Arbitration
CAS 2020/A/7019 Olympiacos Football Club (Olympiacos) v. Hellenic Football
Federation
(HFF) & Club Panthessalonkeios Athlitikos Omilos Konstantinoupoliton
PAOK
(PAOK)
& “Xanthi” Athletic Group Football Club (Xanthi FC) & CAS
2020/A/7035 PAOK
v. HFF,
award of 14 August 2020 (operative part of 10 July 2020)
Panel: Mr
Manfred Nan (The Netherlands), President; Prof. Luigi Fumagalli (Italy); Prof.
Ulrich
Haas
(Germany)
Football
Sanctions
for multiple ownership
Principle
of legality and nulla poena sine lege certa in
disciplinary
proceedings Scope of review of the CAS
Referral of
the decision
1. The
purpose of disciplinary sanctions is to influence the behaviour of its members,
in
particular
to encourage them not to engage in certain unwanted activity by threatening
to sanction
them. In order to achieve this goal, there must be clarity for all stakeholders
on what
constitutes misconduct. Furthermore, equal treatment of all members is only
possible if
there is legal certainty with respect to the contents of the rule. In order to
protect the
aforementioned interests, criminal law follows the principles of nullum
crimen,
nulla poena sine lege scripta et certa, pursuant to which no sanction may be
imposed
unless there is an express provision describing in sufficient clarity and
specificity,
not only the misconduct but also the applicable sanction. This principle is
applicable
by analogy to disciplinary proceedings, although not the same high criminal
law
standards apply. It suffices that the misconduct covered by the respective rule
and
the
sanction applicable to such misconduct be determinable by interpretation.
2. If a
party has requested in its prayers for relief that no sanction be imposed upon
it, a
CAS panel
can set aside not only the appealed decision of an appeals body confirming
a sanction
imposed by a first instance body, but also the decision of the first instance
body
imposing the sanction. This does not lie outside the scope of competence of the
CAS panel,
as a mere annulment of the appealed decision would indeed leave the first
instance
decision in place.
3. Pursuant
to Article R57 CAS Code, a CAS panel is entitled to annul the appealed
decision
and render a decision on the substance of the case to replace the appealed
decision.
The CAS panel is however also perfectly entitled to annul the appealed
decision
and refer the case back to the lower instance. To do so, no request from any
party is
required, it is a discretion afforded to the CAS panel by Article R57 CAS
Code.
I. PARTIES
1.
Olympiacos Football Club (“Olympiacos”) is a professional football club with
its
registered
office in
Piraeus, Greece. Olympiacos is affiliated to the Hellenic Football Federation.
2.
Panthessaloníkeios Athlitikós Ómilos Konstantinoupolitón (“PAOK”) is a
professional
football
club with its registered office in Thessaloniki, Greece. PAOK is also
affiliated to
the
Hellenic Football Federation.
3. “Xanthi”
Athletic Group Football Club (“Xanthi”) is a professional football club with
its
registered
office in Xanthi, Greece. Xanthi is also affiliated to the Hellenic Football
Federation.
4. The
Hellenic Football Federation (the “HFF”) is the national governing body of
football
in Greece
and has its registered office in Athens, Greece. The HFF is affiliated to the
Union des
Associations Européennes de Football (“UEFA”) and the Fédération
Internationale
de Football Association (“FIFA”).
5.
Olympiacos, PAOK, Xanthi and the HFF are hereinafter jointly referred to as the
“Parties”.
II.
INTRODUCTION
6. The
present appeal arbitration proceedings concern a dispute between the Parties
related
to an
alleged violation by PAOK and Xanthi of the applicable law prohibiting multiple
ownership
of football clubs, for which the Single-Member Disciplinary Body of First
Instance
for Super League 1 (the “League”) of Greece (the “Disciplinary Committee”)
imposed a
seven-point deduction on both PAOK and Xanthi, which decision was
confirmed
by the HFF Appeal Committee (the “Appeals Committee”) on appeal (the
“Appealed Decision”).
7. Both
Olympiacos and PAOK request that the Appealed Decision be set aside.
