Παραθέτουμε επιστολή του μέλους του ΙΔΕΑΔ Νίκου Λαγαρία με συνημμένη γνωμοδότησή του περί πολυϊδιοκτησίας, όπως αυτή παρουσιάστηκε κατά την συζήτηση της υποθέσεως πολυϊδιοκτησίας ΠΑΟΚ-Ξάνθης στο CAS
Αγαπητέ κ.
πρόεδρε,
στα πλαίσια του
επιστημονικού διαλόγου που αναπτύσσεται στους κόλπους του ΙΔΕΑΔ σας στέλνω προς
δημοσίευση γνωμοδότηση που συνέταξα κατόπιν αιτήματος της ΠΑΕ ΠΑΟΚ και
υποστήριξα ως πραγματογνώμων (expert
witness) ενώπιον του CAS στις 6/7/2020, κατά τη συζήτηση της υπόθεσης
της φερόμενης πολυϊδιοκτησίας ποδοσφαιρικών ανωνύμων εταιρειών.
Η γνωμοδότηση
αφορά:
α) στη
δεσμευτικότητα ή μη της απόφασης της Επιτροπής Επαγγελματικού Αθλητισμού, εν
όψει της αυτονομίας του αθλητικού κινήματος και της διάκρισης των λειτουργιών
και
β) στο έννομο
συμφέρον και την ενεργητική νομιμοποίηση της πειθαρχικά καταγγέλλουσας ΠΑΕ
ΟΛΥΜΠΙΑΚΟΣ, ενώπιον του CAS, με τη
διαδικασία εφέσεων.
Με εκτίμηση,
Νίκος Λαγαρίας, δικηγόρος
OPINION
Nikos Lagarias
Attorney-at-Law in Athens
Omirou 20 str., 106
72
Greece
____________________________________________________
In view of the CAS 2020/A/7019 and CAS 2020/A/7035
cases hearing before the Court of Arbitration for Sport (CAS) of Lausanne and
taking under consideration the decisions 95/2020 of the First Instance
Single-Member Disciplinary Body SUPER LEAGUE 1 Greece, 20/2020 of the HFF Appeal
Committee, and ΔΕφΑθ ΕΑ 86/2020 of the Administrative Court of Appeal of
Athens, the Sports Company “PANTHESSALONIKIOS
ATHLITIKOS OMILOS KONSTANTINOUPOLITON- PAOK” (hereinafter referred to as:
PAOK FC) asked my opinion on the following issues, on June 19, 2020.
QUESTION (Α)
“Olympiacos FC lodged with the Professional Sports
Committee (“PSC”) its complaint dated 4/12/2019 in which it claims that PAOK FC
exercises a dominant influence on XANTHI FC which constitutes a precluded
multi-club ownership pursuant to Greek Sport Act (L. 2725/1999). With such
complaint Olympiacos FC submitted specific non-athletic requests such as, among
others, for PSC to take actions in order to review any relations between
commercial companies, as well as to enforce the sanctions provided for by Law 
against the natural and legal
persons, etc., involved. On the basis of such complaint PSC adopted a report
and based on the Greek Sport Act it brought a disciplinary procedure before the
Disciplinary Bodies of Greek professional football. PAOK FC had requested the HFF Appeal Committee to
exercise its full jurisdiction, i.e. to review the case on a de novo
basis, and to judge that
it had not committed any infringement of the multiple-ownership prohibition. In
its appeal, PAOK FC also complained about the due process violation throughout
the whole procedure. The HFF Appeal Committee did not exercise its full
jurisdiction even though it had the power and the
opportunity to assess the facts in all respects. Olympiacos
FC had requested the expulsion of PAOK FC from the 2019-2020 SL1 championship.
Following these proceedings, the no. 20/2020 decision of the HFF Appeal
Committee was adopted, enforcing on PAOK FC the sporting sanctions (i.e. reduction
of points from the current championship) provided in the Greek Sport Act (L.
2725/1999) rather than in the HFF and federal football regulations. All
internal legal remedies provided for in the HFF rules have been exhausted.
Olympiacos FC has already appealed against the above decision to the CAS. With its
Appeal Brief on this case (CAS
2020/A/7019) Olympiacos FC alleges that (para. 139 of its Appeal Brief): “The
underlying facts regarding PAOK FC and Xanthi FC’s infringements of the
prohibition against multiple ownership were proven to the satisfaction of the
CPS, the public administrative body in Greece tasked with the investigation of
such matters. Given the binding nature and presumption of legality that this
administrative act carries, the ensuing disciplinary procedure accepted the CPS
Decision’s conclusions without further evaluation. In view of this, and because
this particular matter was not within the scope of the Appealed Decision, it
falls outside the scope of review of the Panel in this case. The object of the
Appealed Decision, and thus the only matters before the Panel for review, are
whether the correct source of law was used to apply the relevant sanctions, and
if so, whether the applied sanctions were insufficient”.
