Showing posts with label match-fixing. Show all posts
Showing posts with label match-fixing. Show all posts

Free English Translation of Swiss Federal Court Decision on Fenerbahce Match-Fixing

Federal Court Tribunal federal Tribunale federale Tribunal federal





{T} 0/2
4A_324 / 2014




Judgment of 16 October 2014 First Civil Law Division

occupation
Federal Judge Klett, president, Federal Judge Kolly, Federal judges hollow, Kiss, Niquille Court: Leemann.

Parties
Fenerbahge Spor Kulübü,
Represented by
Dr. Bernhard Berger and Dr. Andreas Güngerich,
complainant,


against


Union des Associations Europeennes de Football (UEFA)
represented by Dr. Jean-Marc Reymond and lawyer Delphine Rochat, Respondent.
object
International Arbitration,


Complaint against the arbitral award of the Court of Arbitration for Sport (CAS) on 11 April, 2014.





Facts:


A.


A.a. Fenerbahce Spor Kulübü (complainant) is a professional football club based in Istanbul, Turkey. He is a member of the Turkish Football Federation (TFF).



The Union des Associations Europeennes de Football (UEFA, Respondent) with headquarters in Nyon is the European Football Association, which also includes the Turkish Football Federation. It organizes, inter alia, the UEFA Champions League.







From. On 21 and 26 February, on 6, 7 and 20 March and 9 April 2011 several football matches were played under the Turkish "Süper Lig" in which persons in the vicinity of Fenerbahce Spor Kulübü bribes for Match loss allegedly paid.







On April 14, 2011 entered a new Turkish law (no. 6222) entered into force which provides for a special offense for match-fixing.



On 17 and 22 April and 1 May 2011 more football games from the "Süper Lig" took place, in which people are paid in the context of Fenerbahce Spor Kulübü money to influence games.



On May 5, 2011 gave Fenerbahce Spor Kulübü UEFA the signed form "UEFA Club Competitions 2011/2012 Admissions Criteria Form" A, with the Football Club confirmed since April 27, 2007 to have been involved in match-fixing, directly or indirectly.
On May 8, 15 and 22, 2011 more Soccer Games of the Turkish Süper Lig were held to have been where paid by individuals with ties to Fenerbahce Spor Kulübü bribes to the opposing team for the game loss.





On May 22, 2011 Fenerbahce Spor Kulübü won the championship in the "Süper Lig" and thus qualified simultaneously for the group matches of UEFA Champions League game of the 2011/2012 season.





A.c. On 3 July 2011, the Turkish police arrested 61 people as part of a wide-scale criminal investigation concerning match fixing in Turkish football. The suspected match fixing among others, the president and vice president, two members, the coach and the financial director of Fenerbahce Spor Kulübü, this in connection with various soccer games, the game 2010/2011 season.










On 11 July 2011 the TFF Executive Committee urged the Ethics Commission to launch an investigation into match-fixing in Turkish football.




On 20 July 2011, the Turkish prosecutor provided the TFF Ethics Commission with information and evidence related to the criminal proceedings initiated.






A.d. On 24 August 2011, the TFF Executive Committee UEFA about his decision, the football club Fenerbahce Spor Kulübü informed not to pit in the Champions League this season.



On 25 August 2011, the TFF Arbitration Board had a Fenerbahce Spor Kulübü against
Decision from the TFF Executive Committee imposed vocation.


On appointment of Fenerbahce Spor Kulübü against the decision of the TFF Arbitration Board from August 25, 2011 through the Court of Arbitration for Sport (CAS) dismissed the applications to grant interim relief to decide from 9 September and 3 November 2011.





On 2 December 2011, the Turkish prosecutor brought charges against several people, including officials from Fenerbahce Spor Kulübü.



On 3 January 2012, the TFF Disciplinary Committee against Fenerbahce Spor Kulübü and other Turkish football clubs as well as numerous individuals initiated disciplinary proceedings because of match-fixing.



25 April 2012 Fenerbahce Spor Kulübü withdrew his appeal to the TAS, which the decision of the Turkish Association, Fenerbahce Spor Kulübü not to let the game 2011/2012 season competing in the Champions League, became final.







A.e. On 26 April 2012, the TFF Ethics Commission adopted a Report into allegations of manipulation of certain football matches, including those involving Fenerbahce Spor Kulübü was involved.





In its decision of 6 May 2012, the TFF Disciplinary Commission imposed a board member of Fenerbahce Spor Kulübü a three-year prohibition on pursuing a one-year ban, football-related activities against the vice president and the coach.







B.


B.A. On June 4, 2012, UEFA received the report of the TFF Ethics Committee of 26 April 2012 Design.


By letter dated 7 June 2012, the UEFA General Secretary urged the chairman of the Control and Disciplinary Committee of UEFA on, disciplinary proceedings against Fenerbahce Spor
Kulübü initiate.




On 2 July 2012, the High Criminal Court decided in Istanbul that of under the leadership
B., the president of Fenerbahce Spor Kulübü, a criminal organization formed
was and that officials from Fenerbahce Spor Kulübü in 13 games of the season would 2010/2011 involved in match-fixing. Of the 93 defendants 48 were convicted, among them








- B., the president of Fenerbahce Spor Kulübü (two and a half years imprisonment for
Forming a criminal organization, three years and nine months and TRY 1'312'500 .-- for match-fixing);



- C., vice president of Fenerbahce Spor Kulübü (one year and three months imprisonment
for membership in a criminal organization; one years, 10 months and 14 days because of match-fixing);



- D., a board member of Fenerbahce Spor Kulübü (one year and six months
Imprisonment for membership of a criminal organization; a year 25 [sic] months and 15 days as well as TRY 900,000 .-- for match-fixing);





- E., board member of Fenerbahce Spor Kulübü (one year and six months
Imprisonment for membership of a criminal organization; one year, one month and 15 days, and TRY 135,000 .-- for match-fixing);





- F., manager of Fenerbahce Spor Kulübü (one year and three months imprisonment for
Membership in a criminal organization; 11 months, 7 days and TRY 15'626 .-- for match-fixing);



- G., finance director of Fenerbahce Spor Kulübü (one year and three months imprisonment
for membership in a criminal organization; one year and three months, or TRY 49'980.-
- Buses for match-fixing).
On 31 May 2013, the UEFA disciplinary inspector submitted his report on the existing disciplinary procedures. On June 20, 2013 Fenerbahce Spor Kulübü submitted observations to.



In its decision of 22 June 2013, the Control and Disciplinary Committee of UEFA Fenerbahce Spor Kulübü precluded from participating in the next three UEFA club competitions for which the Football Club would qualify, the third year of the ban was suspended.







B.b. In its decision of 10 July 2013, the UEFA Appeals Chamber overturned the decision of the Control and Disciplinary Committee of 22 June 2013 appointment of Fenerbahce Spor Kulübü back partially and restricted the lock on the next two UEFA club competitions a.








B.C. By submission of July 16, 2013 Fenerbahce Spor Kulübü challenged the decision of the UEFA Appeals Chamber on 10 July 2013 to the CAS and requested suspensive effect. UEFA did not oppose the granting of the suspensive effect.





On July 18, 2013 Fenerbahce Spor Kulübü informed the CAS, which, inter alia, that the parties agreed on the timing procedure.



Also on July 18, 2013 confirmed the TAS in view of the agreement reached between the parties, the suspensive effect. Moreover, it took from the agreement between the parties on an accelerated procedure note that the grounds for appeal to 26 July 2013 and the appeal response to August 9, 2013 submitted, held the oral main negotiation between 21st and 23 August 2013, and a decision to 28th August 2013 is to be like.
On July 26, 2013 Fenerbahce Spor Kulübü filed the grounds for appeal, essentially with the application, the penalty imposed by the UEFA Appeals Chamber in its decision of July 10, 2013 barrier should be set aside; eventualiter was the decision set aside on 10 July 2013, dismissed the case to the UEFA Appeals Chamber.







On 9 August 2013, UEFA submitted its appeal response, in which it requested that the appeal be dismissed and to confirm the decision of the UEFA Appeals Chamber.



On 21 and 22 August 2013, the oral trial was held in Lausanne. A total of 20 designated by the parties were interviewed; on the survey of 13 other witnesses refrained Fenerbahce Spor Kulübü during the trial.








B.d. In an award dated 28 August 2013 (with reasons delivered on 11 April 2014) had the TAS the appeal, upheld the contested decision of the UEFA Appeals Chamber on 10 July, 2013.





C.
With Civil law appeal Fenerbahce Spor Kulübü submits that the Federal Tribunal should the arbitral award of the CAS of 28 August 2013 annulled.



The respondent moved to dismiss the complaint as is capable of appeal. The TAS moved to dismiss the complaint in its consultation.




The complainant has the Federal Court a replica, the Respondent filed on August 5, 2014 August 26, 2014 rejoinder.




