No violation of ne bis in idem in a two-phase procedure initiated by UEFA

4A_462/20191

 

Judgment of July 29, 2020

 

First Civil Law Court

 

Federal Judge Kiss, Presiding

Federal Judge Hohl,

Federal Judge Niquille,

Federal Judge Rüedi,

Federal Judge May Canellas,

Clerk of the Court: Mr. Carruzzo

 

 

KS Skënderbeu,

Represented by Jean-Cédric Michel

Appellant

 

v.

 

Union of European Football Associations (UEFA),

Represented by Saverio Lembo and Alexandra Johnson

Respondent

 

 

Facts:

 

A.

A.a. Klubi Sportiv Skënderbeu (hereinafter: the Club) is an Albanian professional football club, member of the Albanian Football Federation, which is affiliated with the Union of European Football Associations (UEFA), an association under Swiss law, entered in the commercial register and with its registered office in Nyon. 

 

UEFA’s mission is to deal with all matters relating to European football. Together with the private company Sportradar, UEFA operates the Betting Fraud Detection System (BFDS), a system for the detection of sports betting fraud. Since 2010, this system has identified more than 50 matches played by the Club whose results were allegedly manipulated. 

 

A.b. On May 13, 2016, the UEFA Ethics and Disciplinary Inspectors (hereinafter UEFA Inspectors) issued a report that suggested that the Club not be admitted to the 2016/2017 season of the Champions League, an annual competition between the best European clubs. 

 

In a decision of November 21, 2016 (CAS 2016/A/4650), the Court of Arbitration for Sport (CAS) upheld the decision of the UEFA Appeals Body of June 1, 2016, prohibiting the Club from taking part in competitions organized by UEFA during the 2016/2017 season.

 

A.c. Following this Award, UEFA Inspectors opened new proceedings against the Club. In their report dated February 7, 2018, they concluded that, according to UEFA's disciplinary regulations, the Club was responsible for the actions of its players, coaches, and officials. 

 

On February 8, 2018, the Club was notified of the opening of disciplinary proceedings against it. In support of its accusations of match-fixing, UEFA relied on the reports drawn up in the framework of the BFDS (hereinafter: the BFDS reports) concerning the next four matches played by the Club: 

 

- the 2-3 defeat against FC Crusaders in the Champions League match of July 21, 2015;

- the Champions League match lost 1-4 against NK Dinamo Zagreb on August 25, 2015;

- the Europa League match on October 22, 2015 lost 1-5 to Sporting Clube de Portugal;

- the 0-3 defeat against FC Lokomotiv Moscow in the Europa League match on 10 December 2015.

By decision of March 29, 2018, the UEFA Control, Ethics and Disciplinary Body suspended the Club from all European competitions for the next ten seasons and imposed a fine of EUR 1 million.

 

On April 26, 2018, the UEFA Appeals Body rejected the Club's appeal and upheld the contested decision.

 

B. 

B.a. On May 14, 2018, the Club submitted a statement of appeal to CAS with a request for provisional measures. 

 

The arbitration proceedings were conducted in English by a Panel of three arbitrators.

 

The request for provisional measures was dismissed on June 14, 2018.

 

By incidental award dated October 22, 2018, the CAS ruled on the Appellant's requests for evidence. UEFA was requested to disclose the names of the persons who drafted the BFDS reports relating to the Club's matches in dispute, and UEFA informed CAS that Sportradar was reluctant to disclose this information because some of the company's employees had received death threats. The Respondent further stated that each BFDS report was the result of a collective effort involving up to 20 employees. After several exchanges of correspondence between the parties and CAS, UEFA provided CAS with the names of four employees of Sportradar who had been involved in the preparation of the BFDS reports and forwarded a copy of the reports to UEFA. On that occasion, UEFA sent CAS a complete curriculum vitae of the four Sportradar employees, while the Appellant received an anonymised version, with certain information removed.

 

On February 11, 2019, CAS, considering that the parties had requested the hearing of more than forty witnesses and wishing to ensure the efficient conduct of the trial, invited the parties to produce written testimonies. Only those witnesses whose testimony would be required by the opposing party for cross-examination would attend the hearing.

 

On March 21, 2019, UEFA informed CAS that it did not wish to proceed with the cross-examination of the Appellant's witnesses and argued that some witnesses had been called late by the Appellant.

 

On the same day, the Appellant requested the cross-examination of six of the Respondent's witnesses, including the four employees of Sportradar. It indicated that it was unable to cross-examine Prof. Forrest. Finally, it added that it would call two of its own witnesses at the hearing.