1) In your opinion, is the PSC report
binding – in terms of its substantive assumptions and legal qualification of
the facts – in the hearing before CAS, in view of the autonomy of sport? 2) In
your opinion, it is legitimate – in terms of Sports Law – such cross-operation
of powers and proceedings between the Professional Sports Committee and the
Judicial/Disciplinary Bodies of Greek professional football on the issue of
multi-club ownership, as well as the enforcement of the disciplinary sanctions
provided for in Law rather than in the HFF and federal football regulations, in
view of the autonomy of sport”?
ANSWER (Α)
Preamble
There is no reason to consider arbitration as a
renunciation of the main safeguards accompanying the State adjudication, i.e.
independence and impartiality (“Arbitration
under the Fair Trial Safeguards of Art. 6 §1 ECHR”, Kyriakos P. Papanikolaou, Democritus
University of Thrace, Law School).
Judges must be independent from other State organs;
this is crucial in any democracy. As the European Court of Human Rights itself
has stated, “the notion of separation between the executive and the judiciary powers
has assumed a growing importance in the case-law of the Court” (see Stafford v.
the United Kingdom [GC], no. 46295/99, § 78, ECHR 2002-IV).
Intervention of the executive in ongoing
judicial proceedings may reveal a lack of respect for judicial office and
undermine the guarantees of a fair trial under Article 6 of the European
Convention on Human Rights. What is at stake here is the confidence which the
courts in a democratic society must inspire in the public (ECHR Judicial
Seminar 2018, The Authority of the Judiciary, Background Document).
Article 15 of the FIFA Statutes (“Member association’s
statutes”) state that “Member associations’ statutes must comply with the
principles of good governance and shall in particular contain, at a minimum,
provisions relating to the following issues: ... d) to ensure that judicial bodies are independent (separation of powers);…”.
1. The Greek
Constitution (para. 9 of art. 16) provides that sport shall fall under the protection
and supervision of the State.
2. Article
5 of the Fundamental Principles of Olympism (IOC, Olympic Charter in force as
from June 26th 2019) states that:
“Recognising that sport occurs within the framework of
society, sports organizations within the Olympic Movement shall apply political
neutrality. They have the rights and obligations of autonomy, which include
freely establishing and controlling the rules of sport, determining the
structure and governance of their organisations, enjoying the right of
elections free from any outside influence and the responsibility for ensuring
that principles of good governance be applied”.
3. The
recognition of autonomy of sport came in a resolution adopted by consensus at the 69th regular session of the UN
General Assembly (UNGA) in New York. The document states that the General
Assembly “supports the independence and autonomy of sport as well as the
mission of the IOC in leading the Olympic Movement”.
4. FIFA and UEFA Statutes
state that member associations shall manage their affairs independently and
with no undue influence from third parties (para. 2 of article 19 of the FIFA
Statutes and para. 2 of article 7bis of the UEFA Statutes). Thus any intervention by public authorities in
internal professional football affairs must be confined to what is necessary,
in view of the autonomy of sport.
5. According to its current codified statutes, the
Hellenic Football Federation (HFF) is a private legal entity, a third-class
non-profit association pursuant to Civil Code, which is governed by the rules
of Greek legal order and functions under its statutes, as well as the FIFA and
UEFA rules and regulations.
6. Previously the Article 29 (12) (1), L.3479/2006, which
had instituted the so-called “self-regulation” of HFF, provided that all issues
of HFF function and organization related to sport and its members were independently (self-) regulated by the Hellenic
Football Association and its bodies, in compliance with its own Statute and
regulations, as well as those laid down by the World and European Football
Federation, even if different regulations were provided for in L.2725/1999, as currently in force,
and in general sports legislation.
7. This
provision was repealed by Article 15 (1), L.4326/2015; while with Article 15
(2) of the same Law, the “new self-government” of HFF was established, as
follows: “Any issues of football and the organization and
operation of the football federation are regulated by the Hellenic Football
Federation (HFF), under its self-government function, in compliance with its
statutes and regulations, which should be harmonized with the Constitution, the
legislation in force, given that HFF manages its affairs independently, without
influence from any third parties, and in compliance with the rules of the World
and European Football Federation, of which the Hellenic Football Federation is
a member”. The
difference between the previous and the current “self-government” lies in the
express establishment of a “legality clause”. Although HFF may be “self-regulated”,
its regulatory texts, on the basis of which it is “self- regulated”, should be
harmonized with the Constitution and current legislation. However, it has been
noted that, at least from a legal point of view, this has always been the case.
HFF is a private legal entity, yet this does not mean that a special “reminder”
is required in its statutes, so as not to infringe the Constitution and the
Greek State Laws.
