In a first blog last month we discussed the problem of the scope of jurisdiction of the Ad Hoc Division of the Court of Arbitration for Sport. The key issue was whether an athlete could get his case heard in front of the CAS Ad Hoc Division or not. In this second part, we will also focus on whether an athlete can access a forum, but a different kind of forum: the Olympic Games as such. This is a dramatic moment in an athlete’s life, one that will decide the future path of an entire career and most likely a lifetime of opportunities. Thus, it is a decision that should not be taken lightly, nor in disregard of the athletes’ due process rights. In the past, several (non-)selection cases were referred to the Ad Hoc Divisions at the Olympic Games, and this was again the case in 2014, providing us with the opportunity for the present review.

Three out of four cases dealt with by the CAS Ad Hoc Division in Sochi involved an athlete contesting her eviction from the Games. Each case is specific in its factual and legal assessment and deserves an individual review.

I.               Daniela Bauer (CAS OG 14/01)

Daniela Bauer is an Austrian halfpipe freestyle skier contesting the decision by the Austrian Olympic Committee (AOC) and the Austrian Ski Federation (ASF) not to select her for the Sochi Olympic Games. Shortly before the Games, a member of the ASF had informed Ms. Bauer that she would get to participate in the Olympics if Austria were offered an additional quota place for the halfpipe competition.[1] But, when the AOC got the opportunity to fill such a quota spot, it declined to use it. It did so because “the sporting performances of the Austrian athletes in this discipline were not good enough and would adversely affect the overall perception of the Federation and its athletes at the Olympics”[2]. Hence, on 2 February 2014, the athlete decided to file an application with the CAS Ad Hoc Division against her non-selection.

She claimed that ASF and AOC had “induced legitimate expectations in the Applicant that having qualified under the FIS Rules she would be selected through the use of quota places”. Therefore, ASF and AOC “are estopped[3] from changing their course of action, i.e. from relying on their authority in any given case to decline the quota allocated to Austria”[4]. Moreover, she argued that “[t]he right of the ASF to recommend an athlete to the AOC (Rule 44.4 of the OC) as well as the right of the AOC to select an athlete for the Olympic Games (Rule 27.7.2 of the OC) cannot be exercised in an unreasonable manner”[5]. This standard of reasonableness was not met in her case because[6]:

• “no reasons were given”;
• “the Respondents’ discretion not to recommend and select her was exercised arbitrarily”;
• “the applicant was never notified that reference would be made to the above-mentioned criterion of sporting perspective”;
• “the AOC violated Rule 44.4 of the OC by not investigating whether the ASF’s non-recommendation was based on discrimination”;
• “the AOC should accept all the quotas allocated to it, irrespective of the potential results of the nominated athletes”;
• and she “should have been immediately informed of the decisions taken by the ASF and AOC”.

The ASF and AOC opposed that “[n]o person has the authority to bind the ASF and the AOC with respect to the Applicant’s participation in the Olympic Games” and, therefore, “[t]he AOC has the exclusive authority under Rule 27 of the OC to decide which athletes shall take part in the Olympic Games” [7].

The jurisdiction of the CAS Ad Hoc Division was not contested and the panel moved directly to the merit of the case. The panel refers to its settled case-law and reminds that “it is not in issue that it is for an NOC to select its competitors for the Olympics […] (CAS OG 08/03)”[8]. Hence, “although the Applicant satisfied the FIS minimum qualification standards and the AOC was below its maximum athlete quotas for all freestyle events, the AOC would have violated the OC by nominating her for a quota allocation for women’s halfpipe as she had not been recommended by the ASF”[9]. Even though it is acknowledged that ASF member Mr. Rijavec “may have created an expectation that the ASF would recommend to the AOC that she would be nominated for a quota allocation”, he “was not authorized to make any representations, promises or guarantees regarding whether the AOC would nominate her if she satisfied these standards”[10]. Consequently, no legitimate expectations to be selected could arise. In addition to this, the panel found that the ASF disposes of a “significant degree of subjective discretion”[11] as it does not have recourse to any objective criteria regarding the selection of freestyle skiers.[12] Nevertheless, it “has a legal duty not to be arbitrary, unfair, or unreasonable”, which it was not in this instance as “it had a legitimate sports performance justification” .[13]

Finally, the Panel, in a remarkable twist of mind, “wishes to express in clear terms that it does not condone its lack of published qualification criteria that misled the Applicant by failing to provide clear and timely notice of the performance standards she was required to meet in order to be recommended by the ASF for the nomination by the AOC to the Austrian Olympic team”. Additionally, “the panel strongly recommends that the ASF establish, identify, and publish clear criteria to enable athletes to determine in a timely manner the Olympic Games qualification standards they are required to meet” .[14] Despite these final remonstrances, the panel concludes that the claims of Ms. Bauer lack merit.