Olympiacos
requests for harsher sanctions to be imposed on PAOK and Xanthi, and
PAOK
requests that no sanction be imposed on it.
III.
FACTUAL BACKGROUND
8. Below is
a summary of the main relevant facts and allegations based on the Parties’
written
and oral
submissions. Additional facts and allegations may be set out, where relevant,
in
connection
with the legal discussion that follows. Although the Panel has considered all
the
facts,
allegations, legal arguments and evidence submitted by the Parties in the
present
proceedings,
it refers in this award only to the submissions and evidence it considers
necessary
to explain
its reasoning. The English versions of original Greek texts in the present
arbitral
award are
based on translations submitted by the Parties, which have remained
undisputed.
9. The
factual background concerning the alleged violation by PAOK and Xanthi of the
prohibition
on multiple ownership is best described schematically. It consists of multiple
alleged
personal and corporate links and interdependencies. The Panel finds that the
below
figure presented by Olympiacos is representative for the allegations made:
IV.
PROCEDURAL BACKGROUND
A.
Proceedings before the Commission on Professional Sport
10. The
Commission on Professional Sport (the “CPS”) is an administrative body of the
Greek
public administration,
independent from the HFF.
11. On 4
December 2019, Olympiacos lodged a complaint with the CPS, requesting it to
investigate
PAOK and Xanthi in accordance with Article 77A Law 2725/1999 for a
possible
violation of Article 69(9) Law 2725/1999.
12. On 27
January 2020, the CPS issued a decision (the “CPS Decision”) holding that PAOK
and Xanthi
had violated the rules concerning multiple ownership of football clubs, with
the
following operative part:
“1) The
Committee accepts:
(a) By a
majority (4 – 1), that XANTHI F.C. has committed an infringement of
Article 69
par. 3, 12 of Law 2725/1999.
(b) This
infringement is qualified by a majority (3 – 2) as “Gross”.
(c)
Forwards the decision as a “Report” to the competent court for the
imposition
of the prescribed
penalty, in
accordance with article 69 (12) of Law 2725/1999.
(d)
Forwards the decision of the competent Prosecution Authority for
prosecution
in accordance with article 69 (13) of Law 2725/1999.
2) The
Committee accepts:
(a) Unanimously,
that XANTHI F.C. has committed an infringement of Article
77A par. 3,
5, and 6 of Law 2725/1999.
(b)
Revokes, by a majority (3 – 2), the certificate of participation granted,
which is
considered as never have been issued and therefore the revocation
refers to
the time of its issuance, given that the offending conduct of the F.C.
existed at
the time of its issuance, without being known to the CPS.
(c)
Forwards the decision as a “Finding” to the Federation concerned for the
imposition
of the
prescribed
penalty, in accordance with article 69 (12) of Law 2725/1999.
(d)
Unanimously imposes a fine of One Hundred Thousand (100,000) euros on
XANTHI F.C.
(e)
Forwards the decision to the competent Public Prosecutor for the deed of
obtaining a
false certificate.
3) The
Committee accepts:
(a) By a
majority (4 – 1), that XANTHI F.C. and PAOK F.C. violated Article 69
par. 9, 12
of Law 2725/1999.
(b) This
infringement is, by a majority (4 – 1) classified as ‘Gross’.
(c)
Forwards the decision as a ‘Report’ to the competent Court for the imposition
of the
prescribed
penalty, in
accordance with article 69 (12) of Law 2725/1999.
(d)
Forwards the decision as a “Finding” to the Federation concerned for the
imposition
of the
prescribed
penalty, in accordance with article 69 (12) of Law 2725/1999.
(e)
Forwards the decision to the competent Prosecution Authority for the
criminal
proceedings under article 69 (13) of Law 2725/1999; and
(f)
Unanimously imposes a fine of Three Hundred Thousand (300,000) Euros
on each of
the above F.Cs”. (emphasis in original)
B. The
amendment of Law 2725/1999
13. At the
time of the alleged violation, Article 69(12) Law 2725 provided as follows:
“In the
event that any of the provisions of the preceding paragraphs of this article
are
violated because [of] the fault of Sports SA bodies, its team is expelled from
the
championship,
by decision of the relevant judicial body, which is taken after a
report of
the Committee on Professional Sports or after a request by anyone having
legal
interest” (emphasis added by the Panel).