8. The
Supreme Civil and Criminal Court of Greece [Areios Pagos, ST΄ (6th) Criminal Section, in Council] has
judged on the autonomous way in which sports organizations operate in Greece ,
by its no. 804/2019 decision posted on its website:
http://www.areiospagos.gr/nomologia/apofaseis_DISPLAY.asp?cd=LMK19NLSZXLHWDTCYJPUA60G366ODN&apof=804_2019&info=%D0%CF%C9%CD%C9%CA%C5%D3%20-%20%20%D3%D4
“…Furthermore, the
provision of Article 19 (1) of the same Law 2725/1999 stipulates as follows: “Sports
federation is the highest organization of sports clubs or sports associations
(private legal entity) that cultivates the same sport or branch of sport, aims
at cultivating and developing it throughout the country and operates in
compliance with the provisions of Article 78 et seq. of Civil Code (§1). For each
sport or branch of sport the establishment of only one (1) federation for the
whole country is allowed. The federation represents the sport internationally,
pursuant to the current regulations of the relevant international sports
federation and the International Olympic Committee (IOC) and its seat is
determined in its statutes ...... In addition, Article 27 of the above law also
stipulates: “Without prejudice to Article 104 (2), under general
or special regulations, voted by the general assembly of the members of each
sports federation of the relevant sport or the relevant branch of sport, the
rules governing all issues of the organization and conduct of the sport or
sports under it, as well as any other relevant detail, are stipulated. For the
preparation of the above regulations the current international regulations have been taken
under consideration. Compliance
with these rules is compulsory for sports clubs and sports associations under
the relevant federation. Such regulations and their amendments are subject to
legality verification by the Minister of Culture. One month after being lodged,
such regulations shall be deemed legally adopted. If the legality verification of
a regulation establishes that its provisions should be amended, supplemented or
harmonized, this regulation shall be referred to the relevant federation, the
Board of Directors of which should comply accordingly, within ten days from its
remittance. In case of non-compliance, the Minister may suspend the regular
granting of state subsidies to the federation…”.
9. All sporting
institutions, and in particular all international federations, must abide by the
general principles of law. Due to the transnational nature of sporting
competitions, the effects of the conduct and deeds of international federations
are felt in a sporting community throughout various countries. Therefore, the
substantive and procedural rules to be respected by international federations cannot
be reduced only to its own statutes and regulations and to the laws of the
country where the federation is incorporated or of the country where its
headquarters are. Sports law has developed and consolidated along the
years, particularly through the arbitral settlement of disputes, a set of
unwritten legal principles – a sort of lex mercatoria for sports or, so to
speak, a lex ludica – to which national and international sports federations
must conform, regardless of the presence of such principles within their own
statutes and regulations or within any applicable national law, provided
that they do not conflict with any national «public policy» («ordre public»)
provision applicable to a given case. Certainly, general principles of law
drawn from a comparative or common denominator reading of various domestic
legal systems and, in particular, the prohibition of arbitrary or unreasonable
rules and measures can be deemed to be part of such lex ludica (CAS 98/200 AEK Athens and SK Slavia Prague / UEFA,
award of 20 August 1999 , para. 156).
10. The
awards of CAS are studied and it is argued that five different legal principles
are employed: a lex ludica, good governance, procedural fairness, harmonisation
of standards between international sporting federations and equitable treatment
(Ken Foster, Lex Sportiva and Lex Ludica: the Court Of Arbitration
for Sport’s Jurisprudence).
11. Should
it be accepted that the PSC’s conclusions are “binding without further evaluation
and legal qualification” needed, that would deter PAOK FC from lodging an
appeal in these disciplinary proceedings, which would without a doubt violate PAOK
FC’s fundamental right to exercise legal remedies (CAS 2014/A/3944 Galatasaray
Sportif Sinai A.S. v. UEFA, para 45). Additionally this would lead to the
evidently baseless conclusion that a national administrative act on
professional football matters should be eo
ipso “binding” in terms of its legal qualification of the facts,
domestically and internationally, even before the CAS.
12. Olympiacos
FC alleges indirectly but clearly that the matter is “res judicata” in these disciplinary
proceedings because of the so called “rulings”
of the PSC which is an executive body.
13. An administrative body (such as PSC) does not satisfy
the requirements of Article 6 § 1 of the European Convention for the Protection of Human Rights and Fundamental
Freedoms. Article 6 § 1 in principle requires that a court or
tribunal should have jurisdiction to examine all questions of fact and law
relevant to the dispute before it (Terra
Woningen B.V. v. the Netherlands, § 52; Sigma Radio Television Ltd v. Cyprus, §§ 151-57).
14. Any decision taken by a
UEFA organ (such as the HFF Appeal Committee) may be disputed exclusively
before the CAS in its capacity as an appeals arbitration body, to the exclusion
of any ordinary court or any other court of arbitration.
15. PAOK FC requested the HFF Appeal Committee to exercise
its full jurisdiction, i.e. to review the case on a de novo basis, and declare that it had not committed any infringement of the multi-club
ownership prohibition. In its appeal, PAOK FC also complained about the due
process infringement throughout the whole procedure. The HFF Appeal Committee did not exercise its full
jurisdiction even though it had both the
power and the opportunity to assess the facts in all respects.
16. Olympiacos
alleges that the PSC “decision’s conclusions” were not within the scope of the
Appealed Decision.
17. The factual basis and
conclusions should have been examined and evaluated by the HFF Appeal
Committee, since they actually constituted the basis on which the sanctions
were pronounced. The assumption that they haven’t been examined and evaluated
and that are not “within the scope” of
the Appealed Decision leads to the
evident conclusion that the sanctions are null and void due to the error that
they have been imposed in infringement of the fundamental principle under the
rule of law, “No punishment without guilt”, “Nulla poena sine culpa”.
