CAS 2013/A/3256 Fenerbahce SK V. UEFA
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'fribunc!l Arbitral du Sport c:ouri of ArbitratiOi1 ['or Spori CAS 2013/A/3256 Fenerbah~e Spor Kuliibii v. UEFA ARBITRAL A WARD delivered by the COURT OF ARBITRATION FOR SPORT sitting in the following composition: President: Mr Manfred Nan, Attorney-at-law, Arnhem, the Netherlands Arbitrators: Mr Ulrich Haas, Professor, Zurich, Switzerland Mr Rui Botica Santos, Attorney-at-law, Lisbon, Portugal Ad hoc Clerk: Mr Dennis Koolaard, Attorney-at-law, Arnhem, the Netherlands in the arbitration between FENERBAH<;;E SPOR KULUBU, Istanbul, Turkey Represented by Mr Andreas Zagklis, Mr Christian Keidel and Mr Heiner Kahlert, Attomeys-at-law, Munich, Getmany, Mr Deniz Tolga Aytore, Mr Abdullah Kaya, Mr Ayhan <;;opuroglu, Mr Abdurrahim Erol and Mr Ahmet Melih Turan, Legal Counsel, and Mr Aziz Y!ldmm, President as Appellant and UNION OF EUROPEAN FOOTBALL ASSOCIATIONS (UEFA), Nyon, Switzerland Represented by Dr Jean-Marc Reymond and Ms Delphine Rochat, Attomeys-at-law, Lausaffile, Switzerland, Mr Adam Lewis Q.C., Barrister, London, United Kingdom, Mr Emilio Garcia Silvero, Head of Disciplinary and Integrity and Mr Miguel Lietard Ferm\ndez-Palacios, Disciplinary Inspector as Respondent Tribunal Arbitral du Sport CAS 2013/A/3256 Fenerbah9e Spor Ku!Ubii v. UEFA- Page 2 Court of Arbitration for Sport I. PARTIES II. FACTUAL BACKGROUND A. Background Facts B. The TFF Ethics Committee Report C. The Decisions of the TFF PFDC D. The Decisions of the TFF Board of Appeals E. The Decision of the 16th High Criminal Court oflstanbul F. The Decision ofthe Control and Disciplinary Body ofUEFA G. The Decision ofthe Appeals Body ofUEFA III. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT IV. SUBMISSIONS OF THE PARTIES V. ADMISSIBILITY VI. JURISDICTION VII. APPLICABLELAW VIII. PRELIMINARY ISSUE IX. MERITS A. The Main Issues 1. Procedural and formal aspects: a. Was the legal principle of res iudicata violated by UEFA? b. Do the UEFA CDB Decision and the Appealed Decision violate the ne his in idem principle? c. Was the UEFA CDB competent to instigate disciplinary proceedings against Fenerbahre and were the sanctions imposed in accordunce with tlte legality principle? i. Does article 2.06 UCLR require that article 2.05 was previously applied? ii. Is there a sufficient legal basis for the disciplinary measure? d. Was UEFA estopped fi"om instigating disciplinary proceedings ugainst Fenerbaltre because of the UEFA Geneml Secretury's lettei· dated 23 August 2011? e. Can UEFA impose a sanction on Fenerbahre even if it deems tlwt the level of informution obtained in relation to the individuals is not sufficient to issue a sunction against tltem yet? f. Should the disciplinary proceedings be remitted back to UEFA due to a violation ofseveral procedural rights? 2. Merits: g. Do the merits of tlte case 1varrant disciplinmy sanctions being imposed on Fenerbuhre? i. The standard of proof to be applied ii. General arguments of the parties iii. Gen~Jerbirligi SK v. Fenerbah~e (7 March 2011) iv. Fenerbah~e v. IBB Spor (1 May 2011) v. Fenerbah~e v. MKE Anlmragiicii (15 May 2011) vi. Sivasspor v. Fenerbah~e (22 May 2011) Tribunal Arbitral clu Sport CAS 2013/A/3256 Fenerbah9e Spor Kuliibii v. UEFA- Page 3 Court of Arbitration for Sport ft. Ifso, was the sanction imposed on F enerbahr;e proportionate? i. UEFA's alleged violation of the equality principle ii. UEFA's alleged violation of article 17 of the UEFA DR iii. The proportionality ofthe sanction B. Conclusion X. CosTs Tribunal Arbitral clu Sport CAS 2013/A/3256 Fenerbahs:e Spor Kullibii v. UEFA- Page 4 Court of Arbitration for Sport I. PARTIES 1. Fenerbah9e Spor Kuliibii (hereinafter: the "Appellant" or "Fenerbah9e") is a professional football club with its registered headquarters in Istanbul, Turkey. Fenerbah9e is a member of the Turkish Football Federation (hereinafter: the "TFF"), which in tum is affiliated to the Union of European Football Associations (hereinafter: "UEFA") and the Federation Intemationale 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 headqumters in Nyon, Switzerland. UEF A is the goveming body of European football. It exercises regulatory, supervisory and disciplinary functions over national federations, clubs, officials and players in Europe. II. FACTUALBACKGROUND A. Background Facts 3. Below is a surmnary 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 hem·ing. 