violated as he was not invited to provide his
fault, or negligence of the rider. In other words, a breach position prior to the decision of the Appealed
of the in competition Prohibition of tramadol occurs Decision while he considered this to be a
whenever tramadol is found in bodily specimen, requirement as per Article 13.3.070 of the UCI
irrespective of the reasons thereof, including whether or Medical Rules.
not a rider intentionally or unintentionally used
tramadol” […] On its hand, UCI underlined that there is no
“In view of the above, all of the results you obtained at doubt that presence of tramadol was found in
the Tour de France 2022 are disqualified, including the Rider’ Samples. UCI further underlined
forfeiture of any medals, points and prizes, pursuant to that its ban on tramadol in competition was not
Article 13.3.069, ch.1, let a) of the UCI Medical an anti-doping matter. Additionally, UCI held
Rules. Moreover, a fine of 5000 CHF is imposed in that the testing followed the UCI procedure,
accordance with Article 13.3.069, ch.1, let b) of the including the chain of custody and the analysis
UCI Medical Rules. of the Samples.
Finally, you shall reimburse the costs of both tramadol
controls pursuant to Article 13.3.069, ch.1, let c) of 1. Nature and value of the UCI Medical Rules
the UCI Medical Rules A”.
The Rider held that the UCI Medical Rules was
On 26 August 2022, pursuant to Article R48 of based on the Olympic Movement Medical
the Code of Sports-related Arbitration (the Code (the “Olympic Medical Code”) which he
“Code”), the Rider filed a Statement of Appeal considered to be a non-binding document and
at the Court of Arbitration for Sport (the as such the UCI Medical Rules were only a set
“CAS”) against the Appealed Decision. of suggestion and guidelines and could not
serve as basis for a sanction against him. He
Reasons held that he could only be sanctioned in

131
application of the World Anti-Doping Code considerations” as ITA was already handling all
(the “WADC”). other testing controls for the Respondent and
was therefore already on site.
The UCI argued that, by requesting his licence
to the UCI, the Rider submitted himself to the The Panel first recalled that sample collection
UCI Cycling Regulation, which were therefore process, transportation and analysis are
binding for him. governed by the UCI Technical Rules on
Tramadol (the “UCI TRT”) which came into
On that point, the Panel underlined that the effect on 1 March 2019 with the Tramadol
UCI Medical Rules are binding as part of the Control. As underlined previously, the Panel
UCI Cycling Regulations that the Rider agreed came to the conclusion that alongside the UCI
to when he requested a licence from UCI This Medical Rules, the Tramadol Control became
is expressly set forth in the Tramadol Control binding for the Rider the moment he requested
itself: “By requesting a license, any rider agrees to abide his licence with the UCI.
and be bound by these Rules and explicitly agrees and Additionally, the Panel was of the opinion that
acknowledges that tramadol is prohibited in- the fact that the ITA carried out the control, in
competition. In this respect, any rider agrees to submit itself, does not convert the UCI Medical Rules
to in-competition tramadol control as provided under and the Tramadol Control into a set of anti-
this Chapter”. doping rules.

2. Validity of sanctions under the Tramadol The Panel then analysed the purpose of the
Control Tramadol Control. The Panel determined that
the Tramadol Control, within the UCI Medical
The Rider was of the opinion that the Rules, was promulgated in response to UCI’s
Tramadol Control was clearly a doping control stated concerns about the use of tramadol on
carried out for the UCI by the ITA. The Rider individual riders and on the safety of the
argued that said Tramadol Control was illegal competitions generally (including the risk of
as the WADC issued by WADA is the only altered alertness or dizziness causing or
authorised set of rules available to sports contributing to crashes by riders, especially
institutions to sanction an athlete for the while in the peloton).
presence of prohibited substances “or any
substance that can regulate and improve […] health”. The Panel recalled that, by virtue of their
status, expertise and responsibility for
On its hand, UCI underlined that the Tramadol protecting and reconciling the interests of all
Control process was not an anti-doping issue, stakeholders in a particular sport, international
as alleged by the Rider. It held that the federations such as the UCI enjoy a margin of
prohibition of tramadol in-competition was a appreciation in determining what factors are
health and safety issue “notably because of the heavy relevant and necessary to ensure the health and
side-effects” of tramadol. UCI further argued that safety of all of their competitors and what
the fact that WADA had decided to place regulatory measures are necessary in order to
tramadol on the Prohibited List for 2024 had achieve this. Having regard to its margin of
no bearing on the nature of the Tramadol appreciation, the Panel considered that the
Control as a health and safety issue for athletes. UCI was legitimately entitled to take the view
Additionally, the UCI held that it was decided that the health and safety of the riders,
to use ITA to conduct the Tramadol Control individually and collectively, required that its
“for simplicity, efficiency and practicality riders should be banned from using a synthetic

132
opioid analgesic that has dangerous side consequently there was no free-standing
effects, including in particular, dizziness, and abstract right to a B sample and there was no
can be addictive. express right within the UCI Medical Rules for
the UCI to provide the Rider with the
Taking all of the above in consideration, the protection of a B sample. The Panel therefore
Panel was of the opinion that, contrary to the concluded that there was no breach on the part
assertion of the Rider, it was open to the UCI of the UCI in failing to do so.
to ban a substance on health and safety
grounds and doing so was not in breach of the The Panel applied the same logic to determine
UCI’s obligations as a signatory of the WADC. that there was no requirement that the UCI
The Panel recalled that any doubt about this uses only WADA-accredited laboratories for
had been dispelled by WADA itself which had the testing and analysis under the Tramadol
confirmed, in writing, that the UCI Medical Control as it was not an anti-doping process
Rules was not anti-doping rules and that the but a medical control process.
Respondent was not in breach of the WADC
in promulgating them. 4. Right to be heard and Tramadol Control

3. Absence of an obligation of B-sample in The Rider was of the opinion that the
Tramadol Control and use of a laboratory not Respondent violated the UCI Medical Rules
accredited by WADA Article 13.3.070, and at the same time one of
his “fundamental right”, as it did not invite him
The Rider argued that there was no provision to provide his position on the findings of the
in the Tramadol Control for an athlete to call Tramadol Control prior to the decision of the
for the testing of a B-Sample. “The b-sample UCI Medical Director.
opening is a fundamental right for the athlete […].In
this case, there was not the opportunity to open b UCI held that the Rider relied on the wrong
sample, because there was no b sample. It is provision of the UCI Medical Rules, as it was
incomprehensible how such an important right to an referring to Article 13.3.070(b) which relates
athlete is ignored”. The Rider further argued that solely to “non-analytical cases”, while in cases
since the Samples were not analysed by a related to presence of tramadol, which was the
WADA accredited laboratory, the analysis was matter at hand, there was actually no obligation
invalid. in that sense. In those cases, Article 13.3.070(a)
of the UCI Medical Rules applied and provided
UCI held that the argument that the Tramadol that “In accordance with Article 12.5.004 of the UCI
Control did not but should have provided for Regulations, the UCI Medical Director is competent to
a B-sample analysis “fails” because it is not an decide and sanction all cases of Presence of tramadol for
anti-doping process. The cases relied on in this a first infringement”.
respect are immaterial here where the process
is not anti-doping but medical. On this matter, the Panel first recalled that
article 13.3.070 provided the following:
The Panel held that while the Tramadol
Control did not contain any provision for a B “a) Presence of tramadol in a rider’s sample. In
sample, this did not mean that the Tramadol accordance with Article 12.5.004 of the UCI
Control was invalid. The Panel considered that Regulations, the UCI Medical Director is competent to
it was clear that the Tramadol Control was a decide and sanction all cases of Presence of tramadol for
medical control process and not anti-doping, a first infringement.

133
b) Evading a Tramadol Sample collection, tampering
or attempting to tamper with the Tramadol Sample
collection process, refusing or failing to submit to
Tramadol Sample collection or failure to report to the
Tramadol Control Station within the time limit
provided under Article 13.3.067 without compelling
justification.
[…]
Before making the decision the UCI Medical Director
may invite the rider to provide his/her position on the
reported infringement. […]”.

With this in mind, the Panel was of the opinion

that article 13.3.070a) applied to the matter at
hand – the presence of tramadol in the Rider’s
Samples – and that in that case, there was no
stated requirement for the UCI Medical
Director to allow the rider an opportunity to
be heard before sanctions are imposed.
Instead, where dealing with presence of
tramadol, the UCI Medical Director “is
competent to decide and sanction all cases” for a first
infringement.

In any case, the Panel underlined that while the

right to be heard was a fundamental and
general principle which derived from the
elementary rules of natural justice and due
process, any failure on the part of the UCI
Medical Director to allow the Rider to explain
his position has been cured by the de novo
nature of the CAS hearing in this appeal.

The Panel concluded that there had been no

breach of the Rider’s “fundamental right” to be
heard.

Decision

In view of the foregoing, the Panel dismissed the

appeal of Nairo Alexander Quintana Rojas against
the decision of the UCI Medical Director issued on
17 August 2022. The sanctions imposed by the UCI
Medical Director in the decision issued on 17
August 2022 were confirmed.

134
___________________________________ contract with a term from 1 January 2021 to 31
CAS 2022/A/9219 December 2021 (the “First Contract”).
Jubilo Co. LTD v Fédération
Internationale de Football Association The First Contract contained, inter alia, the
(FIFA) following terms:
14 June 2023 (operative part of the award of 22 d) Pursuant to Clause 2.1, Ratchaburi agreed
December 2022) to pay the Player, inter alia, a monthly salary
___________________________________ of USD 18,350 for the duration of the First
Contract.
Football; Termination of a contract of
employment between a player and a club; e) Clause 2.4 stated as follows (the “Automatic
De novo review of the merits of the case; Termination Clause”):
Burden and standard of proof; Validity of a “The contract will be automatically (sic) cancel
contract; Interpretation of an automatic without any compensation if the player failed for the
termination clause; Termination with no medical check-up or is unable to play for any reason
cause; Rebuttal of the presumption of at the 01 January (sic) 2021”.
inducement to breach the contract by the
player’s new club f) Clause 11 stated as follows:
“[…] In the event that the participation has been
Panel terminated by the Club or the player prior to the
Mr Patrick Stewart KC (United Kingdom), expiry of the contract for any cause other than those
President provided in Clause 6 and 7 above, the party who
Mr Marco Balmelli (Switzerland) cancel the contract will be entitled to pay a
Mr Daniel Cravo Souza (Brazil) compensation equivalent to 3 (three) months salary
maximum as full and final settlement of the playing
Facts contract (salary)”.
Jubilo Co., LTD. is a company which runs a
professional football club, Jubilo Iwata, which On 28 December 2020, the Player signed a pre-
is a member of the Japanese Football contract agreement with Jubilo and, on 29
Association, which in turn is a member of the December 2020, Jubilo counter-signed that
Fédération Internationale de Football pre-contract agreement (the “Pre-Contract”).
Association. Under the Pre-Contract, the Player agreed to
be a registered player with Jubilo from 1
The Fédération Internationale de Football February 2021 to 1 January 2022 and Jubilo
Association (the “Respondent” or “FIFA”) is agreed to pay the Player a total salary of USD
the governing body for international football. 450,000.