18. CAS has
full power to resolve disputes involving matters of principle relating to sport
or matters of pecuniary or other interests relating to the practice or the
development of sport and may include, more generally, any activity or matter
related or connected to sport (CAS Procedural Rules, Art. R27).
19. The Panel shall rule on its own jurisdiction. It
shall rule on its jurisdiction irrespective of any legal action already pending
before a State court or another arbitral tribunal relating to the same object
between the same parties, unless substantive grounds require a suspension of
the proceedings (Art. R55).
20. In accordance with Swiss Private International Law,
CAS has the power to decide upon its own jurisdiction. In this regard, article
186 PILA states:
“1.
The arbitral tribunal shall rule on its own jurisdiction.
1bis.
It shall rule on its jurisdiction irrespective of any legal action already
pending before a State court or another arbitral tribunal relating to the same
object between the same parties, unless noteworthy grounds require a suspension
of the proceedings. (CAS 2012/A/2852
S.C.S Fotbal Club CFR 1907 Cluj S.A. & Manuel Ferreira de Sousa Ricardo
& Mario Jorge Quintas Felgueiras v. FRF, award of 28 June 2013, para. 49).
21. Pursuant
to Article R57 of the Code, the Panel has full power to review the facts and
the law. The Panel consequently hears the case de novo and is not limited to considerations of the evidence
that was adduced before the Disciplinary Commission: the Panel can consider all
new evidence produced before it (CAS 2004/A/714 F. v. IOC, award of March 31st
2005, para. 11).
22. Article 20 (2) of the FIFA Statutes states that:
“Every member association shall ensure that its
affiliated clubs can take all decisions on any matters regarding membership
independently of any external body. This obligation applies regardless of an affiliated
club’s corporate structure. In any case, the
member association shall ensure that neither a natural nor a legal person
(including holding companies and subsidiaries) exercises control in any manner whatsoever (in particular through a
majority shareholding, a majority of voting rights, a majority of seats on the
board of directors or any other form of economic dependence or control, etc.) over more than one club whenever the
integrity of any match or competition could be jeopardized”.
23. The British investment company ENIC plc has been a
pioneer in multi-club ownership of European clubs. In season 1997-1998, three
of its football clubs, i.e. Vicenza, AEK Athens and Slavia Prague, reached the
UEFA Cup quarterfinals. This fact, which gave rise to pressing questions about
the integrity of the competition, alarmed the European Football Confederation
and its executive committee then enshrined the milestone-rule against
multi-club ownership, the rule on the integrity of UEFA competitions and independence
of clubs – the so-called “50+1” rule. Its main idea was – and still remains –
that when two or more clubs belong to the same owner and qualify for the same
UEFA competition, only one of them shall be eligible to play in it. Not all the
clubs of the multi-club ownership are expelled from the competition, but rather
only one club is selected and participates in the competition, specifically the
“best club” in terms of sporting merit, to avoid any conflict of interest. ENIC appealed
to CAS, on the argument that the rule adversely affected competition and
infringed the EC Treaty. CAS, in its final decision in summer 1999, ruled that
the participation of two or more clubs under the same owner in the same UEFA
competition creates suitable grounds for conflict of interest. The UEFA rule
against multi-club ownership came into force shortly after, in season
2000-2001. Under later UEFA rules on competitions, such as Article 5 of the
UEFA Champions League regulations, a natural or legal person is presumed to
control two football teams, not only when it is their legal and apparent owner
(“50+1”), but also when it is not apparently their rightful owner but is able to exercise decisive
influence on them in any way.
24. Decisive influence may be mentioned, yet it is not
precisely defined in the rules of football. However, it is not the same as the “significant influence” mentioned
and defined in the licensing regulation. In May 2017, the UEFA Club
Financial Control Body (UFCB) made some significant considerations in its
decision on the Red Bull-Salzburg-Leipsig case. There were suspicions that the
sponsoring company Red Bull exercised decisive influence on both teams, which
would participate in the Champions League. However, UFCB, pointing out – among
others – that decisive influence should concern issues affecting the
performance of a team in a competition rather than only issues of general
commercial, financial or other business activities that do not directly affect
its athletic performance, decided that Red Bull’s decisive influence over the
two teams had not been established and that it was merely a standard
sponsorship relationship.
It should also be
noted that while Leipzig was receiving loans from Red Bull on favorable terms,
Salzburg was renting its stadium and offices from a subsidiary of Red Bull, as
well as that UEFA allowed Salzburg to take specific actions to be partially
released from its sponsor (Red Bull), while the UFCB audit had already begun.
25. In
particular the UEFA CFCB has ruled that (Decision with Grounds in case AC-01/2017, RASENBALLSPORT LEIPZIG GMBH FC
RED BULL SALZBURG GMBH, para 37):
“Ιn this respect,
the aim of Article 5.01 of the UCLR is to “ensure the integrity of the UEFA
club competitions” with regard to “the decision making of the club” and
so the CFCB Adjudicatory Chamber considers that it is necessary to limit the
nature of the decision making under scrutiny to decisions that impact on the integrity of a competition. It is
implicit therefore that such decisions must necessarily relate to matters that affect the performance of a club in a
competition and not simply generic corporate, commercial, financial or other
business activities which do not directly affect sporting performance.
