The Pechstein decision of the Oberlandesgericht of Munich is “ground-breaking”, “earth-shaking”, “revolutionary”, name it. It was the outmost duty of a “German-reading” sports lawyer to translate it as fast as possible in order to make it available for the sports law community at large (Disclaimer: This is not an official translation and I am no certified legal translator). Below you will find the rough translation of the ruling (the full German text is available here), it is omitting solely the parts, which are of no direct interest to international sports law.

The future of CAS is in the balance and this ruling should trigger some serious rethinking of the institutional set-up that underpins it. As you will see, the ruling is not destructive, the Court is rather favourable to the function of CAS in the sporting context, but it requires a fundamental institutional reshuffling. It also offers a fruitful legal strategy to challenge CAS awards that could be used in front of any national court of the EU as it is based on reasoning analogically applicable to article 102 TFEU (on abuse of a dominant position), which is valid across the EU’s territory.

Enjoy the read! 

Antoine

PS: The translation can also be downloaded at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2561297

OLG München · 15 January 2015 · Az. U 1110/14 Kart

Part 1. The facts (omitted)

Part 2. Holdings of the Court

A. The claim is partially receivable

I. The international competence of the German courts (omitted)

67 - II. The arbitration clause signed on the 2 January 2009 by the appellant (Pechstein) and the respondent nr 2 (ISU) does not preclude access to the ordinary courts

68 - To this end the question whether the CAS, designated by the arbitration clause, can be considered a real arbitration tribunal, despite the fact the parties have no equal influence on its composition, can stay open. The arbitration clause would also be null in that case.

1. […]

2. […]

71 - 3. The arbitration clause is in the present case inapplicable because it goes against antitrust law

a) […]

aa) […]

bb) […]

75 - b) The arbitration clause signed on the 2 January 2009 between Pechstein and ISU is invalid based on Art. 34 EGBGB, §134 BGB, §19 Abs. 1, Abs.  4 Nr. 2 GWB.

76 - aa) The ISU is a monopolist on the market for the access to Speed-Skating World Championships and therefore in a dominant position in the sense of §19 Abs.1, Abs 4 Nr. 2 GWB.

77 - An economic activity, in the sense of the German Act against restraints of Competition (GWB), is any activity consisting of offering goods or services on a market. If this condition is fulfilled, the fact that an activity is linked to sport cannot preclude the application of the Competition rules (C-49/07 MOTOE v. Greece). Sports associations offering their services on the market of sports competitions are to be considered undertakings.

78 - In the present case, the market for the organisation of the World Championships in speed skating is the relevant market. Contrary to the view of ISU, the participation to the event cannot be supplanted by the participation in national competitions, due to the worldwide interest it triggers and the connected side revenues that successful athletes can hope for.

79 – […]Moreover, it is not convincing to argue that international events as the Open Belrus Cup, the Cup of Kazakhstan, the Dutch Classics or the International Race-Seniors could trigger the same interest and be substitutable to the World Championships.

80 - ISU is thus, because of the “One-place-principle”[1], the only provider on the market for the organisation of World Championships in Speed-Skating and therefore, due to the absence of competition, a monopolist in a dominant position in the sense of § 19 Abs. 2 Nr. 1 GWB.

81 - bb) An undertaking in a dominant position is prohibited under § 19 Abs. 1, Abs. 4 Nr. 2 GWB from demanding payment or other business terms which differ from those which would very likely arise if effective competition existed.

82 - Hence, the ISU could not require Pechstein to agree to the arbitration clause signed on 2 January 2009.

83 - (1) The notion of terms of trade is be understood broadly. It comprises everything that can be agreed on contractually, including an agreement to arbitrate disputes excluding the recourse to national courts.

84 - aaa) Contrary to the opinion of ISU, the applicability of § 19 Abs. 1, Abs. 4 Nr. 2 GWB is not precluded because the signing of the arbitration clause was mandated to ISU by the International Convention Against Doping in Sport from the 19^th October 2005 ratified by Switzerland.