Collectively, Jubilo and FIFA will be referred On 5 January 2021:

to as the Parties. a) Ratchaburi sent a letter to Jubilo in which it
informed Jubilo that it had entered into an
On 14 November 2020, Ratchaburi Mitrphol employment contract with the Player and
FC (“Ratchaburi”), a professional football club that it would bring a claim before FIFA if
in Thailand, and Fabian Andres Gonzales Jubilo did not withdraw its offer.
Lasso (the “Player”), a professional football
b) The Player sent a letter to Ratchaburi in
player from Colombia, signed an employment
which he stated that he was not bound by
 the First Contract, as the negotiations had
not yet been concluded and, therefore, no On 19 October 2022, pursuant to Article R48
valid and binding contract had been signed. of the Code of Sports-related Arbitration (the
“Code”), Jubilo filed a Statement of Appeal at
the Court of Arbitration for Sport (the “CAS”)
On 17 January 2021, Jubilo announced its
appealing the FIFA Dispute Resolution
signing of the Player on its website.
Chamber Decision and applying for the
annulment of the sporting sanction
On 28 and 29 April 2021, following the lifting
pronounced against Appellant.
of COVID-19 travel restrictions, Jubilo
completed its registration of the Player which
Reasons
involved inter alia signing an employment
contract with the Player, uploading all
The Appellant argued that there was never a
necessary documents to TMS and confirming
valid contract of employment between
with the Japanese FA that it had received an
Ratchaburi and the Player, meaning that: (a) no
international transfer certificate.
unilateral termination without cause could
have occurred; and (b) there could not have
On 13 April 2022, Ratchaburi filed a claim with
been any inducement to do so. In the
the Dispute Resolution Chamber of FIFA (the
alternative, if the First Contract was considered
“FIFA DRC”) claiming (a) that the Player
to constitute a valid and binding contract
terminated the First Contract without just
between Ratchaburi and the Player, the
cause, contrary to Article 14 of the FIFA
Automatic Termination Clause contained
Regulations on the Status and Transfer of
conditions precedent which were not satisfied
Players (the “FIFA RSTP”), requesting a
by the stipulated deadline of 1 January 2021,
compensation equal to the value of the First
meaning that the First Contract never came
Contract (i.e. USD 220,200); (b) that Jubilo had
into force and points (a) and (b) were
induced the Player to terminate the First
applicable.
Contract without just cause, contrary to Article
17(4) of the FIFA RSTP, requesting that Jubilo
FIFA argued that (a) by limiting the scope of
be held jointly and severally liable with the
its appeal to sporting sanctions, the Appellant
Player to pay it the compensation of USD
also limited the Panel’s scope of review with
220,200, and the imposition of sporting
the effect that the Panel might not review the
sanctions on Jubilo.
horizontal dispute between the Player and
Ratchaburi. This issue was referred to in the
On 4 August 2022, the FIFA DRC determined
Award as the “Preliminary Issue”; (b) in the
that:
alternative, if the horizontal dispute was within
Respondent 1, Fabian Andres Gonzales Lasso, has to the Panel’s scope of review, then: (i) the First
pay to the Claimant USD 55,050 as compensation for Contract was a valid and binding agreement;
breach of contract without just cause plus interest of 5% (ii) the Player unilaterally terminated that
p.a. as from 13 April 2022 until the date of effective agreement without just cause; (c) Jubilo failed
payment. to produce sufficient evidence to rebut the
Respondent 2, Jubilo Iwata, is jointly and severally presumption that it induced the Player’s
liable for the payment of the aforementioned amount breach.
and shall be banned from registering any new players,
either nationally or internationally, for the two next In light of the facts and the circumstances of
entire and consecutive registration periods the case, as well as considering the Parties’

136
submissions in support of their claims, the
Panel observed that the main issues to be The Appellant argued that there was never a
resolved were (1) whether the First Contract valid contract of employment between
was a valid and binding agreement between the Ratchaburi and the Player. The Respondent
Player and Ratchaburi? ; (2) If so, did the argued that the First Contract was a valid and
Automatic Termination Clause operated as a binding agreement.
condition precedent, meaning that the First
Contract effectively never existed if the The Panel reminded that the starting position
conditions were not satisfied? ; (3) If the First for any signed contract is the legal principle of
Contract did exist, did the Player’s prior actions pacta sunt servanda (i.e. agreements must be
with respect to Jubilo amounted to unilateral kept). Furthermore, pursuant to consistent
termination by the Player of the First Contract? CAS jurisprudence and general principles of
(4) If the First Contract was unilaterally contract law: (i) a signature on a written
terminated by the Player, did Jubilo produced contract binds the signatory to the terms of
sufficient evidence to rebut the presumption that contract; and (ii) the fact that a party to a
created by Article 17(4) of the FIFA RSTP that written contract does not understand its terms
it induced the Player to do so? does not preclude enforcement of that
contract. These general principles will of
1. De novo review of the merits of the case course not apply if the signature was obtained
by mistake or as a consequence of
To start with, the Panel underlined that misrepresentation, fraud, duress or undue
pursuant to Article R57 (1) of the Code, it has influence or if the contract is vitiated by
“full power to review the facts and the law”. By illegality (see articles 23 et seq. of the Swiss Code
reference to this provision the CAS appeals of Obligations). The burden of proof for
arbitration procedure entails a de novo review of establishing that the First Contract was subject
the merits of the case and the CAS panel is not to one of these exceptions sited with Jubilo.
confined merely to deciding whether the ruling
appealed was correct or not. Accordingly, it Since Jubilo had not provided sufficient
was the function of the Panel to make an evidence to establish to the Panel’s
independent determination as to the merits. comfortable satisfaction that the First Contract
was subject to one of the exceptions set out in
2. Burden and standard of proof articles 23 et seq. of the Swiss Code of
Obligations; and b), the First Contract was to
The Panel recalled that each party should fulfil be treated as valid and binding.
its burden of proof to the required standard by
providing and referring to evidence to 4. Interpretation of an Automatic Termination
convince the Panel that the facts it pleaded Clause
were established. The “comfortable
satisfaction” standard is generally applied when Jubilo argued that the Automatic Termination
considering cases involving the FIFA RSTP. Clause operated as a condition precedent and
That standard is considered to be “higher than that, as the relevant conditions were not
the civil standard of “balance of probability” but lower satisfied by the deadline of 1 January 2021, the
than the criminal standard of “proof beyond a First Contract did not come into force.
reasonable doubt””. Accordingly, it was not technically possible for
the Player to have unilaterally terminated the
3. Validity of a contract First Contract.

137
 6. Rebuttal of the presumption of inducement
To recap the Automatic Termination Clause to breach the contract by the player’s new club
states as follows:
Jubilo contented that it could not have induced
“The contract will be automaticely (sic) cancel without
the Player to terminate the First Contract
any compensation if the player failed for the medical
without just cause because: (i) Jubilo was not
check up or is unable to play for any reason at the 01
aware of that contract; and/or (ii) the Player
january (sic) 2021”
had already decided to breach that contract
before Jubilo made an offer to the Player.
The Panel was of the firm view that the Accordingly, there was no causal link between
Automatic Termination Clause could not be Jubilo’s offer and the Player’s breach.
reasonably interpreted as creating a condition
precedent. Rather, it operated to bring the First Ppursuant to Article 17(4) of the FIFA RSTP,
Contract to an end automatically (i.e. without if a player terminates a contract without just
either Ratchaburi or the Player requiring to cause during the protected period, then any
serve notice), if either: (i) the Player failed a club which subsequently signs that player shall
medical check-up; or (ii) the Player was not be presumed to have induced the breach and
able to play football for Ratchaburi for any shall be sanctioned accordingly, unless that
reason. Accordingly, the Panel considered that club is able to rebut the presumption by
the First Contract came into existence as a providing evidence to the contrary.
valid and binding agreement immediately upon
Ratchaburi and the Player executing it on 14 The Panel found that the period to be
November 2020. considered in assessing adequate due diligence
to rebut the presumption of inducement was
5. Termination with no cause before the signing of the contract between the
player and his new club. In this respect, the
The Panel observed that pursuant to consistent Panel held that for a club, placing complete
CAS jurisprudence, a football player is deemed reliance on the player’s personal declaration
to have terminated an employment contract amounted to “wilful ignorance”. Likewise, an
without just cause at the point at which he online research and a review of TMS did not
enters into a new employment contract with a constitute adequate due diligence either,
new football club with a term which overlaps because they depended on the previous club
with the term of the pre-existing employment either announcing its signing of the player prior
contract. to having registered the player (which a club
might not always wish to do), or on the
Since it was undisputed that the Player and registration of the player at the start of the
Jubilo entered into the Pre-Contract before 1 national registration window whereas a longer
January 2021 i.e. before the commencement of time limit for the player’s registration might be
the First Contract (that had a term from 1 available to the previous club. Conversely, the
January 2021 to 31 December 2021), as the Panel considered that having a direct
Player executed the Pre-Contract on 28 discussion with the player regarding his
December 2020 and Jubilo counter-executed it contractual status and making contact with the
on 29 December 2020, the Player unilaterally player’s previous club were more in line with
terminated the First Contract without just an adequate level of due diligence. In any event,
cause on 29 December 2020. the determination of the necessary steps for a
sufficient due diligence to rebut the

138
presumption of inducement always depended
on the specific circumstances of the case and
the requirements for a sufficient due diligence
should always be assessed on a case-by-case
basis.

On this basis, the Panel did not consider that

Jubilo rebutted the presumption created by
Article 17(4) that, as the new club, Jubilo
induced the Player to terminate the First
Contract without just cause.

Decision

The appeal filed on 19 October 2022 by Jubilo

Co. LTD against the decision issued on 4
August 2022 by the Dispute Resolution
Chamber of the Fédération Internationale de
Football Association was dismissed. The
decision issued on 4 August 2022 by the
Dispute Resolution Chamber of the
Fédération Internationale de Football
Association was confirmed.

139
___________________________________________________________________________

Jugements du Tribunal fédéral*

Judgements of the Federal Tribunal
Sentencias del Tribunal federal

*
Résumés de jugements du Tribunal Fédéral suisse relatifs à la jurisprudence du TAS
Summaries of some Judgements of the Swiss Federal Tribunal related to CAS jurisprudence
Resúmenes de algunas sentencias del Tribunal Federal Suizo relacionadas con la jurisprudencia del TAS
___________________________________________________________________________
4A_22/2023
16 mai 2023
A. c. Professional Tennis Integrity Officers
___________________________________________________________________________

Recours en matière civile contre la sentence rendue le (“Tennis Integrity Unit’s Anti-Corruption
30 novembre 2022 par le Tribunal Arbitral du Hearing Officer”), lequel, par décision du 30
Sport (CAS 2020/A/7616) novembre 2020, a suspendu le joueur de
tennis pour une durée de huit ans tout en lui
Le non-respect du délai visé à l’article 59 infligeant une amende de 25’000 dollars
al. 5 du Code TAS ne saurait priver de américains (USD) pour avoir commis trois
plein droit les arbitres de leur pouvoir de infractions au TACP.
statuer sur le fond du litige
Le 28 décembre 2020, le joueur de tennis a
Extrait des faits appelé de cette décision auprès du Tribunal
Arbitral du Sport (TAS).
A.________ (ci-après: le joueur de tennis) est
un joueur de tennis professionnel espagnol En application de l’art. R59 al. 5 du Code de
né en 1991. Il est membre de l’Association of l’arbitrage en matière de sport (édition 2021:
Tennis Professionals (ci-après: ATP). ci-après: le Code), le TAS a prolongé à huit
reprises le délai dans lequel la Formation
Les Officiels pour l’intégrité du tennis devait rendre sa sentence finale.
professionnel (“Professional Tennis Integrity
Officers”; ci-après: PTIO) de l’ATP, de Par sentence finale du 30 novembre 2022, la
l’Association des joueuses de tennis Formation, statuant à la majorité de ses
(“Woman’s Tennis Association”), du Conseil membres, a partiellement admis l’appel
d’administration des Grands Chelems et de la interjeté par le joueur de tennis. Elle a réduit
Fédération Internationale de Tennis la durée de la suspension de l’intéressé à six
(“International Tennis Federation”) sont ans et diminué le montant de l’amende
responsables de la poursuite d’infractions au prononcée à son encontre à concurrence de
programme anticorruption du tennis 15’000 USD.
(“Uniform Tennis Anti-Corruption
Programm”; ci-après: TACP). A ce titre, il Le 13 janvier 2023, le joueur de tennis (ci-
leur incombe de signaler d’éventuels cas après: le recourant) a formé un recours en
litigieux à l’Unité d’intégrité du tennis matière civile aux fins d’obtenir l’annulation
(“Tennis Integrity Unit”: ci-après: UIT), de la sentence précitée.
organisme chargé d’enquêter sur les affaires
de corruption dans le domaine du tennis Extrait des considérants
professionnel.
(…)
En 2017, les autorités espagnoles ont ouvert
une procédure pénale à l’encontre du joueur 5.
de tennis en raison de soupçons quant à son
implication dans des manipulations de 5.1. Le Tribunal fédéral statue sur la base des
rencontres sportives (“match-fixing”). Le 22 faits constatés dans la sentence attaquée
juin 2020, elles ont toutefois mis un terme à (cf. art. 105 al. 1 LTF). Il ne peut rectifier ou
leurs investigations. compléter d’office les constatations des
arbitres, même si les faits ont été établis de
Le 14 mai 2019, les PTIO ont saisi le manière manifestement inexacte ou en
Commissaire anticorruption de l’UIT violation du droit (cf. l’art. 77 al. 2 LTF qui