Since Article 5.01 of the UCLR aims to protect the integrity of the UEFA club
competitions (including, applying the ENIC Case, the risk of collusion between
clubs) and not to regulate the
commercial transactions or financing of clubs, the words of the provision must
be interpreted in this context”).
Such matters are stated in detail in the CAS 98/200 AEK Athens and SK Slavia Prague/ UEFA,
award of August 20th 1999: “…39.
Executives might have various ways of affecting or conditioning the performance
of their teams in a given match, or set of matches, without even getting close
to violating laws or sporting regulations and without even speaking to players
or coaches. A first way might be connected with performance-related bonuses,
which are wholly legitimate under any law …
Accordingly, it would be easily possible and perfectly legal for
multi-club executives, by adjusting bonuses, to highly motivate the players of
one team with suitable incentives and not at all (or much less) the players of
the other team…. 40. A second way might
be connected with players’ transfers. Up to a certain point in the football
season (nowadays, very late in the season) it is always possible to obtain new
players or to let players leave. It is quite easy to induce players to move
from one club to another through a wage hike or the opportunity to play in a
winning team. Therefore, at any moment before a match between the commonly
owned clubs, team rosters could easily change because of management and
business needs rather than coaching decisions. One can find in the sporting
press plenty of examples of players given away or hired by club owners and
executives without the prior consent, and sometimes even without the prior
knowledge, of the coaching staff. 41. A
third relevant way of influencing the outcome of a match between commonly owned
clubs might be connected with «insider information». One team could have,
through common executives, access to special knowledge or information about the
other team which could give the first team an unfair advantage. There is a
relevant difference between widely available information (such as tapes of the
other team’s official matches or any news which has appeared in the press) and
confidential information obtained from a person within the opponent club’s
structure (e.g. with regard to
unpublicized injuries, training sessions, planned line-up, match tactics and
any other peculiar situation concerning the other team). 42. Another, more trivial, way of
conditioning team performances could even be connected with the day-to-day
administration of a team in view of a match, particularly of an away match.
There are plenty of choices usually made by club executives e.g. with regard to travel, lodging,
training, medical care and the like which may condition either positively or
negatively the attitude and performance of professional football players…” .
It is worth mentioning
that no similar issues are stated in the Appealed Decision.
26. Article 61 of the HFF Statutes states that the HFF
Judicial Bodies and its members, such as Superleague 1, may only pronounce the
disciplinary sanctions provided for in the HFF statutes and regulations. In
fact, the same provision of the HFF statutes stipulates that if sanctions not
provided for in the HFF statutes and regulations are pronounced, these do not
apply and should not be acknowledged by HFF and its members. Also, Article 24
(8) of the HFF Disciplinary Code states that the Judicial Bodies are independent
and their members are solely bound by the HFF Statute, regulations and
decisions.
The fact that the Judicial Bodies of football should not and cannot enforce any
sanctions provided by Law, except those provided for in the rules of football,
derives from a number of provisions: from Article 2 (3) (b) of the Regulations
of Football Matches (KAP), from Article 24 (7) of the HFF Disciplinary Code,
from Article 3 (1) and Article 4 of the HFF Procedural Regulation for the
Operation of Judicial Bodies. Federal football does not wish any disciplinary
sanctions to be enforced under state Law, but only on the basis of football
regulations. More specifically, Articles 53 and 54 of FIFA Statute state that
the function of the Disciplinary Committee and the Ethics Committee is governed
by the provisions of its Disciplinary Code and the Code of Ethics (“…may pronounce the sanctions described in these
Statutes, the FIFA Code of Ethics and the FIFA Disciplinary Code on …”).
27. On 25/2/2020 the
Hellenic Republic/Greek State and UEFA signed a Declaration of
Intent in which the following are stated: “Without
prejudice to sovereign rights of the State, the HR declares respect to the
self-governance of professional football and the autonomy of football
organisations. At the same time, HR
declares its will to fully enforce rules concerning
Greek professional football through the imposition of proportionate
sanctions when there is a breach of national laws, without prejudice to the competence
of the relevant HFF bodies as far as sporting sanctions are concerned”. This Declaration of Intent was concluded shortly after
the publication of the PSC’s administrative act (Report). This fact undoubtedly
assures that Hellenic Republic recognizes and respects that HFF Statutes and
regulations strictly preclude the implementation of sanctions not provided for
in the HFF and federal football statutes and regulations.
28. On these grounds,
I
am of the opinion that the PSC report is not binding in terms of its substantive assumptions and legal
qualification of the facts in the hearing before the CAS (independence, impartiality,
separation of powers).
