Editor's note: Marine Montejo is a graduate from the College of Europe in Bruges and
is currently an intern at the ASSER International Sports Law Centre.
On 3 June
2015, Sepp Blatter resigned as President of FIFA after another corruption scandal inside the world’s football
governing body was brought to light by the American authorities supported by
the Swiss prosecutor office. Two months after Michel Platini announced he would be a candidate for
the next FIFA Presidential election, on 25 September 2015, the Swiss prosecutor
opened an investigation against S.
Blatter on an alleged disloyal payment he authorised to M. Platini. On 8
October 2015, the FIFA Ethics Committee announced both of them were provisionally
suspended upon their hearings, a suspension that was later confirmed by CAS. In the end, M.
Platini was sanctioned with an eight years ban from
all football activities, later reduced to a six years ban by FIFA
Appeal Commission on 24 February 2016. In the meantime, he withdrew his candidacy to become the
next FIFA President. On 9 May 2016, after M. Platini appealed this sanction, the CAS confirmed the suspension but reduced it
to four years, leading to his resignation from the UEFA presidency and the
announcement of his intention to challenge the CAS award in front of the Swiss
Federal Tribunal.
On 19
September, the CAS finally published the full text of the award in the dispute between M.
Platini and FIFA. The award is in French as M. Platini requested that the
procedure be conducted in that language. You will find below a summary of the ‘highlights’
of the 63-page decision.
Facts of the case
The detailed
analysis of the facts of the case by CAS is well worth reading as it contains a
precise description of the developments giving rise to the dispute. It also
describes the alleged work done by M. Platini for FIFA and the related payments
received from the organisation that are also investigated by Swiss authorities.
The first
meeting between M. Platini (the France 1998 World Cup organising committee
co-President at that time) and S. Blatter (the contemporaneous FIFA Secretary
General) was held in January 1998 where the latter asked M. Platini to be the
next candidate for FIFA’s Presidential election. M. Platini refused the offer. They
both met a few months later (no precise date was given in the award – simply
“spring 1998”) and agreed that M. Platini would support S. Blatter’s
candidature for the FIFA Presidency, forming a “ticket”. In the case of a
successful outcome, M. Platini would become either one of FIFA’s directors or
sports advisers. During this meeting, they allegedly also discussed the
remuneration for M. Platini’s future work for FIFA. The former UEFA President
said that he proposed 1 million per year, leaving the choice of currency to S.
Blatter. During the CAS procedure, M. Platini and S. Blatter stated they had agreed
(“oral agreement”) on remuneration of CHF 1 million for M. Platini’s sports or
technical advisory services, which is roughly €900,000. Jacques Lambert (the former
France 1998 World Cup organising committee chief executive) said before the CAS
Panel that M. Platini had told him about that oral agreement, but also
acknowledged that no other person was physically present during the meeting to
confirm it.
In the award, it is noted that
M. Platini participated in the campaign in an informal manner and that M.
Blatter, shortly after his election, publicly announced that he would be his “Foreign
Affairs Minister”. As such, the exact position of M. Platini remained uncertain
at that time. With regard to these findings, the award relied on former UEFA
Secretary General Gerhard Aigner’s testimony during FIFA’s internal procedure. An
internal note written by Mr. Aigner, dated 19 September 1998, questioned M.
Platini’s future role at FIFA and the rumours circulating about his desire to
be based in Paris; it also speculated that this seemed inappropriate for the
position of FIFA sports director. He likewise questioned the CHF 1 million
salary. This note was given to the members of the UEFA Executive Committee
Board (meeting on 12 November 1998) but no official document was received by
UEFA confirming M. Platini’s salary. More importantly, the note was added to a
set of documents collected for a meeting between the UEFA President (and
Secretary General) and individuals from FIFA’s Executive Committee. This
meeting aimed to prepare for FIFA’s Executive Committee meeting (3 and 4
December 1998), but there is no certainty that the document was actually discussed
during the meeting of 3 December. Amongst these documents, another, dated 29
November 1998 and addressed only to the European members of FIFA Executive
Committee, reported once again the rumours surrounding M. Platini’s future job,
this time referring to his role as “the head of a development programme” or as
a “personal political advisor”. In a nutshell, by the end of 1998 there was no
official announcement by FIFA on M. Platini’s position and remuneration except
rumours.
