The summer saga surrounding Luis Suarez’s vampire instincts is long forgotten, even though it might still play a role in his surprisingly muted football debut in FC Barcelona’s magic triangle. However, the full text of the CAS award in the Suarez case has recently be made available on CAS’s website and we want to grasp this opportunity to offer a close reading of its holdings. In this regard, one has to keep in mind that “the object of the appeal is not to request the complete annulment of the sanction imposed on the Player” (par.33). Instead, Suarez and Barcelona were seeking to reduce the sanction imposed by FIFA. In their eyes, the four-month ban handed out by FIFA extending to all football-related activities and to the access to football stadiums was excessive and disproportionate. Accordingly, the case offered a great opportunity for CAS to discuss and analyse the proportionality of disciplinary sanctions based on the FIFA Disciplinary Code (FIFA DC). 

I.               Admissibility: Can FC Barcelona join the appeal?

As a preliminary matter, FIFA was contesting the right of FC Barcelona to take part in the appeal against the decision. The Panel judged that “in light of the specific circumstances of the case, taking into account the impact of the specific sanction imposed, the Panel finds that the Club is sufficiently affected by the Appealed Decision and that the Club has a tangible interest of financial and sporting nature at stake” (par. 47). In other words, “in a case where the FIFA authorities are issuing a sanction against a player and such sanction affects direct financial interests of a club, such club must have the possibility to appeal (within the applicable deadline) such decision in order to be able to protect its legal interests, even if this interests became actual after the challenged decision was issued” (par.48). In short, the right to appeal to CAS is extended to the club of the player, even when he is not party to the original proceedings.

II.             Merits: Is it the right sanction?

a.     The applicability of Art. 57 FIFA DC

The first problem raised was “whether the actions of the Player at the Match constitute […] an unsporting behaviour to be sanctioned […] under art. 57 FIFA DC” (par.69). The club and the player were invoking various well-known principles of criminal law (ne bis in idem and nulla poena sine lege certa) against it, but the arbitrators decided to reject these objections (par.70-74). Interestingly, the Panel held that “it is not necessary for the principles of predictability and legality to be respected that the football player should know, in advance of his infringement, the exact rule he may infringe, as well as the measure and kind of sanction he is liable to incur because of the infringement”. Furthermore, “[t]he fact that the competent body applying the FIFA DC has the discretion to adjust the sanction mentioned in the rules deemed applicable to the individual behaviour of a player breaching such rules is not inconsistent with those principles” (par.73). Yet, the Panel was also of the opinion that “the wording of art. 57 FIFA DC shows that this provision contains a mere general clause, trying to cover all possible conducts against fair play, which are not yet covered by other articles, or “consumed” by the application of any other provision, of the FIFA DC”. Hence, “to the extent the action of biting (in the circumstances in which it occurred at the Match) falls within the scope of art. 48 par. 1 lit. d) FIFA DC (as all the parties concede), since the kinds of “assaulting” therein described (“elbowing, punching, kicking”) are expressly not exhaustive (“... etc.”), the same action could not be comprised in the scope of art. 57 FIFA DC, even though the Player’s assaulting in the case at hand, being a misconduct, is also against fair play”. Thus, “the punishment of the Player is already and fully covered by the application of art. 48 par. 1 lit. d) FIFA DC – with no room left for art. 57 FIFA DC, wrongly applied by the FIFA disciplinary bodies” (par.77). In short, article 48 par. 1 lit. d) FIFA DC is deemed the lex specialis to art. 57 FIFA DC. Therefore, “any sanction going beyond those allowed by art. 48 par. 1 lit. d) FIFA DC would be inappropriate to the peculiarities of the case and would be disproportionate” (par.78).