141
exclut l’application de l’art. 105 al. 2 LTF). Sa Avant d’examiner les mérites des critiques
mission, lorsqu’il est saisi d’un recours en formulées par l’intéressé au soutien de ce
matière civile visant une sentence arbitrale moyen, il sied de rappeler certains principes
internationale, ne consiste pas à statuer avec jurisprudentiels et de reproduire le texte
une pleine cognition, à l’instar d’une d’une disposition réglementaire du Code
juridiction d’appel, mais uniquement à pour mieux saisir le sens des explications qui
examiner si les griefs recevables formulés à vont suivre.
l’encontre de ladite sentence sont fondés ou
non. Permettre aux parties d’alléguer d’autres 6.1.
faits que ceux qui ont été constatés par le
tribunal arbitral, en dehors des cas 6.1.1. Saisi du grief d’incompétence, le
exceptionnels réservés par la jurisprudence, Tribunal fédéral examine librement les
ne serait plus compatible avec une telle questions de droit, y compris les questions
mission, ces faits fussent-ils établis par les préalables, qui déterminent la compétence ou
éléments de preuve figurant au dossier de l’incompétence du tribunal arbitral (ATF 134
l’arbitrage. Cependant, le Tribunal fédéral III 565 consid. 3.1 et les références citées).
conserve la faculté de revoir l’état de fait à la En revanche, il ne revoit les constatations de
base de la sentence attaquée si l’un des griefs fait que dans les limites usuelles, même
mentionnés à l’art. 190 al. 2 LDIP est soulevé lorsqu’il statue sur ce grief
à l’encontre dudit état de fait ou que des faits (arrêt4A_140/2022 du 22 août 2022 consid.
ou des moyens de preuve nouveaux sont 5.4.2.1 et la référence citée).
exceptionnellement pris en considération
dans le cadre de la procédure du recours en 6.1.2. Une sentence rendue postérieurement
matière civile (arrêt 4A_478/2017, consid. à l’expiration de la mission de l’arbitre unique
2.2). ou du tribunal arbitral n’est pas nulle, mais
annulable sur recours au titre de la violation
5.2. Dans ses écritures, le recourant allègue de l’art. 190 al. 2 let. b LDIP (ATF 140 III
un certain nombre de faits et produit diverses 75 consid. 4.1).
pièces ayant trait au déroulement de la
procédure arbitrale après la tenue de 6.2. Dans sa version régissant la présente
l’audience et le prononcé de la sentence procédure devant le TAS, l’art. R59 al. 5 du
querellée. Ces faits procéduraux, non relatés Code énonçait ce qui suit:
dans la sentence attaquée, doivent
exceptionnellement être pris en compte par “Le dispositif de la sentence doit être
le Tribunal fédéral car ils constituent le communiqué aux parties dans les trois mois
fondement même de l’argumentation du suivant le transfert du dossier à la Formation.
recourant voulant que la Formation ait rendu Ce délai peut être prolongé par le/la
la sentence litigieuse alors qu’elle n’était plus Président (e) de la Chambre sur demande
compétente pour le faire respectivement motivée du/de la Président (e) de la
qu’elle ait indûment tardé à statuer (arrêt Formation”.
4A_490/2013 du 28 janvier 2014 non publié
aux ATF 140 III 75). Depuis le 1er novembre 2022, le nouvel art.
R59 al. 5 du Code a la teneur suivante:
Dans un moyen qu’il convient
d’examiner en premier lieu, le recourant, “Le dispositif de la sentence doit être
invoquant l’art. 190 al. 2 let. b LDIP, communiqué aux parties dans les trois mois
soutient que la sentence entreprise a été suivant le transfert du dossier à la Formation.
rendue après l’extinction des pouvoirs de Ce délai peut être prolongé jusqu’à un
la Formation (considérant 6) maximum de quatre mois après la clôture de
la procédure d’instruction par le/la Président
(e) de la Chambre sur demande motivée

142
du/de la Président (e) de la Formation. En Le recourant ne peut pas davantage être suivi
cas de non-respect du délai, la Formation lorsqu’il soutient que la mission de la
peut être révoquée conformément à l’article Formation aurait automatiquement pris fin le
sR35 et les honoraires des arbitres peuvent 10 juin 2022. Tout d’abord, il sied de relever
être réduits par le Bureau du CIAS, en que le raisonnement du recourant repose sur
fonction des circonstances spécifiques de la prémisse de fait, non avérée, selon laquelle
chaque cas. En tous les cas, le/la Président (e) la prolongation de délai accordée le 13 juin
de Chambre doit informer les parties de la 2022 en application de l’art. R59 al. 5 du Code
situation et déterminer si un ultime délai est serait intervenue tardivement. En effet, le
accordé à la Formation ou quelles mesures TAS expose, preuve à l’appui, que la
particulières doivent être prises”. Présidente suppléante de la Chambre
arbitrale d’appel a valablement octroyé une
6.3. Pour étayer son grief, le recourant expose prolongation du délai le 10 juin 2022, et non
que le TAS a prolongé à huit reprises, durant pas le 13 juin 2022, date à laquelle cette
la période comprise entre le 8 février 2022 et décision a été communiquée aux parties.
le 25 novembre 2022, le délai dans lequel la
Formation devait rendre sa sentence. Il En tout état de cause et indépendamment de
soutient que le TAS a accordé une quatrième ce qui précède, le parallèle fait par le
prolongation de délai aux arbitres le 13 juin recourant entre l’arrêt paru aux ATF 140 III
2022 alors que le délai dans lequel la sentence 75 et la présente espèce n’est pas de mise.
aurait dû être rendue avait déjà expiré le 10 Dans l’affaire à laquelle se réfère l’intéressé,
juin 2022. Même à supposer que le TAS ait les parties à la procédure d’arbitrage avaient
été habilité à octroyer rétroactivement une expressément mis un terme au mandat de
prolongation de délai, l’intéressé, citant l’art. l’arbitre unique en raison du temps, jugé
R59 al. 5 du Code, dans sa version de 2022, excessif par elles, mis par ce dernier pour
prétend que la Formation aurait dû statuer au rendre sa décision. Une fois sa mission
plus tard dans les quatre mois suivant la terminée, l’arbitre en question, lequel avait
clôture de la procédure d’instruction, soit le accepté la fin de son mandat, avait tout de
18 mai 2022. Se référant à l’arrêt paru même prononcé une sentence. Dans ces
aux ATF 140 III 75, il fait valoir que la circonstances tout à fait singulières, le
Formation, en rendant sa sentence après le 18 Tribunal fédéral a jugé que la sentence rendue
mai 2022 respectivement le 10 juin 2022, a postérieurement à l’expiration de la mission
statué alors que sa mission avait pris fin de l’arbitre n’était pas nulle, mais annulable
s’arrogeant ainsi des pouvoirs qui s’étaient sur recours (ATF 140 III 75 consid. 4.1). En
éteints. l’espèce, la situation est tout autre, puisque les
parties n’ont à aucun moment révoqué les
6.4. Semblable argumentation n’emporte pouvoirs de la Formation. L’art. R59 al. 5 du
nullement la conviction de la Cour de céans. Code, que ce soit dans sa version applicable
Force est d’emblée de relever que c’est en au moment des faits ou dans sa teneur
vain que l’intéressé affirme que la sentence actuelle, ne prévoit du reste nullement que le
aurait dû être rendue dans les quatre mois non-respect du délai pour rendre la sentence
suivant la clôture de l’instruction en se entraînerait l’extinction automatique des
fondant sur l’édition 2022 du Code, puisque pouvoirs des arbitres saisis d’un litige. En
celle-ci s’applique uniquement aux outre, le Tribunal fédéral a déjà eu l’occasion
procédures mises en oeuvre par le TAS à de préciser que le délai visé par l’art. R59 al. 5
compter du 1er novembre 2022 (cf. art. R67 du Code est un délai d’ordre (arrêt
du Code du 1er novembre 2022), alors que le 4A_600/2018 du 20 février 2009 consid.
recourant a saisi le TAS en date du 28 4.2.1.1; sur la nature de ce délai, cf. aussi
décembre 2020. ANTONIO RIGOZZI, L’arbitrage
international en matière de sport, 2005, p.
516 n. 1005; RIGOZZI/HASLER, in

143
Arbitration in Switzerland - The sentiment de la justice et de l’équité; il ne
Practitioner’s Guide, Arroyo [éd.], 2ème éd. suffit pas qu’une autre solution paraisse
2018, no 15 ad art. R59 du Code). Aussi est- concevable, voire préférable (ATF 137 I
ce en vain que l’intéressé consacre 1 consid. 2.4; 136 I 316 consid. 2.2.2 et les
d’importants développements visant à références citées). Pour qu’il y ait
démontrer que les diverses prolongations de incompatibilité avec l’ordre public, il ne suffit
délai accordées sur la base de l’art. R59 al. 5 pas que les preuves aient été mal appréciées,
du Code seraient entachées de certaines qu’une constatation de fait soit
irrégularités. Il appert ainsi que le non-respect manifestement fausse ou encore qu’une règle
du délai visé par l’art. R59 al. 5 du Code ne de droit ait été clairement violée (arrêts
saurait priver de plein droit les arbitres de 4A_116/2016 du 13 décembre 2016 consid.
leurs pouvoirs de statuer sur le fond du litige. 4.1; 4A_304/2013 du 3 mars 2014 consid.
Il s’ensuit le rejet du grief considéré. 5.1.1; 4A_458/2009 du 10 juin 2010 consid.
4.1). L’annulation d’une sentence arbitrale
Dans un autre moyen, divisé en deux internationale pour ce motif de recours est
branches, le recourant fait valoir que la chose rarissime (ATF 132 III 389 consid.
sentence attaquée est incompatible avec 2.1).
l’ordre public (art. 190 al. 2 let. e LDIP)
(considérant 7) 7.1.2. Il y a violation de l’ordre public
procédural lorsque des principes
7.1. Une sentence est incompatible avec fondamentaux et généralement reconnus ont
l’ordre public si elle méconnaît les valeurs été violés, conduisant à une contradiction
essentielles et largement reconnues qui, selon insupportable avec le sentiment de la justice,
les conceptions prévalant en Suisse, devraient de telle sorte que la décision apparaît
constituer le fondement de tout ordre incompatible avec les valeurs reconnues dans
juridique (ATF 144 III 120 consid. 5.1; 132 un État de droit (ATF 141 III 229 consid.
III 389 consid. 2.2.3). On distingue un ordre 3.2.1; 140 III 278 consid. 3.1; 136 III
public procédural et un ordre public 345 consid. 2.1). Selon une jurisprudence
matériel. constante, l’ordre public procédural, au sens
de l’art. 190 al. 2 let. e LDIP, n’est qu’une
7.1.1. Une sentence est contraire à l’ordre garantie subsidiaire ne pouvant être invoquée
public matériel lorsqu’elle viole des principes que si aucun des moyens prévus à l’art. 190
fondamentaux du droit de fond au point de al. 2 let. a-d LDIP n’entre en ligne de compte
ne plus être conciliable avec l’ordre juridique (ATF 138 III 270 consid. 2.3).
et le système de valeurs déterminants (ATF
144 III 120 consid. 5.1; 132 III 389 consid. 7.2. Dans la première branche du moyen
2.2.1). Qu’un motif retenu par un tribunal considéré, le recourant fait valoir que le Code
arbitral heurte l’ordre public n’est pas est “arbitraire”, car il ne fixe pas de limites au
suffisant; c’est le résultat auquel la sentence pouvoir du TAS de prolonger le délai dans
aboutit qui doit être incompatible avec lequel la Formation est tenue de rendre sa
l’ordre public (ATF 144 III 120 consid. 5.1). sentence. Il souligne aussi que les parties ne
L’incompatibilité de la sentence avec l’ordre sont pas associées à cette prise de décision et
public, visée à l’art. 190 al. 2 let. e LDIP, est que les prolongations de délai sont
une notion plus restrictive que celle dépourvues de motivation.
d’arbitraire (ATF 144 III 120 consid. 5.1;
arrêt 4A_318/2018 du 4 mars 2019 consid. Force est d’emblée de souligner qu’il
4.3.1). Selon la jurisprudence, une décision n’appartient pas à la Cour de céans de
est arbitraire lorsqu’elle est manifestement déterminer, abstraitement, si une disposition
insoutenable, méconnaît gravement une réglementaire figurant dans le Code est
norme ou un principe juridique clair et arbitraire. Il lui incombe uniquement de
indiscuté, ou heurte de manière choquante le trancher le point de savoir si la sentence