85 - The Convention does not include a rule imposing a duty to conclude an arbitration clause in favour of CAS. Rather, it refers in Art. 4 §1 to the principles of the World Anti-Doping Code, which in turn in Article 13.2.1 provides that in cases involving international competitions or international athletes, appeals against anti-doping decisions can only be submitted to CAS. It cannot be assumed, despite the compliance mandate that the Code imposes to its signatories in Article 23.2.2, that the Convention includes this provision in the fundamental principles to which the State parties have to abide following Art.4 §1. Moreover, the obligations stemming from Art. 4 par.1 require transposition by the national states as foreseen by Art.5 1) of the Convention. It is not clear from the submissions of ISU that Switzerland has introduced any law that would impose to ISU the duty to sign arbitration clauses in favour of CAS.

86 - The fact that the ISU may have felt that it had to sign arbitration clauses in favour of CAS due to other non-legal reasons, as for example to preserve its recognition by the IOC, is irrelevant in the context of this competition law analysis. 

87 – bbb) Omitted

88 - (2) The imposition of an arbitration clause by the organizer of International sporting competitions is not per se an abuse of a dominant position.

89 - aaa) In fact, sound and weighty arguments speak in favour of avoiding to leave to the many potentially competent national courts the duty to deal with disputes arising between athletes and International federations in the framework of international competitions, and instead to refer them to a single sports tribunal. In particular, a uniform competence and procedure can preclude that similar cases be decided differently, and therefore safeguard the equal opportunities of athletes during the competitions.

90 - bbb) Contrary to the view of the first instance court, arbitration agreements between a dominant organizer of international sports competitions and the athlete taking part in these competitions are not per se invalid due to the lack of free will of the athlete.

91 - Omitted

92 - Art 6 par. 1 ECHR is opposed to the validity of an arbitration agreement to which one of the parties has not acquiesced. But, if consent is present, the sole fact that this consent was necessary economically to be able to exercise one’s profession is not sufficient to constitute a violation of the rights warranted by Art.6 par.1 ECHR. 

93 - (3) Nevertheless, the fact that ISU required from Pechstein to sign an arbitration agreement in favour of CAS is an abuse of dominant position.

94 - It can be assumed that, due to the above-mentioned advantages, athletes would agree to the competence of a neutral arbitral tribunal if free competition would prevail on the market for the organisation of international competitions. However, an arbitration clause in favour of CAS would not be agreed under normal circumstances, as the one-sided designation of the potential arbitrators favours the associations (the International federations – such as the ISU – the national Olympic Committees and the International Olympic Committee) involved in disputes with athletes as regard the composition of the arbitral panel. Athletes accept this arrangement only because they have to in order to participate in international sporting competitions. 

95 - aaa) The aforementioned sports associations have a decisive influence on the selection of the persons acting as CAS arbitrators

96 – a-1) Pursuant to the CAS procedural rules of 2004, in place at the moment of the signing of the arbitral convention, the parties have to select an arbitrator amongst the list of CAS arbitrators compiled by ICAS [R33 par.2 of the procedural rules and S6. Nr.3 of the Statutes].

97-103 […]The Court goes on to describe the composition of the ICAS as provided for in article S4 and the mode of selection of the arbitrators included on the CAS list as provided for in article S14 of the statutes. 

104 - These provisions regulating the selection of the potential CAS arbitrators favour the sports associations in disputes against athletes, thus embedding a structural imbalance that is threatening the neutrality of CAS.

105 - Sports association hold, with 12 members directly designated by them, the majority in ICAS. Already through this situation they enjoy, due to the majority rule applying in ICAS’ decision-making procedure, a favourable position that enables them to have a decisive influence on the composition of the list of CAS arbitrators. Furthermore, due to the fact that the 12 members previously designated by the sporting associations nominate them, the independence of the 8 other members of ICAS is also not preserved. Even the CAS statutes themselves do not assume the independence of the ICAS members and of the CAS arbitrators, as they require that the last 4 ICAS members and the last fifth of CAS arbitrators be independent from the organisations which were responsible for the nomination of all the other previous members of both ICAS and the CAS arbitrators list.

