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The CAS jurisprudence on match-fixing in football: What can we learn from the Turkish cases? - Part 1 - By Thalia Diathesopoulou

The editor’s note:

Two weeks ago we received the unpublished CAS award rendered in the Eskişehirspor case and decided to comment on it.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.


Introduction

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.[1] 

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[2] in the 2004 version, to the explicit - first ever- reference to the offence of match-fixing in the revised 2013 edition.[3]

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 match-fixing cases

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 brief

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.[4] 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 arrangement.

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’.[5] 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.[6] 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 UEL Regulations

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)


[1] 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), 14.

[2] CAS 2009/A/1920 FK Pobeda, Aleksandar Zabrcanec, Nikolce Zdraveski v/ UEFA, para 78.

[3] UEFA Disciplinary Regulations 2013, Article 12 ���Integrity of matches and competitions and match-fixing’ (http://www.ecaeurope.com/Legal/UEFA%20Documents/2013_0241_Disciplinary%20Regulations%202013.pdf)

[4] CAS 2013/A/3256 Fenerbahçe Spor Kubülü v UEFA & CAS 2013/A/3258 Besiktas Jimnastik Kulübü v. UEFA

[5] CAS 2014/A/3628 Eskişehirspor Kulübü v UEFA, para 98.

[6] CAS 2007/A/1381 & CAS 2008/A/1583

Comments (1) -

  • Ender Kuyumcu

    9/24/2014 9:43:00 AM |

    If you contact me on my mail, I can suuply you with the CAS verdicts on Besiktas and Fenerbahce cases alongside more info regarding Turkish match fixing scandal.

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