Tribunal Arbitral du Sport Court of Arbitration for Sport Arbitration CAS 2016/A/4501 Joseph S. Blatter v. Fédération Internationale de Football Association (FIFA), award of 5 December 2016 Panel: Mr Manfred Nan (The Netherlands), President; Mr Patrick Lafranchi (Switzerland); Mr Andrew de Lotbinière McDougall (France) Football Disciplinary sanctions for infringements to the Code of Ethics Principle “tempus regit actum” and prohibition against retroactivity Admissibility of a witness statement of a witness not appearing at the hearing Potential conclusive and preclusive effects of a previous award rendered in a closely connected case Burden of proof Standard of proof of “personal conviction” Prohibition of bribery Conflict of interests Limited discretion to review sanctions imposed by disciplinary bodies of federations 1. Pursuant to the legal principle of tempus regit actum or non-retroactivity, procedural matters are governed by the regulations in force at the time of the procedural act in question. The prohibition against retroactivity is a fundamental principle of Swiss law and forms part of international public policy (ordre public). An exception in this respect may however be if more recent regulations than the one in force at the time of the violation are more favourable to the accused (lex mitior). 2. According to article 4(7) of the IBA Rules on the Taking of Evidence in International Arbitration, “[i]f a witness whose appearance has been requested pursuant to Article 8.1 fails without a valid reason to appear for testimony at an Evidentiary Hearing, the Arbitral Tribunal shall disregard any Witness Statement related to that Evidentiary Hearing by that witness unless, in exceptional circumstances, the Arbitral Tribunal decides otherwise”. 3. For an arbitral award to have conclusive and preclusive effects it must comply with the traditional triple identity test (identity of the claims, of the causes of action and of the parties), and if there are different parties in the further arbitration proceedings, the prior award will not have conclusive and preclusive effects on a different party. There are however several published awards in which arbitral tribunals have given some effects to a prior decision, even though it did not qualify as res judicata. This was typically done in situations where the prior decision involved a case that was not identical but was closely connected to the case before the arbitral tribunal. The effects given to such prior decisions varied among arbitral tribunals. While some tribunals considered themselves bound by a prior decision that was not res judicata, others were more cautious holding that they would take the prior decision into consideration. In a case where only a media CAS 2016/A/4501 2 Joseph S. Blatter v. FIFA, award of 5 December 2016 release but not the reasoning of the previous award was available at the time of the hearing, the press release and previous award were not submitted into evidence and were not relied upon by the parties in making their submissions and requests for relief in the further arbitration proceedings, the panel shall not be bound by the previous award. 4. The principle of burden of proof applies if the requisite degree of conviction that an alleged fact is fulfilled is not reached. In such a case, the principle of burden of proof defines which party has to bear the consequences of such a state of non-conviction on the part of the arbitral tribunal with respect to the establishment of an alleged fact. Except where an agreement would determine otherwise, the arbitral tribunal shall allocate the burden of proof in accordance with the rules of law governing the merits of the dispute, i.e. the lex causae. 5. The standard of proof is defined as the level of conviction that is necessary for a panel to conclude in the arbitral award that a certain fact happened. Article 51 of the FIFA Code of Ethics (FCE), 2012 edition, determines that the standard of proof to be applied should be one of “personal conviction”. In practical terms, this standard of proof of personal conviction coincides with the “comfortable satisfaction” standard widely applied by CAS panels in disciplinary proceedings. According to this standard of proof, the sanctioning authority must establish the disciplinary violation to the comfortable satisfaction of the judging body bearing in mind the seriousness of the allegation. It is a standard that is higher than the civil standard of “balance of probability” but lower than the criminal standard of “proof beyond a reasonable doubt. 6. Irrespective of which version of the FCE comes into play, the general prohibition against bribery does not only cover undue gifts given by a FIFA official to external third parties, i.e. persons “outside FIFA”, but also encompasses undue gifts or benefits given by a FIFA official to another FIFA official, i.e. a person “within FIFA”. Any other reading would suggest that FIFA officials are able to give each other unlimited gifts without any justification whatsoever being required, which cannot be accepted as a reasonable interpretation of the provision. No culpable intent is required in order for a violation of the provision to be established. 