106 - This disproportionate influence creates the risk that the persons included on the CAS arbitrators list predominantly or even entirely favour the side of the sporting associations over the athletes. This is also true concerning the arbitrators that are not suggested by the sporting association, but are selected in view to protect the interest of athletes or on the basis of their independence, as they are designated by ICAS members chosen by the sporting associations. A balanced influence of the parties on the composition of the arbitral tribunal that would be needed to safeguard its independence is thus not provided. Such a structural deficiency threatens the neutrality of the arbitral tribunal; this is independent of the fact whether the persons included on the CAS list of arbitrators are in any way linked to the sports associations, as this would actually open the possibility to challenge their nomination. Even when the personal integrity of the persons included on the CAS list is not affected, there is a potential risk that arbitrators share the worldview of the sports associations rather than the one of the athletes.

107 - The imbalance in favour of the sports associations is not offset by the fact that the CAS arbitrators’ list comprises a minimum of 150 persons, as the risk of a potential capture by the sports associations extends to each one of them.

108 - a-2) Moreover, an imbalance in favour of the sports associations is also grounded in the fact that in the appeal procedure before CAS, when the parties have not managed to agree on a name (see R 50 par.1 procedural rules 2004), the president of the panel is designated by the president of the appeal division of CAS, while the president of the appeal division is himself nominated by ICAS, which is structurally dependent on the sporting associations, through a simple majority decision. In this way, the sports associations can also exercise an indirect influence on the third member of the arbitral panel competent to deal with a specific dispute. The trust of the parties in the independence and impartiality of an arbitral tribunal is eroded when there are reasons to fear that the judge facing them has been designated specifically in regard of the specific case at hand. Thus, it is necessary to take measures to combat the sheer possibility and suspicion of a manipulation of the designation of the judge.

109 - bbb) There is no rational justification for such an imbalance in favour of the sports associations 

110 - Contrary to the arguments of the ISU, a shared interest of the sports associations and the athletes cannot justify such an imbalance, as especially in disputes between athletes and sports associations no shared interest can be identified, to the contrary opposing interests are facing each other. In this regard, the fact that sports functionaries were often athletes in the past is also not a sufficient guarantee to ensure that the interests of the athletes are adequately protected.

111 - The circumstance that in a dispute between an international sports association and an athlete, the national sports association decides to support the athlete – as it was the case here in front of CAS - is not sufficient to challenge the fundamental homogeneity of the interests of the sports association. Surely, the national sports association concerned might have a specific interest that their own successful athlete be cleared, but other national sports associations do not share this interest so much that from a general point of view one can assume a homogeneity of the interests.[…]

112 - Finally, the argument of the ISU regarding the lack of organisation of the athletes that would hinder their participation in the drafting of the CAS arbitrators list must be rejected. If it would be impossible to involve athletes in the drafting of the list then athletes should be freed from their duty to nominate an arbitrator from the list, and be authorized to pick the arbitrator they wish – possibly under the condition of abstract qualification requirements.

113 - ccc) The reason why athletes accept to subject their disputes with sports associations to an arbitration tribunal, the composition of which is mainly determined by sports associations, is solely linked to the monopoly position of the sports associations. If the athlete could participate to the World Championship while agreeing to the competence of a neutral arbitration tribunal, we can safely assume that only this arbitration clause would be agreed upon to the detriment of the arbitral tribunal structurally favourable to the sports associations.

114 – Omitted

115 - ddd) The departure from arbitration agreements that would have been signed under normal conditions of competition strips Pechstein from her fundamental right of constitutional rank, flowing from the rule of law principles, to access to national courts and to a legally mandated judge (Art. 101 Abs. 1 Satz 2 GG). Hence, the arbitration agreement goes beyond the intensity threshold required for the recognition of an abuse of dominant position. 

116 - eee)[…] German law specific considerations to the notion of abuse of dominance not directly linked to the sporting context.

117 - (4) No need to discuss the other arguments raised by Pechstein against the CAS. […]

118 - cc) The arbitral convention is contrary to the ban on abuses of dominant position ((§ 19 Abs. 1, Abs. 4 Nr. 2 GWB) and therefore null and void on the basis of § 134 BGB. [...]

119 - c) The contradictory behaviour of Pechstein cannot justify refusing to grant her access to the ordinary courts.