II.             Clyde Getty (CAS OG 14/02)

The claimant, Mr. Getty, is an Argentinean freestyle skier competing in the aerials discipline; the respondent is the International Ski Federation (FIS). This is a case also related to the attribution of an additional quota spot to participate to the Sochi Olympic Games. On 24 January the Argentinean Ski Federation (FASA) received an email from the FIS informing it that it was allocated a quota spot for the aerials competition in Sochi. The FASA immediately informed Mr. Getty of the good news. However, later that day, after confirming its interest in the spot, the federation received a second email from FIS stating that FASA “does not have an athlete that is eligible to participate in the Aerials men event” and therefore cannot get the spot misleadingly offered in the first email. Henceforth, Mr. Getty decided to challenge his proclaimed ineligibility to participate to the Olympics in front of the CAS Ad Hoc Division. 

Mr Getty claims that he is “eligible to be entered into the Sochi Games by the Argentinean NOC irrespective of his current FIS points”[15]. He is of the opinion that FIS rules are ambiguous on the selection process for quota spots and therefore should be interpreted in his favour on the basis of the contra preferentem principle.[16] Moreover, he argues that “FIS is estopped from denying [him] a quota place” [17]. In other words, Mr. Getty claims FIS had prompted legitimate expectations, especially after the 24 January  email, that he would be participating to the Sochi Olympic Games. Finally, Mr Getty submits that denying him the participation in the Sochi Games “would be unfair and contrary to the spirit of the Olympic Movement” [18]. He bases his claim, amongst many other things, on the fact that he is the only freestyle athlete representing South America and that his “dedication to sport is an inspiration to many” [19]. The FIS disputes these claims and points out that “the Applicant’s description of the qualification procedure is incorrect and misleading” [20]. In fact, Mr. Getty never reached the minimum points for eligibility, nor is any alternative qualification criterion accessible. Likewise, the FIS is not estopped, as it could not create any legitimate expectations with its email.

The jurisdiction of the CAS Ad Hoc Tribunal was not contested and the panel proceeded directly to the merit. As a preamble, the arbitrators remind that “[u]nder Swiss law, the interpretation of statutes has to be rather objective and always start with the wording of the rule”[21]. After reviewing the wording of the FIS’s regulations, the panel concludes that, in the present case, “[a] good faith common sense reading leads to the conclusion that the rules unambiguously require all competitors to meet the individual eligibility requirements” [22]. Additionally, “[t]he fact that the Applicant cannot point to a single instance in the past where an athlete was allowed to compete in the Olympic Games without meeting the eligibility requirements […] is further evidence of this conclusion” [23].

Moreover, the FIS is not deemed estopped from denying Mr. Getty a quota place for the Sochi Olympic Games. In this regard, the Panel notes that “FIS never made during the qualification period a representation that Mr. Getty was eligibile” [24], nor is there “evidence that during the qualification period Mr. Getty received from FIS an individual assurance that he was eligible” [25], and “the fact that COA might ultimately obtain a quota place did (and could) not suggest that FIS would waive the minimum individual qualification requirement for any athlete assigned to that quota place” [26], most importantly “all correspondence between FASA or COA and FIS on 24 October 2014 did not contain any express and individual reference to Mr. Getty”[27]. This is a fundamental difference compared to the existing precedents invoked by Mr. Getty. Indeed, in those cases “the athlete had been given specific and individual assurances about his eligibility” (CAS OG 02/06 & CAS OG 08/02) or “the international federation changed its rules with retroactive effects, depriving an athlete of the eligibility that could be assumed on the basis of prior rules”[28] (CAS 2008/O/1455).