b.     The existence of mitigating factors and aggravating circumstances

The claimants argued that the FIFA disciplinary bodies did not take in account the mitigating factors and wrongfully assumed aggravating circumstances. The Panel rebuts this line of thinking. Indeed, regarding “the question of the relevance to be given to the Player’s remorse as a mitigating factor, the Panel, looking at the non-contested facts and the Parties’ allegations, finds that the margin of discretion the FIFA Appeal Committee had to judge this case was not exceeded, and that it was correctly exercised” (par.81). The arbitrators find that “the remorse of an offender can hardly be given any weight when the same offender had in precedent occasions committed the same infringement and in those occasions had already expressed its remorse and pledged not to repeat that infringement” (par.83). Moreover, “the remorse and apologies shown by the Player after having already been sanctioned cannot have the same impact as a remorse expressed immediately after the event and before any disciplinary proceeding is started and/or sanction is imposed” (par.83). Additionally, “the disciplinary bodies could take into account the fact that the Player had already committed in two preceding occasions the very same infringement, and irrespective of the level (national) of the competition in which they had occurred” (par.87). Thus, the Panel is of the view that the discretion granted to the FIFA Appeal Committee by art.39 par. 4 FIFA DC in weighing the mitigating factors and aggravating circumstances was properly exercised (par.90). The sanction against Luis Suarez is not based on an erroneous analysis of the factual situation. Indeed, remorse can only come into play if immediately voiced, while the concept of recidivism should be interpreted widely as including a similar wrongdoing in the framework of any football competition. 

c.      The proportionality of the ban

The key argument raised by the appellants against the length (and nature) of the FIFA sanctions imposed on Luis Suarez concerned the proportionality of the sanctions (par.91-108). In that regard, FC Barcelona and Suarez argued that “the biting of the Player is not an act of extreme violence and that there was no damage or injury caused to the opposing player, as he was able to continue to play without medical assistance” (par.93), while FIFA dismissively stated that “CAS should not correct any of its decisions if it is not considered to be “evidently and grossly disproportionate to the offence”” (par.94). The Panel rejected both analyses. On the one hand, it held that “biting is absolutely foreign to football and therefore to be considered as a sort of aggravated assault” and “the fact that the opposing player was not injured could not be considered a mitigating factor in the case at hand “(par.95). However, on the other hand, it also held that “the Player is responsible (only) for the violation of art. 48 par. 1 lit. d) FIFA DC” (par.96). Therefore, “the four (4) month ban on taking part in any football-related activity and the prohibition of entering the confines of any stadiums, not allowed for a violation of art. 48 par. 1 lit. d) FIFA DC, could not be applied” (par.96). Nevertheless, due to its specific nature as an intentional assault, the biting “deserves a sanction well above the minimum level of a two match suspension and a fine indicated as such in art. 48 FIFA DC” (par.97).

In conclusion, “the Panel finds that the four (4) month ban of the Player on taking part in any football-related activity and the prohibition of entering the confines of any stadiums are not contemplated by art. 48 par. 1 lit. d) FIFA DC, and are also not appropriate to the infringement committed by the Player on the pitch” (par.104). Moreover, “the FIFA Disciplinary Committee and the FIFA Appeals Committee did not take into consideration that with the four (4) months ban of the Player on taking part in any football-related activity and from entering the confines of any stadiums, the Player actually was prohibited to train with a team and keep his fitness in order to be ready to start playing for the Club after and above this four (4) month ban” (par.105). Furthermore, “this prohibition appears to impact, without any legitimate justification in the case at hand, on the general possibility for the Player to derive profits from his image as football player – beyond the simple participation in football matches” (par.105). Besides, “no justification was offered in the Appealed Decision (beyond a generic reference to the gravity of his actions) in support of the specific sanction of the stadium ban– a measure usually imposed to hooligans, which in the case of the Player does not seem to pursue any legitimate purpose” (par.106). In light of all of this, the Panel decides “to replace the sanction of the prohibition on exercising any football-related activity for four (4) months with the sanction of a match ban (applicable to official matches played at any level) for the same period” (par.107). 

Conclusion

Luis Suarez is long back on the pitch and the practical relevance of this discussion is very limited for his future career. Yet, interesting insights can be derived from this award. Litigants in disciplinary cases involving FIFA will be interested to know that a Club, even if it is not directly part to a dispute in front of FIFA’s disciplinary bodies, might have a legitimate right to appeal a decision rendered against one of its players. More importantly, the systematic interaction between article 48 and 57 FIFA DC has been clarified. Article 48 FIFA DC constitutes a lex specialis to article 57 FIFA DC and, thus, both cannot be applied cumulatively to sanction a player more heavily. This is not to say that a very peculiar offense, like the one at hand, will not face a tough sanction. Nonetheless, a sanction imposing a drastic stadium or football-related activity ban, threatening the player’s ability to derive any revenues from his work, will be deemed disproportionate unless it is thoroughly justified. This is a clear warning not only to FIFA’s disciplinary bodies but also to any Sports Governing Body: the harsher you get, the stronger the supporting reasoning must be.

