Two weeks ago we received the
unpublished CAS award rendered in the Eskişehirspor case
and decided to comment on it. In this post Thalia Diathesopoulou (Intern at the
ASSER International Sports Law Centre) analyses the legal steps followed and
interpretations adopted by CAS panels in this case and in a series of other
Turkish match-fixing cases. The first part of the post will deal with the
question of the legal nature of the ineligibility decision opposed by UEFA to
clubs involved in one way or another into match-fixing and with the personal
and material scope of UEFA’s rule on which this ineligibility is based. The
second part is dedicated to the procedural rules applied in match-fixing cases.
The unpredictability of the outcome is a
sine qua non feature of sports. It is
this inherent uncertainty that draws the line between sports and entertainment
and triggers the interest of spectators, broadcasters and sponsors. Thus, match-fixing
by jeopardising the integrity and unpredictability of sporting outcomes has been
described, along with doping, as one of the major threats to modern sport.
It does not come as a surprise,
therefore, that the fight against match-fixing has been elevated over the past
years to a general interest issue, being also included in European Commission’s
Agenda on sports as a priority. The urge to protect the integrity of sport, has
stimulated the adoption by sports-governing bodies, and especially UEFA and
FIFA, of regulations specifically intended to combat match-fixing. The
evolution of UEFA Disciplinary Regulations (UEFA DR) in the last 10 years has
been remarkable: it follows a path from a broad capture of match-fixing conduct
by reference to the general values of loyalty, integrity and sportsmanship
in the 2004 version, to the explicit - first ever- reference to the offence of
match-fixing in the revised 2013 edition.
In this context, the CAS has been called
to implement these rules in a series of match-fixing cases. Especially Turkey’s
unprecedented match-fixing scandal in 2011 led to a series of important CAS
awards tackling match-fixing. The latest episode of this Turkish series was
written on 2 September 2014: following Fenerbahçe and Besiktas, it was Eskişehirspor’s turn to face a CAS ruling
on a match-fixing related case.
CAS jurisprudence on match-fixing being in
its infancy, the approach of the CAS panels towards procedural, evidentiary and
matters of substance in match-fixing disputes is still uncertain. Considering
the magnitude of the match-fixing threat and the CAS role as a ‘cartographer’
of the so called lex sportiva, it is worthwhile
to monitor the emerging trends of CAS on these integrity-related issues. This
blog series will, therefore, use the Turkish cases as a vehicle in order to build
a legal roadmap in match-fixing cases and shed light on four issues that have
been extensively addressed in recent CAS jurisprudence: the qualification of
the legal nature of the measure of ineligibility as a result of a Club’s
involvement in match-fixing, the scope of application of this measure, the
standard of proof to be applied and, finally, the admissibility of evidence in
Particularly, two substantial problems
that emerged in match-fixing disputes, i.e. the legal qualification of the match-fixing
related measure of ineligibility under Article 2.08 of the UEL Regulations as
administrative or disciplinary measure (1) and the scope of application of
Article 2.08 (2), will constitute the axes of this first blog series.
The 2011 Turkish match-fixing series in
In the summer of 2011, following
Turkish’s police investigation into 19 football matches suspected of being
fixed, 61 individuals were arrested, including club managers and Turkish
national players. Fenerbahçe, Besiktas and Eskişehirspor were connected with match-fixing
allegations in domestic tournaments in 2011.
Istanbul giant Fenerbahçe was at the
epicentre of this match-fixing scandal, with its Chairman, Aziz Yildirim, being
convicted by Istanbul’s 16th High Criminal Court of establishing and
leading a criminal organisation, which rigged four games and offered payments
to players or rival clubs to fix three others. Particularly, among other
matches, it was found that under the leadership of the then President of
Fenerbahçe, match-fixing agreements were made for the matches of Eskişehirspor
against Fenerbahçe and Eskişehirspor against Trabzonspor dating from 9 April
2011 and 22 April 2011 respectively. The Eskişehirspor head coach and the
player were found guilty for match-fixing in the match with Trabzonspor and
were sentenced to imprisonment. Furthermore, the High Criminal Court convicted
Besiktas’ Officials of match-fixing activities with regard to the Final Cup
played between Besiktas and Istanbul BB on 11 May 2011.
As a result of this alleged match-fixing
involvement Fenerbahçe was banned by the Turkish Football Federation (TFF) from
participating in the 2011-2012 CL. Later on, the 25 July 2013, Fenerbahçe was
found ineligible by the UEFA Appeals Body (UAB) to participate in the next two
UEFA club competitions including the 2013/14 UEFA CL, since it could not comply
with the UEFA Champions League (UEL) admission requirements. Similarly,
Besiktas and Eskişehirspor, in
2013 and 2014 respectively, were considered by the UAB ineligible to
participate in the next UEL season, on the grounds of a breach of the UEL
admission criteria and particularly of Article 2.08.
A next round of proceedings was brought before
the CAS. On 28 and 30 August 2013, the CAS rejected Fenerbahçe’s and Besictas’ appeals.