120 - Based on its wording the arbitration clause covers a wide scope of potential disputes. The fact that Pechstein claims damages in front of the ordinary courts does not stand in contradiction with the fact that she challenged the doping sanction in front of CAS.  Even if the appeal to CAS would constitute a, legally doubtful, recognition of its competence to deal with the doping sanction, it would not entail that this recognition extends to every potential other dispute between the parties.

121 - Moreover, it has not been demonstrated by the ISU, nor is it clearly understandable, why, based on good faith, it could legitimately rely on the expectation that Pechstein would refer other disputes to CAS. Indeed, the fact that the arbitral convention underlying CAS competence is the result of an abuse of a dominant position by the ISU speaks out against any such legitimate expectations.

122 - 4. The fact that Pechstein signed, in the framework of the arbitral procedure involving her doping sanction, the Order of Procedure from the 29 September 2009, does not constitute an arbitration clause barring access to the ordinary courts, as it was in any case only referring to the specific dispute before CAS. Thus, it cannot constitute a valid arbitration agreement covering other disputes.

123 - III. Pechstein’s complaint is partially admissible. […]

124 – 128 Omitted

129 - B. As far as the complaint is admissible it is not yet ready for decision. Contrary to the view of the first instance court, the complaint cannot be discarded on the basis of the res judicata effect of the CAS award.

130 - I. It is true that the procedural relevance of a foreign arbitral awards, in particular its res judicata effect, does not necessitate a particular recognition process; but, this implies that the fundamental conditions for the recognition be fulfilled, which is not the case in the present instance.

131 - II. The recognition of the CAS award – which would anyway only be possible if CAS would constitute a proper arbitral tribunal – would go contrary to the public order. Consequently, the CAS award cannot be recognized due to § 1061 Abs. 1 Satz 1 ZPO in relation with Art. V par. 2. b) of the New York Convention on the recognition and enforcement of foreign arbitral awards from the 10^th June 1958.

132 - 1. An arbitral award violates the ordre public, and is thus not recognizable, when it leads to an outcome that is obviously incompatible with the fundamental principles of German law, and therefore breaches the prime foundations of the German legal order. However, not any decision potentially contrary to German mandatory laws constitutes a violation of the ordre public. 

133 - Fundamental provisions of competition law are part of the ordre public exception to the recognition of arbitral awards in the sense of Art. 5 par.2 b) New York Convention (CJEU, 4 June 2009, C-8/08 - T-Mobile Netherlands BV u.a./Raad van hestuur van de Nederlandse Mededingingsautoriteit; CJEU, 13. July 2006 - C-295-298/04 - Vincenzo Manfredi/Lloyd Adriatico Assicurazioni SpA;  CJEU 1. June 1999 - C-126/97 - Eco Swiss China Time Ltd/Benetton International; [...])

134 - 2. Thus the CAS award cannot be recognized

135 - a) In the present case the ISU was barred by § 19 Abs. 1, Abs. 4 Nr. 2 GWB from imposing the arbitration agreement onto Pechstein. The recognition of an award based on an agreement contrary to competition law would perpetuate the abusive conduct of the ISU, which would be contrary to the objective underlying the ban on abusive practices imposed by the competition rules. This is further confirmed by the fact that Pechstein disposes, on the basis of § 33 Abs. 1 Satz 1 GWB, of a right to require the ISU to remedy the consequences of the forced arbitration clause. This includes the fact that the ISU cannot rely on the CAS award issues on the basis of this arbitration agreement.

136 - Omitted

137 - b) The question whether with Pechstein’s appeal to CAS or her signing of the Order of Procedure a new arbitration agreement was concluded can stay unanswered.  Indeed, this would also constitute a perpetuation of the abuse of a dominant position by the ISU. Pechstein had no other credible option available to obtain the right to participate to the Winter Olympics taking place between the 12 and 28 February 2010 in Vancouver, but to appeal to CAS on the basis of the arbitral agreement of the 2 January 2009.  A recourse to the Swiss courts was in light of their jurisprudence, as confirmed later by the ruling of the Swiss Federal tribunal on the CAS award, not particularly promising. Similarly, a request for an order to be authorised to participate to the Olympics in front of the German courts can hardly be deemed a reliable alternative mean due to the uncertainties related to the assessment of their international competence in that matter.