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 Siiper 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 Fenerbah9e. 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 April2011 and 1 May 2011 respectively, certain matches were played in the Turkish Siiper 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 Fenerbah9e. 7. On 5 May 2011, Fenerbah9e signed and submitted an UEFA Club Competitions 2011/2012 Admission Criteria Fotm (hereinafter: the "2011/2012 Admission Form") to UEFA in order to participate in the 2011/2012 UEFA Champions League season, by which it confitmed that "the above-mentioned club [i.e. Fenerbah9e] has not been directly and/or indirectly involved in any activity aimed at arranging or influencing the outcome ofa 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 Siiper 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 Fenerbah9e. Tribunal Arbitral c!u Sport CAS 2013/A/3256 Fenerbah9e Spor Kuliibii v. UEFA- Page 5 Court of Arbitration for Sport 9. On 22 May 2011, Fenerbah9e won the Turkish Siiper Ligand qualified automatically for the group stage of the UEFA Champions League in the 2011/2012 season. 10. On 3 July 2011, the Turkish police atTested and detained 61 individuals as part of investigations pursued in matters concerning match-fixing within Turkish football. Mr Aziz Y!ldmm, President of Fenerbah9e, Mr Mehmet $ekip Mosturoglu, Vice president of Fenerbah9e, Mr Ilhan Ek~ioglu, Board member of Fenerbahye, Mr Alaeddin Yildmm, Board member of Fenerbah9e, Mr Cemil Turhan, Manager of Fenerbah9e, and Mr Tamer Yelkovan, Finance Director of Fenerbah9e, were among the persons who were suspected of having conducted match-fixing activities in respect of several matches played during the (second half of the) football season 2010/2011. 11. On 11 July 2011, the Executive Committee of the TFF requested the Ethics Committee of the TFF to commence with an investigation on match-fixing in Turkish football. 12. On 20 July 2011, the Turkish public prosecutor provided the TFF Ethics Committee with information and material in relation to the criminal investigation. 13. On 22 August 2011, a meeting took place between Mr Piene Comu, UEF A Chief Legal Counsel for Integrity and Regulatory Mfairs, TFF Officials and Mr Mehmet Berk, state prosecutor in Turkey. 14. On 23 August 2011, Mr Gianni Infantino, UEFA General Secretary, issued a letter to the TFF with, inter alia, the following content: "(. ..) [G]iven the evidence that now exists, it appears to us that Fenerbache [sic] should not be eligible to participate in the UEFA Champions League this season. In the circumstances, it also appears that the appropriate course of action would now be for Fenerbache [sic] to withdraw its participation ji·om the UEFA Champions League for this season. Alternatively, the TFF may withdraw the club from the competition. We should point out that if one or other of these paths of action is not taken and UEFA has to open its own Disciplinary Procedures against the club (whether now or in the coming months) an eventual sanction is likely to be considerably more severe, in particular, if the club is found guilty of lying when it completed the Admission Criteria form confirming that it had not been involved in any match fixing activity since April 2007. Whilst we cannot predict the form ofsanction that might finally be imposed we can advise that in some other cases of match-fixing (e.g. Pobeda) clubs have been banned from participation in UEFA club competitions for up to eight years. For the sake of completeness, we must also advise you that, if the TFF does not deal with this matter now this will also lead to appropriate disciplinary steps being taken against the TFF. As you will understand, UEFA cannot accept, in all these circumstances, that Fenerbache [sic] starts in the UEFA Champions League this season and is then subsequently excluded from the competition because involvement in match-fixing is finally established. (. ..)" Tribunal Arbitral du Sport CAS 2013/A/3256 Fenerbah9e Spor Kuliibii v. UEFA- Page 6 Court of Arbitration for Sporl 15. On 24 August 2011, the Executive Committee of the TFF informed UEFA that "we decided that Fenerbahr;e FC will not participate to UEFA Champions League competition this season". 16. On 25 August 2011, following an appeal of Fenerbah9e against the decision of the TFF Executive Committee, the TFF Arbitral Committee rejected Fenerbah9e's appeal and application for a stay of the TFF's decision to withdraw it from the Champions League for the 2011/2012 season.