144
querellée est incompatible ou non avec factuel que juridique, de la nature de la
l’ordre public visé par l’art. 190 al. 2 let. e procédure et de son enjeu pour le justiciable,
LDIP. Or, en raisonnant comme il le fait, ainsi que du comportement des parties et de
l’intéressé perd non seulement de vue que celui du tribunal (arrêt 4A_412/2021 du 21
l’application erronée, voire arbitraire, d’un avril 2022 et les références citées). En
règlement d’arbitrage ne constitue pas en soi l’occurrence, si la cause présentait à
une violation de l’ordre public procédural l’évidence une importance certaine pour le
(ATF 126 III 249 consid. 3b et les références recourant, il appert qu’elle revêtait une
citées), mais méconnaît aussi que la notion complexité non négligeable tant s’agissant
d’atteinte à l’ordre public est plus restrictive des faits que du droit. Les intimés soulignent
que celle d’arbitraire. La critique du recourant en outre que leur adversaire a assorti son
est dès lors irrecevable et, en tout état de appel d’une requête urgente de mesures
cause, impropre à établir une quelconque provisionnelles, laquelle a nécessité un
incompatibilité de la sentence incriminée échange d’écritures. Le TAS a ensuite dû se
avec l’ordre public. prononcer, de manière incidente, sur diverses
questions d’ordre procédural. On relèvera
7.3. par ailleurs que le recourant n’a rien trouvé à
redire aux sept premiers reports du délai
7.3.1. Dans la seconde branche du moyen imparti à la Formation pour rendre sa
examiné, le recourant reproche à la sentence, puisqu’il n’a attendu que le 22
Formation d’avoir enfreint le principe de novembre 2022 pour dénoncer pareil retard.
célérité, lequel revêt, à son avis, une Tout bien considéré, à l’aune de l’ensemble
importance particulière dans le domaine des circonstances, il apparaît ainsi que la
sportif. A cet égard, il soutient que le TAS durée de la procédure arbitrale, inférieure à
n’a pas rendu sa décision dans un délai deux ans, n’est pas déraisonnable et ne
raisonnable car la procédure arbitrale a conduit nullement à une contradiction
duré près de deux ans, ce d’autant que la insupportable avec le sentiment de justice. Si
Formation n’a déployé aucune activité cette durée est certes longue par rapport à
pendant environ une année à la suite de celle d’autres affaires tranchées par le TAS,
l’audience qu’elle avait tenue le 15 elle demeure cependant raisonnable pour les
décembre 2021. cas de manipulations de rencontres sportives,
lesquels impliquent généralement une
7.3.2. Le Tribunal fédéral n’a jamais tranché procédure d’instruction plus complexe.
la question de savoir si la violation du
principe de célérité peut être assimilée à une Décision
atteinte à l’ordre public procédural (cf. arrêt
4A_668/2020 du 17 mai 2021 consid. 4.2). Au vu de ce qui précède, le recours ne peut
L’intéressé ne fournit du reste aucune qu’être rejeté dans la mesure de sa
référence doctrinale étayant sa position. Quoi recevabilité.
qu’il en soit, point n’est besoin de pousser
plus avant l’examen de cette question, dès
lors que la sentence incriminée ne saurait être
taxée d’incompatible avec l’ordre public
procédural pour cause de non-respect dudit
principe.

Pour apprécier si une cause a été jugée dans

un délai raisonnable, il convient de tenir
compte de l’ensemble des circonstances du
cas concret et, singulièrement, de l’étendue et
de la complexité de l’affaire, tant au niveau

145
___________________________________________________________________________
4A_170/2023
28 juin 2023
Fédération Internationale de Football Association c. A.
___________________________________________________________________________

Recours en matière civile contre la sentence rendue le C.________ a fait état d’allégations d’abus
14 février 2023 par le Tribunal Arbitral du Sport sexuels systématiques qui auraient été
(TAS 2021/A/7661) commis au sein de la FB F.

Prétendue violation du droit d’être Le 30 avril 2020, le journal britannique

entendu (art. 182 al. 3 et 190 al. 2 let. d G.________ a publié un article indiquant que
LDIP) et de l’ordre public (art. 190 al. 2 A.________ aurait contraint plusieurs
let. e LDIP) - forclusion à soutenir le non- joueuses de football du Centre technique
respect du droit d’être entendu après national de U.________ à entretenir des
avoir reconnu que celui-ci a été rapports sexuels avec lui.
“totalement respecté”. Moyen en tout
état de cause infondé car le défaut Le 4 mai 2020, G.________ a fait paraître un
d’audition du témoin contestée n’a nouvel article mentionnant que l’intéressé
jamais été refusée. Le choix du mode niait toutes les accusations portées à son
d’audition du TAS vise à concilier les endroit. Le même jour, A.________ s’est
intérêts liés à la sécurité des personnes adressé au Président de la FIFA afin de lui
interrogées et les exigences liées au droit faire part de ses observations sur l’”
à un procès équitable. L’impossibilité opération de démolition “ menée à son
matérielle pour le TAS d’entendre des encontre par le journal précité.
témoins via un système de vidéo
conférence ne contrevient ni à des Le 11 mai 2020, la Chambre d’instruction de
principes fondamentaux généralement la Commission d’éthique de la FIFA a ouvert
reconnus, ni ne conduit à une une procédure disciplinaire à l’encontre de
contradiction insupportable avec le A.________ en raison de potentielles
sentiment de justice. violations du CEF. Le lendemain, elle a fait
savoir à ce dernier qu’un Comité ad hoc avait
Extrait des faits été constitué afin de procéder localement à
toutes les mesures d’instruction nécessaires.
La Fédération Internationale de Football
Association (FIFA), association de droit Le 18 mai 2020, A.________ a déposé une
suisse ayant son siège à Zurich, est la plainte pénale en France pour diffamation
structure faîtière du football au niveau publique à l’encontre de C.________.
international. Elle dispose d’un pouvoir
disciplinaire sur les fédérations nationales de Le 25 mai 2020, à la suite de la publication du
football, les joueurs ou les officiels qui rapport établi le 21 mai 2020 par le Réseau
méconnaîtraient ses règles, en particulier son National de Défense des Droits Humains
Code d’éthique (ci-après: CEF). (RNDDH) - qui avait été chargé de mener
une enquête indépendante sur les structures
Depuis l’an 2000, A.________, domicilié de la FB F et sur les allégations d’abus sexuels
dans l’État U.________, préside la commis au Centre technique national de
Fédération B.________ - de Football (FB F), U.________ - et des recommandations
laquelle est affiliée à la FIFA. émises par l’organisation Human Rights
Watch (HRW) dans un document rendu
Dans un document diffusé le 25 avril 2020 public le 22 mai 2020, la Présidente de la
sur sa chaîne YouTube, le journaliste Chambre d’instruction de la Commission

146
d’éthique de la FIFA a suspendu enquête préliminaire à l’encontre d’autres
provisoirement A.________ de toute activité officiels de la FB F.
liée au football pour une durée de 90 jours.
Cette mesure a été prolongée le 19 août 2020 Le 14 octobre 2020, la Commission d’éthique
pendant 90 jours supplémentaires. de la FIFA a publié son rapport final. Elle a
abouti à la conclusion que A.________ avait
Le 5 août 2020, E.________ Ltd, société enfreint plusieurs dispositions du CEF, en se
chargée de mener une enquête numérique sur livrant à des actes d’abus et de harcèlement
requête de la Chambre d’instruction de la sexuels sur des joueuses de football mineures,
Commission d’éthique de la FIFA, a rendu en menaçant des victimes et des témoins
son rapport final, dans lequel elle a potentiels et en abusant de sa position au sein
notamment souligné que plusieurs allégations de la FB F.
d’abus sexuels avaient été formulées via les
réseaux sociaux bien avant avril 2020. Le 16 novembre 2020, un tribunal de l’État
U.________ a mis un terme, faute
Le 7 août 2020, G.________ a publié un d’éléments suffisants, à la procédure pénale
nouvel article révélant, en particulier, que le qui avait été ouverte à l’encontre de
dénommé F.________, lequel avait travaillé A.________.
au Centre technique national de U.________
avant 2014, avait indiqué avoir été témoin Une fois l’instruction close, la Chambre de
d’abus sexuels commis par A.________ sur jugement de la Commission d’éthique de la
de jeunes joueuses de football. FIFA a rendu sa décision le 18 novembre
2020. Retenant que A.________ avait violé
Le 10 août 2020, une thérapeute a fait savoir les art. 23 (protection de l’intégrité physique
à la Chambre d’instruction de la Commission et mentale) et 25 (abus de pouvoir) du CEF
d’éthique de la FIFA que sa clinique pour des actes de harcèlement et d’abus
fournissait, depuis mai 2020, des services de sexuels commis sur des joueuses de football,
traumatologie aux témoins et victimes de y compris des mineures, ainsi que des abus de
prétendus abus sexuels commis au sein du pouvoir liés à sa fonction, elle lui a interdit à
Centre technique national de U.________. vie d’exercer toute activité en lien avec le
football à un niveau national et international
Le 13 août 2020, la Fédération Internationale et lui a infligé, de surcroît, une amende de
des Associations de Footballeurs 1’000’000 fr.
Professionnels (FIFPRO) a transmis à la
Chambre d’instruction de la Commission Le 27 janvier 2021, A.________ a interjeté
d’éthique de la FIFA un document dans appel auprès du Tribunal Arbitral du Sport
lequel elle indiquait avoir obtenu les noms de (TAS) aux fins d’obtenir l’annulation de la
34 victimes supposées d’abus sexuels commis décision précitée.
par 10 auteurs et complices, parmi lesquels
figurait A.________. La Formation a tenu audience à Lausanne du
23 au 25 mars 2022. Elle a notamment
Entre le 18 mai et le 21 août 2020, le procédé à l’audition de plus d’une vingtaine
Comité ad hoc a publié six rapports de témoins, certains étant entendus selon des
intermédiaires relatant les résultats de ses modalités particulières afin d’assurer leur
investigations. protection.

Sur la base des informations contenues dans Par sentence finale du 14 février 2023, la
le sixième rapport intermédiaire, la Chambre Formation a admis l’appel interjeté par
d’instruction de la Commission d’éthique de A.________ et annulé la décision attaquée.
la FIFA a ouvert, le 21 août 2020, une

147
La Formation a considéré, en substance, qu’il présenter son argumentation juridique, de
incombait à la FIFA de démontrer l’existence proposer ses moyens de preuve sur des faits
d’éventuelles violations du CEF, le degré de pertinents et de prendre part aux séances du
la preuve requis étant celui de la “ satisfaction tribunal arbitral. S’agissant du droit de faire
adéquate “. Procédant à l’examen des divers administrer des preuves, il faut qu’il ait été
moyens de preuve à sa disposition, elle a exercé en temps utile et selon les règles de
estimé que les indications figurant dans les forme applicables (ATF 142 III 360 consid.
documents établis par les organisations 4.1.1). Le tribunal arbitral peut refuser
FIFPRO et HRW ne constituaient pas des d’administrer une preuve, sans violer le droit
éléments suffisants permettant d’établir les d’être entendu, si le moyen de preuve est
faits litigieux, celles-ci n’étant pas inapte à fonder une conviction, si le fait à
corroborées par d’autres moyens de preuve prouver est déjà établi, s’il est sans pertinence
régulièrement administrés. La Formation a ou encore si le tribunal, en procédant à une
aussi observé un manque de cohérence et des appréciation anticipée des preuves, parvient à
imprécisions dans les déclarations faites par la conclusion que sa conviction est déjà faite
les victimes supposées d’abus sexuels et les et que le résultat de la mesure probatoire
témoins cités par la FIFA au cours de sollicitée ne peut plus la modifier (ATF 142
l’audience. Ces témoignages provenaient du III 360 consid. 4.1.1).
reste en grande partie de sources indirectes
qui paraissaient peu crédibles. La Formation La jurisprudence a également déduit du droit
a relevé, par ailleurs, que les autorités pénales d’être entendu un devoir minimum pour le
de l’État U.________ avaient abandonné les tribunal arbitral d’examiner et de traiter les
poursuites visant A.________, motif pris que problèmes pertinents. Ce devoir est violé
les faits qui lui étaient reprochés n’étaient pas lorsque, par inadvertance ou malentendu, le
suffisamment établis. Au terme de son tribunal arbitral ne prend pas en
appréciation des preuves disponibles, elle a considération des allégués, arguments,
conclu qu’il n’était pas démontré que preuves et offres de preuve présentés par
l’appelant aurait enfreint les art. 23 et 25 du l’une des parties et importants pour la
CEF (sentence, n. 203-234). sentence à rendre (ATF 142 III 360 consid.
4.1.1 et les références citées). Il incombe à la
Le 17 mars 2023, la FIFA (ci-après: la partie soi-disant lésée de démontrer, dans son
recourante) a formé un recours en matière recours dirigé contre la sentence, en quoi une
civile, assorti d’une requête d’effet suspensif, inadvertance des arbitres l’a empêchée de se
aux fins d’obtenir l’annulation de la sentence faire entendre sur un point important. C’est à
précitée. elle d’établir, d’une part, que le tribunal
arbitral n’a pas examiné certains des éléments
Extrait des considérants de fait, de preuve ou de droit qu’elle avait
régulièrement avancés à l’appui de ses
(…) conclusions et, d’autre part, que ces éléments
étaient de nature à influer sur le sort du litige
Dans un premier moyen, divisé en deux (ATF 142 III 360 consid. 4.1.1 et 4.1.3). Si la
branches, la recourante dénonce une sentence passe totalement sous silence des
violation de son droit d’être entendue éléments apparemment importants pour la
(art. 190 al. 2 let. d LDIP) (considérant 5) solution du litige, c’est aux arbitres ou à la
partie intimée qu’il appartiendra de justifier
5.1. cette omission dans leurs observations sur le
recours. Ceux-ci pourront le faire en
5.1.1. Le droit d’être entendu, tel qu’il est démontrant que, contrairement aux
garanti par les art. 182 al. 3 et 190 al. 2 let. d affirmations du recourant, les éléments omis
LDIP, permet à chaque partie de s’exprimer n’étaient pas pertinents pour résoudre le cas
sur les faits essentiels pour la décision, de concret ou, s’ils l’étaient, qu’ils ont été réfutés