On 6 October 2014, the CAS upheld the appeal filed by the former General Secretary of the World Karate Federation (WKF), George Yerolimpos, against the 6 February 2014 decision of the WKF Appeal Tribunal. With the award, the CAS confirmed a six-months membership suspension imposed upon the Appellant by the WKF Disciplinary Tribunal.[1] At a first glance, the case at issue seems to be an ordinary challenge of a disciplinary sanction imposed by a sports governing body. Nevertheless, this appeal lies at the heart of a highly acrimonious political fight for the leadership of the WKF, featuring two former ‘comrades’:  Mr Yerolimpos and Mr Espinos (current president of WKF). As the CAS puts it very lucidly, "this is a story about a power struggle within an international sporting body"[2], a story reminding the Saturn devouring his son myth.

This case, therefore, brings the dirty laundry of sports politics to the fore. Interestingly enough, this time the CAS does not hesitate to grapple with the political dimension of the case.

Background and Facts of the Case: ‘The K on its way’ to leadership battles 

The third successive failure of the WKF to have Karate included in the Programme of the 2020 Tokyo Olympics -after the failed campaigns for inclusion in the 2012 London and 2016 Rio Olympics, respectively- spared disappointment in the ranks of the WKF and gave rise to a political war, led by the former ‘crony’ Mr Yerolimpos who used these failures to challenge WKF president Espinos. 

In the wake of concerns raised by some members of national Karate federations, in June and July 2013, the Appellant emailed the WKF Treasurer twice, questioning the lack of transparency on financial matters and challenging the leadership of the current president. The second email where the Appellant directly accused  Espinos of serious mismanagements was copied to all Executive Committee (EC) members and to the presidents of all Karate NF‘s. Following this “dirty manifesto” - in the words of WKF Treasurer[3], Espinos considered that the Appellant’s behavior amounted to a serious breach of the necessary relationship of confidence with the president. As a result, by application of Article 14.7 of the WKF Statutes, he revoked by email the Appellant from his position as Secretary General of WKF. The email battle continued with the Appellant accusing Espinos of manipulating the democratic processes. However, on 14 August 2013, the Appellant’s revocation was ratified by the EC members through an electronic vote, pursuant to Article 13.20 of the WKF Statutes. 

Then, on a request by the WKF Executive Bureau, the Disciplinary Tribunal (DT) of the WKF Disciplinary Legal Commission (TDC) opened disciplinary proceedings against the Appellant in order to examine whether the Appellant’s emails resulted in infringement of Article 9 of the WKF Statutes[4], i.e. his duty to act in a manner commensurate with his role at the WKF. On 30 October 2013, the DT decided to suspend the Appellant from membership of the WKF and EC for six months. It found that the Appellant’s conduct was in breach of his duties entrenched in Articles 9 and 13.2.5 of the WKF Statutes, since his criticism against the WKF president relied on subjective, unproven and unsubstantiated considerations.  More importantly, his criticism was directly circulated to the Karate NFs, without having previously debated them within the WFK Executive Bureau. The DT decision was appealed before the WKF Appeal Tribunal (AT), which on 6 February 2014 confirmed the first instance decision, finding that the content of the Appellants’ emails was prejudicial, defamatory, amounting to a serious violation of Article 9.2 and 13.25 (3) of the WKF Statutes. 

Lastly, the Appellant’s appeal before CAS dating from 26 February 2014, was set aside on 6 October 2014.       

Two main axes in the CAS reasoning 

In his appeal, the Appellant submitted a set of contentions. Specifically, he alleged: (1) the improper initiation of the disciplinary proceedings; (2) the non-identification of relevant offence in Articles 9 and 13.25.3 of the WKF Statutes; (3) the non-violation of these articles by the Appellant; (4) the violation of the principle ne bis in idem in double sanctioning the Appellant; (5) the violation of due process by the DT and AT Panels and finally; (6) the violation of the principle of proportionality in the sanctions imposed by the DT and AT Panels. 