D.
By order of 22 July 2014, the Federal Court dismissed the petition of the complainant to grant suspensive effect.



By order of 1 September 2014, dismissed the application for reconsideration concerning the non-members suspensive effect and confirmed the disposal of 22 July, 2014.








Considerations:


1.
After
Art. 54 para. 1 BGG
issues its decision of the Federal Court in an official language, usually in that the decision under appeal. Was this edited in another language, the Federal Tribunal uses the official language chosen by the parties. The decision under appeal is in English. Since this is not an official language and the Parties used the Federal Court of the German language, the decision of the Federal Court was made in German.










. 2
190-192 PILA (SR 291) (77 1 Art. Para. Letter a BGG) In the field of international arbitration is the complaint in civil matters under the requirements of Art. Allowed.


2.1. The seat of the arbitral tribunal is in Lausanne. The complainant in the reference point located outside Switzerland (Art. 176 para. 1 IPRG
). Since the parties have expressly excluded the application of chapter 12 PILA, the provisions of this chapter be applicable (Art. 176 para. 2 IPRG).
2.2. Permitted Only those grievances, which in Art. 190 para. 2 IPRG
exhaustively enumerated are (BGE 134 III 186 E. 5 p 187; 128 III 50 E. 1a p.53; 127 III 279 E. 1a S. 282). Under Art. 77 para. 3 BGG
the Federal Tribunal reviews only the grievances which are brought forward and reasoned in the appeal; this corresponds to in Art. 106 Para. 2 BGG
for the violation of fundamental rights and provided by cantonal and intercantonal law (BGE 134 III 186 E. 5 p 187 with references). Appellatorische criticism is inadmissible (BGE 134 III 565 E. 3.1 p 567; 119 II 380 E. 3b S. 382).









2.3. The Federal Tribunal bases its decision on the facts, which the Tribunal has determined (Art. 105 para. 1 BGG
). These include the findings about the life facts of the dispute underlying as well as those regarding the expiry of lower-instance procedure, so the findings about the process the facts, and the name the parties' claims, their factual allegations, legal analyzes, process returns and discovered evidence, the contents of a testimony, an expert or the findings on the occasion of any inspection include (BGE 140 III 16 E. 1.3.1 with references).











The Federal Court, the factual findings of the arbitral tribunal not rectify or supplement, even if it is obviously untrue or on an infringement within the meaning of Art. 95 BGG
based (see. Art. 77 para. 2 BGG, of the application of Art. 97 BGG
as
Art. 105 Para. 2 BGG
excludes). However, the Federal Tribunal may review the factual findings of the arbitral award, when compared to such factual findings admissible grievances within the meaning of Art. 190 para. 2 IPRG
be or exceptionally considered Noven (BGE 138 III 29 E. 2.2.1 S. 34; 134 III 565 E. 3.1 p 567; 133 III 139 at 5 p 141; with references). In order to claim on an exception to the binding of the Federal Court to the factual findings of the arbitral tribunal and to have the facts corrected or supplemented, shall set forth with reference to the record that the corresponding factual allegations have already been set up process compliant in arbitration proceedings (see. BGE 115 II 484 E. 2a S. 486; 111 II 471E 1c S. 473;. with references).

2.4. The complainant fails to recognize the loyalty of the Federal Court to the findings in the contested decision to process facts when he preceded his legal arguments, a detailed exposition of the facts, in which he describes the background to the dispute and the proceedings from its own perspective and thereby partially from the factual findings of the arbitral tribunal deviating or these expanded without making substantiated exceptions to the binding character facts. The relevant passages have to be ignored.













Irrelevant are the new facts submitted (Art. 99 para. 1 BGG
). So the complainant alleges about, in the meantime, the Turkish Court of Cassation of four judgments against board members have two and dismissed for a new trial in the first instance.






2.5. The Board is fully justified within the period for appeal submitted (Art. 42 para. 1 BGG
). If there is a second correspondence, the complaining party the Replica (see. BGE 132 I 42 E. 3.3.4) must not use it to supplement its complaint or to improve. The replica is to be used only to statements, including the statements in the consultation of other parties give rise (see, BGE 135 I 19 E. 2.2).

Unless the complainant goes in his reply about his remarks can not be considered.




. 3
The complainant alleges that the CAS disregarded the principle of equal treatment of the parties injured (
Art. 190 para. 2 lit. d PILA).


3.1. He argues that the CAS was considered primarily on quickness in judging the appeal despite the extensive process substance and decided only just six weeks after receipt of the appeal and within less than six days after the completion of a multi-day trial in an accelerated procedure instead the dispute to the UEFA rejected. So that the CAS would have the unequal treatment of the parties that had their origin in the procedure before the departments of UEFA continued.












UEFA had in summer 2011 almost two years taken time for them to have the complainant finally delivered its report on the investigations carried out on 10 June 2013, and opened a disciplinary procedure. Then it was "blow by blow" gone until the decision had been like. Before the UEFA Control and Disciplinary Committee he had been admitted for an opinion, although the authoritative report as well as the other documents submitted were very extensive just 10 days. The subsequent proceedings before the UEFA Appeals Chamber was nothing but a farce, it had nevertheless taken from the entrance of the appeal to the decision of 10 July 2013 just five days, the Appeals Chamber - despite his protests - even substantial new evidence of the Respondent have approved.
A comprehensive review and effective judicial protection, the complainant had not received even before the TAS; the extensive dispute was dealt with and dismissed after receiving his appointment in just six weeks the hearing was limited to two days with correspondingly few opportunities for the party and witness interviews.








The expedited procedure before the CAS had agreed voluntarily not the complainant. Basis of the accelerated procedure was the registration form (Admission form) of UEFA have been the must sign a football club, if he wished to take part in UEFA competitions. He would have an accelerated procedure before the CAS not agreed, if there had been an opportunity to participate without signing the appropriate form to the UEFA competitions; the relevant statement could not be invoked against him thus. The difference in treatment was carried out before the association's internal bodies have continued in arbitration before the CAS. The respondent had time trying to force a clarification of the question before the draw to see who could take part in the Champions League season 2013/2014. The complainant had ultimately had no choice but to undergo this dictates the respondent in order to preserve its ability to still be able to participate in this contest. At the expedited procedure before the association's internal organs and the CAS absolutely no serious interest have existed; the Respondent would perform an orderly appeal procedure readily and also can agree to a proper conduct of the arbitration before the CAS. With its unilateral and unnecessary insistence on the implementation of an urgent procedure before the CAS, the respondent has intentionally taken into account that the unequal treatment of the parties and therefore impermissible curtailment of procedural rights before the CAS would have continued. The TAS has the right to equal treatment can only preserve by the dispute - would have remitted to the Respondent - as requested.

3.2.


3.2.1.
Art. 190 para. 2 lit. d PILA
makes the challenge alone because of the mandatory procedural rules pursuant to Art. 182 para. 3 PILA
to. Thereafter, the arbitral tribunal must especially respect the claim of the parties to be heard. This corresponds - with the exception of the right to justification - the in article 29, paragraph 2 BV..
legal constitutional law (BGE 130 III 35 E. 5 p 37 f .; 128 III 234 E. 4b S. 243; 127 III 576 E. 2c S. 578 f.). The law derives in particular the right of parties from to comment on all the judgment essential facts to defend their legal position, to prove their decisive essential factual allegations with suitable and timely manner and form correctly offered funds to participate in the negotiations and the to inspect files (BGE 130 III 35 E. 5 p 38; 127 III 576 E. 2c S. 578 f .; with references). The principle of equal treatment also requires that the parties are treated equally throughout the arbitral proceedings (see. BGE 133 III 139 E. 6.1 p 143).




















3.2.2. The party, which is characterized by a denial of due process or another according to Art. 190 para. 2 IPRG

relevant procedural violation for holding disadvantaged forfeited their complaints, if they are not in time brings forward these through arbitration and not every reasonable effort is taking to the defect - if possible - to eliminate (BGE 130 III 66 E. 4.3 p 75; 126 III 249 E . 3c S. 253 f .; 119 II 386 E. 1a S. 388; with references). The federal judicial review of the award process on infringements is thus far a subsidiary, as the parties have to be reported corresponding defects initially the arbitral tribunal so that they can be resolved before the end of arbitration. It contradicts good faith to rebuke a procedural violation only in the context of an appeal, although in the arbitration, the possibility would have been to give the arbitral tribunal an opportunity to remedy the alleged defect (BGE 119 II 386 E. 1a S. 388). Faithful offense and abuse of rights is especially the party that holds Rügegründe speak in reserve to this nachzuschieben with an unfavorable course of the process and a foreseeable loss process (see BGE 136 III 605 E. 3.2.2 S. 609;. 129 III 445 E. 3.1 p 449; 126 III 249 S. E. 3c 254).



























3.3.