Finally, the Panel also held that the fact that the participation of Mr. Getty to the Sochi Games would be in line with the Olympic spirit is a matter of policy. These concerns are for “FIS to consider when adopting the eligibility rules for the Olympic games; they are not for this Panel which is only asked to apply the existing rules”[29]. Even though the Panel is sympathetic to the athlete’s drive to participate to the Sochi Olympic Games it rejects the application filed by Mr. Getty.

III.           Maria Birkner (CAS OG 14/03)

The final, and maybe most complex and controversial case, is the one involving a well-known Argentine alpine skier: María Birkner. The National Olympic Committee for Argentina (COA) and the Argentinean Ski Federation (FASA) are the respondents in the proceedings. On 20 January 2014 the FASA told Ms. Birkner that she was not selected for the Sochi Olympic Games. This decision not to select her is challenged in front of the CAS Ad Hoc Division.

Ms. Birkner claims “that she was discriminated against on the basis of her being a member of her family”[30]. For a number of reasons, she claims that the Federation has purposefully conspired to banish her from its activities and to exclude her from the Olympic games[31]. Chiefly, she claims the federation has purposefully informed her after the final decision of the existence of specific selection criteria and of a technical committee in charge of the selection. As discussed in the previous blog, the jurisdiction of the Ad Hoc Division was challenged and the panel found that it did not have jurisdiction. Nonetheless, it decided to consider the merits of the case anyway.

The arbitrators brushed aside any bias against the family of Ms. Birkner noting that two of her siblings were present in Sochi and that her brother had even the privilege of carrying the Argentinean Flag during the opening ceremony.[32] Furthermore, in the eyes of the panel, the claimant failed to establish that the qualification process, the Technical Committee and the selection criteria used were biased against her.[33] Indeed, “it cannot be said that the selection criteria said to be applied were arbitrary or unreasonable”[34]. The panel considers that the recriminations of Ms. Birkner against the selection process, especially the allegations of a bias from the part of the Technical Committee and that the other skiers had previous knowledge of the main selection criteria were not sufficiently substantiated and could not be established for the sake of this procedure.

The panel is of the view that the situation is similar to the one of the Bauer case discussed above. Therefore, it recalls the holding of the Bauer Panel observing that “there was a legal duty not to be arbitrary, unfair or unreasonable in the application of objective criteria or in the exercise of subjective discretion but that the exercise of discretion was not so characterised where there was a legitimate sports performance justification for selection”[35]. It finds that “a discretion based on “the evolution and projection in the future” [as invoked by the FASA] is not arbitrary, unfair or unreasonable” [36]. Nevertheless, the panel refers to the obiter holding in the Bauer case and “recommends that FASA establishes, identifies and publishes clear criteria in a timely manner to enable athletes to understand those criteria and the Olympic Games qualification standards that they are required to meet in order to be recommended for selection by COA” [37]. In the present case, “a dedicated athlete with an outstanding history of representing her country, who had successfully competed in many international as well as national events, was devastated by the decision made not to select her, when she had believed that, on the criteria that she had mistakenly understood had applied, she would represent her country at the Sochi Olympic Games” [38].

Conclusion: Deference is not enough 

Selection disputes constitute a big part of the CAS Ad Hoc Division’s caseload.[39] This is probably inevitable, as the non-selection for the Olympic Games is often the toughest setback faced by an athlete in her career. The Sochi cases do not fundamentally sidestep the existing case law of the CAS Ad Hoc Division in this regard. The deference to the subjective criteria used by the National Olympic Committee’s (NOCs) and the International federations (Ifs) is reaffirmed, unless those criteria are applied in an “arbitrary, unfair or unreasonable” way. Furthermore, an athlete can hardly rely on any legitimate expectations, unless he has been offered personally and officially a spot to participate to the Olympic Games. Hence, a non-selection can only be challenged successfully in the most extreme cases. However, when the behaviour of the federation is, to say the least, ambiguous as in the Birkner case, a very heavy burden of proof lies on the shoulder of the athlete to turn this ambiguity into the recognition of an “arbitrary, unfair or unreasonable” behaviour. 