The main focal point of the dispute lies on whether the Appellant’s defamatory emails constitute a serious misconduct and breach the relevant disciplinary provisions of the WKF Statutes. Therefore, this commentary will focus on how the CAS dealt with the interpretation of the disciplinary provisions laid down in Articles 9 and 13.25.3 of the WKF Statutes. Particularly, the commentary will map the CAS reasoning on the following issues: (a) the nature of the misconduct proscribed by the disciplinary provisions of the WKF Statutes and (b) the assessment of the duties bearing on the General Secretary of WKF in the political context of this case.

(a)The violation of Articles 9 and 13.25.3 WKF Statutes.

It is well established that a sports governing body may impose disciplinary sanctions upon its members if they are found guilty of a disciplinary offence, which has to be enshrined in the applicable rules and regulations. In the case at hand, before examining whether the Appellant by sending the above mentioned emails acted in violation of Articles 9and 13.25.3[5] WKF Statutes, the CAS has to examine what type of conduct is covered by these disciplinary provisions. In other words, how do the Articles 9 and 13.25.3 define the offence committed by the Appellant, i.e. the violation of his duty to act in the best interests of the WKF?

Firstly, the CAS takes into account that, in principle, the disciplinary provisions of sports governing bodies statutes are broadly drafted and, therefore, the principle of criminal law nulla poena sine lege does not apply in the case at issue. However, the question remains whether the broadly drafted Articles 9 and 13.25.3 encompass the allegedly offensive behavior of the Appellant. According to the Panel, it is not sufficient that the drafters of the WKF disciplinary provisions intended to entail “the multifarious forms of behavior considered unacceptable” [6] in karate, but whether they actually achieved it. Concretely, as far as Article 9.2 is concerned, the CAS proceeds by identifying two separate obligations for the members: the first entails compliance with the rules of the sport and the second refers to the maintenance of an appropriate conduct in any activity performed. Following an interpretation of the wording of Article 9.2 and particularly of the word "maintaining" which lies between the two obligations (as juxtaposed to the meaning of the word "gardant" in the French version of Article 9.2) the CAS concludes that there is an inextricable link between these obligations.[7] As a result, Article 9.2 sets two prerequisites for the fulfillment of the duty imposed: the members should comply with the rules of sport and additionally should adopt the appropriate demeanour. In practice, this means that at first, a rule has to be breached. While in the case at hand the CAS accepts that the rules of sport can be interpreted in a broad manner and refer not only to the rules of karate itself, the CAS notes that neither the Respondent nor the Panel have identified a rule proscribing the alleged offensive behavior of the Appellant. Thus, the inappropriate conduct of the Appellant cannot amount to a violation of the duty enshrined in Article 9.2.

With regard to the interpretation of the General Secretary’s duties laid down in Article 13.25.3, the CAS remarks that its scope does not overlap with Article 9.2. However, even if Article 13.25.3 is examined in isolation of the requirements of the other disciplinary provisions, the CAS notes that the Appellant’s conduct cannot be considered as amounting to an inappropriate demeanour in fulfilling his duties of maintaining relations with international federations. Indeed, the Appellant’s emails entailed a criticism against the president, involving national federations as well, but according to the CAS this criticism does not constitute a breach of the duty envisaged in Article 13.25.3.

Therefore, having concluded that the alleged conduct of the Appellant does not constitute the subject matter of any offence provided in the relevant regulations, the question whether the Appellant acted in breach of any rule has been rendered moot.