3.3.1. Unless the complainant establishes a procedural violation federal court order, it was not sufficient given the possibility for party and witness interviews during the two-day trial, he can not be heard. It is not clear how he would put forward this alleged deficiency to arbitration; the contrary is clear from the findings of fact in the contested decision that the applicant, the number of called witnesses belittled by itself of first 53 two days before the hearing on 35 and a day earlier on 32, said he was still at the hearing to the hearing refrained from 13 other witnesses called. The complaint is forfeit.

Even with his subsequent shows not on the complainant that he had been reprimanded unequal treatment by the arbitral tribunal during the arbitration proceedings. Contrary to his argument before the Federal Court he gave acting either in his grounds for appeal nor at the hearing to correct the alleged defect in the arbitration. Rather, he referred in his grounds of appeal only to various shortcomings in the association's internal procedure and the TAS requested that the dispute should be rejected to the UEFA Appeals Chamber to new assessment, if the TAS its principal claim, annul the penalties imposed, should not be followed. Shortly before the end of the hearing, the complainant stated that it did not support the accelerated procedure voluntarily, so the procedure should be rejected on the association's internal organs of UEFA. That he, the CAS more time for further comments or inquiry or a repeat or supplement certain steps requested, let alone a difference in treatment would reprimanded to arbitration, the applicant does not point to.


























He has not made every effort to work towards a remedy the alleged defect in the current arbitration procedure. He forfeited for the right, in the appeal proceedings before the Federal Court on alleged unequal treatment within the meaning of
Art. 190 para. 2 lit. d PILA
to invoke. In this plea must also not enter.

3.3.2. Anyway, does not point to the complainant how the TAS had him treated differently in the arbitration proceedings (see. BGE 133 III 139 E. 6.1 p 143). Rather, he also criticized the Federal Court mainly the combined internal procedures or the conduct of the Respondent and derives from the facts alleged by him involuntariness of accelerated procedure not from around that the CAS would have to carry out a proper procedure, but sees a difference in treatment rather in the dismissal of his appeal requests by the arbitral tribunal. He's really-is not raised, the other party was, procedurally granted under the arbitration, in which the dispute can be reviewed in fact and in law something that was denied, but criticized in an impermissible manner the content of the contested award ,




















. 4
The complainant alleges that the arbitral tribunal, by surprising application of the law his right to be heard (Art. 190 par. 2 lit. d PILA) hurt to have.




4.1. By the Federal Court case law, there is no constitutional claim of the parties to be especially consulted on the legal assessment of the system established by them in the process facts. Nor follows from the right to be heard, that the parties would advance to indicate the essential facts for the decision. An exception exists especially if a court intends to justify its decision by an legal base, to which the parties have not appointed and its relevance not reasonably expect had (BGE 130 III 35E 5 p. 39; 126 I 19 E . 2c / aa 22 S. and E. d / bb p 24; 124 I 49 E. 3c p.52).
4.2. The author submits that UEFA Appeals Chamber had convicted him of eight games and manipulated for false statements in the registration form to (unconditional) two-year exclusion from European club competitions. The CAS would have a conviction for false statements repealed the form used and also found that the applicant had merely tried to manipulate four games. This has however led to no criminal reduction; Instead, the CAS had confirmed the two-year sanction. The complainant referred to the result as a "eye-catching industrial accident" for sentencing at which it came to the sentencing provisions of the World Anti-Doping Code (WADA Code) due to a never thematized in previous processes analogy. The CAS would have but the parties were no opportunity to comment on these "completely surprising analogy".






















4.3. Contrary to what the applicant appears to accept that the CAS has not left the sentencing criteria of Article 17 of the UEFA disciplinary regulations (2008 edition) about the benefit of those of the WADA code out of consideration, but has certainly supported for sentencing on that provision. In addition, the arbitration is explicitly addressed as to why it did not reduce the penalty imposed, although it considered "only" in four cases as created in contrast to the association's internal instances of match-fixing. In particular, the CAS held having regard to Article 17 of the UEFA disciplinary regulations, a two-year suspension in the specific case of clearly justified.
The tribunal considered, taking into account its own case, after for match-fixing penalties between one and eight years were imposed, given the particular severity of the case compared with previously assessed match fixing even a penalty at the upper end of this range is appropriate, but it does Reserve left with Note on the principle ultra petita - the respondent had waived an appeal - in the two-year ban. The notice of the TAS that in doping cases comparable penalties are pronounced, which generally offers a two-year ban would impose that would be higher for very serious offenses and to put deep in extenuating circumstances, thus came - contrary to the view in the appeal view - not " the crucial importance for the determination of penalties "to. The CAS was not required in these circumstances, the complainant specifically give an opportunity to comment on the sentencing provisions of the WADA Code.























A hearing to claim infringing surprising application of the law is absent.




. 5
The complainant alleges that the TAS before, for not having examined several of his decisive significant argument in violation of the right to be heard.




5.1. The right to be heard in an adversarial procedure in accordance
Art. 182 para. 3 and
Art. 190 para. 2 lit. d PILA
excludes settled case also claim to justification of an international arbitral award (BGE 134 III 186E. 6.1 with references). Nevertheless, this results in a minimum requirement of arbitrators to consider the key relevant issues, to deal with. This requirement violates the arbitral tribunal, if it disregarded leaves due to an oversight or a misunderstanding rather substantial allegations, arguments, evidence or proof of evidence of a party. This does not mean that the arbitral tribunal must explicitly deal with each individual arguments of the parties (BGE 133 III 235 E. 5.2 with references).

5.2.


5.2.1. The complainant alleges that the arbitral tribunal, first, it had left some of his arguments entirely out of account in assessing the competence of UEFA to impose sanctions for match-fixing. He had claimed that he did Article 2.06 of the Regulations of the UEFA Champions League (UCLR) not yet recognized as binding at the time of discharge of some of the controversial games. Given the arbitral tribunal shall have no more expressed as to its argument that the Court of TAS the disciplinary regulations of UEFA must be interpreted objectively by its wording and legislative context. Also on his argument that the interpretation of association rules-especially disciplinary regulations - should take place in doubt at the expense of the user, the CAS had received no word. Moreover, its arguments concerning the interpretation and meaning of the Circular submitted by the respondent at the hearing no. 24/2013 had been the UEFA unaudited and appreciated. If the arbitral tribunal his decisive substantial arguments for missing Criminal expertise of UEFA checked the complainant, it would have had to approve his appointment.

5.2.2. The arbitration leads to the issue of jurisdiction of UEFA to conduct disciplinary proceedings in the contested decision as one of the main issues to be assessed. It took the complainant's position to the effect this together, that the disputed allegations of match fixing relate to championship games of the 2010/2011 season, and thus did not fall within the disciplinary expertise of UEFA by the authoritative association rules.










The tribunal considered in consequence, the competence of the UEFA imposed for match-fixing detail. This clear instruction, among other points to the complainant's argument, according to which UEFA have lacked the necessary disciplinary expertise at the time of his alleged conduct after the then applicable Association rules; such was only introduced subsequently according to the complainant, which is why the responsibility for punishment carried neither Article 50 (3) of the UEFA Statutes nor Article 2.05 or 2:06 UCLR or Article 5 of the Disciplinary Code'll support. The arbitral tribunal considered the issue of the legal basis for sanctioning the issue of match-fixing by UEFA detail by interpreted the above provisions, while also assessed their applicability in terms of time. It manifested itself inter alia on the interpretation and meaning of the Circular no. 24/2013.




















The arbitral tribunal may, under these circumstances not be criticized, it breached its minimum duty to examine the key relevant issues and treat (see. BGE 133 III 235 E. 5.2 p 248 with references). Given the detailed reasoning in the contested decision it can be assumed that it has led the complainant into the Arguments field at least by analogy discarded. The arbitral tribunal has the right to be heard by the complainant not infringed by failing 24/2013 expressly dealt with each of its arguments concerning the applicability of Article 2.06 UCLR, to supposedly authoritative interpretation method in Association regulations or the interpretation and meaning of Circular No..

5.3. The complainant alleges further that he had raised during the arbitration that pronounced by the respondent sanction applicable in criminal law principle nulla poena sine lege contrary. However, the arbitral tribunal set up in its decision with this objection in any way apart. Individual titles ( "[...] and were the sanctions imposed in accor dance with the legality principle?" Or "Is there a Sufficient legal basis for the disciplinary measure?") Led to the conclusion to be sure that this issue should be dealt with content , which is not incorrect.













