Tribunal Arbitral du Sport Court of Arbitration for Sport Arbitration CAS 2013/A/3256 Fenerbahçe Spor Kulübü v. Union des Associations Européennes de Football (UEFA), award of 11 April 2014 (operative part of 28 August 2013) Panel: Mr Manfred Nan (the Netherlands), President; Prof. Ulrich Haas (Germany); Mr Rui Botica Santos (Portugal) Football Disciplinary sanction against a club for match-fixing Definitions of “match-fixing” Res judicata Ne bis in idem Competence of UEFA to instigate disciplinary proceedings in national match-fixing cases Standard of proof in match-fixing cases Liability for match-fixing of a legal entity Proportionality of the sanction 1. In its “classic” sense, match-fixing involves a party directly or indirectly influencing or trying to influence the outcome of matches to its own benefit. In a more “modern” sense, match-fixing involves third parties (i.e. criminal organisations) attempting to influence the result of a match by inducing athletes, referees or clubs to act in a certain way during a match. The third party fixing the match is not necessarily interested in the outcome of the match, but is interested in certain events to occur on which bets can be placed, in order to make profit. Although third parties are not involved in “classic” match-fixing, the latter is in fact just as treacherous to the integrity of sport, if not more, as match-fixing in its “modern” context. 2. The procedural concept of res iudicata has two elements: 1) the so-called “Sperrwirkung” (prohibition to deal with the matter = ne bis in idem), the consequence of this effect being that if a matter (with res iudicata) is brought again before the judge, the latter is not even allowed to look at it, but must dismiss the matter (insofar) as inadmissible; and 2) the so-called “Bindungswirkung” (binding effect of the decision), according to which the judge in a second procedure is bound to the outcome of the matter decided in res iudicata. The binding effect is only of interest, if the judge asked second has to deal with a preliminary question that has been decided finally by the first judge. The discretion of an appeal body to re-examine the case from both a factual and a legal perspective does not allow it to change the matter in dispute. If the first instance body has limited the scope of the proceedings to a specific matter and this specific matter is the basis of the first instance body decision, a party cannot, without appealing the decision, extend it or introduce a new one before the appeal body and the latter is prevented from extending it by the “Sperrwirkung” attached to the principle of res iudicata. CAS 2013/A/3256 2 Fenerbahçe Spor Kulübü v. UEFA, award of 11 April 2014 (operative part of 28 August 2013) 3. Sports disciplinary bodies cannot try a person or an entity again for an offence in relation to which that person or entity has been acquitted already by a final decision of another body based on the same regulatory framework. However, no issue of ne bis in idem arises if that person or entity has been acquitted on the basis of a regulatory framework applicable at national level and is tried again based on a regulatory framework applicable at continental level. Also, there is no violation of the ne bis in idem principle when, in a “two-stage process”, the nature of the suspensions sought in the different disciplinary proceedings was different, the first stage sanction being a minimum “administrative measure” with only national consequences and the second stage measure a final “disciplinary measure” with only European consequences. 4. UEFA has competence to instigate disciplinary proceedings against a club for match- fixing in a national competition. The material and the territorial scope of the sanctions are defined by means of article 2.05 and 2.06 of the UEFA Champions League Regulations in conjunction with article 50(3) of the UEFA Statutes and article 5 of the UEFA Disciplinary Regulations (2008) in a clear and unambiguous way. 5. The standard of proof to be applied in civil law cases is “beyond reasonable doubt”. Disciplinary proceedings are – according to constant CAS jurisprudence – considered to be civil in nature. It is typical and usual in disputes of a civil nature that the parties involved never have investigative powers like “national formal interrogation authorities”. Therefore, at least according to Swiss law, the “restricted investigative powers” of a party can never justify a reduced standard of proof in civil matters, since otherwise the normal standard of proof in civil matters (“beyond reasonable doubt”) would never be applicable. However, Swiss law is not blind vis-à-vis difficulties of proving (“Beweisnotstand”). Instead, Swiss law knows a number of tools in order to ease the – sometimes difficult – burden put on a party to prove certain facts. These tools range from a duty of the other party to cooperate in the process of fact finding, to a shifting of the burden of proof or to a reduction of the applicable standard of proof. The latter is the case, if – from an objective standpoint – a party has no access to direct evidence (but only to circumstantial evidence) in order to prove a specific fact. In such cases, the standard of proof is “comfortable satisfaction”. 