 

On April 3, 2019, the CAS rejected the Appellant's request to hear its two witnesses and refused various testimonies on the grounds of lateness.

 

On April 5, 2019, the Appellant requested the CAS reconsider its decision with respect to the refusal to allow certain testimony.

 

On April 10, 2019, the CAS advised the parties that it intended to uphold its decision of April 3, 2019. It offered the Appellant a final opportunity to request the cross-examination of Prof. Forrest. Two days later, the Appellant indicated that it could not proceed with the cross-examination of Prof. Forrest as it had not been able to access the technical data of the BFDS.

 

On April 16, 2019, the Panel held a hearing in Lausanne in the presence of the parties and their counsel. During this hearing, the Panel heard four employees of Sportradar as well as two other persons. The four Sportradar employees were taken to a secure location. They testified by videoconference, in a distorted voice, in the presence of a CAS Legal Counsel. The Appellant was able to cross-examine the various witnesses.

 

B.b. By Award of July 12, 2019, the CAS dismissed the appeal and confirmed the contested decision. 

The reasons supporting this Award can be summarized as follows. The Panel dismissed the procedural objections raised by the Appellant and denied any violation of the ne bis in idem principle. The Panel noted that the BFDS analysis report drawn up by Prof. Forrest and Prof. McHale (hereinafter ‘the Forrest Report’), the report drafted by a panel of UEFA experts on the analysis of the four matches played by the Appellant, and the report prepared by Starlizard, a company specializing in sports betting (hereinafter 'the Starlizard Report'), comparing the results of the examination of ten matches with those obtained by the BFDS, are expert reports, whereas the BFDS reports are merely factual elements. 

 

The Panel then described the functioning of the BFDS. It recalled that this fraud detection system consists of reporting unusual betting movements before and during football matches on the main betting markets by monitoring the major European and Asian bookmakers. In a first phase, the BFDS, using algorithms and mathematical models, compares calculated odds with the bookmakers' actual odds in order to determine whether there is a significant variation in odds at a specific minute or at a specific time that could give rise to irregular betting. When a match shows unusual bets, it is highlighted (escalated) and a report is generated. Thus, the BFDS, in its first phase, makes it possible to report irregularities and to filter out suspicious matches, thus avoiding the need for a person to manually review the odds of each individual football match. This phase of the process is not sufficient on its own to prove the existence of match-fixing, since it is only a mathematical analysis that ignores other circumstances. When a match is reported, an analyst examines the match and decides whether it is suspicious or requires further investigation. In the latter case, several analysts look at the case and at least three of them must identify the match as suspicious. Once all relevant information has been gathered, a suspect match is reviewed by all available analysts and supervisors, who attempt to reach a consensus. 

 

The Panel considered the FSRB to be a reliable mechanism and underlined that the Starlizard Report reached similar conclusions to those of the FSRB in respect of the four suspect matches at the heart of the present dispute.

 

After having reproduced in full the content of the conclusions contained in the BFDS reports concerning the four matches referred to above, the Panel considered that UEFA had established, to the requisite degree of proof (comfortable satisfaction), that the betting movements were suspicious and that the outcome of those four matches was manipulated, unless the Appellant provided an explanation to the contrary. In reaching this conclusion, UEFA took into account the BFDS reports, the reliability of which was supported by the Forrest and Starlizard reports, the suspicious behavior of certain players present on the pitch, and the decision of a major Asian bookmaker to exclude the Appellant from the live markets.

 

The Panel noted that its conclusion was in line with the media reaction as well as the international perception of the disputed facts by opposing players, fans, and betting operators. It then dismissed the other reasons put forward by the Appellant to explain its defeats and the unusual betting patterns. The Panel concluded that the available evidence demonstrated the existence of match-fixing, emphasizing that the evidence did not relate to a single match but to four matches. 

 

Finally, the CAS dismissed any violation of the principle of legality and found that the sanction imposed on the Appellant was proportionate.

 

C.  

On September 16, 2019, the Club (hereinafter: the Appellant) filed a civil law appeal with the Federal Tribunal seeking the annulment of the Award of July 12, 2019.

 

In its reply of December 2, 2019, UEFA (hereinafter: the Respondent) requested that the appeal should be dismissed to the extent it was admissible.

 

CAS, which produced the case file, requested the dismissal of the appeal.

 

The parties spontaneously filed a reply and a rejoinder in which they maintained their original submissions.

 

Reasons:

 

1.  