148
implicitement par le tribunal arbitral (ATF au 7 mars 2022, ces personnes seraient
133 III 235 consid. 5.2). auditionnées à distance, mais en Suisse, au
moyen d’un téléphone muni d’un appareil
Au demeurant, le grief tiré de la violation du permettant la distorsion de la voix, dans un
droit d’être entendu ne doit pas servir, pour lieu tenu secret en présence d’un
la partie qui se plaint de vices affectant la collaborateur du TAS. La recourante souligne
motivation de la sentence, à provoquer par ce qu’elle s’est plainte, le 7 mars 2022, de ce que
biais un examen de l’application du droit de le système de vidéoconférence utilisé par le
fond (ATF 142 III 360 consid. 4.1.2 et les TAS ne permettait pas de garantir la
références citées). protection des personnes appelées à
témoigner, tout en mettant en avant le fait
5.1.2. Selon la jurisprudence, la partie qui que certains témoins protégés ne pouvaient
s’estime victime d’une violation de son droit pas se rendre en Suisse en raison de
d’être entendue ou d’un autre vice de circonstances indépendantes de leur volonté.
procédure doit l’invoquer d’emblée dans la L’intéressée expose que la forme arrêtée par
procédure arbitrale, sous peine de forclusion. la Formation pour l’audition des témoins
En effet, il est contraire à la bonne foi de protégés a eu pour effet de l’empêcher de
n’invoquer un vice de procédure que dans le faire entendre plusieurs personnes, et
cadre du recours dirigé contre la sentence notamment la “victime C”. Elle rappelle aussi
arbitrale, alors que le vice aurait pu être qu’elle s’est plainte, une nouvelle fois, au
signalé en cours de procédure (arrêts début de l’audience tenue par la Formation,
4A_332/2021 du 6 mai 2022; 4A_668/2016 des conséquences de ce mode d’audition
du 24 juillet 2017 consid. 3.1). Depuis le 1er pour les victimes potentielles incapables de
janvier 2021 (RO 2020 4181), l’art. 182 al. 4 rejoindre le territoire helvétique. L’intéressée
LDIP prévoit du reste expressément qu’une fait ainsi grief à la Formation de n’avoir pas
partie qui poursuit la procédure d’arbitrage donné suite à une offre de preuve
sans faire valoir immédiatement une violation régulièrement présentée, qui était
des règles de procédure qu’elle a constatée ou manifestement pertinente pour le sort de la
qu’elle aurait pu constater en faisant preuve procédure arbitrale, puisque les déclarations
de la diligence requise ne peut plus se de la “victime C” auraient permis de
prévaloir de cette violation ultérieurement. corroborer les indications figurant dans le
rapport de la FIFPRO. Elle prétend, enfin,
5.2. que la Formation aurait totalement fait fi de
la proposition qu’elle avait faite tendant à ce
5.2.1. Dans la première branche du moyen que les témoins protégés qui ne pouvaient
considéré, la recourante reproche au TAS pas se rendre en Suisse puissent témoigner
d’avoir refusé d’entendre l’un de ses par écrit.
témoins capitaux, à savoir “la victime C”.
Pour étayer son grief, elle rappelle que la 5.2.2. En l’occurrence, il appert que la
Formation avait elle-même jugé nécessaire de recourante a certes fait valoir, dans son
garantir l’anonymat de potentielles victimes courrier du 7 mars 2022, qu’il était “plutôt
d’abus sexuels ainsi que des témoins regrettable” que le système de
éventuels de tels faits. Elle relève que, dans vidéoconférence utilisé par le TAS ne puisse
son courrier du 28 février 2022, le TAS a pas garantir la protection des personnes
indiqué que la plateforme utilisée pour ses appelées à témoigner. Elle n’a toutefois pas
audiences par vidéoconférence ne disposait formulé d’objection concrète aux modalités
pas d’une option permettant la déformation d’audition proposées par la Formation. Par
de la voix et ne permettait dès lors pas de pli du 8 mars 2022, le TAS, réagissant au
préserver l’anonymat des témoins protégés. courrier précité, a rappelé aux parties qu’elles
C’est pourquoi, la Formation a fait savoir aux étaient tenues de s’assurer elles-mêmes de la
parties que, sauf objection de leur part d’ici disponibilité de leurs témoins et qu’il n’était

149
pas responsable de l’impossibilité pour “refusé” d’entendre la “victime C”. Elle a
certains d’entre eux de se rendre en Suisse. simplement opté pour un mode d’audition
Ne pouvant pas garantir l’anonymat des visant à concilier, d’une part, les intérêts liés
témoins protégés via la plateforme utilisée à la sécurité des personnes interrogées et,
pour les vidéoconférences, il a exposé avoir d’autre part, les exigences liées au droit à un
pris ses dispositions afin que les témoins procès équitable. Dans sa lettre du 28 février
protégés puissent néanmoins être entendus 2022, le TAS a en effet exposé en détail les
de manière confidentielle. Or, la recourante modalités prévues pour l’audition des
n’a pas formulé d’objection relative au témoins protégés afin de garantir leur
contenu dudit courrier mais s’est uniquement anonymat, tout en indiquant pourquoi il
référée ultérieurement à son courrier du 7 n’était pas possible de les entendre via la
mars 2022. Au début de l’audience tenue par plateforme utilisée pour les audiences par
la Formation, l’intéressée a souligné qu’il était vidéoconférence. Le 8 mars 2022, il a
“malheureux” que le TAS ne soit pas capable également rappelé aux parties qu’il leur
d’assurer la protection vocale des témoins incombait d’amener leurs propres témoins à
entendus par vidéoconférence et estimé qu’il l’audience, ce qui ressort expressément de
“devrait être possible aussi d’assurer la l’art. R44 al. 2 du Code de l’arbitrage en
potentielle distorsion de voix de ce genre de matière de sport. Or, l’intéressée n’a non
témoins dans ce genre d’affaires”. A cette seulement pas contesté ce point mais n’a
occasion, elle n’a toutefois jamais soutenu surtout pas exposé, à ce moment-là, les
que les modalités d’audition des témoins raisons pour lesquelles la “victime C” aurait
protégés arrêtées par la Formation étaient été dans l’impossibilité de se rendre en Suisse
viciées ou que celles-ci portaient atteinte à pour y témoigner, se contentant tout au plus
son droit d’être entendue. Qui plus est, à de faire référence à son courrier du 7 mars
l’issue de l’audience, la Formation a interpellé 2022 dans lequel elle avait affirmé de manière
les parties afin de s’assurer que leur droit lapidaire, sans nullement étayer ses
d’être entendues avait été pleinement allégations, que certaines personnes appelées
respecté. Or, il ressort de la sentence attaquée à comparaître ne pouvaient pas se déplacer
que celles-ci avaient indiqué que leur droit pour assister à l’audience “en raison de
d’être entendues avait été “totalement circonstances indépendantes de leur volonté
respecté” (n. 109). Comme l’expose en outre “. Elle n’a pas davantage soutenu que les
l’intimé dans sa réponse, sans être contredit modalités d’audition arrêtées par la
sur ce point par la recourante, celle-ci a Formation étaient contraires au droit ni fait
indiqué n’avoir aucune objection à formuler valoir qu’il convenait de trouver une solution
quant à la manière dont s’était déroulée la spécifique pour entendre la “victime C”.
procédure et a tenu à remercier la Formation L’intéressée s’est, en réalité, contentée de
d’avoir protégé les personnes qui avaient faire part de ses regrets quant à l’impossibilité
témoigné au cours de l’audience. Dans ces de pouvoir entendre certains témoins par
conditions, la recourante est forclose à venir vidéoconférence depuis l’étranger mais n’a
soutenir le contraire aujourd’hui, après avoir pas formellement soulevé d’objection
pris connaissance du contenu, défavorable s’agissant des modalités procédurales
pour elle, de la sentence querellée (arrêts d’audition fixées par la Formation. C’est
4A_378/2015 du 22 septembre 2015 consid. également en vain que la recourante reproche
3.3; 4A_348/2009 du 6 janvier 2010 consid. à cette dernière d’avoir ignoré sa requête
4). formulée le 7 mars 2022 tendant à ce que les
témoins protégés ne pouvant pas se rendre en
Cette question de forclusion mise à part, le Suisse puissent témoigner par écrit, puisque
moyen pris de la violation de l’art. 190 al. 2 la sentence attaquée y fait référence (n. 79),
let. d LDIP n’apparaît de toute manière pas ce qui démontre que les arbitres ont exclu, à
fondé. Contrairement à ce que soutient la tout le moins de manière implicite, pareille
recourante, la Formation n’a en effet jamais possibilité, sans que l’intéressée ne s’en

150
plaigne du reste lors de la procédure arbitrale. n. 58). Or, il ressort de la sentence attaquée
Il s’ensuit que la Formation n’a jamais refusé que l’intéressée a transmis au TAS un
d’entendre la “victime C” mais a simplement exemplaire dudit dossier “dans son
dû fixer des règles procédurales afin de intégralité” le 31 mai 2021 (n. 59). Dans ces
protéger les personnes interrogées tout en conditions, la recourante ne saurait reprocher
garantissant dans le même temps un à la Formation de n’avoir pas requis la
déroulement équitable des auditions, production de documents non caviardés. Au
permettant au TAS de vérifier l’identité des demeurant, si elle estimait réellement que la
témoins et de s’assurer qu’ils puissent Formation n’avait pas tous les documents
témoigner librement sans subir d’éventuelles nécessaires en sa possession pour statuer en
pressions de la part de tiers. pleine connaissance des circonstances
pertinentes de la cause en litige, la recourante
Il suit de là que le moyen pris de la violation aurait dû réagir au cours de la procédure
du droit d’être entendu de la recourante, s’il d’arbitrage et interpeller les arbitres à cet
n’avait pas été atteint par la forclusion, égard, ce qu’elle s’est bien gardée de faire.
n’aurait pu qu’être rejeté comme étant Quoi qu’il en soit, la Formation a visiblement
infondé. considéré qu’elle possédait toutes les
informations utiles pour rendre sa sentence
5.3. et, partant, qu’elle n’avait pas besoin
d’éventuels autres documents non caviardés
5.3.1. Dans la seconde branche du moyen qui n’auraient pas été produits par la
considéré, la recourante reproche au TAS recourante.
d’avoir enfreint son droit d’être entendue
en ne donnant pas suite à une offre de En tout état de cause, l’intéressée ne parvient
preuve qu’elle avait régulièrement pas à démontrer que les incohérences des
présentée. A cet égard, elle rappelle qu’elle témoignages identifiées par la Formation
avait proposé à la Formation de lui proviendraient du fait que certaines
transmettre les déclarations non caviardées informations topiques auraient été caviardées
faites par divers témoins. Or, si elle avait de sorte que l’on ne discerne pas en quoi la
donné suite à cette proposition et consulté violation dénoncée aurait pu influer sur
lesdits documents, la Formation, qui a précisé l’issue du litige.
avoir décelé des incohérences dans les
témoignages recueillis, aurait pu se rendre Dans un second groupe de moyens, la
compte que les déclarations faites par les recourante dénonce diverses violations
témoins étaient en réalité cohérentes. de l’ordre public (art. 190 al. 2 let. e LDIP)
(considérant 6)
5.3.2. Semblable argumentation n’emporte
nullement la conviction de la Cour de céans. 6.1. Une sentence est incompatible avec
l’ordre public si elle méconnaît les valeurs
Force est d’emblée de souligner que le moyen essentielles et largement reconnues qui, selon
considéré est lui aussi frappé de forclusion les conceptions prévalant en Suisse, devraient
pour les mêmes motifs que ceux déjà constituer le fondement de tout ordre
énoncés. juridique (ATF 144 III 120 consid. 5.1; 132
III 389 consid. 2.2.3). On distingue un ordre
Au demeurant, le grief invoqué apparaît de public procédural et un ordre public
toute manière infondé. Il appert, en effet, que matériel.
la Formation, en date du 25 mai 2021, a
demandé à la recourante de lui remettre, pour 6.1.1. Une sentence est contraire à l’ordre
sa seule information, une copie du dossier de public matériel lorsqu’elle viole des principes
sa Commission d’éthique “dans son fondamentaux du droit de fond au point de
intégralité et sans anonymisation” (sentence, ne plus être conciliable avec l’ordre juridique

