{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