Under Art. 54(1) of the Act on the Federal Tribunal of June 17, 2005 (LTF; RS 173.110), the Federal Tribunal shall issue its judgement in an official language, as a general rule in the language of the contested decision. Where the decision has been handed down in another language, the Federal Tribunal shall use the official language chosen by the parties. Before the CAS, the parties used English, while in its appeal to the Federal Tribunal the Appellant used French, thus complying with Art. 42(1) of the LTF in conjunction with Art. 70(1) of the Constitution. (ATF 142 III 521, at 1). In accordance with its practice, the Federal Tribunal will therefore deliver its judgment in French.

 

2.  

In the field of international arbitration, appeals in civil matters are admissible against the awards of arbitral tribunals under the conditions laid down in Art. 190-192 of the Federal Act on Private International Law of 18 December 1987 (PILA; RS 291), in accordance with Art. 77(1)(a) of the LTF.

 

The seat of the CAS is in Lausanne. At least one of the parties did not have its seat, within the meaning of Art. 21(1) PILA, in Switzerland at the relevant time. The provisions of Chapter 12 PILA are therefore applicable (Art. 176(1) PILA).

 

3.

None of these conditions of admissibility, whether they concern the subject of the appeal, the standing to appeal, the time limit for appeal, or the grounds for appeal invoked, is a problem in the present case. The appeal is therefore admissible. The examination of the admissibility of the Appellant's grievances remains reserved.

 

4. 

4.1. An appeal in international arbitration may be lodged only based on one of the grounds listed exhaustively in Art. 190(2) PILA (Art. 77(1)(a) LTF). Articles 90 to 98 LTF, among other provisions, are not applicable in this appeal (Article 77(2) LTF), which excludes, in particular, the possibility of invoking the arbitrariness. In order for an admissible grievance duly invoked in the civil action to be admissible, reasons must be given for it, as provided for in Art. 77(3) LTF. This provision corresponds to the provisions of Article 106(2) LTF for grievances alleging violation of fundamental rights or provisions of cantonal and intercantonal law (ATF 134 III 186, at 5). This provision establishes the principle of claim (Rügeprinzip). The Appellant must therefore invoke one of the complaints set out exhaustively in Article 190(2) PILA and show, by means of a precise argument based on the contested award, how the latter infringed the law (judgment 4A_378/2015 of September 22, 2015, at 3.1). 

 

4.2. The Federal Tribunal rules on the basis of the facts found in the contested award (cf. Article 105(1) LTF). It may not correct or supplement the arbitrators' findings ex officio, even if the facts have been established in a manifestly incorrect manner or in violation of the law (cf. Art. 77(2) LTF, which excludes the application of Art. 105(2) LTF). The findings of the arbitral tribunal as to the conduct of the proceedings are also binding on the Federal Tribunal, whether they relate to the conclusions of the parties, the alleged facts or legal explanations given by the parties, statements made during the proceedings, requests for evidence, or even the content of a testimony or an expert opinion or information gathered during an eye inspection (Judgment 4A_322/2015 of June 27, 2016, at  3, and the precedents cited). 

 

4.3. Thus, the task of the Federal Tribunal, when it is seized of an appeal in civil matters against an international arbitral award, does not consist in ruling with full power of review, like an appellate court, but only in examining whether or not the admissible claims formulated against the said award are well-founded. Allowing the parties to allege facts other than those found by the arbitral tribunal, apart from the exceptional cases reserved by the case law, would no longer be compatible with such a mission, even if those facts were established by the evidence in the arbitration file (judgment 4A_386/2010 of January 3, 2011 at 3.2). 

 

5.  

5. In a first plea, the Appellant, relying on Article 190(2)(e) PILA, alleges a violation of the principle of ne bis in idem. It claims to have been punished twice on the basis of the same facts. According to the Appellant, the first exclusion ordered against it on November 21, 2016 (in proceedings CAS 2016/A/4650) prevented it from being sanctioned a second time in the contested award. 

 

5.1. An arbitral tribunal violates procedural public policy, within the meaning of Art. 190(2)(e) LTF, if it renders its decision without taking into account the res judicata effect of an earlier decision or if it departs in its final award from the opinion it has expressed in a preliminary ruling on a preliminary question to the merits (ATF 136 III 345 at 2.1 p. 348 and the cited judgments). The case law qualifies the ne bis in idem principle as a corollary or negative aspect of res judicata (judgment 4A_386/2010 of January 3, 2011, at 9.3.1 and the judgments cited). This principle is included in the concept of public policy within the meaning of Article 190(2)(e) PILA (judgment 4A_324/2014 of October 16, 2014, at 6.2.1). In criminal law, it prohibits the prosecution of the same person twice for the same criminal act (judgment 4A_386/2010, cited above, at 9.3.1). The violation of the ne bis in idem principle falls within the scope of Art. 190(2)(e) PILA. However, it is not evident whether disciplinary sports law is also subject to this principle, which is specific to criminal law (judgments 4A_324/2014, cited above, at 6.2.1; 4A_386/2010, cited above, at 9.3.1). The CAS itself held that this principle should be applied in the present case (Award, n. 143). There is, therefore, no need here to delve further into the question of the applicability of this principle, which is specific to criminal law, to sports disciplinary law. It will suffice to verify the application of this principle in concrete terms by the Panel. 