151
et le système de valeurs déterminants (ATF
144 III 120 consid. 5.1; 132 III 389 consid. 6.2.
2.2.1). Qu’un motif retenu par un tribunal
arbitral heurte l’ordre public n’est pas 6.2.1. En premier lieu, la recourante prétend,
suffisant; c’est le résultat auquel la sentence en substance, que l’impossibilité d’entendre
aboutit qui doit être incompatible avec des témoins protégés, et singulièrement la
l’ordre public (ATF 144 III 120 consid. 5.1). “victime C”, par vidéoconférence moyennant
L’incompatibilité de la sentence avec l’ordre un système de distorsion de la voix viole
public, visée à l’art. 190 al. 2 let. e LDIP, est l’ordre public procédural visé par l’art. 190 al.
une notion plus restrictive que celle 2 let. e LDIP, étant donné que les personnes
d’arbitraire (ATF 144 III 120 consid. 5.1; concernées étaient tenues de se rendre en
arrêt 4A_318/2018 du 4 mars 2019 consid. Suisse pour témoigner indépendamment du
4.3.1). Selon la jurisprudence, une décision point de savoir si elles étaient en mesure de le
est arbitraire lorsqu’elle est manifestement faire.
insoutenable, méconnaît gravement une
norme ou un principe juridique clair et En argumentant de la sorte, l’intéressée se
indiscuté, ou heurte de manière choquante le contente, en réalité, d’émettre, sous un autre
sentiment de la justice et de l’équité; il ne angle, des critiques similaires formulées
suffit pas qu’une autre solution paraisse antérieurement à l’appui du moyen pris de la
concevable, voire préférable (ATF 137 I violation de son droit d’être entendue. Il n’y
1 consid. 2.4; 136 I 316 consid. 2.2.2 et les a dès lors pas lieu de s’arrêter ici sur les
références citées). Pour qu’il y ait reproches formulés par la recourante au titre
incompatibilité avec l’ordre public, il ne suffit de la contrariété à l’ordre public procédural
pas que les preuves aient été mal appréciées, qui se recoupent avec ceux ayant déjà été
qu’une constatation de fait soit écartés précédemment. En tout état de cause,
manifestement fausse ou encore qu’une règle on relèvera que l’impossibilité matérielle pour
de droit ait été clairement violée (arrêts le TAS d’entendre des témoins protégés via
4A_116/2016 du 13 décembre 2016 consid. un système de vidéoconférence ne
4.1; 4A_304/2013 du 3 mars 2014 consid. contrevient ni à des principes fondamentaux
5.1.1; 4A_458/2009 du 10 juin 2010 consid. et généralement reconnus ni ne conduit à une
4.1). L’annulation d’une sentence arbitrale contradiction insupportable avec le
internationale pour ce motif de recours est sentiment de la justice, étant précisé que la
chose rarissime (ATF 132 III 389 consid. possibilité même d’entendre des témoins par
2.1). vidéoconférence n’existe légalement pas dans
plusieurs États, et singulièrement en Suisse,
6.1.2. Il y a violation de l’ordre public raison pour laquelle le législateur fédéral a
procédural lorsque des principes décidé récemment d’adopter une disposition
fondamentaux et généralement reconnus ont en ce sens dont l’entrée en vigueur n’a
été violés, conduisant à une contradiction toutefois pas encore été fixée (cf. l’art. 170a
insupportable avec le sentiment de la justice, de la modification du 17 mars 2023 du Code
de telle sorte que la décision apparaît de procédure civile, FF 2023 786 [délai
incompatible avec les valeurs reconnues dans référendaire échéant le 6 juillet 2023]).
un État de droit (ATF 141 III 229 consid.
3.2.1; 140 III 278 consid. 3.1; 136 III 6.2.2. En second lieu, l’intéressée soutient
345 consid. 2.1). Selon une jurisprudence que l’“acquittement” de l’intimé serait
constante, l’ordre public procédural, au sens choquant et contraire à l’ordre public
de l’art. 190 al. 2 let. e LDIP, n’est qu’une matériel. A cet égard, elle fait valoir que la
garantie subsidiaire ne pouvant être invoquée sanction infligée à un autre officiel de la FBF
que si aucun des moyens prévus à l’art. 190 a été confirmée par le TAS et qu’il ne saurait
al. 2 let. a-d LDIP n’entre en ligne de compte en être autrement pour l’intimé. En outre, elle
(ATF 138 III 270 consid. 2.3). estime que le traitement procédural réservé à

152
la “victime C” serait contraire à sa dignité
humaine.

Par sa critique purement appellatoire, la

recourante ne fait rien d’autre que d’opposer
son appréciation personnelle des preuves
disponibles à celle ayant conduit les arbitres à
retenir que l’existence des faits reprochés à
l’intimé n’était pas établie. Ce faisant, elle ne
démontre nullement que le résultat auquel a
abouti la Formation serait incompatible avec
l’ordre public matériel. Au demeurant, le seul
fait que le TAS a estimé qu’un autre officiel
de la FB F avait effectivement commis les
actes qui lui étaient reprochés ne signifie pas
nécessairement que les graves accusations
portées à l’encontre de l’intimé seraient
avérées. En l’occurrence, la Formation a
procédé à un examen détaillé des preuves à sa
disposition et a exposé les raisons pour
lesquelles elle estimait que les éléments
recueillis étaient incohérents, imprécis et
contradictoires. Dans ces circonstances, le
refus de sanctionner un individu faute
d’éléments suffisants établissant sa
responsabilité ne saurait être taxé
d’incompatible avec l’ordre public matériel.

Enfin, la Cour de céans ne discerne pas, sur

la base des faits constatés dans la sentence
entreprise, en quoi le traitement procédural
réservé à la “victime C” aurait porté atteinte
à sa dignité humaine.

Décision

Au vu de ce qui précède, le recours doit être

rejeté dans la mesure de sa recevabilité.

153
___________________________________________________________________________
4A_254/2023
12 juin 2023
A. c. Fédération Internationale d’Escrime
___________________________________________________________________________

Recours en matière civile contre la décision rendue le être déposés par courrier au Greffe du TAS
17 avril 2023 par le Tribunal Arbitral du Sport par les parties en autant d’exemplaires qu’il y
(CAS 2023/A/9453) a d’autres parties et d’arbitres, plus un
exemplaire pour le TAS, faute de quoi le TAS
Prétendue violation de l’ordre Public ne procède pas. S’ils sont transmis par avance
procédural (art. 190 al. 2 let. e LDIP). par télécopie ou par courrier électronique à
Formalisme excessif. Les exigences de l’adresse électronique officielle du TAS
l’Article R31 Code TAS relatives au dépôt (procedures@tas-cas.org), le dépôt est
de la déclaration d’appel ne sauraient être valable dès réception de la télécopie ou du
reléguées au rang de simple formalité courrier électronique par le Greffe du TAS
administrative mais constituent bel et mais à condition que le mémoire et ses copies
bien une condition de validité du dépôt soient également déposés par courrier, ou
de l’acte en question. Un strict respect téléchargés sur la plateforme de dépôt en
des règles (Article R31 Code TAS) ligne du TAS, le premier jour ouvrable
relatives aux délais de recours s’impose suivant l’expiration du délai applicable,
pour des motifs d’égalité de traitement et comme mentionné ci-dessus.
de sécurité du droit. Le dépôt des mémoires susmentionnés au
moyen de la plateforme de dépôt en ligne du
Extrait des faits TAS est autorisé conformément aux
conditions prévues par le guide du TAS sur le
Le 31 janvier 2023, le Tribunal disciplinaire dépôt par voie électronique”.
de la Fédération Internationale d’Escrime
(FIE) a reconnu l’escrimeuse... A.________ 20 février 2023, le conseil américain qui
(ci-après: l’athlète) coupable d’avoir enfreint assurait la défense des intérêts de l’athlète a
la réglementation antidopage et l’a suspendue transmis sa déclaration d’appel au TAS par
pour une durée de deux ans. courrier électronique. Le même jour, il a fait
parvenir au TAS le formulaire intitulé “Case
Cette décision a été notifiée à l’athlète le 31 Registration Form” afin de pouvoir
janvier 2023. Selon la réglementation télécharger cette écriture sur la plateforme de
antidopage édictée par la FIE, le délai pour dépôt en ligne du TAS.
contester cette décision auprès du Tribunal
Arbitral du Sport (TAS) était de 21 jours et L’avocat précité a reçu la confirmation du
arrivait donc à échéance le 21 février 2023. TAS que les accès en ligne lui étaient
accordés.
Le Code de l’arbitrage en matière de sport (ci- L’avocat américain de l’athlète soutient qu’il
après: le Code), lequel régit la procédure se serait connecté sur la plateforme de dépôt
applicable devant le TAS, énonce notamment en ligne du TAS le 22 février 2023, soit le
ce qui suit, dans sa version entrée en vigueur premier jour ouvrable suivant l’expiration du
le 1er février 2023: délai d’appel, et qu’il aurait alors procédé au
téléchargement de la déclaration d’appel sur
“Art. R31 Notifications et communications ladite plateforme. A cette occasion, l’intéressé
(...) aurait trouvé que la plateforme de dépôt en
La requête d’arbitrage, la déclaration d’appel ligne était particulièrement lente mais ne se
et tout autre mémoire écrit, imprimé ou souvient pas avoir reçu un message d’erreur à
sauvegardé sur support numérique, doivent ce moment-là.

154
 Le 8 mars 2023, le TAS a invité la FIE à lui
Le 26 février 2023, le mandataire de indiquer si elle était d’accord qu’il entre en
l’appelante s’est connecté sur la plateforme matière sur l’appel ou si elle voulait que la
du TAS et y a téléchargé la déclaration Présidente de la Chambre arbitrale d’appel du
d’appel. TAS statue sur la recevabilité de l’appel.

Le 1er mars 2023, le TAS a indiqué que la La FIE a refusé que le TAS entre en matière.
déclaration d’appel lui semblait avoir été
téléchargée tardivement sur sa plateforme de Le 12 mars 2023, le conseil américain a fait
dépôt en ligne. valoir que la plateforme de dépôt en ligne du
TAS, contrairement à d’autres systèmes de ce
Le même jour, le conseil américain a fait genre, ne génère aucune confirmation de
savoir au TAS qu’il avait procédé au dépôt, raison pour laquelle il n’est pas
téléchargement le 22 février 2023 sur la possible de savoir si le document a été
plateforme de dépôt en ligne et qu’un téléchargé avec succès. Il a également
problème informatique ou de serveur avait soutenu que sa mandante avait dû engager
dû survenir à cette occasion. Se référant à des frais d’avocat importants pour déposer
l’art. R48 du Code, il a demandé au TAS de son mémoire d’appel en temps utile, puisque
lui impartir un bref délai pour compléter sa le TAS avait précisé que ledit délai n’était pas
déclaration d’appel. suspendu.