M.
Platini’s official functions for FIFA started on 1 January 1999 but, in reality,
he had commenced work for FIFA in the second part of 1998. In August 1999, M.
Platini asked S. Blatter to formalise their contract (“written contract”). This
was signed by M. Platini and S. Blatter (as a representative of FIFA) on 25
August 1999. This contract is the first official document where M. Platini’s
role is defined as the FIFA Presidential advisor on international football
issues (“la [FIFA]
conseiller et l’assister, en particulier son Président, pour toutes les
questions relatives au football au niveau international”). A salary of CHF 300,000 is written by hand in
the document and, in the annex, daily allowances in and outside Europe are also
mentioned. S. Blatter and M. Platini said that they were aware of FIFA’s
financial difficulties at that time and had agreed, without formally stating
the amounts and conditions for payment, that the remaining money would be paid
later. M. Platini worked from his office in Paris with two other persons, and
all of their expenses paid by FIFA. With S. Blatter’s authorisation, M. Platini
also saw the rights from his so-called benefit plan extended. The plan was set
up in 2005 for members of FIFA’s Executive Committee and remained operational for
more than eight years after they left. M. Platini’s rights were exceptionally extended
to the years he was the FIFA Presidential advisor; thus, it also covered 1998 to
2002 when he resigned and became a full member of FIFA’s Executive Committee.
In 2010, M. Platini
sought the payment of the full amount he was due in conformity with the oral agreement.
He explained that FIFA was financially stable and, notably, that its
executives’ salaries had been raised substantially. An invoice was sent to FIFA
that requested payment of the balance for the four years, amounting to CHF 2,000,000.
The CAS Panel raised an important query at that point surrounding the amount
claimed – namely, for a salary of CHF 1,000,000 per year over a period of 4
years, the Panel suggested that the amount claimed ought to have been CHF 2,800,000.
M. Platini waved away the divergence by saying that he thought he received CHF
500,000 p.a. from FIFA and not only CHF 300,000. However, he had previously
stated that he mentioned to S. Blatter at the time the written contract was
signed that the salary was less than the one they had previously agreed to, so
he should have known how much he was paid. S. Blatter explained that he did not
check the accuracy of the invoice and authorised the payment. The payment was
included in FIFA’s 2010 account which was approved during FIFA’s Finance
Commission meeting of 2 March 2011, to which M. Platini attended as the UEFA
representative. During the Swiss investigation, M. Angel Villar Llona, UEFA’s
Vice-President, stated that M. Julio Grondona, President of the FIFA Finance
Commission at the time, told him about the payment owed to M. Platini because
the full amount could not be written down for political reasons. The payment
was made on 19 November 2012.
The CAS award then discussed
the presidential atmosphere around FIFA and the opening of the Swiss
investigation as well as the procedure before FIFA against M. Platini. As a
reminder, let’s recall that the former UEFA President was first sentenced to an
eight year ban by the Adjudicatory Chamber of the FIFA Ethics Committee for
several breaches of the FIFA Code of Ethics (“CEF”). This sanction was later reduced to a six year
suspension by the FIFA Appeal Committee.
Substance of the case
The CAS
Panel first rejected the alleged procedural wrongs raised by M. Platini’s
defence after the disciplinary proceedings before FIFA. The arbitrators
recalled that the Panel shall have the full power to review the facts and the
law.[1] As
such the appeal cures any procedural breaches that might have occurred earlier.
The arbitrators also spent some time on the legal debate around the notion of
proof. This discussion concerned whether FIFA needed to prove that M. Platini
violated the CEF as the payment he received was without any basis and that M.