I am also of the
opinion that the interference of PSC in the jurisdiction and powers of the
Disciplinary Bodies of Greek football on the issue of multi-club ownership
constitutes -in terms of Sports Law- excessive State interference in the
internal affairs of professional football. The most serious manifestation of such excessive
interference is the alleged “obligation”, by means of Greek Sport Act, of the
Disciplinary Bodies to pronounce sanctions not provided for in the regulations,
while it is well known that the right of associations to enforce sanctions or disciplinary
measures on athletes and clubs is not the exercise of a power delegated by the State,
rather it is the expression of the freedom of associations and federations. I also believe that
excessive State interference is accomplished by defining a different concept of
multi-club ownership in the provisions of the Greek Sport Act. While federal
football uses the catch-all-provisions concept of “decisive influence” as well
as the “50 + 1” (original rule), the Greek Sport Act (art. 69, L. 2725/1999
etc.) introduces a completely different approach to the subject. PSC is a legal
formation introduced in the 00’s. Since then, however, the UEFA Club Licensing
and Financial Fair Play have been established. It is clear that the statutes
and regulations of federal football should not conflict with any national “public
policy” (“ordre public”) provision applicable to a given case. Respectively, however, it is clear, at least for
Sports Law, that where there is no conflict with any national “public policy”,
domestic law should also avoid causing a negative external effect on FIFA
Statutes. Article 20 (2) of FIFA Statutes states that “[i]n any case, the
member association* shall ensure that neither a natural nor a legal
person (including holding companies and subsidiaries) exercises control in any
manner whatsoever (in particular through a majority shareholding, a majority of
voting rights, a majority of seats on the board of directors or any other form
of economic dependence or control, etc.) over more than one club whenever the
integrity of any match or competition could be jeopardized”.
(* and not
a State entity)
I am of the opinion that the
cross-operation of the Professional Sports Committee executive powers with the
HFF’s Disciplinary Bodies jurisdiction on the issue of multi-club ownership, as
well as the enforcement of the disciplinary sanctions provided for in Law
rather than in the HFF and federal football regulations, is not legitimate in
view of the autonomy of sport and the separation of powers [Article 15 (d) of the FIFA Statutes].
QUESTION (Β)
In conjunction with the previous
question and with regard to Appellant’s legitimate interest/standing in lodging
its appeal, the Appellant states in its dated 4/12/2019 complaint before PSC
only that: “(I request) Your Committee (PSC) to decide on the present complaint
which is brought before You legally and due to the legal interest of Olympiacos
FC resulting from our participation with the above FCs in the same professional
championship of Super League 1”.
In the proceedings before the
Disciplinary Bodies of Greek professional football, the Appellant was
acknowledged as a party. The Appellant has neither been sanctioned by the above
decision of the HFF Appeal Committee, nor have any of its rights or interests
in relation to this case been infringed. It is also explicitly stated in its
Appeal Brief that “the factual basis of the case is not within the scope of
this (its) appeal” (para. 8 of its Appeal Brief).
In your opinion, Olympiacos FC has
legitimate interest/ standing to appeal before CAS in this case, taking under
consideration the above facts, the PSC report, the Appealed Decision, the
Appellant’s statement on the factual basis of the case, the CAS Procedural
Rules, the HFF Regulations and subsidiarily the Greek law?
ANSWER (Β)
29. Article R58 of the CAS
Procedural Rules (“Law
Applicable to the merits”) states that: “The Panel shall decide the dispute
according to the applicable regulations and, subsidiarily, to the rules of law
chosen by the parties or, in the absence of such a choice, according to the law
of the country in which the federation, association or sports-related body
which has issued the challenged decision is domiciled or according to the rules
of law the Panel deems appropriate. In the latter case, the Panel shall give
reasons for its decision”.
30. The authority by which a sporting association may set its own rules and
exert its disciplinary powers on its direct or indirect member is in principle
not based on public or penal law, but on civil law [CAS 2015/A/3944 Galatasaray
Sportif Sinai A.S. v. Union des Associations Européennes de Football (UEFA),
para 2]. Under Swiss law the right of associations to impose sanctions or
disciplinary measures on athletes and clubs is not the exercise of a power
delegated by the state, rather it is the expression of the freedom of
associations and federations (cf. CAS 2005/C/976 & 986, no. 125: “The
jurisdiction to impose (…) sanctions is based on the freedom of associations to
regulate their own affairs”)…’ CAS 2008/A/1583 Benfica v. UEFA & FC
Porto CAS 2008/A/1584 Vitória Guimarães v. UEFA & FC Porto, award of 15
July 2008, para. 41).
31. As a general principle the disciplinary proceedings
in a National Federation are primarily meant to protect an essential interest
of the Federation itself, i.e. the full compliance with the decision
rendered by its bodies (CAS 2015/A/3880 FC Steaua Bucuresti v. Gabriel Muresan,
award of 29 July 2015, para. 21). In a recent case was stated that “in an
appeal against a decision of FIFA, by means of which disciplinary sanctions
have been imposed on a party, only FIFA has standing to be sued….in other
words, only FIFA can be the correct Respondent having standing to be sued” (see
CAS 2012/A/3032, par. 43; CAS 2008/A/1620, par. 4.7; CAS 2007/A/1367 par. 43 et
seq.).