14. On 28
January 2020, the day after the CPS Decision was issued, the Greek Parliament
passed an
amendment to Law 2725/1999 to modify the applicable sanction in case of
violation
of Article 69(9). Pursuant to Article 30 of Law 4659/2020, the new wording
applies
retroactively since 1 July 2019 and provides as follows:
“In case of
violation of any of the provisions of the previous paragraphs of this
article
because of fault of the Sports SA organs, it is imposed on its team, by
decision
of the
relevant judicial body, which acts upon after a report by the Committee on
Professional
Sports or at the request of anyone having legitimate interest, the
penalty of
deducting five (5) to ten (10 points from the current professional
championship
in which it participates, depending on the gravity of the
violation.
In case the violation is found after the end of the season, the above penalty
is imposed
for the next professional championship. The penalty of this paragraph
shall be
imposed regardless of the legal characterization of the violation by the
relevant
disciplinary provisions.
***
Paragraph (12) was replaced as above with Article 30 (1), L.4659/2020,
Government
Gazette issue A 21/3/2/2020. It applies, pursuant to Article 30 (4), on
infringements
established as of July 1st 2019” (emphasis added by the Panel).
15. On 10
February 2020, the grounds of the CPS Decision were communicated to
Olympiacos,
PAOK and Xanthi.
16. As from
this moment, proceedings were commenced before the Greek Council of State, the
Athens
Administrative Court of Appeal and the Disciplinary Committee. These
proceedings
are addressed in turn under separate headings below, but not necessarily in
chronological
order.
C.
Proceedings before the Greek Council of State
17. On 14
February 2020, PAOK submitted an application for annulment with the Greek
Council of
State against the CPS Decision and the decree issued by the Deputy Minister
for Culture
and Sport, by which Mr Farantouris, Professor of Commercial Law, was
appointed
as a full member of the CPS, without allegedly holding the necessary
qualifications.
18. No
evidence was presented before the Panel that a decision was rendered by the
Greek
Council of
State at the time the operative part of the present arbitral award was issued.
D.
Proceedings before the Athens Administrative Court of Appeal
19. Also on
14 February 2020, PAOK submitted an application for annulment of the CPS
Decision
before the Athens Administrative Court of Appeal, as well as a claim for an
interlocutory
injunction.
20. On 10
March 2020, the Athens Administrative Court of Appeal rejected PAOK’s request
For provisional
measures.
21. No
evidence was presented before the Panel that a decision on the main appeal of
PAOK
was
rendered by the Athens Administrative Court of Appeal at the time the operative
part
of the
present arbitral award was issued.
E.
Proceedings before the Disciplinary Committee
22. On 10
February 2020, the CPS forwarded the CPS Decision to the Disciplinary Committee
of the
League as well as to the HFF.
23. On the
same day, 10 February 2020, Olympiacos lodged a complaint with the
Disciplinary
Committee against PAOK and Xanthi based on the CPS Decision,
requesting
that it initiate proceedings against both clubs for violating Article 69(9) of
Law
2725/1999 and impose the sanction of expulsion on both clubs, as provided for
by
Article
69(12) of Law 2725/1999 when the CPS Decision was issued.
24.
Olympiacos and the Greek football club A.E.L. FC (“AEL”) filed interventions in
the
proceedings
instigated against PAOK and Xanthi before the Disciplinary Committee.
25. On 5
March 2020, the Disciplinary Committee issued its decision (the “First Instance
Decision”),
dismissing the interventions of Olympiacos and AEL and sanctioning PAOK
and Xanthi
with a seven-point deduction from the 2019/20 championship, with the
following
operative part:
“IT HEARS
TOGETHER, with the parties present A) those noted on the Report
dated 27-
1-2020 of the [CPS] concerning [Xanthi] and [PAOK], which was
forwarded
to this [Disciplinary Committee] under its document no. 96/10-2-2010
and HFF
document under outgoing protocol no. 30/10-2-2020, on the breach of
the
provisions of article 69 (9) and (12) of Law 2725/1999; B) the additional
intervention
made by [Olympiacos], dated 14-2-2020, in support of item A above
of the CPS
Report from 27-1-2020, which is directed against [Xanthi];
C) the
additional intervention by [Olympiacos] from 14-2-2020 in support of the
Report from
27- 1-2020 by the CPS, noted in item A, which is turned against
[PAOK]; D)
the additional intervention by [AEL] from 14-2-2020, in support of
[Olympiacos],
which is turned against [Xanthi] and [PAOK].