The raised in the complaint - but not further substantiated - allegation that the mentioned headlines turned out to be "pure misnomer", is incomprehensible. The complainant presents itself not in dispute that the arbitration be argument that relied on for the penalty imposed Association provisions, the requirements of the principle of legality (nulla poena sine lege scripta et certa) expressly lists in the decision notice. It directs his remarks to the principle of legality, under the heading "Is there a Sufficient legal basis for the disciplinary measure?" so a, according to Swiss law and established case law of TAS presupposes the imposition of a disciplinary measure a sufficiently clear and unambiguous legal basis ( "a clear and unambigous legal basis for the sanction"). Legal certainty requires that the applicable provision - in this case, Article 2.06 UCLR - is sufficiently determined what considered the arbitral tribunal in the sequence and -for match-fixing, but not -bejahte for the accusation of false statements in the registration form.
A mistake or a misunderstanding, due to which the arbitral tribunal would have left a fairly substantial argument of the complainant disregarded, is not available in this context.





5.4. A hearing injury is not visible even in terms of the complainant's arguments for the design of the disciplinary measure. The tribunal has listed the corresponding argument in the contested decision expressly and the amount of the penalty scrutinized. By the complainant referred to the arbitration justification as "not understandable", it exerts only undue criticism of the contested decision, but not show a violation of the right to be heard.












. 6
The complainant alleges that the TAS before a violation of public policy.




6.1. He argues that the contested award was contrary to the matter of public policy pursuant to Art. 190 para. 2 lit. e IRPG belonging ne bis in idem (prohibition of double jeopardy). It had been pronounced against him for the same offense two penalties. The TAS of the contested decision imposed or confirmed punishment is contrary to the aforementioned principle and is therefore incompatible with public policy.

6.2.


6.2.1. A violation of the procedural public policy front is a violation of fundamental and generally recognized principles of procedure, and failure to comply is the sense of justice in an intolerable contradiction, so that the decision as to the force in a constitutional state legal and value system utterly incompatible appears (BGE 140 III 278 E. 3.1; 136 III 345 E. 2.1 S. 347 f .; 132 III 389 E. 2.2.1 S. 392; 128 III 191 E. 4a p.194).










The arbitral tribunal violated the procedural public policy when the substantive legal force of a previous decision disregards when making its decision or if it is different in its final award of the view that it has expressed in a preliminary decision regarding a substantive preliminary (BGE 140 III 278 E. 3.1; 136 III 345 E. 2.1 p 348; with references).






The ne bis in idem principle also forms part of public policy within the meaning of Art. 190 para. 2 lit. e PILA
, The Federal Court has, however, left open whether this penal principle in disciplinary law of sport to be considered equally (judgment 4A_386 / 2010 from January 3, 2011 E. 9.3.1). The question does not need to be deepened in the present case, the TAS went himself of its applicability and examined the compatibility of the sanctions with this principle in detail. Therefore, the Federal Tribunal is limited to a review of the actual application of the principle mentioned by the arbitral tribunal (cf.. Judgment 4A_386 / 2010, supra, E. 9.3.1 a.e.).
















6.2.2. The complainant in arbitration infringement of the principle ne bis in idem is seen that he had been excluded from the Champions League the playing season 2011/2012 with decision of the Turkish Football Federation dated 24 August 2011; he can not therefore be ruled out a second time from the UEFA competitions.

The tribunal was considering the time decreed by the Turkish federation TFF exclusion for the 2011/2012 season conclude later banned for more Game seasons not under a disciplinary procedure. It relied on Article 50 (3) of the UEFA Statutes (2010 edition), and Article 2.05 and 2.06 UCLR (2011/2012), which are as follows:









Article 50 (3) of the UEFA Statutes (2010):


"The admission to a UEFA competition of a Member Association or club Directly or Indirectly Involved in any activity Aimed at arranging or influencing the outcome of a match at national or international level can be refused with immediate effect, without prejudice to any possible disciplinary measures. "







Article 2.05 UCLR (2011/2012):


"If, on the basis of all the factual circumstances and information available to UEFA, UEFA Concludes to its comfortable satisfaction did a club has been Directly and / or Indirectly Involved, since the entry into force of Article 50 (3) of the UEFA Statutes , ie 27 April 2007, in any activity Aimed at arranging or influencing the outcome of a match at national or international level, UEFA will declare examined club ineligible to participate in the competition. search ineligibility is effective only for one football season. When taking its decision, UEFA can rely on, but is not bound by, a decision of a national or international sporting body, arbitral tribunal or state court. UEFA can refrain from declaring a club ineligible to participate in the competition if UEFA is comfortably satisfied dass die impact of a decision taken in connection with the same factual circumstances by a national or international sporting body, arbitral tribunal or state court has already had the effect to prevent did club from participating in a UEFA club competition. "
Article 2.06 UCLR (2011/2012):


"In addition to the administrative measure of declaring a club ineligible, as provided for in paragraph 2.05 the UEFA organ for the Administration of Justice can, if the circumstances so justify, so take disciplinary measures in accor dance with the UEFA Disciplinary Regulations."







The tribunal considered that Article 50 (3) of the UEFA Statutes provides for a two-stage process in conjunction with Article 2.05 and 2.06 UCLR: In a first stage will having regard to Article 2.05 UCLR an administrative measure ( "administrative measure") in the form of a one-year exclusion pronounced by the European Club competition. In a second stage, a disciplinary measure would be imposed, which know no maximum time period, and in addition to the administrative measure ( "In addition to the administrative measure [...]") could be adopted. The two types of match suspensions were distinguish clearly by the regulatory purpose of the provisions mentioned by first with immediate effect an exclusion would be imposed by the competition before the UEFA check the allegations of misconduct in detail. UEFA have a legitimate interest to exclude a football club from the competition immediately, without first initiating a comprehensive disciplinary proceedings against him. The administrative measure, the TAS, therefore constitutes not definitive, but merely a preliminary minimum sanction which seeks to protect the integrity of the concrete competition.

6.2.3. Applying the principle of ne bis in idem requires inter alia that the court in the first process must have granted the opportunity to assess the facts in all factual regular points (BGE 135 IV 6 E. 3.3; 119 Ib 311 E. 3c with hints ). To what extent this is true, after it but only went in the first process of the Turkish Football Federation to an administrative measure to protect the integrity of the concrete competition in a preliminary process in a timely manner, and not to a comprehensive disciplinary procedures for final determination of allegations of misconduct, does not light a , As the Supreme Court has laid down in a decision in the field of Sport Arbitration, the application of the double jeopardy prohibition obliges it an identity of the legal interest protected; Moreover, it pointed out that such a prohibition does not preclude that the same behavior in addition to criminal and civil, administrative or disciplinary consequences draws (judgment 4A_386 / 2011 of 3 January 2011 E. 9.3.2).






















On the fact that the different procedures referred to in Article 2.05 and 2.06 UCLR also tracks each different purpose and extent various legal interests are protected, the applicant does not address, however. He contents himself rather with the indication that the arbitral tribunal in both methods of sanctions ( "sanctions") talks, which he fails to indicate that it is the one-year exclusion decreed by Article 2.05 is a decision, the same object as the having subsequently having to Article 2.06 pronounced disciplinary measure. Given the described two-stage process, each with different regulatory purpose is also not clear to what extent the Turkish federation TFF had been granted the option in the first process, finally to assess the facts in all factual regular points.
The TAS is no breach of the principle ne bis in idem reproach. The complaint of violation of public policy thus pushes into space.




. 7
The complaint is unfounded and must be dismissed, can be extent that the matter. the Appellant must the outcome of the procedure costs and compensate the Respondent (Art. 66 para. 1 and Art. 68 para. 2 BGG






Therefore, the Federal Court:


1.
The appeal is rejected to the extent capable of appeal.




. 2
The judicial costs of CHF 30'000 .-- be borne by the Appellant.




. 3
The complainant shall pay to the Respondent for the federal judicial proceedings Fr. 35'000 .--.




. 4
This judgment shall be notified to the parties and the Court of Arbitration for Sport (CAS) in writing.





Lausanne, October 16, 2014

On behalf of the First Civil Law Court of the Swiss Federal Court


The President: Klett


The Clerk: Leemann


Swiss Federal Court's Decision On Fenerbahçe Match-Fixing Scandal

4A_324/2014[1]


Judgment of October 16, 2014


First Civil Law Court


Federal Judge Klett (Mrs.), Presiding Federal Judge Kolly Federal Judge Hohl (Mrs.) Federal Judge Kiss (Mrs.) Federal Judge Niquille (Mrs.) Clerk of the Court: Leemann

Fenerbahge Spor Kulubu,
Represented by Dr. Bernhard Berger and Dr. Andreas Gungerich, Appellants

v.

Union des Associations Europeennes de Football (UEFA) Represented by Dr. Jean-Marc Reymond and Mrs. Delphine Rochat, Respondent

Facts:

A. A.a.
Fenerbahge Spor Kulubu (the Appellant) is a professional football club based in Istanbul, Turkey. It is a member of the Turkish Football Federation (TFF).