Le 2 mars 2023, le TAS a invité le conseil Par décision du 17 avril 2023, le TAS a fait
américain à lui transmettre d’ici au 6 mars savoir aux parties que la Présidente de la
2023 une copie d’un éventuel message Chambre arbitrale d’appel avait refusé
d’erreur généré par la plateforme de dépôt en d’entrer en matière sur l’appel car la
ligne le 22 février 2023. Il a ajouté que le délai déclaration d’appel avait été déposée
prévu par l’art. R51 du Code pour le dépôt du tardivement.
mémoire d’appel, qui arrivait à échéance le 3
mar 2023, n’était pas suspendu. Le 17 mai 2023, l’athlète (ci-après: la
recourante) a formé un recours en matière
Le 3 mars 2023, l’athlète a transmis au TAS civile à l’encontre de cette décision. Elle
son mémoire d’appel. conclut à l’annulation de celle-ci et demande
au Tribunal fédéral de déclarer son appel au
Le 6 mars 2023, le conseil américain a exposé TAS recevable ainsi que d’ordonner au
une nouvelle fois qu’il s’était connecté le 22 tribunal arbitral de reprendre la procédure
février 2023 sur la plateforme de dépôt en d’appel.
ligne du TAS lors d’une suspension
d’audience tenue à New York, qu’il avait Extrait des considérants
constaté que la connexion était
inhabituellement lente, qu’il ne se souvenait En premier lieu, la recourante soutient
pas avoir reçu de message d’erreur et qu’il que le TAS aurait fait preuve de
n’avait pas remarqué que le téléchargement formalisme excessif à son égard, violant
de son écriture sur la plateforme de dépôt en ainsi l’art. 190 al. 2 let. e LDIP en tant
ligne avait échoué. Il a rappelé avoir transmis qu’il commande le respect de l’ordre
un exemplaire de son écriture par courrier public procedural (considérant 5).
électronique en temps utile, raison pour
laquelle un éventuel refus du TAS de 5.1. Il y a violation de l’ordre public
procéder serait constitutif à son avis d’un procédural lorsque des principes
déni de justice. fondamentaux et généralement reconnus ont
été violés, ce qui conduit à une contradiction
insupportable avec le sentiment de la justice,

155
de telle sorte que la décision apparaît télécopie ou par courrier électronique, la
incompatible avec les valeurs reconnues dans validité de ce dépôt est toutefois
un État de droit (ATF 132 III 389 consid. subordonnée à la condition que l’écriture soit
2.2.1). Une application erronée ou même aussi transmise par courrier ou téléchargée
arbitraire des dispositions procédurales sur la plateforme de dépôt en ligne le premier
applicables ne constitue pas, à elle seule, une jour ouvrable suivant l’expiration du délai
violation de l’ordre public procédural (ATF applicable, étant précisé qu’une telle exigence
126 III 249 consid. 3b; arrêt 4A_548/2019 ne saurait être reléguée au rang de simple
du 29 avril 2020 consid. 7.3). formalité administrative mais constitue bel et
bien une condition de validité du dépôt de
5.2. Dans plusieurs arrêts, le Tribunal fédéral l’acte en question (arrêts 4A_54/2019,
s’est demandé dans quelle mesure le précité, consid. 4.2.2; 4A_238/2018, précité,
formalisme excessif pouvait être assimilé à consid. 5.6).
une violation de l’ordre public au sens de l’art.
190 al. 2 let. e LDIP et, singulièrement, de 5.4. Appliqués aux circonstances du cas
l’ordre public procédural. Il a évoqué la concret, ces principes commandent d’écarter
possibilité de ne prendre en considération, le reproche de formalisme excessif formulé
sous l’angle de la contrariété à l’ordre public, par la recourante.
que les violations caractérisées de
l’interdiction du formalisme excessif, sans L’intéressée assoit toute sa démonstration sur
toutefois pousser plus avant l’examen de la prémisse de fait selon laquelle son conseil
cette question dès lors que dans les cas américain aurait cru avoir valablement
concrets, le TAS n’avait nullement fait preuve téléchargé, en temps utile, la déclaration
de formalisme excessif (arrêts 4A_54/2019 d’appel sur la plateforme de dépôt en ligne du
du 11 avril 2019 consid. 4.1; 4A_556/2018, TAS mais qu’il n’aurait, en réalité, pas réussi
précité, consid. 6.2; 4A_238/2018, précité, à le faire en raison de défaillances techniques
consid. 5.2; 4A_692/2016, précité, consid. de ladite plateforme. Or, ces circonstances
6.1). factuelles ne sont pas avérées et ne ressortent
La même conclusion s’impose ici, pour les nullement de la décision entreprise. La
motifs exposés ci-dessous. recourante ne saurait ainsi être suivie
lorsqu’elle affirme que le TAS aurait
5.3. Le formalisme est qualifié d’excessif implicitement constaté que son conseil
lorsque des règles de procédure sont conçues américain avait vainement tenté de procéder
ou appliquées avec une rigueur que ne justifie au téléchargement de sa déclaration d’appel le
aucun intérêt digne de protection, au point 22 février 2023. C’est également en vain que
que la procédure devient une fin en soi et l’intéressée, se fondant toujours sur cette
empêche ou complique de manière prémisse de fait non établie, tente de
insoutenable l’application du droit (ATF 142 distinguer la présente espèce des autres
I 10 consid. 2.4.2; 132 I 249 consid. 5; arrêt affaires dans lesquelles le Tribunal fédéral a
4A_238/2018, précité, consid. 5.3). Le exclu tout formalisme excessif lorsque les
Tribunal fédéral a déjà eu l’occasion de parties concernées n’avaient pas respecté les
préciser que le TAS ne faisait pas montre exigences prévues par l’art. R31 du Code.
d’un formalisme excessif en sanctionnant par
une irrecevabilité le vice de forme que La recourante ne peut pas davantage être
constituait l’envoi d’une déclaration d’appel suivie lorsqu’elle tente de relativiser les
par simple télécopie ou courrier électronique conséquences juridiques attachées au non-
(arrêts 4A_54/2019, précité, consid. 4.2.2; respect des modalités de dépôt de la
4A_238/2018, précité, consid. 5.5; déclaration d’appel prévues par l’art. R31 du
4A_690/2016, précité, consid. 4.2). Si l’art. Code. Certes, le TAS a en l’occurrence offert
R31 al. 3 du Code permet certes de déposer la possibilité à la fédération intimée de
par avance une déclaration d’appel par consentir malgré tout à l’ouverture de la

156
procédure d’appel. Cela étant, la Cour de matériel (considérant 6). A cet égard, la
céans estime que les formes procédurales Cour rappelle que le TAS, dans son courrier
sont nécessaires à la mise en oeuvre des voies du 2 mars2023, avait indiqué, au moyen de
de droit, pour assurer le déroulement de la caractères soulignés, que le délai pour
procédure conformément au principe de introduire son mémoire d’appel n’était pas
l’égalité de traitement et pour garantir suspendu. L’intéressée soutint que le TAS
l’application du droit matériel. Un strict aurait ainsi laissé entendre qu’il allait
respect des règles relatives aux délais de poursuivre la procédure. En refusant
recours s’impose ainsi pour des motifs d’honorer la confiance légitime que son
d’égalité de traitement et de sécurité du droit attitude avait générée chez la recourante, le
(arrêts 4A_238/2018, précité, consid. 5.3; TAS aurait dès lors violé le principe de la
4A_692/2016, précité, consid. 6.2). En bonne foi.
décider autrement dans le cas d’une
procédure arbitrale particulière reviendrait à Semblable argumentation n’emporte
oublier que les parties intimées sont en droit nullement la conviction de la Cour de céans.
d’attendre du TAS qu’il applique et respecte Si le TAS a mis en exergue l’information
les dispositions de son propre règlement selon laquelle le délai pour le dépôt du
(arrêts 4A_556/2018, précité, consid. 6.5; mémoire d’appel n’était pas suspendu, c’est
4A_692/2016, précité, consid. 6.2). Il n’est sans aucun doute pour attirer l’attention de la
dès lors pas envisageable de sanctionner, recourante sur le fait qu’elle ne bénéficierait
suivant les circonstances, plus ou moins pas d’un délai plus long pour transmettre au
sévèrement le non-respect des exigences TAS son mémoire d’appel, dans l’hypothèse
prévues par l’art. R31 du Code (arrêt où sa déclaration d’appel serait considérée
4A_384/2017 du 4 octobre 2017 consid. comme ayant été transmise en temps utile.
4.2.3). On ne saurait en revanche voir dans cette
indication une quelconque forme de signe
En tout état de cause, on relèvera que le selon lequel le TAS entendait poursuivre la
conseil américain de la recourante, s’il avait procédure. Il sied du reste de souligner que le
réellement constaté que la plateforme TAS avait d’ores et déjà fait savoir à la
électronique du TAS rencontrait des recourante, le 1er mars 2023, que sa
problèmes, aurait pu et dû s’assurer que son déclaration d’appel paraissait avoir été
écriture avait bien été téléchargée, soit en téléchargée tardivement sur la plateforme de
interpellant immédiatement le TAS soit en se dépôt en ligne. Dans ces circonstances, c’est
connectant sur ladite plateforme sous la à tort que la recourante fait grief au TAS
rubrique concernant l’affaire concernée pour d’avoir agi de manière incompatible avec les
vérifier que le document se trouvait règles de la bonne foi.
effectivement dans la bibliothèque des
documents téléchargés. Dans ces conditions, Décision
l’avocat en question qui, selon les
constatations du TAS, est un utilisateur Au vu de ce qui précède, le recours doit être
régulier de la plateforme de dépôt en ligne, ne rejeté.
pouvait raisonnablement pas attendre quatre
jours pour s’enquérir de la situation auprès du
TAS.

6.
En second lieu, la recourante, invoquant
l’art. 190 al. 2 let. e LDIP, reproche au
TAS d’avoir enfreint le principe de la
bonne foi et d’avoir, partant, rendu une
décision contraire à l’ordre public

157
___________________________________________________________________________
4A_580/2022
26 avril 2023
A. c. B. & Fédération Internationale de Football Association
___________________________________________________________________________

Recours en matière civile contre la décision rendue le ligne et a exposé les raisons pour lesquelles il
21 novembre 2022 par le Tribunal Arbitral du estimait que son appel était recevable.
Sport
Le 21 novembre 2022, le Greffe du TAS a
Non-ouverture d’une procédure lorsque signifié aux parties un refus de procéder
le recours est introduit uniquement par concernant l'appel déposé par le club, en
courrier électronique. Si les conditions de précisant que l'avance versée par celui-ci
l’article R31 du Code TAS ne sont pas serait remboursée moyennant
remplies, le greffe du TAS peut refuser communication de ses coordonnées
d’entrer en matière. Il n’y a pas de déni de bancaires. Ce refus tenait au non-respect des
justice formel. exigences prévues par l'art. R31 al. 3 du Code
de l'arbitrage en matière de sport (ci-après: le
Extrait des faits Code), lequel énonce ce qui suit:

Statuant par décision du 13 octobre 2022, la “La requête d'arbitrage, la déclaration d'appel
Chambre de Résolution des Litiges de la et tout autre mémoire écrit, imprimé ou
Fédération Internationale de Football sauvegardé sur support numérique, doivent
Association (FIFA) a condamné le défendeur être déposés par courrier au Greffe du TAS
A.________ (ci-après: le club) à payer au par les parties en autant d'exemplaires qu'il y
joueur de football B.________ le montant de a d'autres parties et d'arbitres, plus un
765'000 euros, intérêts en sus, et a interdit au exemplaire pour le TAS, faute de quoi le TAS
club d'enregistrer de nouveaux joueurs, au ne procède pas. S'ils sont transmis par avance
niveau national et international, au cours de par télécopie ou par courrier électronique à
deux périodes consécutives l'adresse électronique officielle du TAS
d'enregistrement. (procedures@tas-cas.org), le dépôt est
valable dès réception de la télécopie ou du
Le 3 novembre 2022, le club a transmis au courrier électronique par le Greffe du TAS
Tribunal Arbitral du Sport (TAS) une mais à condition que le mémoire et ses copies
déclaration d'appel, laquelle a été envoyée soient également déposés par courrier, ou
exclusivement par courrier électronique. Le téléchargés sur la plateforme de dépôt en
même jour, il a payé une avance de frais de ligne du TAS, le premier jour ouvrable
1'000 fr. suivant l'expiration du délai applicable,
comme mentionné ci-dessus”.
Par lettre du 14 novembre 2022, le greffe du
TAS a fixé un délai de trois jours à l'appelant Le TAS a relevé que la décision attaquée avait
pour prouver que la déclaration d'appel avait été notifiée aux parties le 17 octobre 2022 et
été adressée par courrier ou téléchargée sur sa que le délai d'appel avait expiré le 7 novembre
plateforme de dépôt en ligne (“e-filing”), tout 2022. Or, le club, qui avait adressé sa
en relevant qu'un tel envoi n'était pas déclaration d'appel au TAS le 3 novembre
intervenu à ce jour. 2022 par courrier électronique, n'avait pas
transmis un exemplaire de son mémoire par
Par courrier électronique du 15 novembre courrier ni téléchargé celui-ci sur la
2022, l'appelant a demandé au TAS de plateforme de dépôt en ligne le premier jour
pouvoir bénéficier du service de dépôt en ouvrable suivant l'expiration du délai
applicable.

