The CAS denial of the urgent request for
provisional measures filed by the Legia Warszawa SA in the course of its appeal
against the UEFA Appeals Body Decision of 13 August 2014 put a premature end to
Legia’s participation in the play-offs of the UEFA Champion’s League (CL)
2014/2015. Legia’s fans- and fans of Polish football - will now have to wait at
least one more year to watch a Polish team playing in the CL group stage for
the first time since 1996.
While the CAS proceedings for the appeal
filed by Legia against UEFA and Celtic FC are pending and the grounds of dismissal
by the CAS of the application for provisional measures have not been publicly
known, the CAS is called to rule on the interpretation of the proportionality
principle with regard to the application of the 3-0 defeat sanction against a
club that fielded an ineligible player. The cornerstone question is whether the
final award on the merits will be in line with UEFA and CAS jurisprudence suggesting
a literal interpretation of Article 21.2 of the UEFA
Disciplinary Regulations (UEFA DR) or
whether the CAS will allow for a broader interpretation of the proportionality
principle in case of mere technical administrative errors.
Background and facts of the case
Legia’s adventures began when Legia’s
player, Bartosz Bereszynski, was sent off in their final Europa League tie of
last season against Apollon Limassol FC and was sanctioned by the UEFA Control and Disciplinary Body decision of
13 February 2014 with three-match
suspension. UEFA regulations are clear
in that a ban applies to a player if he is listed in a club’s squad for matches.
Bereszynski did not play in Legia’s games with St Patrick’s Athletics and in
the first leg against Celtics FC. However, due to a technical error of Legia’s
administrator, which was to prove fatal, the player was not registered in the
squad list for the St Patrick’s tie and the first two games of his suspension
were never properly recognized. As a result of the player’s failure to serve
the suspension, Bereszynski’s participation in the second leg against Celtics
FC as a 86th minute substitute triggered the application of Article
18 of the Regulations
of the UEFA Champions League 2012-2015 and Article 21.2 of the UEFA DR and
Legia was to be sanctioned for fielding a suspended player. Therefore, the
match was declared forfeited; for UEFA’s purposes, Legia lost the game 3-0 and
the initial 6-1 aggregate defeat for Celtic was reversed to a 4-4 aggregate
score, opening the door for Celtic to progress in UEFA CL play-offs on away
The Legia case in the light of UEFA jurisprudence
At a first glance, the case at issue
seems to present several factual similarities with the Bowyer and Matoukou cases
brought before UEFA’s Control and Disciplinary Body, which, however, have never
been appealed before the CAS.
In the first case, similarly to the Legia case, due to an administrative
error of Newcastle United FC, Bowyer had not been registered as ‘eligible to play’ in the six UEFA
matches in 2004. As a result, UEFA’s Control and Disciplinary body, applying
UEFA Regulations, decided that Bowyer had not served the suspension carried
over from his days as a Leeds United player and was banned for the next six European
matches. This decision was challenged by Newcastle and the English Football
Association (FA) before the UEFA’s Appeal Body, which upheld the initial
decision. It is remarkable that the FA supported
Newcastle’s appeal, expressing its concerns with regard to the ambiguous
language of the rules on players’ eligibility.
In the second case, Matoukou while
playing for KRC Genk against FC Porto on 19 August 2010 in a UEFA Europa League
qualifier, received a red card and as a consequence was sanctioned with a
two-match suspension. Matoukou sat out the second leg of that tie and, after
Genk’s elimination, played no further European games for Genk. On 2 August
2012, Matoukou, as a player of Arsenal Kiev FC, scored against ND Mura 05.
However, Matoukou had not served the second part of his suspension before
taking part to this game. As a result of his ineligibility, UEFA’s Control and
Disciplinary Body declared
the match forfeited. Although there is no doubt that the player did not serve
the two-match suspension, this case illustrates the most recent example of the
clear-cut application of Disciplinary Regulations by UEFA.