 

5.2. Referring to several awards rendered by the CAS, the Panel considers that the two-phase procedure, provided for by the Respondent's regulations, does not contravene the ne bis in idem principle. In its view, the first phase is of an administrative nature, while the second phase is a disciplinary procedure, which is expressly stated in the Respondent's regulations. The conduct of the proceedings in two distinct phases is justified. It is in fact necessary to provide for a procedure enabling a club to be excluded immediately from a sporting competition in order to preserve the integrity of sport, particularly in cases of manipulation of sporting matches, as there is a risk that a club may continue to rig certain matches in the course of the same competition. The objective of the first – administrative – phase of the proceedings is thus not to sanction a club but to protect the values, reputation, and integrity of the competitions organized by the Respondent, while the second – disciplinary – phase is to sanction the same club by assessing the conduct of which it is accused in the light of all the circumstances. 

 

5.3. In case 4A_324/2014, the Federal Tribunal held that the exclusion of a Turkish club from the Champions League for one season on grounds of match-fixing, pronounced in the first instance as an administrative measure by the Turkish Football Association and followed, after the conduct of further proceedings by the respondent, by a disciplinary sanction consisting in the suspension of that club from all European competitions for two seasons, was not contrary to the principle of ne bis in idem. The Federal Tribunal noted that the Club had failed to take account of the fact that the two proceedings pursued different objectives and were aimed at protecting distinct interests. Indeed, the club had merely pointed out that the arbitral awards both referred to the term "sanctions", which was not sufficient to show that the two proceedings had the same objective. The Federal Tribunal further noted that it was not clear, in view of the two-stage procedure provided for by the Respondent, whether the arbitral tribunal had had the opportunity, in the first proceedings, to assess all the factual elements. At the end of its examination, it denied that there had been any contravention of the ne bis in idem principle (para. 6.2.3). 

 

5.4. In its pleading, the Appellant attempts to show that its arguments differ from those of the Turkish Club in the abovementioned case. It takes the view that the solution in the judgment in question should not be identical in the present case, inasmuch as it has allegedly shown that the two proceedings pursue the same aim and lead to its being penalized twice on account of the same facts. 

 

That is not the case. The Appellant's arguments in that regard, which are essentially appellate in nature, do not convince the Federal Tribunal in this respect. As the Respondent rightly points out, the Appellant endeavours to demonstrate by a semantic analysis of the awards handed down by the CAS, by selectively highlighting certain passages, that the two decisions are in fact disciplinary in nature. This is not sufficient to overturn the conclusion reached in case 4A_324/2014. Whatever the Appellant maintains, the main purpose of the exclusion from a competition for a limited period of time, pronounced in the first instance, is to ensure the integrity and proper conduct of the sporting competition by preventing the participation of a club suspected of having rigged a match from distorting the results of that competition. In that respect, it differs from the suspension and fine imposed on the Appellant in the contested award, which is above all a repressive measure. Whatever the Appellant may think, the fact that the first exclusion decision may possibly have an ancillary punitive dimension does not yet mean that the Respondent's two-stage procedure infringes the ne bis in idem principle. Moreover, the Appellant seems to confuse the Federal Tribunal with a court of appeal when it states that the two-stage procedure provided for by the Respondent is not justified. 

 

In another part of its argument, the Appellant, citing the judgment of the European Court of Human Rights (hereinafter: ECHR) Zolotukhin v. Russia of February 10, 2009, argues that an approach based strictly on the identity of the material facts should be adopted when assessing the possible violation of the ne bis in idem principle. In its view, the material facts on which the two sanctions imposed on him are based are identical, which would be sufficient to admit a violation of the ne bis in idem principle. 

 

It is true that in the above-mentioned judgment the ECHR specified what was to be understood by “the same offence” under Article 4 of Protocol No. 7 to the European Convention on Human Rights. According to the ECHR, it is not merely a question of the legal characterization of two criminal acts, but of the prohibition on prosecuting a person for a second offence in so far as it is based on facts identical or substantially the same as those that gave rise to the first offence). The ECHR has thus opted for an approach based on the identity of the facts (see also ATF 144 IV 136 at 10.5 and the judgments cited).

