FIFA’s freshly adopted TPO ban entered into force on 1 May (see our Blog symposium). Though it is difficult to anticipate to what extent FIFA will be able to enforce the ban, it is likely that many of the third-party investors will try to have recourse to alternative solutions to pursue their commercial involvement in the football transfer market. One potential way to circumvent the FIFA ban is to use the proxy of what has been coined “bridge transfers”. A bridge transfer occurs when a club is used as an intermediary bridge in the transfer of a player from one club to another. The fictitious passage through this club is used to circumscribe, for example, the payment of training compensation or to whitewash a third-party ownership by transforming it into a classical employment relationship. This is a legal construction that has gained currency especially in South American football, but not only. On 5 May 2015, in the Racing Club v. FIFA case, the Court of Arbitration for Sport (CAS) rendered its first award involving directly a bridge transfer. As this practice could become prevalent in the coming years we think that this case deserves a close look.

I. Facts and procedure

Fernando Ortiz is an Argentine professional football player who entered into an employment contract with Vélez Sarsfield, valid until 30 June 2012. After the expiration of the contract, Ortiz signed an employment contract with the Uruguayan team, Institución Atlética Sud América on 11 July 2012, valid until 30 June 2017. Institución was playing in the Second Division in Uruguay at that time. A week later, on 20 July 2012, Ortiz was transferred from Institución back to Argentina. Institución and Racing Club, Ortiz’ new club, agreed a transfer fee (which was not disclosed). The first instalment should be made before 24 July 2012. Ortiz’ new employment contract was valid until 30 June 2014. Both transfers were duly registered in the FIFA Transfer Matching System (TMS). First, on 23 July 2012, the Argentine Federation (AFA) provided the Uruguayan Federation (AUF) the International Transfer Certificate (ITC). After the transfer from Institución to Racing, the AUF sent the same paperwork to the AFA on 3 August 2012. At that time, no payments were made.

Meanwhile, in view of the number of similar transfers, AFA and the Argentine Tax Authorities agreed that the players concerned would not be allowed to play in the Argentine league. This resulted in the parties (Institución, Ortiz and Racing) concluding a Rescission Agreement of the transfer contract, stating that they had “nothing to claim from each other”.[1] This agreement was not uploaded at that time in the TMS. On 23 November 2012, the FIFA TMS body sent a letter[2] to Racing asserting that they were not aware of any proof of payment of the transfer fee, and that this transfer could constitute an infringement of the TMS rules. Racing replied[3] by enclosing the rescission agreement and confirming that no payments were to be made. On June 2013, FIFA TMS opened disciplinary proceedings against Racing, claiming a violation of articles 3 and 9.1 of Annexe 3 RSTP[AD1] . In response Racing blamed Ortiz for trying to benefit himself from such operation and argued that the club had a true sporting interest in signing Ortiz and did not receive any economic benefit out of the transfer. On 14 August 2013, the FIFA TMS body submitted the disciplinary proceeding to the FIFA Disciplinary Committee (FIFA DC) for a proper investigation of the facts.

In its decision of 5 March 2014, the FIFA DC analysed the two transfers and concluded that they lacked a sporting objective. Even if, from a formal point of view, the first of the two transfers did not involve Racing directly, the FIFA DC considered, taking into account the chronological unfolding of the transfers, that the transfer of Ortiz to Institución would not make sense (according to the playing level of Institución and Ortiz), if his subsequent transfer to another club, in this case Racing Club, was not already planned. Accordingly, the FIFA DC found that the two “parts of the operation” cannot be considered separate. Hence, the whole bridge transfer scheme was deemed known to all parties involved. Thus, the FIFA DC concluded that Racing was involved in the operations carried out and therefore liable to face sanctions.[4]

Moreover, the FIFA DC drew attention to the effects the rescission agreement should have had in a rational context. Indeed, in a normal constellation, one would have expected Ortiz to return to Institución, instead the fact that he stayed on to play at Racing corroborated the non-sporting interest of the transfer. The FIFA DC considered that the aim of the TMS rules is to create transparency (Article 1 Annexe 3 RSTP) in players’ international transfers. In the view of the FIFA DC, Racing, however, used the TMS fraudulently to give a sporting appearance to such a transfer. Therefore, Racing is found to have infringed Articles 3(1)[5] and 9.1(2)[6] Annexe 3 FIFA RSTP, since the transfer was conducted through the TMS for illegitimate purposes and it did not act in good faith. As a consequence of this infringement, the Argentine club was fined CHF 15,000 and warned in accordance with the FIFA Disciplinary Code.[7] In the same proceedings, the Uruguayan club was sanctioned with a transfer ban for two complete and consecutive transfer periods and a fine of CHF 40,000.