DISMISSES
the above (under items B, C, D) additional interventions.
IMPOSES to
[Xanthi] the penalty of deduction of seven (7) points from the current
professional
championship (Super League 1 Hellas 2019 – 2020).
IMPOSES to
[PAOK] the penalty of deduction of seven (7) points from the current
professional
championship (Super League 1 Hellas 2019 – 2020)”. (emphasis in
original)
F.
Proceedings before the Appeals Committee
26. On 9
March 2020, PAOK and Xanthi filed appeals against the First Instance Decision,
requesting
to be acquitted.
27. On the
same date, 9 March 2020, Olympiacos and AEL filed appeals against the First
Instance
Decision, requesting that PAOK and Xanthi be expelled from the championship,
alternatively
that 10 points be deducted from PAOK and Xanthi in the championship.
28. On 11
March 2020, Olympiacos filed two interventions.
29. On 6
April 2020, the Appeals Committee issued the Appealed Decision, dismissing the
appeals of
PAOK and Xanthi, rejecting Olympiacos’ interventions, accepting
Olympiacos’
and AEL’s appeals from a formal point of view, but rejecting Olympiacos’
and AEL’s
requests insofar as the expulsion or the additional points deduction on PAOK
and Xanthi
was concerned, with the following operative part:
“Judges
with the opposite parties present.
Judges
together with appeal no. 8660/9.3.2020 by [Xanthi], appeal no.
8674/9-3-2020
by [PAOK], appeal no. 8707/9-3-2020 by [Olympiacos], appeal
no.
8648/9-3-2020 by [AEL], intervention no. 9012/11.3.2020 by [Olympiacos],
and
intervention no. 9013/11.3.2020 by [Olympiacos].
Unanimously
rejects the above interventions of
[Olympiacos].
Unanimously accepts the above appeals
in form.
Rejects, by
majority, as essentially unfounded the above appeals of [Xanthi] and
[PAOK].
Unanimously accepts as substantiated the above appeals of [Olympiacos]
and [AEL].
Partially
eliminates [the First Instance Decision] concerning the part for which the
main
interventions that were brought before the [Disciplinary Committee] by
[Olympiacos]
and [AEL] were rejected.
Holds and
judges the above interventions.
Accepts by
majority as partially substantiated the above main interventions of
[Olympiacos]
and
[AEL].
Orders the
forfeiture in favour of the HFF of the fees of the appeals deposited by the
appellants
[Xanthi], [PAOK] as well as the fees of the interventions brought before
the present
Committee by [Olympiacos]. Orders the return of the fees of the appeals
to
[Olympiacos] and [AEL]”.
30. On 14
April 2020, the grounds of the Appealed Decision were notified.
V.
PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT
31. On 28
April 2020, in accordance with Article R47 of the Code of Sports-related
Arbitration
(“CAS
Code”), Olympiacos filed its Statement of Appeal with CAS, challenging the
Appealed
Decision. In its Statement of Appeal, Olympiacos nominated Mr Luigi
Fumagalli,
Professor and Attorney-at-law in Milan, Italy, as arbitrator.
32. On 4
May 2020, in accordance with Article R47 CAS Code, PAOK filed its Statement of
Appeal with
CAS, challenging the Appealed Decision. In its Statement of Appeal, PAOK
nominated
Mr Ulrich Haas, Professor of Law in Zurich, Switzerland, as arbitrator.
33. On 6
May 2020, the CAS Court Office requested the Parties whether they agreed to
consolidate
the proceedings in CAS 2020/A/7019 and CAS 2020/A/7035.