7. By approving a payment on behalf of FIFA without any contractual basis and failing to fully inform FIFA’s Finance Committee about the circumstances of the payment, a FIFA official creates a conflict of interest between himself and FIFA as an organisation. This indeed constitutes a violation of the FCE. 8. CAS panels have limited discretion to review sanctions imposed by disciplinary bodies of federations when such panels make similar findings and such discretion should only be exercised when the sanction is evidently and grossly disproportionate to the offence. CAS 2016/A/4501 3 Joseph S. Blatter v. FIFA, award of 5 December 2016 I. PARTIES 1. Mr Joseph S. Blatter (the “Appellant” or “Mr Blatter”) was President of the Fédération Internationale de Football Association between 1998 and 2015. Before being elected as President, Mr Blatter had already served the same organisation in various positions for twenty-three years, including as its Secretary General from 1981 to 1998. Mr Blatter is of Swiss nationality. 2. The Fédération Internationale de Football Association (the “Respondent” or “FIFA”) is an association under Swiss law and has its registered office in Zurich, Switzerland. FIFA is the governing body of international football at a worldwide level. It exercises regulatory, supervisory and disciplinary functions over continental federations, national associations, clubs, officials and football players worldwide. II. FACTUAL BACKGROUND A. Background Facts 3. Below is a summary of the main relevant facts, as established on the basis of the parties’ written submissions and the evidence examined in the course of the present appeal arbitration proceedings and during the hearing. This background is set out for the sole purpose of providing a synopsis of the matter in dispute. 4. On 25 September 2015, the office of the Swiss Federal Attorney General opened criminal proceedings against Mr Blatter. These proceedings were initiated in connection with an alleged “disloyal” payment by FIFA to Mr Michel Platini, Vice-President of FIFA and member of the FIFA Executive Committee as well as President of the Union des Associations Européennes de Football (“UEFA”), a confederation recognised by FIFA in accordance with article 20 of the FIFA Statutes. Said payment in the amount of CHF 2,000,000 was made in early 2011 and was allegedly remunerating work performed by Mr Platini for FIFA between January 1999 and June 2002. 5. On the same day, Mr Blatter was questioned by the Swiss Federal Attorney General as an accused person. Mr Platini was questioned by the Swiss Federal Attorney General also on the same day, as a person providing information in accordance with article 178 of the Swiss Code of Criminal Procedure. B. Proceedings before the Adjudicatory Chamber of the FIFA Ethics Committee 6. Based on the opening of said proceedings by the Swiss Federal Attorney General, the Deputy Chairman of the Investigatory Chamber of the FIFA Ethics Committee (the “Investigatory Chamber”) initiated preliminary investigations against Mr Blatter in accordance with article 62(3) of the FIFA Code of Ethics (the “FCE”). 7. On 28 September 2015, the Deputy Chairman of the Investigatory Chamber determined that there was, based on the findings of the preliminary investigation, a prima facie case that Mr CAS 2016/A/4501 4 Joseph S. Blatter v. FIFA, award of 5 December 2016 Blatter had committed violations of the FCE. Mr Blatter was notified that formal proceedings were opened against him relating to possible violations of article 13 (General rules of conduct), 15 (Loyalty), 18 (Duty of disclosure, cooperation and reporting), 19 (Conflicts of interest) and 21 (Bribery and corruption) of the FCE (2012 edition). Justice Robert Torres, Member of the Investigatory Chamber, was assigned as Chief of Investigation. 8. On the same day, formal proceedings were also opened by the Investigatory Chamber against Mr Platini. 9. On 1 October 2015, Mr Blatter was interviewed by the Chief of Investigation, by video- conference. 10. On 7 October 2015, Mr Blatter was provisionally banned from taking part in any football- related activity at national and international level for a period of 90 days. 11. On 5 November 2015, the Chief of Investigation sent Mr Blatter a list of questions, with a deadline to reply. 12. On 12 November 2015, Mr Blatter was informed by the Investigatory Chamber that there was a prima facie case that he might have committed additional FCE violations, namely possible violations of article 17 (Forgery and falsification) and 20 (Offering and accepting gifts and other benefits) of the FCE (2012 edition), as well as article 4(3) (Failure to comply with the FCE or severely fail to fulfil, or inadequately exercise duties and responsibilities) of the FCE (2009 edition).