Racing Club decided to appeal the decision to the CAS. The Argentine club based its appeal[8] on the grounds that there is no legal basis in the FIFA Regulations to sanction the club for correctly registering a transfer without a sporting reason in the FIFA TMS system.  

II. Commentary

First, we need to explicate in greater details the functioning and purposes of bridge transfers. Before, tackling the substance of the award rendered by the CAS.

A.    What is a bridge transfer?

As explained by Ariel Reck[9] (who was Racing’s lawyer in the present case), a bridge transfer has three main characteristics:

• A bridge transfer is made for no apparent sporting reason, there is a non-sporting purpose underlying the move.

• Secondly, there are three clubs involved in this triangular structure: on the one hand the club where the player was firstly registered (club of origin); secondly, the so-called ‘bridge club’, which will usually be a club of a lower level than the player involved and the final club of destination, i.e. the club where the player was intended to play for from the beginning. The lack of balance between the player and the bridge club is usually evident.

• The last feature is the short period of time that the player is engaged with the bridge club. Frequently, such a player does not play any game at all with this club.

There are three important reasons why football clubs enter into a triangular agreement that constitutes a bridge transfer:

1. The bridge transfer helps to reduce the cost of training compensation or payments to be made under FIFA’s solidarity contribution mechanism.

2. The bridge transfer allows the use of a club to circumvent the FIFA rule that prohibits TPO.[10]

3. The bridge transfer is used to evade taxes.

1.   Reducing training compensation

As far as the reduction of the value of the training compensation is concerned, it should be noted that there is already an award dealing with this matter, though without making an explicit reference to the notion of “bridge transfer”. In 2009, CAS rendered an award in a dispute between MTK Budapest and FC Internazionale. In this case, Inter was interested in signing a Hungarian player from MTK Budapest. After negotiations between the two clubs broke down, the player entered into a professional contract with a Maltese club. Yet, after nine days at the Maltese club, the player was transferred to Inter. According to the FIFA’s training compensation rules[11], if the player would have been transferred directly from MTK Budapest to the Italian club, the payable amount to the Hungarian team, for the three seasons that the player was trained by MTK Budapest, would have been €160,000.[12] The Panel, found this transfer to be irrational and considered that the training efforts of MTK Budapest should in any case be rewarded. Therefore, it decided that Inter should pay a training compensation to the Hungarian team.

On the other hand, by means of a comparable manoeuvre, the solidarity mechanism can also be manipulated. The RSTP provisions on the solidarity mechanism are only applicable to international transfers (Article 1(1) RSTP). The transfers between two clubs of the same association are “governed by specific regulations issued by the association concerned” (Article 1(2) RSTP). Thus, one can reduce the amount of the solidarity contribution via a bridge construction. The first (international) transfer is concluded for a low amount, which would be subject to the solidarity contribution. Later, a second (national) transfer is concluded for the real amount.[13]

2.   Circumventing the FIFA TPO ban

Another purpose for the use of bridge transfers is to circumvent the FIFA rules prohibiting agents (or intermediaries) or other third parties to acquire economic rights from players. This is “a way to anchor a players economic rights to a club”[14] instead of a mere third party (agent or a company). By controlling a club, the former third-party owners are able to continue investing in players while making sure that this investment is at least formally in conformity with the RSTP. With this mechanism, a third party, who controls a club (a bridge club), also enjoys the legal protection awarded by the FIFA RSTP to clubs, for example, in case of breach of the contract without just cause (17 RSTP).

 3.   Reducing Taxes

Bridge transfers are also designed to reduce taxes or hide the financial beneficiary of the amounts.[15] Bridge clubs, in these cases, are based in “tax heavens”. Consequently, two transfers need to be concluded: One from the team of origin to the bridge club, and the other one from the bridge club to the club of destination. If the bridge transfer is made with the sole purpose of reducing taxes, the fee for the first transfer would be low because this transfer fee is highly taxed. The second transfer would be concluded for a higher amount and the fee will be taxed at a low rate.

Secondly, a bridge transfer could also be used to disguise a compensation for a player (this mechanism is generally used by free agents) or payments to third parties. Usually, players who move to a new club as free agents tend to receive higher salaries than players who have been transferred to another club while still on a contract with their old club. In order to prevent the payment of high income taxes, a player and a bridge club agree to share the transfer payment made by the club of destination. Thus, the bridge club is rewarded for taking part in the bridge transfer; this reward is usually limited to a small share of the total transfer sum.[16]

The third alternative is the configuration at play in the Racing case. In Uruguay, clubs are considered cultural institutions and according to the Article 69 ‘Constitución Nacional’ (National Constitution), they are exempted from paying taxes, even on transfers of players. The clubs take the legal form of either ‘Sports Association’ or ‘Sociedad Anónima Deportiva’ (Public limited sports company), the latter being considered a cultural institution as well. A recent Uruguayan judgment[17] extended the tax exemption to the ‘Socidades Anónimas Deportivas’. However, since bridge transfers have no sporting interest and are aimed at an economic profit derived from reducing the tax burden, the Uruguayan court also held that bridge transfers are not to be tax exempted.  