138 - III. Due to the impossibility to recognize the CAS award, German Courts are not bound by its findings in their evaluation of the legality of the doping sanction in order to assess the legitimacy of Pechstein’s damage claims. 

[1] The concept of « Ein-Platz-Prinzip » is specific to German law and qualifies the fact that sports associations are monopolists by nature.

Editor’s Note: Oytun Azkanar holds an LLB degree from Anadolu University in Turkey and an LLM degree from the University of Melbourne. He is currently studying Sports Management at the Anadolu University.

Introduction

On 19 October 2017, the Turkish Professional Football Disciplinary Committee (Disciplinary Committee) rendered an extraordinary decision regarding the fixing of the game between Manisaspor and Şanlıurfaspor played on 14 May 2017. The case concerned an alleged match-fixing agreement between Elyasa Süme (former Gaziantepspor player), İsmail Haktan Odabaşı and Gökhan Sazdağı (Manisaspor players). The Disciplinary Committee acknowledged that the evidence relevant for proving the match-fixing allegations was obtained illegally and therefore inadmissible, and the remaining evidence was not sufficient to establish that the game was fixed. Before discussing the allegations, it is important to note that the decision is not only significant for Turkish football but is also crucial to the distinction between disciplinary and criminal proceedings in sports.

Background of the Case

During the last weeks of the 2016/2017 season in Turkish 2^nd Division League, three teams, namely Manisaspor, Şanlıurfaspor and Gazişehir Gaziantep, were competing to avoid relegation. At the penultimate week, Manisaspor played against Şanlıurfaspor and won the game. Gazişehir Gaziantep also won its match. As a consequence of these results, Şanlıurfaspor was relegated to a lower division. At the end of the season, on 5 July 2017, Şanlıurfaspor claimed that the club Gazişehir Gaziantep had attempted to influence the outcomes of the games and Şanlıurfaspor appealed to the Turkish Football Federation (TFF).

Şanlıurfaspor’s claims mainly focused on the recording of the talk between Nizamettin Keremoğlu (Vice-President of Gazişehir), Elyasa Süme (a former Gaziantepspor player), Gökhan Sazdağı (Gazişehir player who was on loan at Manisaspor at the time) and İsmail Haktan Odabaşı (Manisaspor player). The recording was leaked and uploaded on Youtube. The content of the recording clearly demonstrates that incentives were provided to Manisaspor players by Gazişehir in order to encourage them to win against Şanlıurfaspor. Furthermore, Gökhan Sazdağı confessed in the recording that he had been involved in match-fixing before and that this would not be his first time. In addition, Gaziantepspor claimed that Elyasa Süme was involved in match-fixing. On 20 July 2017, based on these serious allegations and the incriminating evidence publically released, the TFF referred Şanlıurfaspor’s application to the Turkish Football Federation Ethics Committee (Ethics Committee). Following the Ethics Committee’s report, the TFF subsequently referred the case to the Disciplinary Committee for determining the possible sanctions to be imposed on Gazişehir Gaziantep, Nizmettin Keremoğlu, Elyasa Süme, Gökhan Sazdağı and İsmail Haktan Odabaşı. Finally, on 19 October 2017, the Disciplinary Committee decided that the evidence relevant for proving match-fixing was illegally obtained and the remaining evidence was not enough to establish an instance of match-fixing.

Separating Disciplinary and Criminal Proceedings

It is generally accepted that in sports law disciplinary proceedings are to be treated differently than criminal investigations.[1] In countries like Turkey, match-fixing and/or match-fixing attempts also constitute a crime. Article 11(1) of the Act on the Prevention of Violence and Disorder in Sports stipulates that a person providing advantages or benefits in order to influence the final result of a game shall be punished with imprisonment from five to twelve years. Article 11(5) of the same regulation also states that in case of commission of the offense by offering or promising incentive pay with the intention of enabling one team to win a match, only half of the punishment is to be imposed.

On the other hand, match-fixing and incentives also appear in Article 58 of the Turkish Football Disciplinary Instruction. The said provision makes clear that it is forbidden to influence the outcome of the games illegally or unethically. Incentives fall also within the scope of this provision. In case of a breach, individuals will face a life-long ban. In case of an attempt at match-fixing or of the provision of unlawful incentives, clubs will be sanctioned by at least a 12 points deduction.