One year later, on 2 September 2014, Eskişehirspor faced the same fate. Interestingly enough,
the Eskişehirspor panel was the first
CAS panel to deal with the sanction of a club victim of a match-fixing
The outcome of the Turkish cases is not necessarily
surprising. The CAS practice has been consistently embracing the UEFA zero
tolerance policy against match-fixing. However, the legal reasoning followed by
CAS to reach a similar outcome differs significantly fostering legal
uncertainty in the match-fixing context. At this point, therefore, this blog
post will attempt to map the reasoning of the CAS over the following thorny
issues which were particularly raised in the Turkish cases: the legal nature of
the measure of ineligibility under Article 2.08 of the UEL Regulations (1) and
the scope of application of Article 2.08 (2).
Qualifying Article 2.08 UEL Regulations:
administrative measure or disciplinary sanction?
At a first glance, the question of the
legal nature of the ineligibility measure of Article 2.08 is rather
theoretical, but it also bears important practical implications. The
identification of the legal nature of Article 2.08 as administrative or
disciplinary determines ‘how this measure
shall be applied and under which legal principles’.
In other words, the characterization of the measure of Article 2.08 as a
disciplinary one may trigger the application of UEFA Disciplinary regulations,
including the strict liability principle and the possibility of issuance of a
probationary period. Before proceeding with our analysis, it should be pointed
out that the Fenerbahçe case, deals
with the legal nature of Article 2.05 UEFA Champions League Regulations (UCLR).
However, since the wording of Article 2.05 UCLR and Article 2.08 UELR is
exactly the same, the panel’s findings are transposable.
When qualifying the legal nature of the
ineligibility measure in match-fixing disputes, the Fenerbahçe,Besiktas and Eskişehirspor panels used as a landmark the well-established
distinction between administrative acts and disciplinary measures.
This is the common point of reference for the three cases, which thereafter
differentiates in the interpretation of the ineligibility measure.
In the first case, the Fenerbahçe panel introduced the idea of
a ‘two stage process’ in match-fixing
disputes: the first stage encompasses an administrative measure, akin to a
preliminary minimum sanction, while the second stage is a disciplinary measure,
imposing an additional sanction. Thereafter, in a surprising twist the CAS declared
the inherent disciplinary nature of the administrative measure of ineligibility,
since the subject matter of Article 2.08 is ‘the imposition of a sanction’. According to this panel, the minimum
sanction serves the legitimate interest of UEFA to exclude a club from European
competitions with immediate effect, while additional sanctions can be imposed
if the circumstances so justify. However, this interpretation creates a paradox
in that it blurs the lines between acts of administrative and disciplinary
nature, a distinction well entrenched in CAS case law.
The Besiktas case adds to the legal
uncertainty with regard to the legal nature of the ineligibility measure.
According to this panel and contrary to the assessment in the Fenerbahçe case, Article 2.08 UELR does
not have a sanctioning character, even if it excludes a club from UEFA
competition. This argument is based on the wording of Article 50 (3) UEFA
Statutes which, by referring to the ineligibility measure as a measure imposed
‘without prejudice to any possible
disciplinary measures’, implicitly excludes its sanctioning nature.
This contradictory interpretation of the
ineligibility measure by the previous panels triggered the concerns of the Eskişehirspor panel, which aimed to put an end to the
legal uncertainty surrounding the definition of the legal nature of Article
2.08. Therefore, the CAS proceeded for the first time with an extensive
analysis of the legal nature of Article 2.08. First of all, the CAS recognized the
existence of a double regulatory regime in match-fixing cases: an
administrative measure aiming at preventing match-fixing, laid down in Articles
2.05 UCL or 2.07, 2.08 of UEL Regulations and Article 50.3 of the UEFA Statutes
2008, and a disciplinary measure enshrined in the Disciplinary Regulations,
specifically at Art 5.2j of the UEFA Disciplinary Regulations (DR) 2008. While
this distinction seems to be inspired by the ‘two stage process’ elaborated in the Fenerbahçe case, this panel went a step further by drawing a clear
line between measures of administrative and disciplinary character. After having
clarified this distinction between measures of different legal nature and
effect, the panel concluded that the measure of ineligibility of Article 2.08 is
of a purely administrative nature. This assessment is based on an interpretation
of Articles 2.09 UEL Regulations and Article 50.3 of the UEFA Statutes 2008 similar
to the one adopted in the Besiktas
case: both provisions refer to the automatic administrative application of the measure
of ineligibility, leaving the door open for potential additional disciplinary
measures ‘if the circumstances so
justify’. Furthermore, the CAS noted that the administrative measure of
Article 2.08 has a broad scope of application encompassing ‘any activity aimed at arranging or
influencing the outcome of the match’, as compared to the disciplinary
offence which in line with its sanctioning character is more restrictive.
Thereafter, the panel highlighted the
consequences to be drawn from this qualification. As a result of the pure
administrative nature of Article 2.08, the legal principles usually applicable
to disciplinary measures are considered irrelevant. In practice, this means
that the CAS excludes the application of: a) Articles 5.2 .j. and 17.1 of UEFA
DR about the evaluation of mitigating circumstances when disciplinary measures
are imposed; b) Article 6 of UEFA DR imposing a strict liability system; c)
Article 11 of UEFA DR about the elimination of the ineligibility measure or the
issuance of a probationary period; and finally, d) the ‘nulla poena sine culpa’
principle recognized in criminal law.