B.    The Racing case: FIFA’s interpretative bridge too far

1.     The argument of the parties

Racing Club argued in front of CAS that neither Article 3(1), nor Article 9.1(2) of Annexe 3 FIFA RSTP could constitute a sufficient legal basis to impose sanctions in case of a bridge transfer. Basically, “neither the Regulations nor the TMS generates a new substantive law”.[18] No provision states that transfers with a purely economic purpose violate any FIFA provision, which “precludes any sanction based on such concept”.[19] Racing Club also pleaded the ‘principle of estoppel’. As neither FIFA nor the FIFA TMS have sanctioned bridge transfers in the past, Racing Club is of the opinion that the FIFA DC is estopped from sanctioning them in the case at hand.

FIFA recognises that “although (the FIFA regulations) are not applicable to the present matter, (they) present an unambiguous view of what falls within the scope of the Regulations in general terms”.[20] The body argues that this loophole might be covered by the association’s usual practice or, if not, by the rules that they would lay down if they were acting as legislators. Also, FIFA argues that the FIFA Disciplinary Code (FDC) has to be read in accordance with the language used, the grammar and syntax of the provisions, the historical background and the regulatory context. In other words, FIFA pleads that the Panel must sanction the club interpreting the FIFA rules by analogy, if the wording of articles 76 FDC[21] and 62 FIFA Statutes[22] in connection with the TMS rules invoked is not sufficient to ground the decision of the FIFA DC.

2.     The decision of the Panel

In the view of the Panel, the FIFA DC was competent to render a decision in this matter. However, this decision must be grounded on a legal basis found in the FIFA regulations. The key question in the present case is whether Articles 3(1) and 9.1(2) Annexe 3 FIFA RSTP can constitute such a legal basis.

Therefore, taking into account that Racing was sanctioned for having violated the provisions of Annexe 3 by having entered untrue or false data and/or having misused the TMS for illegitimate purposes in bad faith by concluding a “bridge transfer”, the Panel must decide whether the transfer breached these provisions, and if it did so, whether the sanction is proportionate according the TMS rules.

The Panel considers that it is “undisputed that the present case involves a transfer structure which, […], is to be considered as a “bridge transfer”.[23] The Panel considers that Racing Club could not ignore that it was involved in a bridge transfer and was not acting in good faith when arguing that the transfer via Institución was conducted exclusively on the basis of a sporting interest. However, this does not imply per se that Racing acted in bad faith as far as the TMS registration of the Player’s transfer from Institución to Racing is concerned.[24] Indeed, FIFA had to satisfy its burden of proof and demonstrate to the comfortable satisfaction of the Panel that Racing Club had entered untrue or false data and/or misused the TMS for illegitimate purposes. In this regard, the Panel finds that “insufficient evidence is available to prove that the Appellant must be assumed not to have acted in good faith in connection with Player’s transfer registration in the TMS”, as “it has not been proven that the Appellant has registered misleading or false information in the TMS”.[25]

If FIFA is to outlaw the recourse to bridge transfers it must do so in an express fashion. In other words, “the parties involved, in conformity with the principle of legality, shall be provided with specific guidelines in order to know how to act when international transfers of players take place”.[26] Critically, “the lack of such clear and specific set of rules does not justify, in the eyes of the Panel, the “secondary use” of the TMS rules for these purposes”[27]. The principle of legality implies that a sanction must be based on a previously existing legal rule. The CAS had emphasized this principle at various instances in its earlier jurisprudence.[28] Consequently, the Panel found that the “bridge interpretation” used by the FIFA DC to sanction Racing for taking part in a transfer construct qualified as a bridge transfer was going too far and could not be followed. In short, “the current TMS rules represent neither an appropriate nor an effective tool for combating and/or sanctioning bridge transfers”.[29] Hence, the arbitrators decided to reduce the sanction imposed to a mere reprimand.