A similar example is the harsh sanction
of 3-0 defeat applied against PAOK Saloniki in 2004 for fielding the suspended
player, Laisis Louca, in the first leg of the CL third qualifying round against
Maccabi Tel Aviv. NK Zepce was also punished with the same severity in 2005 for
fielding a suspended player in the first half of their match against FK
Baskimi. The inevitable conclusion of this brief overview of UEFA jurisprudence
is that UEFA’s practice has been consistent; UEFA Regulations on players’
eligibility are sufficiently clear and they give no room for a different
interpretation. However, it should be noted that the UEFA decisions can be
appealed before the CAS. Therefore, the CAS jurisprudence needs to be examined in
order to assess whether the CAS in interpreting UEFA Regulations has deviated
from this rather simplistic clear-cut approach of UEFA.
The Legia case in the light of CAS jurisprudence
case has been the CAS landmark case with regard to the proportionality of the
sanction of forfeiture for clubs fielding ineligible players. In this case, the
CAS confirmed that FC Sion was banned from registering five new players in the
summer transfer period of 2011/12 pursuant to the FIFA decision and was
excluded from UEFA Europa League. Funnily enough, Celtic was also back then the
lucky club, which enjoyed a ‘second bite
of the cherry’. While this case presents only few factual similarities with
the Legia case, its importance lies
in that the CAS had to rule whether a club’s exclusion mandated by UEFA
Regulations is in conformity with Swiss antitrust law and the proportionality
The CAS confirmed that UEFA is an
undertaking enjoying a dominant position on the market of international
However, according to the CAS, Article
18 of the UEFA Regulations authorizing UEFA to sanction clubs which field
ineligible players does not constitute an abuse of its dominant position, but
rather ‘guarantees the efficiency and
equal treatment of the clubs’.
Relying on its mandate to establish uniform regulations applicable equally to
all clubs and to guarantee legal certainty in sports competitions, the CAS found
that the sanction of forfeiture for clubs fielding ineligible players is an
appropriate, necessary and proportionate measure.
To reach this conclusion, the CAS applied a twofold test for the
proportionality principle to be enforced: (1) the capacity of the sanction of
forfeiture to achieve the aim it pursues, i.e. to ensure the equal treatment of
the clubs; and (2) the necessity of the sanction, i.e. the absence of
alternative measures, since during the qualification phase of the tournament
other sanctions such as the deduction of points are not possible.
In this case, the CAS deviated from the
strict literal interpretation of Article 21.2 of UEFA Disciplinary Regulations
and elaborated an interpretation of the forfeiture sanction in the light of the
proportionality principle, applying the twofold test. It is highly likely that the
CAS in the Legia case will follow
this interpretation, relying on the necessity of the sanction, i.e. because of
the absence of alternative measures, and its mandate to protect the equal treatment
of the clubs and will confirm, therefore, the conformity of the UEFA decision
with Article 21.2. However, it is the suggestion of this case commentary that a
different interpretation of Article 21.2 in the light of the proportionality
principle could also be elaborated on.
Mapping an alternative
interpretation of Article 21.2 of UEFA Disciplinary Regulations
In this attempt
to elaborate a different interpretation of Article 21.2 in the light of the
proportionality principle, this article will use as a benchmark the CAS finding
that ‘other elements such as the
systematic context, the purpose and history of the rule may contribute to the
correct understanding of the meaning of the rule’.
Although the wording of Article 21.2 is clear and seems to create a lex specialis rule with regard to the
forfeiture sanction in case of a player’s ineligibility, it is suggested that a
different interpretation of Article 21 can be envisaged if it is examined in
conjunction with the General Principles laid down in Article 17.1 of the UEFA Disciplinary
Article 17.1 states that the disciplinary body determines the type and extent
of the disciplinary measures to be imposed in accordance with the objective and
subjective elements of the offence, taking account of both aggravating and
This means that a sanction may be scaled down when proper consideration is
given to the specific circumstances. This provision is in line with the
well-established in Swiss law, EU law and CAS jurisprudence
proportionality principle, namely that in disciplinary matters a reasonable
balance must be struck between the violation and the sanction.
the case at issue the question could be articulated as such: Could an interpretation of Article 21.2 in
the context of Article17.1 and the proportionality principle result in a
different sanction than forfeiture?