32. According to the CAS jurisprudence, the requirement of
legitimate interest is satisfied if it can be stated that the appellant (i) is
sufficiently affected by the appealed decision and (ii) has a tangible
interest, of financial or sporting nature, at stake. As is well known, the
standing to appeal belong to any person putting forward a right of his own in support of his request (in doctrine, for an
exhaustive analysis see DE LA ROCHEFOUCAULD E., “Standing to sue, a
procedural issue before the CAS”, in CAS Bulletin 1/2011, p. 13 et seq.).
33. Third parties may have the standing to
appeal exclusively if they are directly
affected by the measure taken by the association. In this respect,
the right of the appeal of a party must be denied
if it has no tangible or legitimate interest, of financial or sporting nature,
at stake and is not affected by the appealed decision (in this term, CAS
2008/A/1726 par. 66; see also for the completeness of the example of the questions
arisen CAS 2014/A/3665, 3666 & 3667).
34. There is a
category of third party applicants who, in principle, do not have, namely those
deemed “indirectly affected” by a measure. As regards the differentiation of
directly affected parties from indirectly affected parties, CAS jurisprudence
displays a “common thread”, which
has been succinctly put as follows: “Where
the third party is affected because he is a competitor of the addressee of the
measure/decision taken by the association, - unless otherwise provided by the
association’s rules and regulations - the third party does not have a right of
appeal. Effects that ensue only from
competition are only indirect consequences of the association’s
decision/measure. If, however, the association disposes in its measure/
decision not only of the rights of the addressee, but also of those of the
third party, the latter is directly affected with the consequence that the third
party then also has a right of appeal.” [CAS 2008/A/1583 Benfica v.
UEFA & FC Porto & CAS 2008/A/1584 Vitória Guimarães v. UEFA & FC Porto, ¶9.6.1. See also Estelle de La Rochefoucauld, Standing to sue, a procedural issue before the CAS, CAS Bulletin
1/11, p. 17].
35. Τhe Panel may decide the dispute according to the
applicable regulations and, subsidiarily according to the Greek Law. The following excerpt from the no. 772/2014 Decision of
the Supreme Civil and Criminal Court of Greece (Areios Pagos, A1 Civil Section), with reference to a
Plenum decision, which is posted on the website of the Supreme Court, contains
significant legal reasonings which specify the definition of the legitimate interest/ standing to appeal
in the Greek Civil Law, which in this case is applied in the alternative (freedom of associations
and federations):
http://www.areiospagos.gr/nomologia/apofaseis_DISPLAY.asp?cd=AP1S3K30GIEU0YX5MQZU5JS2S0DNIL&apof=772_2014&info=%D0%CF%CB%C9%D4%C9%CA%C5%D3%20-%20%20%C11
“…Pursuant to
Article 68 of Code of Civil Procedure, anyone with a direct legitimate interest
has the right to request judicial protection, while, pursuant to Article 70 of
Code of Civil Procedure, anyone with a legitimate interest in acknowledging the
existence or non-existence of a legal relationship may bring a relevant action. The standing of
the parties (both standing to sue and to be sued) and legitimate interest
constitute distinct procedural conditions of the hearing, their judicial
assistance is ex officio reviewed by the court at each stage of the hearing
with free evidence and their lack implies rejection of the relevant request for
judicial protection as inadmissible. As standing of the parties is considered
the power to hold specific hearings on a specific legal relationship, i.e. for
an actual relationship of a person with another person or object, which is determined
as a rule by the substantive law – with regard to its operators and subject
matter – and which has as a content or legal effect a right or obligation or a
set of rights and obligations. On the contrary, such power is not meant, nor is it
provided, merely for the acknowledgement of facts or for the acknowledgement of
conditions of rights or obligations (Supreme Court Plenum 18/2005). For the
parties’ standing, the palintiff’s claim that he and the defendant are subject
to the “contested legal relationship” and the
citation in the action of the incidents substantiating such claim – failure to
establish of which implies the rejection of the action as substantially
unfounded, would suffice; while the defendant’s repulsion of standing to sue or
judicial assistance of a legitimate interest is a denial, rather than an
objection. Moreover, any material or moral benefit acknowledged
by the law in favor of the person requesting judicial protection, and is in
addition direct and actual (“present”), constitutes a legitimate
interest. Direct legitimate interest exists when the existence
of a legal relationship (invalid legal act, etc.) causes uncertainty concerning
a specific legal relationship between the plaintiff and a third party and a
consequent risk to former’s interests (either direct and imminent or depending
on additional future occurrences) for the prevention of which, the adoption of
a judicial decision is requested, as an appropriate and necessary judicial act…”.
36. Under
Swiss Law the burden of proof related to the existence of a legal interest
worthy of protection lies on the party
that has introduced the appeal. Indeed, the active legitimation is a
question of material law; and it’s
the party’s duty to objectively
demonstrate the existence of its subjective rights and that it possesses a
legal interest for its protection (ATF 126 III 59 consid. 1; 125 III 82
consid. 1a; 123 III 60 consid. 3a).