 

However, the criterion of identity of the facts is not in itself sufficient to establish a violation of the principle of ne bis in idem. The question of whether there has been a repetition of the proceedings (the "bis" part of the principle) must also be considered. From that point of view, the Court has accepted, in several cases subsequent to the Zolothukin judgment, that if there is a sufficiently close material and temporal link between the proceedings concerned, that relate to the same constellation of facts so that they may be regarded as two aspects of a single system, there is no duality of procedure contrary to the ne bis in idem principle (A. and B. v. Norway of November 15, 2016, § 120 et seq.; Rivard v. Switzerland of October 4, 2016, § 33; cf. also ATF 144 IV 136 § 10.5). 

 

In the present case, the facts underlying the two CAS awards are similar. The Federal Tribunal observes, however, that there is a close link between the two phases of the proceedings under the Respondent's rules. In that regard, it notes that both measures were taken by the Respondent's judicial bodies. It also observes that the rules enacted by the Respondent permitting the exclusion of a club from a competition expressly reserve the possibility of imposing a disciplinary sanction at a later stage. In the event of suspicions of match-fixing, the Respondent must, during the first phase, act quickly in order to protect the integrity of the competition in which the Club in question intends to take part. The only measure at its disposal at this stage is the exclusion of the Club from the said competition for one year. At the second stage, the Respondent must determine whether the conduct in question justifies the imposition of a disciplinary sanction on the basis of other regulations. Thus, the bodies of the Respondent do not apply the same regulations in both phases of the procedure. Moreover, they do not have the same range of sanctions at their disposal, as in the first procedural phase the exclusion of the Club from a competition, for a maximum of one year, is the only possible measure. Furthermore, the Court of Appeal points out that the Panel states that the one-year period of ineligibility resulting from the administrative measure is taken into account in the disciplinary sanction (Award, n. 151). Finally, it also notes the existence of a close temporal link between the two proceedings, since the second phase was initiated shortly after the first award was handed down. All these elements demonstrate that the two procedures are sufficiently closely linked to each other to be considered as two aspects of a single system.

 

In these circumstances, it must be found that the Panel did not violate the principle of ne bis in idem, if applicable to sports disciplinary law. 

 

6.  

In a second plea, divided into several branches, the Appellant complains of a series of violations of its right to be heard.

 

6.1. Case law has inferred from the right to be heard, as guaranteed by Art. 182(3) and 190(2)(d) PILA, a minimum duty for the arbitral tribunal to examine and deal with the relevant issues. This duty is breached when, by inadvertence or misunderstanding, the arbitral tribunal fails to take into consideration allegations, arguments, evidence and offers of evidence presented by one of the parties and relevant to the award to be made. It is incumbent upon the allegedly injured party to demonstrate, in its appeal against the award, how an oversight of the arbitrators prevented it from being heard on an important point. It is for the aggrieved party to establish, on the one hand, that the arbitral tribunal failed to consider some of the factual, evidentiary or legal elements which it had regularly put forward in support of its conclusions and, on the other hand, that those elements were of such a nature as to affect the outcome of the dispute (ATF 142 III 360, paras. 4.1.1 and 4.1.3; Judgment 4A_478/2017 of May 2, 2018, at 3.2.1). 

 

6.2.  

6.2.1. First, the Appellant criticises the CAS for refusing to give it access to the indispensable information which, in its view, are the mathematical formulae, algorithms and numerical database of the BFDS. 

 

Under cover of the complaint alleging infringement of its right to be heard, the Appellant in fact attacks the Panel's assessment of the evidence in order to draw the conclusion that access to that information was not decisive for the outcome of the dispute. In this respect, the CAS considered that the algorithms used by the BFDS are not relevant as such. They only serve to automate a task, which would be very cumbersome if it had to be carried out by a human being, and to signal a match that needs to be thoroughly examined by several analysts. The demonstration, of a purely appellate nature, made by someone in the appeal does not in any way establish that access to the mathematical formulae, algorithms and numerical data of the BFDS could have influenced the outcome of the dispute. In any event, it should be noted that the Panel also refused to disclose this information to the Appellant on the grounds that it is sensitive and confidential, that it does not belong to the Respondent but to Sportradar, and that there is a risk that it could be misused subsequently, possibly allowing persons with bad intentions to adopt new behavior that could circumvent the BFDS system. The Appellant leaves these additional motivations intact, which is sufficient to seal the fate of the grievance in question.