158
 Le recourant ne peut pas davantage être suivi
Le 21 décembre 2022, le club (ci-après: le lorsqu'il affirme, de manière péremptoire,
recourant) a formé un recours en matière que “d'après la lettre claire du Règlement du
civile, assorti d'une requête d'effet suspensif TAS”, il incombe au “président de la
et de mesures provisionnelles, aux fins Chambre arbitrale d'appel” de décider de ne
d'obtenir l'annulation de la décision du 21 pas entrer en matière sur une déclaration
novembre 2022. d'appel. Certes, l'art. R49 du Code dispose
que le Président de la Chambre concernée du
Extrait des considérants TAS n'ouvre pas de procédure “si la
déclaration d'appel est manifestement
5.1 Dans ses écritures, l'intéressé, se tardive”. Cela étant, l'intéressé perd de vue
plaignant d'un déni de justice formel et que l'application de la norme précitée
d'une composition irrégulière du tribunal n'entrait pas en ligne de compte en l'espèce.
arbitral au sens de l'art. 190 al. 2 let. a En effet, le TAS ne reprochait pas à
LDIP, fait valoir que le Greffe du TAS l'intéressé d'avoir agi tardivement mais bel et
n'était pas compétent pour refuser bien de ne pas avoir observé les conditions
d'entrer en matière sur son appel formelles afférentes au dépôt de la
(considérant 5). A cet égard, il soutient, en déclaration d'appel mentionnées à l'art. R31
se fondant sur le texte de l'art. R49 du Code, al. 3 du Code. Or, il appert du texte de ladite
qu'il incombait à la Présidente de la Chambre règle que l'examen de telles exigences
arbitrale d'appel du TAS de se prononcer sur incombe au Greffe du TAS et non pas au
ce point. Or, le dossier n'a pas été transmis à Président d'une Chambre d'arbitrage du TAS,
cette dernière, raison pour laquelle elle n'a pas puisque l'art. R31 al. 3 du Code précise
pu prendre connaissance des arguments que expressément que “le dépôt est valable dès
l'intéressé avait avancés pour démontrer que réception de la télécopie ou du courrier
son appel était recevable. Le recourant y voit électronique par le Greffe du TAS mais à
dès lors un déni de justice formel. Il dénonce condition que le mémoire et ses copies soient
en outre une violation de l'art. 190 al. 2 let. a également déposés par courrier, ou
LDIP, dans la mesure où la décision querellée téléchargés sur la plateforme de dépôt en
a été rendue à son avis par un organe ligne du TAS, le premier jour ouvrable
incompétent du TAS, à savoir par une suivant l'expiration du délai applicable,
Conseillère appartenant au Greffe de ladite comme mentionné ci-dessus [passage mis en
institution arbitrale et non par la Présidente évidence par le Tribunal fédéral].
de la Chambre arbitrale d'appel.
Pareille interprétation est du reste corroborée
5.2. L'argumentation développée par le par la pratique suivie par le TAS, car le
recourant - dont la motivation laisse à désirer Secrétaire adjoint du TAS a déjà confirmé,
- n'emporte nullement la conviction de la dans une autre affaire soumise au Tribunal
Cour de céans. fédéral il y a plusieurs années, qu'un refus de
procéder motivé par le fait qu'une partie
C'est en vain que l'intéressé se plaint d'un n'avait pas observé l'art. R31 al. 3 du Code
déni de justice formel, puisque le TAS n'a pas relevait de la seule compétence du Greffe du
refusé de statuer sur le cas qui lui était soumis. TAS (arrêt 4A_238/2018, précité, consid.
L'institution d'arbitrage a simplement 2.2).
considéré qu'elle ne pouvait pas procéder
respectivement entrer en matière sur l'affaire Le recourant ne saurait également être suivi
car le recourant ne l'avait pas saisie lorsqu'il prétend, en substance, que le Greffe
valablement, étant donné qu'il n'avait pas du TAS peut refuser d'entrer en matière
respecté les exigences formelles prévues par uniquement lorsqu'une partie n'a pas
l'art. R31 al. 3 du Code. transmis un nombre suffisant d'exemplaires
de sa déclaration d'appel. Certes, l'art. R31 al.

159
3 du Code est composé de deux phrases et
l'indication selon laquelle le “TAS ne procède
pas” figure au terme de la première d'entre
elles, laquelle règle notamment la
problématique afférente au nombre
d'exemplaires à déposer. Cela ne permet
toutefois pas d'en conclure, contrairement à
ce que soutient le recourant, que la seconde
phrase de l'art. R31 al. 3 du Code aurait en
réalité trait à une question de délai dont le
non-respect serait réglé par l'art. R49 du
Code. Comme l'expose le TAS de façon
convaincante, la première phrase de l'art. R31
al. 3 du Code énonce le principe général selon
lequel la déclaration d'appel doit en principe
être adressée par courrier, faute de quoi le
TAS ne procède pas. La seconde phrase de la
norme précitée ne fait qu'apporter des
précisions quant aux modalités du dépôt de
l'écriture, lorsque celle-ci a été initialement
transmise par courrier électronique. L'art.
R31 al. 3 du Code règle ainsi les exigences
formelles à respecter pour saisir valablement
le TAS tout en précisant que les mémoires
qui lui sont destinés doivent être adressés au
Greffe du TAS. Il prévoit en outre que
l'inobservation du mode réglementaire de
transmission de l'écriture destinée au TAS a
pour conséquence que ce dernier ne procède
pas. Force est dès lors d'admettre que le
Greffe du TAS était bel et bien habilité à
rendre la décision querellée.

A titre superfétatoire, on relèvera que, même

si l'on suivait la thèse du recourant,
l'admission du recours ne présenterait de
toute manière aucun intérêt pratique pour ce
dernier. En effet, la Présidente de la Chambre
arbitrale d'appel a confirmé, dans la réponse
au recours du TAS, sans susciter la moindre
réaction de la part du recourant à cet égard, la
conformité de la décision du 21 novembre
2022 avec les règles du Code, en dépit des
arguments avancés par l'intéressé au sujet du
non-respect des conditions de l'art. R31 al. 3
du Code.

Décision

Au vu de ce qui précède, le recours doit être

rejeté dans la mesure de sa recevabilité.

160
___________________________________________________________________________

Informations diverses
Miscellanous
Información miscelánea

161
___________________________________________________________________________
Publications récentes relatives au TAS/Recent publications related to CAS /
Publicaciones recientes relacionadas con el CAS
___________________________________________________________________________
• A. L. AL., Solidarity mechanism in light of
the FIFA Clearing House Regulations and • Garcia Torres J., Las transferencias
the recent jurisprudence of the FIFA internacionales de futbolistas menores de
DRC and the CAS, Football Legal, no. 18, edad: Una aproximación a la
2023/1, p. 16 jurisprudencia de FIFA y del TAS, Revista
aranzi de derecho de deporte y
• Akhtar Zia, The Court of Arbitration of entretenimiento, Num. 79, 2023
sport: procedural justice and
discrimination against athletes of • Guillaumé J., Tribunal Arbitral du Sport:
developing countries, Sports Law and 2 Chronique des sentences arbitrales
Taxation, vol. 14, no. 2, June 2023, p. 28 – [2021, 2022], Journal du droit
34 International, année 148, no. 1, janvier-
février-mars 2023, p. 287 – 343
• Berché I & Navarrro G, Illegal Betting by
Players and Match Officials and its • Jamer G., Chameleon: Federative
Regulation, Football Legal, no. 18, Jurisdiction over Image Rights
2023/1, p. 27 Agreements, Football Legal, no. 18,
2023/1, p. 35
• Breillat J.-C., La composition de l’équipe,
Jurisport, no. 241, mai 2023, p. 287 – 343 • James M., A victors for Caster Semenya-
but still no right to compete, The
• Casanova Guash F., El nuevo reglamento International Sports Law Journal, Volume
de la FIFA sobre agentes de futbol, 23, Number 2, June 2023, p. 149
Revista aranzi de derecho de deporte y
entretenimiento, Num. 79, 2023 • Kharitonchuk A., FC Shakhtar Donetsk
Sues FIFA because of Annexe 7, Football
• Cooper J., Protecting human rights in Legal, no. 18, 2023/1, p. 78
sport: is the Court of Arbitration for Sport
up to the task? A review of the decision in • Kleen J., Sportrechtliche “Dauerbrenner”
Semenya v. IAAF, The International und NADA-Sytemkritik: der Fall
Sports Law Journal, Volume 23, Number Vuskovic, Spurt 3/2023, p. 208 – 2104
2, June 2023, p. 151
• Kuzmin A., Annexe 7 FIFA RSTP – End
• Crespo Ruiz-Huerta J. & Badenes Torno of the Contractual Stability Epoch,
C., El Sistema de training compensation Football Legal, no. 18, 2023/1, p.82
de la FIFA en el marco arbitral: últimos
avances, Revista aranzi de derecho de • Maisonneuve M., Chronique de
deporte y entretenimiento, Num. 79, 2023 jurisprudence arbitrale en matière
sportive, Revue de l’Arbitrage, 2023 – no.
• Duffy J., Henderson T., O’Brien J., The 3, p. 795 - 865
regulation of threshold levels for
prohibited substances in the world anti- • Nadal M., The nature of the international
doping program, The International Sports transfer certificate (ITC) and its incidence
Law Journal, Volume 23, Number 2, June on the legitimation of procedures in the
2023, p. 198 event of an appeal against its provisional

162
 issuance. CAS 2020/A/7468 Sao Paulo • Zuständigkeit der FIFA-Kommision für
FC v. FIFA &; Chilean Football den Status von Spielern, Spurt 4/2023, p.
Federation &; CD la Serena &; Lucas 310
Fasson Dos Santos, Revista aranzi de
derecho de deporte y entretenimiento,
Num. 80, 2023, p. 211

• Netzle S., Wie weiter nach dem EGMR-

Urteil in Sachen Semenya gegen die
Scheiz?, Spurt 5/20203, p. 347

• Pastrana Aguilar R., The international

transfer of underage footballers under the
FIFA regulations and its treatment by
CAS, Revista aranzi de derecho de
deporte y entretenimiento, Num. 80,
2023, p. 221

• Rabu G., La concurrence juridictionnelle

des fédérations sportives, Les Cahiers de
droit du sport, no. 62, 2023, p. 27 – 37

• Rook W., Prado T., Heerdt D.,

Responsible sport: no going back, The
International Sports Law Journal, Volume
23, Number 1, March 2023, p.85

• Shinohara T., Human rights in sports

arbitration: what should the Court of
Arbitration for Sport do for protecting
human rights in sports?, Liverpool Law
Review, 21 October 2023

• Star S., The quest for harmonisation in

anti-doping: an Indian Perspective, The
International Sports Law Journal, Volume
23, Number 1, March 2023, p. 44

• Zubcic L., Windholz Y.-F., Smashed vials,

fair trials? Sun Yang and procedural
fairness at the court of arbitration for
Sport, The International Sports Law
Journal, Volume 23, Number 2, June
2023, p. 176

• Rechtsprechung, Bindung des CAS und

des SchwBG an EMRK-Garantien (Fall
Caster Semenya), Spurt 5/2023, p. 381

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