The Union des Associations Europeennes de Football (UEFA, Respondent), based in Nyon, is the European Football Federation to which the Turkish Football Federation belongs. It organizes the UAEFA Champions League, among others.
A.b.
On February 21 and 26, March 6, 7, and 20 and on April 9, 2011, various football games took place in the framework of the Turkish "Super Lig," during which various people around Fenerbahge Spor Kulubu were paid bribes to lose the game. On April 14, 2011, a new Turkish law (n. 6222) came into force, which made it a criminal offence to manipulate the outcome of games.

On April 17 and 22 and on May 1, 2011, more games of the "Super Lig" took place, during which people around Fenerbahge Spor Kulubu paid money to influence the games.

On May 5, 2011, Fenerbahge Spor Kulubu submitted to UEFA the document "UEFA Club Competitions 2011/2012 Admissions Criteria Form," in which the club affirmed that it had not been involved, directly or indirectly, in any manipulation of games since April 27, 2007.

On May 8, 15, and 22, 2011, additional games of the Turkish Super Lig took place, during which some people connected to Fenerbahge Spor Kulubu paid bribes to the opposing team to lose the game.

On May 22, 2011, Fenerbahge Spor Kulubu won the championship of the "Super Lig" and therefore qualified for the group matches of the UEFA Champions League of the 2011/2012 season.

A.c.
On July 3, 2011, the Turkish police arrested 61 people in the context of a broad criminal investigation concerning match-fixing in Turkish football. The president and the vice president, among others, were suspected of manipulating games, along with two management board members, the coach, and the finance director of Fenerbahge Spor Kulubu, in connection with various football games of the 2010/2011 season.

On July 11, 2011, the TFF Executive Committee asked the ethics commission to initiate an investigation of match-fixing in Turkish football.

On July 20, 2011, the Turkish prosecution office provided the TFF Ethics Committee with information and evidence in connection with the ongoing criminal proceedings.

A.d.
On August 24, 2011, the TFF Executive Committee informed UEFA of its decision to not allow Fenerbahge Spor Kulubu football club to participate in the upcoming season of the Champions League.

On August 25, 2011, the TFF arbitration committee rejected an appeal by Fenerbahge Spor Kulubu against the decision of the TFF executive committee.

In its decisions of September 9 and November 3, 2011, pursuant to an appeal by Fenerbahge Spor Kulubu against the decision of the TFF arbitration commission of August 25, 2011, the Court of Arbitration for Sport (CAS) rejected the applications for provisional remedies.
On December 2, 2011, the Turkish prosecutor arraigned various individuals, including officials of Fenerbahge Spor Kulubu.

On January 3, 2012, the TFF Disciplinary Committee initiated disciplinary proceedings against Fenerbahge Spor Kulubu and other Turkish football clubs and numerous individuals in connection with match-fixing.

On April 25, 2012, Fenerbahge Spor Kulubu withdrew its appeal to the CAS and the decision of the Turkish federation to not allow Fenerbahge Spor Kulubu to enter the 2011/2012 season of the Champions League became enforceable.

A.e.
On April 26, 2012, the TFF Ethics Committee released the report of an investigation into the charges that various football games had been manipulated, among others, those in which Fenerbahge Spor Kulubu participated.

In a decision of May 6, 2012, the TFF Disciplinary Committee banned a member of the management board of Fenerbahge Spor Kulubu from any activities related to football for three years and the vice president and the coach for one year.

B.
B.a.
On June 4, 2012, UEFA received the report of the TFF Ethics Committee of April 26, 2012. In a letter of June 7, 2012, the Secretary General of UEFA asked the chairman of the Control and Disciplinary Body to initiate disciplinary proceedings against Fenerbahge Spor Kulubu.

On July 2, 2012, the High Criminal Court in Istanbul held that a criminal organization had been created
under the leadership of B.___________ , the president of Fenerbahge Spor Kulubu and that officials of
Fenerbahge Spor Kulubu had participated in manipulating 13 games of the 2010/2011 season. 48 of the 93 accused were found guilty and among them:
-       B.                    , the president of Fenerbahge Spor Kulubu (two and a half years imprisonment for
building a criminal organization, three years and nine months and a fine of TRY 1'312'500 for match-fixing);
-       C.                    , the vice president  of Fenerbahge Spor Kulubu (one year and three months
imprisonment for participating in a criminal organization; one year and 10 months and 14 days for match-fixing);
-       D.                    , a member of the management board of Fenerbahge Spor Kulubu (one year and six
months imprisonment for participating in a criminal organization; one year and 25 [sic] months and 15 days and a fine of TRY 900'000 for match-fixing);
-       E.                    , a member of the management board of Fenerbahge Spor Kulubu (one year and six
months imprisonment for participating in a criminal organization; one year, one month and 15 days and a fine of TRY 135'000 for match-fixing);
-       F.                    , the coach of Fenerbahge Spor Kulubu (one year and three months imprisonment for
participating in a criminal organization; 11 months and seven days and a fine of TRY 15'626 for match-fixing);
-       G.                    , the finance director of Fenerbahge Spor Kulubu (one year and three months
imprisonment for participating in a criminal organization; one year and three months and a fine of TRY 49'980 for match-fixing).

On May 31, 2013, the UEFA Disciplinary Inspector submitted his report concerning the previous disciplinary proceedings. On June 20, 2013, Fenerbahge Spor Kulubu stated its position in this respect.

In a decision of June 22, 2013, the Control and Disciplinary Body of UEFA excluded Fenerbahge Spor Kulubu from the next three UEFA competitions for which the club could qualify, with the third year of the ban suspended for probation.

B.b.
In a decision of June 10, 2013, the UEFA Appeals Body overturned the decision of the Control and Disciplinary Body of June 20, 2013, in part pursuant to an appeal by Fenerbahge Spor Kulubu and limited the ban to just the next two UEFA competitions.

B.c.
In a submission of July 16, 2013, Fenerbahge Spor Kulubu appealed the decision of the UEFA Appeals Body of June 10, 2013, to the CAS and applied for a stay of enforcement. UEFA did not oppose a stay of enforcement.

On July 18, 2013, Fenerbahge Spor Kulubu advised the CAS that the parties had reached an agreement about the timing of the proceedings, among others.

Also on July 18, 2013, the CAS confirmed the stay of enforcement, in view of the agreement of the parties. Moreover, it took notice of the agreement of the parties to an accelerated procedure pursuant to which the reasons in support of the appeal were to be submitted by July 26, 2013, and the answer to the appeal by August 9, 2013, with the hearing taking place between August 21 and 23, 2013, and a decision issued by August 28, 2013.

On July 26, 2013, Fenerbahge Spor Kulubu submitted its appeal brief, essentially with a submission that the ban issued by the UEFA Appeals Body in its decision of July 10, 2013, should be overturned; and that, in the alternative, the July 10, 2013, decision should be annulled and the matter sent back to the UEFA Appeals Body.
On August 9, 2013, the UEFA submitted its answer to the appeal in which it asked that the appeal be rejected and the decision of the UEFA appeals body confirmed.

On August 21 and 22, 2013, the hearing took place in Lausanne. 20 people designated by the parties were heard all together; Fenerbahge Spor Kulubu waived the deposition of 13 additional witnesses during the hearing.

B.d.
In an arbitral award of August 28, 2013, (the reasons being submitted on April 11, 2014) the CAS rejected the appeal and upheld the decision of the UEFA Appeals Body of July 10, 2013.

C.
In a civil law appeal Fenerbahge Spor Kulubu submits that the Federal Tribunal should annul the CAS arbitral award of August 28, 2013.
The Respondent submits that the appeal should be rejected insofar as the matter is capable of appeal. The CAS submits in its observations that the appeal should be rejected.

The Appellant submitted a reply to the Federal Tribunal on August 5, 2014, and the Respondent a rejoinder on August 26, 2014.

D.
In a decision of July 22, 2014, the Federal Tribunal rejected the Appellant's application for a stay of enforcement.

In a decision of September 1, 2014, the Court rejected the application to reconsider the stay of enforcement previously refused and confirmed the decision of July 22, 2014.