34. On 8,
11 and 12 May 2020 respectively, Xanthi and PAOK objected to the consolidation
of
the two
proceedings and the HFF left it up to the other Parties, or in the absence of
an
agreement,
for the President of the CAS Appeals Arbitration Division to decide upon this
issue. PAOK
also maintained that Olympiacos had no standing to challenge the Appealed
Decision
and requested that this issue be decided in a preliminary decision and that the
decision on
the consolidation of the proceedings be suspended until such preliminary
decision
would be issued.
35. On 13
May 2020, the CAS Court Office informed the Parties that, in the absence of an
agreement
between the Parties, the President of the CAS Appeals Arbitration Division, or
her Deputy,
would decide on the consolidation of the proceedings.
36. On the
same date, 13 May 2020, in accordance with Article R51 CAS Code, PAOK filed its
Appeal
Brief in CAS 2020/A/7035 with the CAS Court Office, which was, however, only
notified
together with the Appeal Brief of Olympiacos in CAS 2020/A/7019 on 2 June
2020.
37. On 15
May 2020, Xanthi informed the CAS Court Office that it agreed that the Panel be
composed of
Mr Fumagalli and Mr Haas.
38. On 18
May 2020, the CAS Court Office informed the Parties that the Deputy President
of
the CAS
Appeals Arbitration Division had decided that the proceedings CAS 2020/A/7019
and CAS
2020/A/7035 were consolidated.
39. On the
same date, 18 May 2020, the HFF informed the CAS Court Office that it agreed
that the Panel be composed of Mr Fumagalli and Mr Haas.
40. On 29
May 2020, in accordance with Article R51 CAS Code, Olympiacos filed its Appeal
Brief in
CAS 2020/A/7019 with the CAS Court Office, which was, however, only notified
on 2 June
2020.
41. On 11
June 2020, the CAS Court Office informed the Parties that pursuant to Article
R54
CAS Code
and on behalf of the Deputy President of the CAS Appeals Arbitration Division,
the Panel
had been constituted as follows:
President:
Mr Manfred Nan, Attorney-at-Law, Arnhem, the
Netherlands
Arbitrators: Mr Ulrich Haas, Professor of Law, Zurich,
Switzerland Mr Luigi Fumagalli, Professor and
Attorney-at-Law, Milan, Italy
42. On 15
June 2020, on behalf of the Panel, the CAS Court Office invited the Parties to
communicate
to the CAS Court Office the ultimate date on which an award would have
to be
rendered for such decision to be implemented in the final league ranking for
relegation
and UEFA club competition purposes. The HFF was also invited to
communicate
whether any points had already been deducted.
43. On 16
June 2020, PAOK informed the CAS Court Office that the League had confirmed
that the
Super League 1 Hellas 2019 – 2020 season was expected to end on 19 July 2020.
44. On 17
June 2020, the HFF informed the CAS Court Office that the arbitral award, at
least
its
operative part, had to be rendered before 19 July 2020 and that the 7-point
deduction
imposed on
PAOK and Xanthi had already been applied.
45. On 18
June 2020, following consultation of the Parties, on behalf of the Panel, the
CAS
Court
Office confirmed that a hearing would be held on 6 July 2020 and that, despite
Olympiacos’
request to this effect, there would be no second round of written
submissions,
but that the Panel would assess whether to allow post-hearing briefs, after the
hearing and
that there would be no bifurcation related to the issue of Olympiacos’
standing to
appeal.
46. On 26
June 2020, in accordance with Article R55 CAS Code, the HFF, PAOK and Xanthi
filed their
respective Answers.
47. On the
same date, 26 June 2020, the CAS Court Office informed the Parties that Mr
Dennis Koolaard, Attorney-at-Law in Arnhem, the Netherlands, had been appointed
as Ad hoc Clerk.
48. On 30
June 2020, the CAS Court Office issued an Order of Procedure, which was duly
signed and
returned by Olympiacos on 2 July 2020 and by PAOK, Xanthi and the HFF on
3 July
2020.