37. According
to the CAS jurisprudence, in cases which are purely of a disciplinary nature an
Appellant cannot have a claim against one of the parties to the proceedings in
this respect which can establish or justify an intervention or an
appeal. On 9 August
2013, the CAS Court Office informed Bursaspor that the Panel decided to reject
its request for intervention on the basis that, “in the specific
circumstances of this case, [Bursaspor] does not have a legal
interest in the present matter which can establish or justify the
intervention. This case is purely of a disciplinary nature between
the Appellant and UEFA following match-fixing allegations and charges. In fact,
[Bursaspor] does not and cannot have any claim against one of the
parties to the proceedings in this respect (CAS 2013/A/3256 Fenerbahçe Spor Kuliibii
v. UEFA, para. 86). On 9 August 2013, CAS informed Bursaspor
that the Panel decided to reject its request for intervention on the basis
that, in the specific circumstances of the case, it
did not have a legal interest in the present proceedings, as the case is of
a purely disciplinary nature between the Appellant and the Respondent. The
Panel further considered that Bursaspor did not and could not have any claim
against the parties to the present proceedings (CAS 2013/ A/3258 Besiktas
Jimnastik Kuliibii v. UEFA, para.
39).
38. According to the Principle of the Fairness and equitable
treatment, following the initiation of the disciplinary proceedings, the basis
of the disciplinary complaint should not be changed. This is exactly what the
Procedural Regulation of the HFF Judicial Bodies stipulates, which states that
it is unacceptable to change the basis of the disciplinary complaint (Article
15 (2) of the Procedural Regulation) and that the parties’ notes with their
allegations, accompanied by all the evidence available to them, shall be lodged
no later than the day of the hearing (Article 15 (1)).
39. With regard to the
express statement of Olympiacos FC that “the factual
basis of the case is not within the
scope of this (Its) appeal (para. 8 of
its Appeal Brief)”, it should be noted
that the right to appeal and right to be sued are issues linked
to and deriving from the merits of a single case [Arbitration CAS 2014/A/3639 Amar Muralidharan v.
Indian National Anti-Doping Agency (NADA), Indian National Dope Testing
Laboratory, Ministry of Youth Affairs & Sports, award of 8 April 2015, page
1]. The
Principle “tantum devolutum quantum
appellatum” is comprised in the HFF regulations (indicatively, see
Article 34 of the Procedural Regulations for the Operation of HFF Judicial
Bodies entitled “Appeal-Devolutive effect”). It is also a general
Rule of Greek law. Indicatively, Article 522 of the Code of Civil Procedure
states that “[with] the exercise of the appeal the case is transferred to the
appellate court within the limits set by the appeal and the additional
grounds”. Moreover, such Rule reflects a general legal Principle of
international scope. Besides, Article R51 (“Appeal Brief”) of the CAS
Procedural Rules states that “[w]ithin ten days following the expiry of the time
limit for the appeal, the Appellant shall file with the CAS Court Office a
brief stating the facts and legal
arguments giving rise to the appeal,
together with all exhibits and specification of other evidence upon which it
intends to rely”. Therefore the merits of the case constitute the only basis on which a Court can review whether or not there is
legitimate interest/ standing to appeal. And
such basis can and ought to be brought for assessment before the Court only by the Appellant by means of the devolutive effect of its
Appeal.
40. The Appellant lodged its complaint with PSC (executive
power) rather than with a competent professional football disciplinary body (judicial
power) that would have direct jurisdiction on internal affairs of professional
football. Olympiacos FC’s complaint to the
Professional Sports Committee is not
based on a right of its own so as to justify its presence in the CAS in this
case. Its request was addressed to a supervisory collective administrative
body and, through it, to the State Authorities, in order (for PSC) to exercise
its public law powers regarding the integrity of football. Appellant’s
subsequent Intervention/Appeal in “professional football disciplinary
jurisdiction”, even if it is considered to be a claim/request, and actually
against one of the parties to the proceedings in this respect –something that cannot happen as this is a
case that has been characterized as purely of a disciplinary nature in Greece
– it cannot be considered a continuation
of its original complaint. And this is mainly because there is now a
different request, i.e. now the State Authorities are no longer required to
exercise their own powers. At the same time, it should be noted that no
preliminary procedure have been held against it (i.e. any request), such as a
call to account, disciplinary action, etc. With its appeal to CAS, the Appellant
seeks to legitimize its presence in a different jurisdiction/proceeding (that
of sports disputes-judicial power) than the one it had initially appealed to
(before the PSC and the State Authorities-executive power). In my opinion, the Appellant is not directly or
indirectly affected by the sanction pronounced by the decision under appeal and
has not convincingly claimed to have any interest of financial or sporting
nature, at stake.
41. On these
grounds, taking under consideration the above
facts, the PSC report, the decision of the HFF Appeal Committee, the statement
of Olympiacos FC in its Appeal Brief (“the factual basis of the case is not within the scope of this appeal”, para. 8 of its Appeal Brief),
the CAS Procedural Rules, the HFF Regulations and subsidiarily the Greek law, I am of the opinion that the Appellant
does not have the required legitimate interest/ standing to appeal before the
CAS against the no. 20/14-4-2020 decision of the HFF Appeal Committee.
Athens, June 22nd 2020
Nikos Lagarias
Attorney-at-Law in Athens
Omirou 20 str., 106 72
Greece
T.: +30 2103622288, email adr.:
nlagarias@gmail.com