It is important to note that Turkish prosecutors have not yet opened a criminal investigation for the allegations related to the provision of incentives, even if the allegations and evidence are serious.

The Position of FIFA, UEFA, and CAS with respect to Match-Fixing Allegations and Binding Rules for Turkish Authorities     

FIFA as the world's governing body of football has put in place significant provisions regarding match-fixing and corruption in football. Article 69 FIFA Disciplinary Code stipulates that anyone who unlawfully influences the outcomes of football games can be banned from taking part in any football-related activity for life. Furthermore, Article 3.10 FIFA Code of Conduct also highlights the importance of zero tolerance for bribery and corruption.  

UEFA president Michael Platini announced in 2011 that a zero tolerance policy was adopted by UEFA regarding match-fixing, and that all match-fixing allegations would be seriously investigated. Moreover, as evidenced in Sport Lisboa e Benfica Futebol SAD, Vitoria Sport Clube de Guimaraes v. UEFA and FC Porto Futebol SAD, UEFA is not bound by national associations’ decisions in this regard.

A zero-tolerance policy requires that match-fixing attempts be punished heavily. This does not mean, however, that there is no standard of proof for match-fixing allegations. According to the CAS, match-fixing allegations must be proved to its comfortable satisfaction. [2] Comfortable satisfaction is defined by the CAS as a standard that is higher than the civil standard of “balance of probability” but lower than the criminal standard of “proof beyond a reasonable doubt”.[3] In my view, considering the evidence in the case of Şanlıurfaspor, in particular the recordings and the statements of the clubs, it should be accepted that the standard of proof for match-fixing allegations was met.

What is crucial in our case is that UEFA and the CAS cannot intervene in the Turkish match-fixing proceedings due to Article 64(1) of the Statutes of the Turkish Football Federation stating that “CAS shall not, however, hear appeals on violation of the laws of the game, suspensions according to relevant provisions of the FIFA and UEFA Statutes, or decisions passed by the independent and duly constituted Arbitration Committee of the TFF”. Moreover, Article 59(3) of the Turkish Constitution provides that “the decisions of sports federations relating to administration and discipline of sporting activities may be challenged only through compulsory arbitration. The decisions of the Arbitration Board are final and shall not be appealed to any judicial authority”. On the other hand, in case of a breach, FIFA has the authority, relying on its Code of Conduct and Disciplinary Code, to take important steps in order to sanction clubs and/or individuals, even where national federations fail to do so. Therefore, on 25 October 2017, Şanlıurfaspor declared that if the Arbitration Board of the TFF did not sanction clubs and individuals who were allegedly involved in match-fixing, it would apply to FIFA to do so.

The Validity of Evidence

The main reason why the Disciplinary Committee did not find the clubs and individuals guilty of match-fixing was that the evidence, which was crucial to support the allegations, was obtained illegally. Therefore, it is of primary importance to compare this position to the one adopted by UEFA, CAS, and the Swiss Federal Tribunal with respect to the validity of illegally obtained evidence in disciplinary proceedings involving match-fixing.

UEFA’s position regarding the admissibility of evidence can be derived from specific provisions in its regulations. For instance, Article 4(2) 2017/2018 UEFA Champions League Regulations expressly states that if UEFA is comfortably satisfied that a club was involved in any activity aimed at arranging or influencing the outcome of a match, such club will be ineligible for the participation. While taking its decision, UEFA can rely on the decision of a national or international sporting body, but it is not bound by these decisions. Article 4(2) allows UEFA to punish clubs, even if they have been exonerated by other sporting bodies. Therefore, it can be concluded that if UEFA is comfortably satisfied, the validity of evidence will not be questioned. The article says nothing about the validity of evidence. In addition, even if national sports governing bodies do not punish clubs and/or individuals, UEFA is not bound by national decisions even if the evidence was illegally obtained. [4]

The CAS also supports the approach of UEFA with regard to the admissibility of evidence in match-fixing cases. According to the CAS jurisprudence, “even if evidence might not be admissible in a civil or criminal court in Switzerland, this does not automatically prevent a sports federation or an arbitration tribunal from taking such evidence into account in its deliberations”.[5] This statement clearly shows that the CAS distinguishes criminal or civil court proceedings from disciplinary proceedings. As a matter of fact, it can be argued that the CAS allows national sports governing bodies to evaluate the admissibility of match-fixing evidence less strictly than in criminal proceedings.