The Sochi Ad Hoc Division’s approach to selection cases is flawed with paradoxical feelings. On the one hand, it urges the Ifs and NOCs to devise and publish “clear criteria in a timely manner”, but, on the other hand, it encourages them not do so by limiting the reviewability of their subjective and blurry selection practices. In short, Panels openly favour objective and predictable schemes on which athletes can rely, while incentivizing subjective and unpredictable assessments by leaving untouched the wide scope of discretion of the Ifs and NOCs.[40] The paradoxical and irreconcilable nature of these views should lead the CAS to reconsider its approach to the selection process. The Sochi panels instinctively felt there was something fundamentally unfair with the non-selection of Ms. Bauer and Ms. Birkner. In this regard, the panels’ final incantations for change will remain unanswered if the CAS Ad Hoc Division refuses to contribute through its jurisprudence to the rise of clear selection criteria. It should impose a more stringent review of the subjective criteria used by the Ifs, by promoting a less strict understanding of the notion of “arbitrary, unfair or unreasonable” scheme and/or by alleviating the burden of proof bearing on athletes to establish the abusive nature of a selection process.

In fact, such an evolution would be in a line with the will expressed by the Olympic movement during the Olympic Agenda 2020 process to be irreproachable in terms of good governance and transparency. The existence of publicly known and clearly defined standards and rules is a hallmark of such good governance. Getting to the Olympics is just too important for athletes to be left at the mercy of the unchecked will

[1] CAS OG 14/01, point 2.5

[2] CAS OG 14/01, point 2.10

[3] For a quick introduction to the doctrine of Estoppel see : http://en.wikipedia.org/wiki/Estoppel

[4] CAS OG 14/01, point 4.2 a)

[5] CAS OG 14/01, point 4.2 b)

[6] CAS OG 14/01, point 4.2 b) i) to vi)

[7] CAS OG 14/01, point 4.3 a) and c)

[8] CAS OG 14/01, point 7.5

[9] CAS OG 14/01, point 7.10

[10] CAS OG 14/01, point 7.12

[11] CAS OG 14/01, point 7.15

[12]In contrast with CAS OG 06/08 and CAS OG 06/02.

[13] CAS OG 14/01, point 7.15

[14]CAS OG 14/01, point 7.16

[15] CAS OG 14/02, point 4.2 a)

[16] CAS OG 14/02, point 4.2 a)

[17] CAS OG 14/02, point 4.2 b)

[18] CAS OG 14/02, point 4.2 c)

[19] CAS OG 14/02, point 4.2 c)

[20] CAS OG 14/02, point 4.3 a)

[21] CAS OG 14/02, point 7.4

[22] CAS OG 14/02, point 8.9

[23] CAS OG 14/02, point 8.10

[24] CAS OG 14/02, point 8.17 i.

[25]CAS OG 14/02, point 8.17 ii.

[26] CAS OG 14/02, point 8.17 iii.

[27] CAS OG 14/02, point 8.17 vi.

[28] CAS OG 14/02, point 8.17 vii.

[29] CAS OG 14/02, point 8.20

[30] CAS OG 14/03, point 4.3

[31] CAS OG 14/03, point 4.4

[32] CAS OG 14/03, point 7.4-7.7

[33] CAS OG 14/03, point 7.16-7.25

[34] CAS OG 14/03, point 7.19

[35] CAS OG 14/03, point 8.2

[36] CAS OG 14/03, point 8.3

[37] CAS OG 14/03, point 8.4

[38] CAS OG 14/03, point 8.4

[39] See the following cases : CAS OG 12/06 ; CAS OG 12/01 ; CAS OG 12/02 ; CAS OG 06/008 ; CAS OG 06/002 ; CAS OG 08/002; CAS OG 08/003; CAS OG 02/005

[40] A problem already identified by Antonio Rigozzi, which noted in 2006 that « This case law [CAS OG 06/002  & CAS OG 06/008] could lead to a switch (back) from selection based on objective criteria to more subjective process. This would be a regrettable evolution. To reduce the risk of dispute, the selecting bodies should enact objective criteria, which are easily intelligible, make sure that they are communicated to (and understood) by the athletes, and avoid any modification of the « rules of the game » during the selection » process. » A. Rigozzi, ‘The Decisions Rendered by the CAS Ad Hoc Division at the Turin Winter Olympic Games 2006’, Journal of International Arbitration, pp.453-466, p.466

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.