In the light of
Article 17.1, an argument deriving from the specific ‘aggravating and mitigating’ circumstances of Article 17.1 could be
that the ineligible player did actually abstain from three matches and it was
due to a mere technical error that the player did not serve his suspension
correctly. It could be suggested, therefore, that the forfeiture sanction is
too harsh, since Legia acted in good faith and it was only because of this
administrative error that the player was considered ineligible.
the same spirit, Legia could claim that the sanction should be scaled down
given that the player in question played for only four minutes as a substitute
with the aggregate score of 6-1 in Legia’s favour. Considering that the
ineligible player did not have any considerable impact on the tie,
Legia could claim that the forfeiture sanction is too harsh as compared to the
violation committed by the club. In a similar case, in 2010, UEFA fined
Debrecen VSC for fielding in a good faith an ineligible player, instead of declaring
the match forfeit: UEFA considered
that Debrecen ‘had no interest in
fielding this player for the three last minutes of additional time, when the
score was so clearly in its favour’. It should be pointed out that in the Debrecen case the ineligible player was
free to play if registered and, as a result, Article 21.3 applied. By contrast,
in the Legia case the player was
suspended and therefore excluded from the competition.
could be argued that UEFA’s decision in the Debrecen
case could serve as a guideline for a more flexible interpretation of Article
21.2. While the wording of Article 21.3 itself gives enough room for discretion
to UEFA to declare a match forfeit (‘a
match may be declared forfeit’), an interpretation of Article 21.2 in the
light and purpose of Articles 17.1 and 21.3 could lead to a less draconian
sanction, taking into consideration the specific circumstances of the case. Although
the difference in the wording between Articles 21.2 (‘a match is declared’) and 21.3 draws a clear distinction between
the consequences of fielding a suspended player and an ineligible player, it is
the suggestion of this commentary that this distinction is at odds with the
proportionality principle. Considering the proportionality’s principle status as a ‘general principle of law governing the imposition of sanctions of any
it is surprising that Article 21.2 imposes the forfeiture sanction, without any
reference to the proportionality of the sanction as compared to the violation
committed. In this sense, the sanction of forfeiture leading to Legia’s
exclusion from UEFA CL – and to the enormous economic loss for the club that
this exclusion entails- seems disproportionate in the light of the specific
circumstances of the case. In other words, a literal interpretation of Article
21.2, even in cases where the violation is the result of a mere technical error
and the fact that the Club had no interest in fielding the suspended player,
seems to overturn the reasonable balance between the violation and the
Until today, in the name of legal
certainty, UEFA and the CAS have applied in a consistent way a literal
interpretation of Article 21.2 of UEFA Disciplinary Regulations. While legal
certainty is the ratio legis and
justification of the sanctions imposed by UEFA,
this commentary argued that the ‘without-exemption’ application of the
forfeiture sanction can undermine the proportionality principle, which is also
a fundamental principle recognized by the CAS jurisprudence. In this light, it
has been demonstrated that a flexible interpretation of Article 21.2 in the
context of the general provisions of Article 17.1, i.e. an interpretation which
would render the act of fielding a suspended player subject to the full scale
of disciplinary measures and would leave sufficient room for discretion to UEFA
disciplinary body and to the CAS, would be in compliance with the
proportionality principle. To this extent, construing a method for
interpretation of Article 21.2 in conjunction with Articles17.1 and 21.3 is an
important step to arrive at a better evaluation of the existing regime and to clarify
the complex and still unsettled interplay between the intensity of the violation
and the sanction.
Therefore, it remains to be seen whether the CAS
will follow the path -strikingly consistent until now- of a literal
interpretation of Article 21.2 or whether it will opt for a tailored sanction,
which would be in compliance with the proportionality principle.
2011/O/2574 UEFA v. Olympique des Alpes SA/FC Sion
2011/O/2574 (n 5), para 115.
paras 124 & 130.
 Ibid, para 135.
2007/A/1363 TTF Liebherr Ochsenhausen v/ETTU, award of 5 October 2007, para
Article 17.1 (n 1).
2001/A/330 R. v. Fédération Internationale des Sociétés d'Aviron (FISA), Award
of 23 Nov 2001
contrast, see Sion case (n5) where
Pascal Feindouno, one of Sion’s ineligible players, scored against Celtic.
 G. Kaufmann-Kohler and A. Rigozzi,
Opinion on the Conformity of Article 10.6 of the 2007 Draft WADA Code with the
Fundamental Rights of Athletes’, 42.
2007/A/1278&1279, para 131.