In general, the CAS is bound by Swiss law because it is domiciled in Switzerland. Therefore, the Swiss Federal Tribunal may annul the CAS awards if they are contrary to Swiss public policy. One could argue that a decision based on illegally obtained evidence violates Swiss public policy. Thus, the approach of the Swiss Federal Tribunal also needs to be taken into account. The Swiss Federal Tribunal discussed the admissibility of evidence in A. v The Football Federation of Ukraine. In this case, the appellant claimed that using illegally obtained evidence, violated Swiss public policy. As a response to this claim, the respondent (CAS) argued that there was an overriding public interest in preserving football’s integrity. Therefore, the evidence should have been admissible according to the CAS. The Swiss Federal Tribunal held that pursuant to Article 152(2) Swiss Private International Law Act (PILA), “illegally obtained evidence shall be considered only if there is an overriding interest in finding the truth”. In that particular case, the Swiss Federal Tribunal upheld the decision of the CAS and stated that if necessary to prove an instance of match-fixing, illegally obtained evidence was not inadmissible.

The Approach of Turkish Law against Match-Fixing

As explained above, the Act on the Prevention of Violence and Disorder in Sports and the Turkish Football Disciplinary Instruction contain significant provisions aimed at combating match-fixing. However, these rules say nothing about the admissibility of evidence. Pursuant to Article 38(6) Turkish Constitution, “findings obtained through illegal methods shall not be considered evidence”. Contrary to the PILA, the Turkish Constitution does not provide for exemptions. Additionally, Article 206(2) and 217(2) Turkish Criminal Procedure Code provide that illegally obtained evidence cannot be accepted by criminal courts in Turkey. Nevertheless, there is no definitive verdict about the admissibility of evidence in sporting disciplinary proceedings in Turkey. Furthermore, Turkish sports regulations do not contain specific rules for assessing the evidence in match-fixing allegations. Therefore, it can be argued that in Turkey, there is a loophole in disciplinary proceedings as to whether illegally obtained evidence is admissible or not.

Conclusion

The fight against match-fixing is vital for sports governing bodies. This article has demonstrated that UEFA, CAS, and the Swiss Federal Tribunal share the same view that illegally obtained evidence is not always inadmissible when used to evidence an instance of match-fixing. In my view, the Disciplinary Committee disregarded the approach of UEFA, CAS, and the Swiss Federal Tribunal, and instead followed the practice of the Turkish Criminal Court. Because match-fixing is also a breach of the Turkish Act on the Prevention of Violence and Disorder in Sports, it is the duty of criminal courts in Turkey to assess whether the evidence was obtained legally or not. However, as a disciplinary body, the Disciplinary Committee was not forced to deny the admissibility of illegally obtained evidence. I believe it should have followed the established practices of UEFA, FIFA, and the CAS, and assess the available evidence to determine whether it met the comfortable satisfaction standard of proof. Hence, based on the confession recorded in the YouTube video, the Disciplinary Committee should have decided that the individuals concerned, at a minimum, attempted to fix the match and it should have imposed the corresponding sanctions.   

___________________________

[1] Adam Lewis and Jonathan Taylor, Sport: Law and Practice (Bloomsbury, 3rd ed, 2014) 249.

[2] Michael J Beloff et al, Sports Law (Hart Publishing, Second edition, 2012) 188.

[3] Beşiktaş Jimnastik Kulübü v UEFA [2013] CAS 2013/A/3258 [119].

[4] Public Joint-Stock Company “Football Club Metalist” v. Union des Associations Européennes de Football (UEFA) & PAOK FC [2013] CAS 2013/A/3297 [8.8].

[5] Public Joint-Stock Company “Football Club Metalist” v. Union des Associations Européennes de Football (UEFA) & PAOK FC [2013] CAS 2013/A/3297 [2].