 

6.2.2. Second, the Appellant, denouncing a jumble of violations of the right to be heard, the principle of equality of arms and the principle of adversarial proceedings, complains that the Panel considered that the BFDS is a reliable system based on the Forrest Report, the authors of which, unlike the Appellant, had access to the mathematical data in the BFDS. 

 

Such a criticism is groundless. The Appellant again loses sight of the fact that the mathematical data of the BFDS was not considered decisive for the outcome of the dispute. The Appellant therefore complains in vain that it did not have access to data that were not relevant to the contested facts. Whatever the Appellant contends, there is no contradiction in admitting that the mathematical data and the algorithmic part of the BFDS are in themselves insufficient to establish the existence of a match-fixing case and that the BFDS, as a whole, is a reliable system. The argument based on an infringement of the principle of equality of arms is equally unfounded, as the authors of the Forrest Report were not commissioned by the Respondent but by Sportradar. Nor can the Appellant be followed when it claims, on appeal, that the Forrest Report does not constitute a true expert opinion, contrary to what the Panel found. In so arguing, the Appellant places itself exclusively in the realm of the assessment of evidence, which in principle escapes the scrutiny of the Federal Tribunal when it rules on a civil appeal against an international arbitral award. As to the alleged violation of the principle of adversarial proceedings, it will be sufficient to recall here that the Appellant was repeatedly offered the possibility of requesting the hearing of Prof. Forrest and that it waived it. 

 

The complaint is ill-founded and can only be dismissed.

 

6.2.3. Third, the Appellant alleges that the Panel did not comply with its request for a judicial opinion to assess the BFDS and the Forrest Report, thereby violating its right to be heard, the principle of adversarial proceedings and the principle of equality of arms. 

 

The claimant is mistaken. An arbitral tribunal may in fact refuse to admit evidence, without violating the right to be heard, if the evidence is unfit to support a conviction, if the fact to be proven has already been established, if it is irrelevant or if the tribunal, in making an advance assessment of the evidence, comes to the conclusion that its conviction has already been established and that the result of the requested evidentiary measure can no longer alter it (ATF 142 III 360 at 4.1.1 p. 361). When ruling on an appeal in an international arbitration case, the Federal Tribunal may not review an anticipated assessment of the evidence, except from the extremely limited point of view of public policy (ATF 142 III 360 at 4.1.1 p. 361). However, the Appellant does not show, or even maintain, that the refusal to order a judicial opinion, on the basis of an anticipated assessment of the evidence, would be contrary to public policy. The complaint is therefore dismissed.

 

6.2.4. Fourth, the Appellant criticizes the CAS for having drawn an unforeseeable analogy between the BFDS and tax fraud detection software.

 

The Appellant is not credible when it pleads the ‘effect of surprise’, which refers to cases in which a court envisages basing its decision on a legal standard or consideration whose relevance the parties could not have foreseen. In this case, the situation is quite different since the Panel did not base its decision on an unforeseeable legal standard but merely carried out a simple comparison in order to clarify the functioning of the BFDS. Therefore this grievance, which as examined borders on audacious, fails.

 

6.2.5. Fifth, the Appellant complains of a reversal of the rules on the burden of proof. According to the Appellant, the burden of proof is on him to prove that it did not rig certain football matches. 

 

First of all, it should be recalled that the application of the rules on the burden of proof is exempted from examination by the Federal Tribunal when it is seized of an appeal in civil matters concerning an international arbitration award, because such rules do not form part of substantive public policy within the meaning of Article 190(2)(e) PILA (judgment 4A_616/2016 of September 20, 2016 at 4.3.1). With all due respect to the Appellant, the same applies to disciplinary sports arbitration. In any event, there was no reversal of the burden of proof in this case. Indeed, the Panel considered that the Respondent bore the burden of proof for its allegations. Given the difficulties inherent in proving cases of bribery and match-fixing, it held that the degree of proof required was that of comfortable satisfaction. After assessing all the circumstances, CAS found that the Respondent had provided sufficient evidence to accept the existence of match-fixing cases. The grievance must therefore be dismissed. 

 

6.2.6. Sixth and last, the Appellant submits that the refusal to hear all the Sportradar employees who participated in the preparation of the BFDS reports would infringe its right to be heard. 

 

It should be recalled that the CAS, considering that the parties had requested the hearing of more than 40 witnesses and trying to ensure the efficient conduct of the trial, invited the parties to produce written evidence, it being specified that only those witnesses whose hearing was requested by the opposing party for the purposes of cross-examination would attend the hearing. With respect to the persons responsible for preparing the BFDS reports relating to the contested matches, the Respondent stated that each report was the result of a collective effort involving up to 20 people. It also informed CAS that some Sportradar employees had received death threats. After several exchanges of correspondence between the parties, CAS agreed that the Respondent would provide it with only the names and CVs of four employees who had participated in the drafting of the BFDS reports.