Platini bears the burden to prove that such grounds existed.
- Concerning
the violation of article 20 CEF (“Offering and accepting gifts and other
benefits”), the FIFA Appeal Committee decision concluded that M. Platini
received a CHF 2,000,000 payment in 2011 that could not be based on a
contractual agreement. Consequently, this payment was said to be undue and
constituted an infringement of article 20 CEF. The CAS Panel likewise came to
the conclusion that there wasn’t sufficient proof to establish the existence of
an oral agreement. As a consequence, the amount was paid pursuant to a non-existent
legal obligation, which constituted a breach of article 20 CEF. The CAS Panel even
went a step further and found that the extension of the benefit plan was also a
breach of that same provision.
First,
with regard to the oral agreement, the CAS award highlights that there is no
direct or contemporaneous proof that such an agreement was made.[2]
The only and closest element of proof the CAS Panel could find is the written
contract of August 1999, which establishes the CHF 300,000 salary for M.
Platini as FIFA advisor. The arbitrators also stated that this contract constitutes
unambiguous proof that there was not, unless otherwise proven, another contract
that stipulated a CHF 1,000,000 salary.[3] As
such, the CAS Panel ruled out M. Lambert’s testimony as it is indirect and
cannot constitute proof that such an agreement was legally concluded. Moreover,
the Panel noted that he had first mentioned this agreement in 2015. It also did
the same with the two notes coming from UEFA and M. Villar Llona’s testimony,
finding that they were only proof that negotiations were ongoing at the time
for M. Platini to become an advisor at FIFA; they could not constitute an
actual official confirmation of the alleged remuneration. Furthermore, the CAS
Panel[4]
put forward that M. Blatter, during his audition before CAS, said that the oral
contract was a “gentlemen’s agreement” and, as such, not legally binding.
Additionally, he stated that he was not sure he had the sole competence at the
time, as FIFA’s Secretary General, to negotiate such an agreement. The CAS Panel
then drew the conclusion that at no point was a clear commitment given by M.
Blatter regarding the alleged remuneration. The Panel also considered that the
fact that FIFA paid M. Platini is not a proof that the oral agreement existed.
It highlights Blatter’s “centralised and old fashioned” [5]
management and concluded that the other executives at FIFA did not have any option
other than to execute the orders, namely the payment of M. Platini’s bill.
Subsequently,
the CAS moved to apply Swiss national law (article 55 of the Swiss Civil Code).
M. Platini said that M. Blatter acted on behalf of FIFA. The Panel firmly
disagreed with him: firstly, by saying that M. Platini had not acted in good
faith as he knew the written contract did not disclose the full amount he
supposedly was due after the oral agreement; and, secondly, the Panel discussed
the possible abuse of power by M. Blatter as he supposedly gave authorisation
for remuneration that was even higher than his own and the Secretary General’s,
concluding that he probably diverged from the normal course of business[6]
and, as such, could not have represented FIFA’s will. As a consequence, the
only valid agreement was the written contract of August 1999. Furthermore, the
arbitrators could not find any proof of the alleged deferment of the final
amount payable in that oral agreement and held that the only remuneration M.
Platini was due was the one in the written contract. The CAS Panel was even
more severe with M. Platini, of whom it found was not an “athlete without
experience” but an “experienced manager in football” who should have known the
importance of such a contract; this tended to demonstrate that there wasn’t any
oral agreement.[7] The CAS Panel insisted that
M. Platini’s claim that he waited until 2010 to ask for the full payment
because of FIFA’s bad financial situation was contradicted by the facts.
Moreover, M. Platini’s claims that FIFA’s executives received bonuses without
justification meant that he did not act in the interest of FIFA but only in his
own.[8] Finally,
concerning the fact that M. Platini allegedly miscalculated the rest of his
salary (CHF 500,000 per year instead of CHF 700,000) the Panel was, to say the
least, not convinced by his explanation and concluded that both incoherencies
on the amount and on the date of the invoice contradict M. Platini’s position.