49. On 2
July 2020, upon the request of the Panel, the Parties provided the CAS Court
Office
with a
jointly proposed tentative hearing schedule, which was approved by the Panel. On
behalf of
the Panel, the CAS Court Office also informed the Parties of certain modalities
of
the
proposed expert conferencing. To this effect, the Parties were invited to
provide
questions
to be answered by the experts in the different expert conferencing sessions,
which
Olympiacos, PAOK and Xanthi did. The HFF did not submit any questions.
50. On 3
July 2020, Olympiacos provided the CAS Court Office with a decision of the HFF
Football
Court of Arbitration, which it alleged was relevant because it contained an
interpretation
of the HFF’s highest court regarding the nature of the CPS Decision.
Olympiacos
requested this decision to be admitted on file on the basis of Article R56 CAS
Code, the
exceptional circumstance being that the decision was issued on 2 July 2020 and
could
therefore not have been submitted into evidence before.
51. On 6
July 2020, a hearing was held in Lausanne, Switzerland. At the outset of the
hearing,
all Parties confirmed that they had no objection to the constitution and
composition
of the Panel.
52. In
addition to the Panel, Ms Sophie Roud, CAS Counsel, and Mr Dennis Koolaard, Ad
hoc
Clerk, the
following persons attended the hearing in person:
For
Olympiacos:
1) Mrs
Evangelia Souloukou, General Manager of Olympiacos;
2) Mr
Dimitris Karpetopoulos, Legal Counsel of Olympiacos;
3) Mr
Athanasios Tsironas, Professor of Law and External Consultant of
Olympiacos;
4) Mr Lucas
Ferrer, Counsel;
5) Mrs
Nicole Santiago, Counsel;
6) Mr
Théodore Buchelos,
Interpreter.
For PAOK:
1) Mr
Achilleas Mavromatis, Head of Legal Department of PAOK and Counsel;
2) Dr
Theodoros Katsas, Counsel;
3) Mr Jorge
Ibarrola, Counsel;
4) Ms Monia
Karmas, Counsel;
5) Mr Cian
Derder,
Observer.
For Xanthi:
1) Mr
Konstantinos Zemberis,
Counsel.
For the HFF:
1) Mr Toni
Garcia, Counsel;
2) Mr Juan
Curbelo, Counsel.
53. The
following expert witnesses were heard in an expert conferencing format divided
over five separate sessions as follows:
Issues on
Standing to Appeal:
1) Prof.
Spyridon Vlachopoulos, Professor of Public Law at the School of Law of the
University
of Athens, expert witness called by Olympiacos;
2) Prof.
Evgenia Prevedourou, Professor of Administrative Law at the Law Faculty of
the
Aristoteleion University of Thessaloniki, expert witness called by PAOK (by
video-conference);
3) Mr Nikos
Lagarias, Attorney-at-Law in Athens, expert witness called by PAOK (by
video-conference).
Issues on
HFF jurisdiction:
1) Mr
Panagiotis Perakis, Attorney-at-Law in Athens, expert witness called by
Olympiacos;
2) Mr Nikos
Lagarias, Attorney-at-Law in Athens, expert witness called by PAOK (by
video-conference).
Nature of
the CPS Decision:
1) Mr
Panagiotis Perakis, Attorney-at-Law in Athens, expert witness called by
Olympiacos;
2) Prof.
Panos Lazaratos, Professor of Administrative Law at the Law School of the
University
of Athens, expert witness called by Xanthi (by video-conference);
3) Prof.
Evgenia Prevedourou, Professor of Administrative Law at the Law Faculty of
the Aristoteleion
University of Thessaloniki, expert witness called by PAOK (by
video-conference).
Issues on
applicable law and applicable sanctions:
1) Prof.
Spyridon Vlachopoulos, Professor of Public Law at the School of Law of the
University
of Athens, expert witness called by Olympiacos;
2) Prof.
Panos Lazaratos, Professor of Administrative Law at the Law School of the
University
of Athens, expert witness called by Xanthi (by video-conference);
3) Prof.
Evgenia Prevedourou, Professor of Administrative Law at the Law Faculty of
the
Aristoteleion University of Thessaloniki, expert witness called by PAOK (by
video-conference).