Reasons:

1.
According to Art. 54(1) BGG,[2] the judgment of the Federal Tribunal is issued in an official language,[3] as a rule in the language of the decision under appeal. When the decision was issued in another language, the Federal Tribunal resorts to the official language chosen by the parties. The decision under appeal is in English. As this is not an official language and the parties used German before the Federal Tribunal, the decision of the Federal Tribunal shall be issued in German.
In the field of international arbitration, a civil law appeal is permitted, pursuant to the requirements of Art. 190-192 PILA[4] (SR 291)(Art. 77(1)(a) BGG).
2.1.   The seat of the Arbitral Tribunal is in Lausanne in this case. The Appellant had its seat outside Switzerland at the relevant time (Art. 176(1) PILA). As the parties did not expressly waive Chapter 12 PILA, the provisions of that chapter apply (Art. 176(2) PILA).
2.2.   Only the grievances exhaustively listed in Art. 190(2) PILA are admissible (BGE 134 III 186[5] at 5, p. 187; 128 III 50 at 1a, p. 53; 127 III 279 at 1a p. 282). According to Art. 77(3) BGG, the Federal Tribunal reviews only the grievances that are raised and reasoned in the appeal brief; this corresponds to the duty to provide reasons embodied at Art. 106(2) BGG for the violation of constitutional rights and of cantonal and intercantonal law (BGE 134 III 186[6] at 5, p. 187 with references). Criticism of an appellate nature is not admissible (BGE 134 III 565[7] at 3.1, p. 567; 119 II 380 at 3b, p. 382).
2.3.   The Federal Tribunal bases its decision on the factual findings of the arbitral tribunal (Art. 105(1) BGG). These encompass both the findings as to the essential facts on which the dispute is based and that which concerns the course of the proceedings and the findings as to the circumstances of the case, which include the submission of the parties, their factual allegations, legal arguments, statements in the case and offers of evidence, the contents of a witness statement or of an expert report or the findings during an inspection (BGE 140 III 16 at 1.3.1 with references). The Federal Tribunal may not rectify or supplement the factual findings of the arbitral tribunal even when they are blatantly inaccurate or based on a violation of the law within the meaning of Art. 95 BGG (see Art. 77(2) BGG, which rules out the applicability of Art. 97 BGG and Art. 105(2) BGG). However, the Federal Tribunal may review the factual findings of the award under appeal when some admissible grievances within the meaning of Art. 190(2) PILA are raised against such factual findings or when new evidence is exceptionally taken into account (BGE 138 III 29[8] at 2.2.1, p. 34; 134 III 565[9] at 3.1, p. 567; 133 III 139 at 5, p. 141; each with references). Whoever claims an exception to the rule that the Federal Tribunal is bound by the factual findings of the arbitral tribunal and wishes to rectify or supplement the factual findings on this basis must show, with reference to the record, that the corresponding factual allegations were raised in the arbitral proceedings in accordance with the relevant procedural rules (BGE 115 II 484 at 2a, p. 486; 111 II 471 at 1c, p. 473; each with references).

2.4.  The Appellant disregards that the Federal Tribunal is bound by the factual finding in the award under

appeal, as it submits a detailed statement of facts before its legal arguments, in which it presents the
background of the disputes and of the proceedings from its own point of view and departs in part from the
factual findings of the Arbitral Tribunal in this respect or broadens them without justifying any exception to
the aforesaid rule. Therefore, the corresponding allegations shall not be considered.


The new facts raised are also irrelevant (Art. 99(1) BGG). The Appellant submits that the Turkish Court of Cassation, in the meantime, overturned four judgments against members of the management board and sent them back to the first instance for a new hearing.

2.5.  The appeal must be fully reasoned in the appeal brief within the time limit to appeal (Art. 42(1) BGG). If

there is a second round of briefs, the appellant may not use the reply to supplement or expand the appeal
brief (BGE 132 I 42 at 3.3.4). The reply is only meant for submissions connected with the statements in the
observations of another party to the proceedings (BGE 135 I 19 at 2.2).


Insofar as the appellant goes beyond this in its reply, its submissions may not be taken into account.

3.
The Appellant submits that the CAS violated the principle of equal treatment of the parties (Art. 190(2)(d) PILA).

3.1. It submits that the CAS essentially emphasized speed in adjudicating the appeal despite the extensive materials of the case and decided only six weeks after the appeal was introduced and less than six days after the conclusion of a hearing lasting several days, pursuant to an accelerated procedure, instead of sending the matter back to UEFA. In doing so, the CAS perpetuated the unequal treatment of the parties, finding its origin in the procedure in the UEFA bodies.

From the summer of 2011, the UEFA took almost two years before it finally submitted its report as to the investigation conducted to the Appellant on June 10, 2013, and initiated disciplinary proceedings. Then, it went "thick and fast" until the decision was issued. In the UEFA Control and Disciplinary Body, it was given 10 days to state its position, despite the fact that the report involved and the other records of the case were extensive. The subsequent procedure before the UEFA Appeal Body was nothing but a farce as it lasted only five days from the filing of the appeal to the decision on June 10, 2013, even though the Appeal Body also admitted considerable additional evidence from the Respondent, despite the Appellant's protest.

The Appellant could not obtain comprehensive review and real legal protection in the CAS either; the large dispute was handled and rejected within just six weeks from its appeal; the hearing was limited to two dayswith correspondingly few opportunities for the parties to interrogate witnesses. The Appellant did not willingly consent to accelerated proceedings in the CAS. The reason for the accelerated procedure was that the UEFA admission form had to be signed by a football club wanting to participate in UEFA competitions. The Appellant would not have agreed to accelerated proceedings in the CAS if it had the opportunity to participate in UEFA competitions without signing the corresponding form; the corresponding statement could therefore not be invoked against it. The unequal treatment that took place before the UEFA bodies continued in the arbitral proceedings in the CAS. The Respondent wanted to force a determination of the issue as to who could participate in the 2013/2014 Champions League before the draw. In the end, the Appellant had no other choice but to submit to the Respondent's dictate to preserve the possibility that it may still have been able to participate in this competition. There was no serious interest justifying the accelerated proceedings in the UEFA bodies or in the CAS; The Respondent could have readily conducted an ordinary appeal procedure and also consented to an ordinary course of the arbitral proceedings in the CAS. With its unilateral and unnecessary insistence upon an accelerated procedure in the CAS, the Respondent intended to continue the unequal treatment of the parties and thus the unlawful limitation of procedural rights in the CAS. The CAS could have respected the right to equal treatment only if it had sent the case back to the Respondent as submitted.

3.2.
3.2.1.    Art. 190(2)(d) PILA allows a challenge only on the basis of the mandatory rules of procedure, according to Art. 182(3) PILA. In this respect, the arbitral tribunal must safeguard in particular the right of the parties to be heard. With the exception of the right to a reasoned decision, this corresponds to the constitutional guarantee in Art. 29(2) BV[10] (BGE 130 III 35 at 5, p. 37 f.; 128 III 234 at 4b, p. 243; 127 III 576 at 2c, p. 578 f.). Case law infers from this in particular the right of the parties to state their position as to the facts important to the judgment, to submit their legal arguments, to prove their factual allegations important for the decision with timely and appropriate means submitted in the appropriate format, to participate in the hearings, and to access the record (BGE 130 III 35 at 5, p. 38; 127 III 576 at 2c, p. 578 f.; each with references). Furthermore, the principle of equal treatment demands that the parties be treated equally during the entire arbitral proceedings (BGE 133 III 139 at 6.1, p. 143).
3.2.2.    The party claiming to be harmed by a denial of the right to be heard or any other relevant procedural deficiency according to Art. 190(2) PILA forfeits its right if it does not raise the issue in the arbitral procedure in a timely manner and does not take all the appropriate steps to remedy the deficiency to the extent possible (BGE 130 III 66 at 4.3, p. 75; 126 III 249 at 3c, p. 253 f.; 119 II 386 at 1a, p. 388; each with references). The review of the arbitral award by the Federal Tribunal as to the procedural violations is therefore subsidiary because the parties must have raised the issue before the arbitral tribunal immediately so it may be remedied during the arbitral proceedings. It is incompatible with good faith to raise a procedural violation only in appeal proceedings, even though the opportunity to rectify the alleged violation could have been given to the tribunal during the arbitral proceedings (BGE 119 II 386 at 1a, p. 388). In particular, a party acts against good faith and abuses its right when it keeps the grievance in reserve to usein case of unfavorable development of the case and probable defeat (BGE 136 III 605[11] at 3.2.2, p. 609; 129 III 445 at 3.1, p. 445 at 3.1, p. 449; 126 III 249 at 3c, p. 254).

3.3.
3.3.1.  Insofar as the Appellant raises a procedural violation before the Federal Tribunal because it claims

not have been given sufficient opportunity to interrogate the parties and the witnesses during the two-day
hearing, its argument will not be heard. One does not see that it raised this alleged violation during the
arbitral proceedings; to the contrary, the factual findings in the award under appeal show that on its own
initiative the Appellant reduced the number of witnesses it planned to call from 53 to 35 two days before the
hearing and to 32 a day before, while also waiving 13 additional witnesses during the hearing. The
grievance has thus been forfeited.


In its further argument, the Appellant also does not show that it raised an alleged unequal treatment of the parties by the Arbitral Tribunal during the arbitral proceedings. Contrary to its submissions before the Federal Tribunal, it did not strive to remedy the alleged violation during the arbitral proceedings, in the appeal brief or at the hearing. Instead, in the reasons in support of the appeal, it relied merely on various irregularities in the proceedings of the UEFA bodies and asked the CAS to send the case back to the UEFA Appeals Body for a new assessment should the CAS not follow its main submission that the sanctions should be annulled. Shortly before the conclusion of the hearing, the Appellant stated it had not freely consented to the accelerated procedure, so that the case should be sent back to the bodies of UEFA. The Appellant does not show that it applied to the CAS for more time for additional submissions or evidence or for the repetition or supplementation of certain procedural steps, let alone that he had already complained of unequal treatment in the arbitral proceedings.