Finally,
regarding the extension of the benefit plan, the CAS Panel was straightforward
by finding that M. Platini was not entitled to it during his years as FIFA’s
Presidential advisor because this plan is only for members of the Executive
Committee. This extension only occurred due to S. Blatter’s decision.[9]
Even though no payment has been made yet as a result of this plan, the
extension was also held to be a breach of article 20 CEF.
- With
regard to the violation of article 19 CEF (“Conflicts of interest”), the
FIFA Appeal Committee decision concluded that M. Platini was in a situation of
conflict of interest when he signed M. Blatter’s statement of support in May
2011 after he received the contested payment. He also participated in a meeting
of FIFA’s Finance Commission without notifying the organisers that he was
personally affected by the payment inserted into the agenda of the meeting.
On the
topic of M. Blatter’s statement of support, the CAS Panel outlined that the
declaration was signed by M. Platini as UEFA President and not as a FIFA
official. As a consequence, article 19 CEF cannot apply in that case. However, the
CAS Panel was, once again, severe with M. Platini by stating that, even though
article 19 CEF cannot apply in these circumstances, there was nonetheless a
conflict of interest in this case, albeit to UEFA’s disadvantage in this
instance.[10]
To
support his participation at FIFA’s Finance Commission in March 2011, M.
Platini argued he had to replace the UEFA executive that fell sick (M. Marios
Lefkaritis, UEFA treasurer). The CAS Panel concluded that M. Platini was in a
situation of conflict of interest when he took part in the meeting that
approved the 2010 annual report containing the CHF 2,000,000 payment he was not
entitled to received. Even though the payment did not appear individually on
the document, M. Platini should have disclosed during the meeting that he was
personally affected. Hence, the CAS Panel stated that M. Platini could not act
with integrity, independence and determination as a member of FIFA’s Finance
Commission, because he had a personal interest in obfuscating that payment and
making sure that FIFA’s 2010 account were adopted .[11]
- With
regard to the violation of articles 13 CEF (“General rules of conduct”) and 15
CEF (“Loyalty”), the CAS Panel did not follow the FIFA Appeal Committee
decision. The arbitrators used the lex specialis derogat generali
principle through which, if a behaviour falls under a general and a specific
rule, only the latter rule will apply. Both provisions were applied because the
acts in breach of articles 19 and 20 (specific provisions) and were not
separate facts falling under articles 13 and 15 (general provisions). As a consequence,
the CAS Panel concluded that there were no breaches of articles 13 and 15, but it
did not spare M. Platini – it specifically stated that the Panel didn’t condone
M. Platini’s behaviour nor were the former UEFA President’s actions ethical or
loyal (§328 and §335).
- Concerning the sanction.
The Panel reduced the sanction to a three year suspension for the breach of
article 20 CEF because of a number of mitigating circumstances. These include
the added value M. Platini has given over the years to football, his
cooperation in the procedure before the Panel and the fact that he is at the
end of his career. The CAS Panel also took into account the fact that FIFA
already knew about the undue payment in 2011 but did not start an investigation
until 2015.[12]
By contrast,
the CAS Panel found that the high level positions M. Platini occupied in
football constituted an aggravating factor for the sanction. Likewise, the fact
that he did not express any regret was also counted against him.[13]
He was also sanctioned by a one year suspension for the breach of article 19
CEF which brings the total suspended period to four years (as from 8 October
2015) and a CHF 60,000 fine.
Conclusion
The
arbitral award is very detailed and the justifications given by M. Platini, S.