 

In its appeal brief, the Respondent contends, in an overly reductive description, that the decision to limit the number of witnesses was driven by mere "comfort" considerations. In so doing, it does not claim or show that the hearing of other Sportradar employees could in any way affect the outcome of the dispute. The grievance alleging a violation of the right to be heard is therefore unfounded. Moreover, the Appellant merely questions the assessment of the testimony of the four employees heard at the hearing, which is not admissible in an action in international arbitration.

 

7.  

In a third and final plea, the Appellant submits that the contested award is contrary to the principle of legality (nulla poena sine lege) since the rules adopted by the Respondent do not permit the sanctioning of a club without proof and the attribution of conduct contrary to those rules to a natural person. It also argues, in a "civilist hypothesis", that the CAS's application of the said rules contradicts the principle of contractual fidelity. 

 

7.1 It should be noted at the outset that the Federal Tribunal has never formally ruled on the question whether the principle of nulla poena sine lege, which dominates the interpretation of criminal law, is part of substantive public policy. On a more general level, it should be recalled that, in the case of disciplinary sanctions imposed by private law associations, such as sports federations, the automatic application of criminal law concepts such as the presumption of innocence and the principle in dubio pro reo is not self-evident (judgments 4A_600/2016 of June 29, 2017, at 3.3.4.2; 4A_488/2011 of June 18, 2012, at 6.2 and the precedents cited). However, there is no need for further consideration of this issue since, as will be seen below, the grievance is in any case unfounded. 

 

7.2. When it comes to interpreting provisions of an association, the methods of interpretation may vary according to the type of company. For the interpretation of the provisions of large corporations, we apply the methods of interpretation of statutes. For the interpretation of the provisions of small associations, reference is made instead to the methods of interpretation of contracts, i.e. interpretation according to the principle of confidence (judgment 4A_600/2016, cited above, at 3.3.4.1). The Federal Tribunal applied the rules of interpretation of the law when it had to interpret the statutory clauses relating to questions of jurisdiction adopted by a major sports association, such as the Respondent (Judgment 4A_392/2008 of December 22, 2008 at 4.2.1 and references). It did the same to discover the meaning of rules of a lower level than the statutes enacted by a sports association of such importance (judgments 4A_314/2017 of May 28, 2018, at 2.3.1; 4A_490/2017 of February 2, 2018, at 3.3.2; 4A_600/2016, cited above, at 3.3.4.1). 

 

In this case, the interpretation made by the Panel concerns rules of a sports association of a level below the statutes. The latter were enacted by the Respondent, which is a major sports association which governs football at European level. They must therefore be interpreted in accordance with the methods of statutory interpretation (to the same effect, judgments 4A_314/2017, cited above, para. 2.3.2.1; 4A_600/2016, cited above, para. 3.3.4.1).

 

Any interpretation begins with the letter of the law (literal interpretation), but this is not decisive: it is necessary, however, to restore the true scope of the rule, which also derives from its relationship with other legal provisions and its context (systematic interpretation), from the aim pursued, in particular the protected interest (teleological interpretation), and from the will of the legislature as it emerges in particular from the preparatory work (historical interpretation). The Federal Tribunal departs from a clear legal text only so far as the other methods of interpretation mentioned above show that this text does not correspond in all respects to the true meaning of the provision in question and leads to results which the legislator cannot have intended, which offend against the sense of justice or the principle of equal treatment. In short, the Federal Tribunal does not favour any method of interpretation and does not establish a hierarchy, drawing on pragmatic pluralism in seeking the true meaning of the norm (ATF 142 III 402, at  2.5.1, and the judgements cited). As for the interpretation of criminal law by the judge, it is dominated by the nulla poena sine lege principle. However, without violating this principle, the judge may, however, give the legal text even an extensive interpretation in order to determine its true meaning, which is the only one that is in conformity with the internal logic and purpose of the provision in question. While an interpretation that conforms to the spirit of the law may deviate from the letter of the legal text, if necessary to the detriment of the accused, it remains that the aforementioned principle prohibits the judge from relying on elements that the law does not contain, that is to say, from creating new punishable facts (ATF 137 IV 99 at 1.2). 

 

7.3. In the contested award, the Panel begins by citing Articles 8 and 12 of the Disciplinary Regulations (hereinafter: DR) issued by the Respondent, in the version applicable to the case, which read in particular as follows: 

 

Art. 8 Liability

A member association or club which is bound by a rule of conduct contained in the UEFA statutes or regulations is liable to disciplinary measures and directives if the violation of that rule results from the conduct of one of its members, players, officials or supporters, or of any other person exercising a function on behalf of the member association or club concerned, even if the member association or club concerned can prove the absence of any form of fault or negligence.