6. A legal entity can only be held liable for match-fixing through actions of persons representing or acting on behalf of the legal entity, i.e. its officials. Therefore, the only basis for sanctioning the club as an entity is its liability for the actions of its officials. 7. The range of sanctions imposed in earlier match-fixing cases before CAS vary between a one-year and an eight-year period of ineligibility. This spectrum of sanctions (period of ineligibility between zero and eight year) is comparable to a certain extent to the spectrum of sanctions in doping cases. In view of the analogy between match-fixing cases and doping cases in respect of the standard of proof to be applied, some guidance can be found in the elaborate regime on doping sanctions. In practise, this spectrum would mean that a “standard” match-fixing offence would, in principle, CAS 2013/A/3256 3 Fenerbahçe Spor Kulübü v. UEFA, award of 11 April 2014 (operative part of 28 August 2013) have to be sanctioned with a two-year period of ineligibility. In case of particularly serious match-fixing offences a higher sanction would have to be imposed and in case of mitigating circumstances the standard two-year period of ineligibility would have to be reduced. I. PARTIES 1. Fenerbahçe Spor Kulübü (hereinafter: the “Appellant” or “Fenerbahçe”) is a professional football club with its registered headquarters in Istanbul, Turkey. Fenerbahçe is a member of the Turkish Football Federation (hereinafter: the “TFF”), which in turn is affiliated to the Union of European Football Associations (hereinafter: “UEFA”) and the Fédération Internationale de Football Association (hereinafter: the “FIFA”). 2. UEFA (hereinafter also referred to as: the “Respondent”) is an association under Swiss law and has its registered headquarters in Nyon, Switzerland. UEFA is the governing body of European football. It exercises regulatory, supervisory and disciplinary functions over national federations, clubs, officials and players in Europe. II. FACTUAL BACKGROUND A. Background Facts 3. Below is a summary of the main relevant facts, as established on the basis of the written and oral submissions of the parties and the evidence examined in the course of the proceedings and at the hearing. This background is made for the sole purpose of providing a synopsis of the matter in dispute. Additional facts may be set out, where relevant, in connection with the legal discussion. 4. On 21 February, 26 February, 6 March, 7 March, 20 March, and 9 April 2011 respectively, certain matches were played in the Turkish Süper Lig, of which it was later said that in respect of these matches bribes were paid in order to lose or incentive bonuses were paid by individuals related to Fenerbahçe. 5. On 14 April 2011 a new Turkish law numbered 6222 came into effect. This law made match- fixing a specific criminal offence in Turkey. 6. On 17 April, 22 April 2011 and 1 May 2011 respectively, certain matches were played in the Turkish Süper Lig, of which it was later said that in respect of these matches bribes were paid in order to lose or incentive bonuses were paid by individuals related to Fenerbahçe. CAS 2013/A/3256 4 Fenerbahçe Spor Kulübü v. UEFA, award of 11 April 2014 (operative part of 28 August 2013) 7. On 5 May 2011, Fenerbahçe signed and submitted an UEFA Club Competitions 2011/2012 Admission Criteria Form (hereinafter: the “2011/2012 Admission Form”) to UEFA in order to participate in the 2011/2012 UEFA Champions League season, by which it confirmed that “the above-mentioned club [i.e. Fenerbahçe] has not been directly and/or indirectly involved in any activity aimed at arranging or influencing the outcome of a match at national or international level since 27 April 2007”. 8. On 8 May, 15 May and 22 May 2011 respectively, certain matches were played in the Turkish Süper Lig, of which it was later said that in respect of these matches bribes were paid in order to lose or incentive bonuses were paid by individuals related to Fenerbahçe. 9. On 22 May 2011, Fenerbahçe won the Turkish Süper Lig and qualified automatically for the group stage of the UEFA Champions League in the 2011/2012 season. 10. On 3 July 2011, the Turkish police arrested and detained 61 individuals as part of investigations pursued in matters concerning match-fixing within Turkish football.