Blatter and their lawyers were examined at great length by the arbitrators. The
description of the facts and the discussion of the grounds of the decision are precise
and meticulous. It is striking how M. Platini’s defence appears to be the one
of someone who was not very well informed about his own financial affairs. He
extensively said that he was not a man of means and his arguments portrayed him
as careless, negligent or even indifferent, which does not sit well with a former
UEFA President. The arbitrators are not buying any of it and are severe, to say
the least, in their appreciation. In particular, regarding the breach of
article 20 CEF for which they highlighted that it was the most serious offense
of M. Platini. However, the arbitrators, at the sanctioning stage, found
mitigating factors to reduce the sanction that are surprising. Finally, after a
third examination of its case, M. Platini’s sanction seems to keep on reducing
whereas the offenses identified remained more or less the same.
[1] §223. « … la Formation rappelle qu’en
vertu de l’article R57 du Code, le TAS jouit d’un plein pouvoir d’examen en
fait et en droit… » §224. « Ainsi, la procédure devant le TAS
guérit toutes les violations procédurales qui auraient pu être commises par les
instances précédentes. »
[2] §234. « …qu’il n’existe aucune preuve directe et contemporaine
de la conclusion dudit accord. »
[3] §235. « … Devant cet élément indiscutable, la Formation examinera
ci-dessous si des éléments de preuve supplémentaires pourraient venir appuyer
les explications de M. Platini et pourraient renverser la preuve résultant du
texte univoque de la Convention écrite. »
[4] §253. « … au vu du style de management centralisateur et à
l’ancienne de M. Blatter, les autres intervenants au sein de la FIFA n’avaient
que peu de marge de manœuvre face à une instruction de ce dernier… ».
[5] §238 and 239
[6] §257. « … un contrat du type de celui de l’Accord oral
dépasserait le cadre des affaires que peut conclure un représentant diligent
d’une personne morale ».
[7] §274. « … puisqu’au moment des faits… [M. Platini] n’était pas un jeune athlète sans expérience, mais un
ancien footballeur de très haut niveau, ancien sélectionneur de l’Equipe de
France et ancien co-Président du comité d’organisation de la Coupe du Monde
FIFA en France, c’est-à-dire un dirigeant expérimenté dans le domaine du
football, qui devait savoir qu’un contrat de l’importance de celui qu’il
prétend avoir conclu devait être couché sur papier… Ceci démontre encore
l’invraisemblance de l’Accord oral. »
[8] §276. « … En faisant cette
déclaration, M. Platini semble sous-entendre que constatant que d’autres
dirigeants avaient obtenu des paiements sans justification particulière, il
avait lui aussi tenté de le faire. Ce faisant, il ne démontre pas avoir agi
dans l’intérêt de la FIFA, dont il était membre du Comité exécutif, mais
uniquement dans son intérêt personnel. »
[9] §293. « … Les courriers de M. Valcke
et M. Kattner de 2009 font clairement apparaître que l’inclusion des années
1998 à mi-2002 était inhabituelle et résultait de la seule décision de M.
Blatter. »
[10]§304. « … le conflit d’intérêt (qui existait bien, de l’avis de
la Formation) … ».
[11] §311. « Il est ainsi évident que M.
Platini ne pouvait agir avec intégrité, indépendance et détermination en tant
que membre de la Commission des finances, puisqu’il avait un intérêt personnel
à cacher l’existence du paiement de CHF 2'000 000 dont il avait bénéficié, afin
que les comptes 2010 soient adoptés sans que ce paiement soit évoqué. »
[12] §358. « … Enfin, la Formation prend
également en compte le fait que la FIFA n’a débuté l’investigation contre M.
Platini qu’en 2015, et de surcroît uniquement après que l’enquête du MPC a
débuté, alors qu’elle avait connaissance du paiement concerné en 2011 (même si
elle ignorait à ce moment-là le véritable motif du paiement). »
[13] §359. « En revanche, la Formation
considère comme facteurs aggravants le fait que M. Platini a exercé des
fonctions très élevées tant à la FIFA qu’à l’UEFA et qu’il avait donc un devoir
accru de respecter les règles internes de ces organisations. De surcroît, il
n’a manifesté aucun repentir.