This straightforward position of the CAS
in the Eskişehirspor case reflects
its intention to put a provisory end to the legal uncertainty with regard to
the legal nature of Article 2.08 and the legal consequences it entails.
Borrowing elements from the previous Turkish cases, the CAS came up with a more
sophisticated and coherent interpretation of the legal nature of the
ineligibility measure, an interpretation that may serve as a reliable guideline
for subsequent arbitral panels dealing with match-fixing.
The scope of application of Article 2.08
Article 2.08 UEL Regulations does not
define precisely the activities of a club that is directly or indirectly involvement
in match-fixing. In match-fixing disputes, therefore, the CAS has a decisive
role in clarifying the scope of application of the ineligibility measure.
As far as the scope ratione materiae is concerned, the Fenerbahçe and Besiktas panels
converged in a broad understanding of the scope of Article 2.08. Indeed, based
on the ordinary meaning of Article 2.08 which encompasses ‘any activity aimed at arranging or influencing the outcome of a match
at a national or international level’ in conjunction with the ratio legis of this provision, which
reflects the zero tolerance policy of UEFA against match-fixing, the CAS
considered that Article 2.08 targets not only activities directly intending to
fix the outcome of a game, but also activities that may have an unlawful
influence on it. In this sense, for instance, the fact that Eskişehirspor accepted
a bonus from a third party, i.e. Fenerbahçe, for winning, even though it cannot
be qualified as match-fixing, is influencing the outcome of the match and,
therefore, falls within the scope of Article 2.08. Furthermore, the Besiktas panel offered a broad interpretation
of the wording ‘aimed at’ suggesting that
not only the act of match-fixing, but also an attempt falls within the broad
scope of Article 2.08. Hence, the Turkish cases establish an important finding
with regard to the scope of application of the ineligibility measure in
match-fixing disputes: a broad interpretation of Article 2.08 is in line with UEFA’s
statutory objectives and, therefore, has to be adopted.
On the other hand, with regard to the
scope ratione personae of Article
2.08, the CAS panels have been inconsistent. In order to identify whose actions
are attributable to the club, the Besiktas
panel applied the strict liability principle enshrined in Article 6 of the 2008
UEFA Disciplinary Regulations (DR). Here, the application of UEFA DR seems to
be at odds with the previous characterization of Article 2.08 as an administrative
measure. By contrast, in the Eskişehirspor
case, where the issue whether the actions of a coach, who is a mere employee,
can be attributed to the club is raised. In that case, the panel relying on the
pure administrative character of Article 2.08, rejected the application of the strict
liability principle. The Eskişehirspor
panel, insisting on the qualification of the measure of ineligibility as an
administrative measure, suggested an entirely different, but equally broad,
interpretation of the ratione personae
scope of article 2.08. Indeed, it suggests a broad interpretation of the term ‘official’, an interpretation that would
capture ‘every board member ….coach,
trainer and any other person responsible for technical, (…) as well as other
persons obliged to comply with the UEFA Statutes’. In other words, the
coach has to be considered as an official in the sense of Article 2.08 and his
actions were, thus, attributable to the club.
To conclude, it seems that whatever the
interpretative road chosen, the scope of application rationae personae and materiae
of article 2.08 will be understood broadly. Nevertheless, it would be more
coherent to have such a broad interpretation rely on a stabilized legal
practice and the Eskişehirspor award
provides an interesting first step in this direction.
The series of Turkish cases has provided
the CAS with the opportunity to frame a consistent approach in substantive
matters linked to match-fixing cases. In the Eskişehirspor case, the CAS attempts to clarify its approach to
match-fixing in football. Two important conclusions can be drawn: the
ineligibility measure imposed by Article 2.08 UELR has a broad scope of
application and, secondly, it should be qualified as having an administrative nature.
As a result, disciplinary rules do not apply to match-fixing disputes involving
the eligibility of a club to European competitions. Regarding certain
procedural matters, however, disciplinary standards and rules do apply. This is
the real Achilles’ heel of the CAS approach in match-fixing cases: how can the
application of rules of different nature to substantial and procedural matters
in an identical match-fixing dispute be explained?
(To be continued)
 Match-fixing in sport-A mapping
of criminal law provisions in EU 27, (http://ec.europa.eu/sport/library/studies/study-sports-fraud-final-version_en.pdf),
2009/A/1920 FK Pobeda, Aleksandar Zabrcanec, Nikolce Zdraveski v/ UEFA, para
 UEFA Disciplinary Regulations
2013, Article 12 ‘Integrity of matches and competitions and
 CAS 2013/A/3256 Fenerbahçe Spor Kubülü v UEFA & CAS 2013/A/3258
Besiktas Jimnastik Kulübü v. UEFA
2014/A/3628 Eskişehirspor Kulübü v UEFA, para 98.
 CAS 2007/A/1381 & CAS