 

Art. 12 Match and competition integrity and match fixing

1. 1. Persons subject to UEFA regulations must refrain from any behaviour which harms or is likely to harm the integrity of matches and competitions, and cooperate fully with UEFA at all times in its fight against such behaviour.

2. The integrity of matches and competitions is violated in particular by any person :

a) who acts in such a way as to unlawfully or illegitimately influence the conduct and/or outcome of a match or competition with a view to obtaining an advantage for himself or a third party

[...]

 

According to the Panel, the application of Art. 8 above does not require that a specific individual be identified, but merely that it be established that members, officials, supporters or players of the Club have committed the reprehensible acts complained of, to the exclusion of third parties outside the Club, such as referees. Such an interpretation is compatible with the text of the provision and is justified because the sanctioned conduct, namely match-fixing and corruption, is in essence concealed. Moreover, because of their limited enforcement power, sports bodies do not have the same means of investigation as state authorities to shed full light on such conduct. Having made these considerations, the Panel notes, in view of the number of suspicious matches and the reports referring to "errors" committed by the Appellant's players, that persons linked exclusively to the Appellant are involved in the manipulation of sports matches. The Club must therefore be held responsible in accordance with Art. 8 RD.

 

7.4. As regards the alleged infringement of the principle of contractual fidelity, apart from the fact that that principle does not apply in the present case, the Appellant merely criticizes, in a manner which is inadmissible, the interpretation made by the Panel of the Respondent's regulations. It follows that the grievance is inadmissible. 

 

7.5. Under the guise of an alleged violation of the principle nulla poena sine lege, the Appellant is in fact attempting to challenge the Panel's interpretation and application of Art. 8 and 12 RD. In so doing, it does nothing more than counter its own interpretation of the Respondent's regulations to the interpretation of the Panel. In any event, the approach advocated by the Appellant is too restrictive and does not convince the Federal Tribunal. In fact, whatever the Appellant contends, it does not follow from the regulatory text that a natural person who has engaged in conduct prejudicial to the integrity of the matches should necessarily be identified in order to sanction a club. With regard to one of the main purposes of Art. 8 and 12 of the Regulation, which is to combat the scourge of manipulation of football matches, to make the imposition of a sanction on a club conditional on the precise identification of the natural person who has committed the acts in question would be tantamount to considerably reducing the scope of Art. 8 and 12 of the Regulation and would run counter to the objectives underlying those provisions. It is worth recalling that it is possible, without violating the principle of nulla poena sine lege, to interpret the text of a rule, even extensively, in order to determine its true meaning, which alone is consistent with the internal logic and purpose of the provision in question. It thus appears, taking into account in particular the teleological interpretation of the disputed provisions, that the Panel did not render an award contrary to public policy. 

 

The CAS awards to which the Appellant refers in its brief do not allow a different conclusion to be reached. As the Respondent rightly points out, it is not apparent from those awards that the identification of a specific natural person involved in a match-fixing case would be a precondition for the imposition of a sanction on a club. 

 

Finally, it should also be noted that the reference made by the Appellant to a judgment handed down by the Federal Tribunal on the basis of the Swiss Criminal Code is irrelevant here.

 

It appears from the foregoing that the complaint must be dismissed.

 

8.  

In the light of the foregoing, the appeal must be dismissed to the extent it is admissible.

 

The unsuccessful Appellant shall bear the costs of the federal proceedings (Art. 66, para. 1, LTF) and shall also pay the Respondent compensation for costs (Art. 68, paras. 1 and 2 LTF).

 

 

 

On these grounds, the Federal Tribunal pronounces: 

 

1.  

The appeal shall be dismissed in so far as it is admissible.

 

2.  

The legal costs, set at CHF 30’000, shall be borne by the Appellant.

 

3.  

The Appellant shall pay to the Respondent a compensation of CHF 35’000.

 

4.  

The present judgment shall be communicated to the parties and to the Court of Arbitration for Sport (CAS).

 

 

Lausanne, July 29, 2020

 

On behalf of the First Civil Law Court of the Swiss Federal Tribunal

 

 

President:                                                        Clerk:

 

Kiss                                                                 O. Carruzzo

 

 

 

 

• 1. Translator’s Note: Quote as KS Skënderbeu v. UEFA, 4A_462/2019. The decision was issued in French. The full text is available on the website of the Federal Tribunal, www.bger.ch.