(b) The freedom of speech of the General Secretary of WKF

As mentioned above, the CAS had not identified a violation of the existing disciplinary provisions of the WKF. Nevertheless, it felt the remarkable urge to complement this reasoning with a broader reflection on the freedom of speech in sports governing bodies. To this end, the panel engaged in a very interesting dictum: "The Panel, however, because of first the importance of the issues; secondly out of respect for the excellent way in which the submissions were presented, thirdly against the contingency of an appeal on the Panels conclusion on the absence of any relevant offence in the WKF code, will deal with them succinctly".[8]

Herewith, the CAS underlines the right of the Appellant, and more generally of the members of sports governing bodies, to freedom of speech. This materializes more precisely in a fundamental right to criticize, in good faith, the acts and decisions of the governing authority, even if the criticism includes errors of facts. While the CAS acknowledges the political motives of the criticism, it underlines the valuable contribution of this criticism in exposing acts of mismanagement. These considerations on the democratic principle of the right to criticize those in positions of authority, are reinforced by the European Court of Human Rights’ (ECHR) jurisprudence and the principle enshrined in Article 10 of the European Convention on Human Rights.[9] In this sense, the panel takes two important steps. Firstly, it recognizes the controversial[10] applicability of rights enshrined in the European Convention on Human Rights to disciplinary proceedings of sports governing bodies, which are purely private entities, by indicating that the jurisprudence of ECHR is compulsive in jurisdictions to which it applies, and in any case is at least indicative. Secondly, the panel does not hesitate to take a clear position –from a sports politics point of view- establishing that the members of the sports governing bodies have a fundamental right to exercise their freedom of speech to criticize political authorities. It seems, therefore, that this CAS panel feels at ease with its role as a Supreme Court of Sports protecting the fundamental rights of the ‘citizens of world sports’.

In the second limb of its reasoning, the CAS suggests the rules of conduct that members of sports governing bodies should follow when exercising their established right to criticism.[11]Indeed, according to the CAS, the exercise of the right of freedom to speech is subject to two restrictions: the criticism which targets the authority of the sports’ governing body must be lawful and members must demonstrate self-restraint in the exercise of their right. In this light, the CAS finds that the Appellant did not act unlawfully or in bad faith, but he rather exceeded the limits by ignoring the internal procedures available to him. In other words, the Appellant erred in the way he chose to ventilate his criticisms against the current president. Thus, damaging the WKF’s image worldwide. This interpretation elaborated by the CAS seems to be inspired by the so called ‘balancing exercise’ between Articles 8 and 10 European Convention on Human Rights[12]: an interference in the internal affairs of a sports governing body can be justified when it is in accordance with the law and is necessary in the interests of the world sports community. 

Conclusion

In our previous blogpost, we described the CAS hands-off approach in a political conflict internal to a sports governing body. We suggested, instead, that a modicum of interventionism in sports politics would be compatible with the CAS role. In this light, the WKF case is a good illustration of a CAS panel delving into sports politics to uphold certain fundamental political rights. From the preamble to the conclusion of this award, the CAS did not hesitate to interpret the political motives of the parties and their subsequent acts. More importantly, taking into account the law making role of CAS panels in promoting consistency in international sports law, this CAS panel adds to the so-called lex sportiva a democratic resonance, preserving also the freedom of speech of members of sports governing bodies.

[1] CAS 2014/A/3516, George Yerolimpos v. World Karate Federation

[2] Ibid, para 1.

[3] Ibid, para 25.

[4] 9.1 National Federations and individual persons affiliated to the WKF shall undertake to comply with statutory norms, rules and regulations and all provisions issued by the Executive Committee.

9.2 Members shall undertake work in complete compliance with the rules governing the sport, maintaining a demeanour commensurate with the activity performed.

9.3 Any member in breach of the conditions as per points 9.1 and 9.2 above shall be liable to disciplinary action as set forth herein.

[5] The duties of a General Secretary shall be: (a) Execute the decisions taken by the Executive Committee;

(b)To maintain relationships with the continental federations, with the affiliated National Federations and with outside parties; (c) Draw up and take care of the minutes of the Executive Committee and of the Congress Meetings.

[6] CAS 2014/A/3516 (n1), para 105.

[7] Ibid, para 107.

[8] Ibid, para 115.

[9] European Convention on Human Rights, Article 10

Freedom of expression: 1. everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

[10]C Favre-Bulle and others, L’arbitrage et la Convention Européenne des Droits de l’Homme (2001), 73.

[11] CAS 2014/A/3516 (n1), para 117.

[12] ECHR 227 Axel Springer AG v Germany 39954/08 [2012] paras  84-95 & ECHR 228 Von Hannover v Germany (n2) 40660/08[2012] para 100 .