Therefore, the Appellant did not undertake all appropriate effort to seek correction of the alleged violations in the arbitral proceedings. Thus, it forfeited the right to argue an alleged unequal treatment within the meaning of Art. 190(2)(d) PILA in the recourse proceedings in the Federal Tribunal. The corresponding argument is not capable of appeal as well.

3.3.2.  In any event, the Appellant does not show how the CAS treated it unequally in the arbitral procedure

(BGE 133 II 139 at 6.1, p. 143). Instead before the Federal Tribunal it essentially criticizes the proceedings
of the UEFA bodies or the Respondent's behavior and does not show how, from the alleged coerced
consent to the accelerated procedure, the CAS should have conducted an ordinary procedure; but it sees
unequal treatment instead in the rejection of its appeal submissions by the Arbitral Tribunal. In so doing, it
does not actually argue that in the arbitral proceedings, either factually and legally, the other party was
granted something procedurally that was refused to the Appellant but instead criticizes, in an impermissible
manner, the contents of the award under appeal.

The Appellant argues that the Arbitral Tribunal violated its right to be heard by applying the law in an unforeseeable manner (Art. 90(2)(d) PILA).
4.1.    According to the case law of the Federal Tribunal, there is no constitutional right for the parties to be heard specifically as to the legal assessment of the facts they introduce. Neither does the right to be heard mean that the parties would have to be heard in advance as to the factual findings important to the case. There is, however, an exception when a court intends to base its decision on a legal consideration that was not relied upon by the parties and the relevance of which they could not have reasonably anticipated (BGE 130 III 35 at 5, p. 39; 126 I 19 at 2c/aa, p. 22 and at d/bb, p. 24; 124 I 49 at 3c, p. 52).
4.2.    The UEFA Appeals Body banned the Appellant from European competitions for two years for fixing a total of eight games and giving false data on the admission form. The CAS waived the sanction concerning false data in the form used and, moreover, found that the Appellant merely attempted to manipulate four games. However, this did not lead to a reduced sentence; the CAS confirmed the two-year ban instead. The Appellant describes this result as an "eye-catching operational glitch' in sentencing, which occurred due to the failure in the previous proceedings to address the analogical inference with the sentencing rules of the World Anti-Doping Code (WADA Code). The CAS failed to give the parties and opportunity to state their views as to this "totally surprising analogy."
4.3.    Contrary to what the Appellant seems to assume, the CAS did not disregard the sentencing criteria of Art. 17 UEFA Disciplinary Regulations (2008 edition) in favor of the WADA Code but rather relied on the former provision instead. Moreover, the Arbitral Tribunal specifically explained why it did not reduce the sanction, although it differed from the federation bodies and found "only" four cases of match-fixing established. In particular, the CAS held on the basis of Art. 17 of the UEFA Disciplinary Regulations that a two-year ban was clearly justified in the case at hand.

The Arbitral Tribunal considered that a sanction at the higher end of the range was appropriate in view of its own case law, according to which bans of between one and eight years have been imposed for match-fixing and also in view of the gravity of the case in comparison with match-fixing previously adjudicated. Yet it remained with a two-year ban in view of the principle of ultra petita - the Respondent had waived an appeal. Contrary to the view adopted in the appeal brief, the CAS reference to the fact that comparable sanctions are imposed in doping cases, which would basically justify a two-year ban, which could be higher in particularly serious cases and reduced in the presence of mitigating circumstances, was not at all "the paramount consideration for setting the sanction." Under the circumstances, the CAS was not obliged to give the Appellant the opportunity to state its views as to the sentencing rules of the WADA Code.

There has not been an application of the law by surprise, which would violate the right to be heard.
The Appellant argues that, in violation of the right to be heard, the CAS did not examine several of its submissions important to the decision.

5.1. The right to be heard in contradictory proceedings according to Art. 182(3) and Art. 190(2)(d) PILA does not encompass the right to reasons in an international arbitral award, according to well-established case law (BGE 134 III 186[12] at 6.1 with references). However, there is a duty of the arbitrators to examine and deal with the issues important for the decision. The arbitral tribunal violates this duty when, due to oversight or misunderstanding, some legally relevant submissions, arguments, evidence, or evidentiary submissions of a party are not considered. This does not mean, however, that the arbitral tribunal must address each submission of the parties explicitly (BGE 133 III 235 at 5.2 with references).

5.2.
5.2.1.    The Appellant argues initially that, in assessing the powers of UEFA to impose sanctions for match-fixing, the Arbitral Tribunal completely disregarded some of its submissions. Thus, it submitted that at the time some of the games in dispute took place, it would not at all have recognized Art. 2.06 of the UEFA Champions League Regulations (UCLR) as binding. The Arbitral Tribunal disregarded this, just like its argument that according to the case law of the CAS, the disciplinary regulations of UEFA are to be interpreted objectively according to their wording and context. Its argument that federation regulations - in particular, disciplinary regulations - should be interpreted to the detriment of the user in case of doubt, was not addressed by the CAS at all. Moreover, its submissions as to the interpretation and meaning of the Circular no. 24/2013, introduced at the hearing, were not examined and assessed. According to the Appellant, had the Arbitral Tribunal examined its arguments important to the decision as to the lack of disciplinary power of UEFA, the Appeal would have been upheld.
5.2.2.    The Arbitral Tribunal presents the competence of UEFA to conduct disciplinary proceedings as one of the main issues in the case under appeal. It summarized the Appellant's point of view that the grievances in dispute concerned manipulation of championship games in the 2010/2011 season and therefore could not fall within the disciplinary jurisdiction of UEFA, according to the relevant federation regulations.

The Arbitral Tribunal then thoroughly examined the jurisdiction of UEFA to punish match-fixing. In this respect, it referred expressly to the Appellant's argument that UEFA did not have disciplinary jurisdiction at the time of the alleged behavior, according to the regulations applicable at the time; according to the Appellant, this was only introduced later, which is why the jurisdiction to adopt the sanction could not be based on Art. 50(3) of the UEFA statues, nor on Art. 2.05 or 2.06 UCLR or Art. 5 of the Disciplinary Regulation. The Arbitral Tribunal thoroughly addressed the issue of the legal basis on which the match-fixing in dispute could be sanctioned by UEFA when it interpreted the aforesaid provisions and alsoassessed their application temporally. In this respect, it expressed its particular view as to the interpretation and meaning of Circular no. 24/2013.

Under such circumstances, it cannot be claimed that the Arbitral Tribunal violated its minimal duty to examine the issues important to the decision and to address them (see BGE 133 III 235 at 5.2, p. 248, with references). Considering the thorough reasoning in the award under appeal, it must be assumed that the arguments submitted by the Appellant were at least implicitly rejected. The Arbitral Tribunal did not violate the Appellant's right to be heard when it did not specifically address each and all of its submissions as to the applicability of Art. 2.06 UCLR, as to the allegedly decisive method of interpretation of federation regulations, or as to the interpretation and meaning of Circular no. 24/2013.

5.3.   The Appellant argues furthermore that it submitted in the arbitral proceedings that the sanction

imposed by the Respondent violated the criminal law principle nulla poena sine lege. Yet, the Arbitral
Tribunal did not address this argument at all in the award. Certain headings ("[...] and where the sanctions
imposed on accordance with the legality principle?" or "Is there a sufficient legal basis for the disciplinary
measure?')[13] suggest in and of themselves that the issue was to be materially addressed but this was not
the case.


The argument raised in the appeal brief - without any further development - that the aforesaid headings emerged as "mere changes of labels" is not comprehensible. The Appellant itself does not dispute that in the reasons of the award, the Arbitral Tribunal expressly addressed its argument that the Federation regulations relied upon for the imposition of the sanction do not meet the requirements of the principle of legality. It introduces its remarks as to the principle of legality under the heading "Is there a sufficient legal basis for the disciplinary measure?'[14] and states that Swiss law and the consistent case law of the CAS require a clear and unambiguous legal basis for the sanction. Legal certainty requires that the applicable provision - in the case at hand, Art. 2.06 UCLR - should be sufficiently precise, which the Arbitral Tribunal subsequently reviewed and held as to match-fixing but not as to the charge concerning false data in the admission form.

There is no oversight or misunderstanding on the basis of which the Arbitral Tribunal could be said to have disregarded a legally relevant argument of the Appellant in this respect.