This is not to say that the Panel endorses the recourse to bridge transfers. Instead, it clearly states that it “concurs entirely with the Respondent (FIFA) that measures should be applied against bridge transfers when such transfers are conducted for the purpose of engaging in unlawful practices, such as tax evasion, or to circumvent the rules concerning, for instance, the payment of training compensation or solidarity contributions, or to assure third party's anonymity in relation to the relevant authorities”.[30]

Yet, the basic rule of law principle requiring that FIFA must first devised clearly positivized rules on the basis of which it can then adopt the required sanctions must be respected. This is a bold move by the Panel in light of the bad reputation of bridge transfers. FIFA, as any public or private authority, cannot free itself from the duty of acting in the framework of the regulations it has adopted. The decision is an important reminder of the limits faced by the discretionary power of International Sports Governing Bodies when CAS Panels review their disciplinary decisions. These Bodies do not have an absolute discretion to exercise the disciplinary power that they derive from their statutes. This power is checked by reference to the same legal principles restricting State power in a national context. Thus, it is the duty of FIFA to make sure that it disposes of an appropriate legal basis to act. Consequently, in the (near) future, instead of jumping an interpretative bridge too far, it is advisable that FIFA adopts specific rules to tackle the potential ethical and legal challenges posed by the surging use of bridge transfers.

[1] CAS 2014/A/3536 Racing Club Asociación Civil v. FIFA, paragraph 2.9

[2] Ibid, paragraph 2.10

[3] Ibid, paragraph 2.13

[4] Ibid, paragraph 2.19

[5] “All users shall act in good faith.”

[6] “Sanctions may also be imposed on any association or club found to have entered untrue or false data into the system or for having misused TMS for illegitimate purposes.”

[7] Articles 10.c) and 15 for the fine and Articles 10.a) and 13 for the warning.

[8] CAS 2014/A/3536 Racing Club Asociación Civil v. FIFA, paragraph 7.2.2

[9] World Sports Law Report – April 2014, by Ariel Reck.

[10] CAS 2014/A/3536 Racing Club Asociación Civil v. FIFA, paragraph 7.3.2(o)

[11] Article 20 and Annexe 4 FIFA Regulations on the Status and Transfer of Players.

[12] CAS 2009/A/1757 MTK Budapest v. Internazionale Milano, paragraph 24.

[13] Ariel Reck, “What is a ‘bridge transfer’ in football”.

[14] Ibid.

[15] Ibid.

[16] “El otro triángulo de las Bermudas: los pases fantasmas a Uruguay y Chile”, 18 August 2012, Perfil.com

[17] Tribunal Contencioso Administrativo (Uruguay), fallo no. 301, 16 abril 2015.

[18] CAS 2014/A/3536 Racing Club Asociación Civil v. FIFA, paragraph 7.2.2.d)

[19] Ibid.

[20] CAS 2014/A/3536 Racing Club Asociación Civil v. FIFA, paragraph 7.3.2.k)

[21] “The FIFA Disciplinary Committee is authorised to sanction any breach of FIFA regulations which does not come under the jurisdiction of another body.”

[22] “1.The function of the Disciplinary Committee shall be governed by the FIFA Disciplinary Code. The committee shall pass decisions only when at least three members are present. In certain cases, the chairman may rule alone. 2. The Disciplinary Committee may pronounce the sanctions described in these Statutes and the FIFA Disciplinary Code on Members, Clubs, Officials, Players, intermediaries and licensed match agents. 3. These provisions are subject to the disciplinary powers of the Congress and Executive Committee with regard to the suspension and expulsion of Members. 4. The Executive Committee shall issue the FIFA Disciplinary Code.”

[23] Ibid, para.9.11

[24] Ibid, par. 9.14

[25] Ibid, para.9.15

[26] Ibid, par. 9.18

[27] Ibid.

[28] "In the Panel’s opinion, this provision of the Olympic Charter is to be properly read in accordance with the “principle of legality” (“principe de légalité” in French), requiring that the offences and the sanctions be clearly and previously defined by the law and precluding the “adjustment” of existing rules to apply them to situations or behaviours that the legislator did not clearly intend to penalize. CAS arbitrators have drawn inspiration from this general principle of law in reference to sports disciplinary issues, and have formulated and applied what has been termed as “predictability test”. Indeed, CAS awards have consistently held that sports organizations cannot impose sanctions without a proper legal or regulatory basis and that such sanctions must be predictable. In other words, offences and sanctions must be provided by clear rules enacted beforehand." CAS 2008/A/1545 Andrea Anderson, LaTasha Colander Clark, Jearl Miles-

Clark, Torri Edwards, Chryste Gaines, Monique Hennagan, Passion Richardson v. International Olympic Committee (IOC), award of 16 July 2010, para.30. See also CAS 2011/A/2670 Masar Omeragik v. Macedonian Football Federation (FFM),  award of 25 January 2013, para.8.13.

[29] Ibid. Para.9.19

[30] Ibid, para.913

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 .