5.4.   No violation of the right to be heard is made out as to the Appellant's argument concerning the

assessment of the disciplinary sanction. The Arbitral Tribunal set forth the corresponding arguments
thoroughly in the award under appeal and examined the level of the sanction in detail. Where the Appellant
describes the reasons of the Arbitral Tribunal as "not comprehensible," it constitutes mere inadmissible
criticism of the award under appeal, without any showing of a violation of the right to be heard.

The Appellant argues that the CAS violated public policy.

6.1. It argues that the award under appeal violates the principle ne bis in idem (prohibition of double jeopardy) which belongs to public policy according to Art. 190(2)(e) PILA, as two sanctions were issued for the same act. The sanction imposed or confirmed by the CAS in the award under appeal violated the aforesaid principle and is accordingly incompatible with public policy.

6.2.
6.2.1.   Procedural public policy is breached where there is the violation of fundamental and generally

recognized procedural principles and where the disregard of such principles contradicts the sense of justice
in an intolerable way, rendering the decision absolutely incompatible with the values and legal order of a
state ruled by law (BGE 140 III 278 at 3.1; 136 III 345[15] at 2.1, p. 347 f.; 132 III 389 at 2.2.1, p. 392; 128 III
191 at 4a, p. 194).


The arbitral tribunal violates public policy when it leaves unheeded in its award the material legal force of an earlier judgment or when it deviates in the final award from the opinion expressed in a preliminary award as to a material preliminary issue (BGE 140 III 278 at 3.1; 136 III 345[16] at 2.1, p. 348; each with references).

The principle of ne bis in idem belongs, in principle, to public policy within the meaning of Art. 190(2)(e) PILA. However, the Federal Tribunal left open the extent to which this principle of criminal law would also have to be taken into account in disciplinary sport law (judgment 4A_386/2010[17] of January 3, 2011, at 9.3.1). The issue needs not be examined in depth in the case at hand, as the CAS itself assumed its applicability and examined the compatibility of the sanction with this principle in detail. The Federal Tribunal limits itself therefore to the review of the specific application of the aforesaid principle by the Arbitral Tribunal (see judgment 4A_386/2010,[18] ibid., at 9.3.1 a.e.).

6.2.2.   In the arbitral proceedings, the Appellant saw a violation of the principle ne bis in idem because it

had already been excluded from the Champion League's 2011/2012 season, pursuant to the decision of
the Turkish Football Federation of August 24, 2011; therefore, it could not be banned a second time fromthe competition by UEFA. The Arbitral Tribunal stated that the ban issued by the Turkish TFF Federation for the 2011/2012 season at the time did not exclude a subsequent ban for further seasons in the framework of disciplinary proceedings. In this respect, it relied upon Article 50(3) of the UEFA Statues (2010 edition) and on Article 2.05 and Article 2.06 UCLR (2011/2012) which read as follows:


Article 50(3) of the UEFA Statues (2010):

The admission to a UEFA competition of a Member Association or club directly or indirectly involved in any activity aimed at arranging or influencing the outcome of a match at national or international level can be refused with immediate effect, without prejudice to any possible disciplinary measures.[19]

Article 2.05 UCLR (2011/2012):

If, on the basis of all the factual circumstances and information available to UEFA, UEFA concludes to its comfortable satisfaction that a club has been directly and/or indirectly involved, since the entry into force of Article 50(3) of the UEFA Statutes, i.e. 27 April 2007, in any activity aimed at arranging or influencing the outcome of a match at national or international level, UEFA will declare such club ineligible to participate in the competition. Such ineligibility is effective only for one football season. When taking its decision, UEFA can rely on, but is not bound by, a decision of a national or international sporting body, arbitral tribunal or state court. UEFA can refrain from declaring a club ineligible to participate in the competition if UEFA is comfortably satisfied that the impact of a decision taken in connection with the same factual circumstances by a national or international sporting body, arbitral tribunal or state court has already had the effect to prevent that club from participating in a UEFA club competition.[20]

Article 2.06 UCLR (2011/2012):

In addition to the administrative measure of declaring a club ineligible, as provided for in paragraph 2.05, the UEFA Organs for the Administration of Justice can, if the circumstances so justify, also take disciplinary measures in accordance with the UEFA Disciplinary Regulations.[21]

The Arbitral Tribunal held that Article 50(3) of the UEFA Statutes in connection with Article 2.05 and 2.06 UCLR anticipates a two-stage procedure: in the first stage, an administrative measure would be issued on the basis of Article 2.05 UCLR, namely a one-year ban from European competitions. In a second stage, a disciplinary measure would be issued which has no maximum duration and could be issued "in addition to the administrative measure." The two types of bans would have to be clearly separated pursuant to the purpose of the aforesaid provisions, insofar as a ban from the competition could be issued immediately at first, before UEFA would review the alleged transgressions in detail. UEFA would have an interest worthy of protection to exclude a club from the competition immediately without first initiating comprehensive disciplinary proceedings against it. According to the CAS, the administrative measure is therefore not thefinal but merely a provisional minimal sanction, which seeks to protect the integrity of the specific competition.

6.2.3. The application of the principle ne bis in idem requires in particular that, in the first proceedings, the court should have had the opportunity to assess the facts in all respects (BGE 135 IV 6 at 3.3; 119 Ib 311 at 3c, with references). There is no apparent reason why this should apply when, in the first proceedings, the Turkish Football Federation merely issued an administrative measure to protect the integrity of the competition for a limited time in provisional proceedings and not in the context of a comprehensive disciplinary procedure to assess the alleged violations in a definitive way. As the Federal Tribunal held in a previous case concerning the jurisdiction of sports arbitration, the application of the prohibition of double jeopardy requires in particular that the legal values protected should be identical; moreover, the Court pointed out that the prohibition does not exclude that the same proceedings could carry civil, administrative or disciplinary consequences besides the criminal ones (judgment 4A_386/2010[22] of January 3, 2011, at
9.3.2).

However, the Appellant does not address the fact that the different proceedings according to Article 2.05 and Article 2.06 UCLR pursue different goals and protect different legal values. It merely limits itself to a reference to the fact that the Arbitral Tribunal spoke of "sanctions" in both proceedings but in doing so, it does not show that the one-year ban imposed pursuant to Article 2.05 would be a decision having the same objective as the subsequent disciplinary measure imposed pursuant to Article 2.06. In view of the two-stage procedure described, each with a different regulatory purpose, one does not see either to what extent the Turkish TFF Federation already had the opportunity in the first proceedings to assess the facts conclusively from all factual points of view.

There is no violation of the principle ne bis in idem by the CAS. The argument that public policy was violated is therefore unfounded.

7.
The appeal appears unfounded and must be rejected insofar as the matter is capable of appeal. In view of the outcome of the proceedings, the Appellant must pay the costs and compensate the other party (Art. 66(1) and Art. 68(2) BGG).


Therefore the Federal Tribunal Pronounces:


1.
The appeal is rejected insofar as the matter is capable of appeal.
The judicial costs set at CHF 30'000 shall be borne by the Appellant.

3.
The Appellant shall pay to the Respondent an amount of CHF 35'000 for the federal judicial proceedings.

4.
This judgment shall be notified in writing to the parties and to the Court of Arbitration for Sport (CAS).




Lausanne, October 16, 2014


In the name of the First Civil Law Court of the Swiss Federal Tribunal



Presiding Judge:                                                                 Clerk:
Klett (Mrs.)                                                                             Leemann





Translator's Note: Quote as X._GmbH v. Y._Ltd., 4A_577/2013.
The original decision is in German. The full text is available on the website of the Federal Tribunal, www.bger.ch.
[2] Translator's Note: BGG is the German abbreviation for the Federal Statute of June 17, 2005, organizing the Federal
Tribunal, RS 173.110.
[3] Translator's Note: The official languages of Switzerland are German, French, and Italian.
[4] Translator's Note: PILA is the most commonly used English abbreviation for the Federal Statute on International
Private Law of December 18, 1987, RS 291.
[5] Translator's Note: The English translation of this decision is available here:
[6] Translator's Note: The English translation of this decision is available here:
[7] Translator's Note: The English translation of this decision is available here:
[8] Translator's Note: The English translation of this decision is available here:
[9] Translator's Note: The English translation of this decision is available here:
[10]Translator's Note: BV is the German abbreviation for the Swiss Federal Constitution.
[11] Translator's Note: The English translation of this decision is available here:
[12] Translator's Note: The English translation of this decision is available here:
[13] Translator's Note: In English in the original text.
[14] Translator's Note: In English in the original text.
[15] Translator's Note: The English translation of this decision is available here:
[16] Translator's Note: The English translation of this decision is available here:
[17] Translator's Note: The English translation of this decision is available here:
[18] Translator's Note: The English translation of this decision is available here:
[19] Translator's Note: In English in the original text.
[20] Translator's Note: In English in the original text.
[21] Translator's Note: In English in the original text.
[22] Translator's Note: The English translation of this decision is available here:

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