Issues on
commercial law and multi-ownership under Greek law:
1) Mr
Dimitris Tzouganatos, Attorney-at-Law in Athens, expert witness called by
Olympiacos
(by video-conference);
2) Prof.
Nikolaos Rokas, emeritus Professor of Commercial Law at the Law Faculty of
the
Ethnikon and Kapodistriakon University of Athens, expert witness called by
PAOK (by
video-conference);
3) Prof.
Nikolaos Tellis, Professor of Commercial Law at the Law Faculty of the
Aristoteleion
University of Thessaloniki, expert witness called by PAOK (by
video-
conference).
54. The
Panel also heard Mr Dimos Tziortzis, Sole Director of Vialand SA since 22
January
2020 and,
until then, former General Manager of the hotel LeChalet, as a witness called
by PAOK.
Although PAOK had initially indicated that it wanted to hear Mr Michail
Ioannou,
Manager- Administrator of Belterra Holdings Ltd., and Mr Cristos Panopoulos,
owner of
50% of the share capital of Insports P.P.C., which is the majority shareholder
and parent
company of Xanthi, as witnesses, during the hearing Olympiacos indicated not to
have any questions
for the
witnesses, following which PAOK indicated that it did not consider it necessary
to
hear them.
55. All
witnesses and expert witnesses were invited by the President of the Panel to
tell the
truth
subject to the sanction of perjury under Swiss law. The Parties and the Panel
had
full
opportunity to pose their questions to the witness and expert witnesses,
however, due
to the
limited time available and the Parties’ prior agreement on the hearing
schedule, the
Panel
considered it appropriate to abide by and enforce the tentative hearing
schedule
jointly
prepared and agreed by the Parties. Thus, exercising its discretion under
Articles
182 and 184
of the Swiss Private International Law Act (“PILA”), the Panel intervened
and invited
the Parties to speed up their examinations.
56.
Nevertheless, the Parties were given full opportunity to present their cases,
submit their
arguments
in closing statements and to answer the questions posed by the members of the
Panel.
57. Before
the hearing was concluded, all Parties expressly stated that they had no
objection to
the
procedure adopted by the Panel and that their right to be heard had been
respected.
58. On 7
July 2020, further to a request from Olympiacos, the CAS Court Office informed
the
Parties
that the Panel did not consider it necessary that further submissions be filed.
59. On 10
July 2020, the CAS Court Office provided the Parties with the operative part of
the
present
arbitral award and indicated that the reasoned award would be issued in due
course.
60. The
Panel confirms that it carefully heard and took into account in its decision
all of the
submissions,
evidence, and arguments presented by the Parties, even if they have not been
specifically
summarised or referred to in the present arbitral award.
VI.
SUBMISSIONS OF THE PARTIES
A. CAS
2020/A/7019
i.
Olympiacos
61.
Olympiacos provided the following summary of its submissions in its Appeal
Brief:
“The
underlying facts regarding [PAOK] and [Xanthi’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.
Olympiacos has a right to appeal the decision rendered by the HFF Appeals
Committee
because it was already lawfully admitted as a party in that previous
instance.
The HFF Appeals Committee correctly considered that the applicable
HFF
regulations and provisions of Greek law, together with the facts of the
particular
case, afforded Olympiacos the requisite legitimate interest to have
standing to
appeal the decision in question, and the HFF fully recognizes the
right to
appeal the decisions of its Appeal Committee to CAS.
As to the
sanctions being discussed, the Disciplinary Body and HFF Appeals
Committee
were bound to apply the sanctions that were explicitly referenced in
the CPS
Decision as mandatory by law. The emergence of the retroactive
amendment
to Law 2725/1999 constitutes an inadmissible change in circumstance
specifically
for the benefit of only two subjects of that law. It was not adopted in
good faith
or for the public interest and goes against all notions of fairness and
legitimate
expectations of those bound by the laws of the Greek State. Therefore,
the
disciplinary bodies should have disregarded this untimely amendment and
applied the
sanction that was in force at the time the CPS Decision (the legal basis
for the
disciplinary procedure in the first place) was rendered: expulsion from the
championship.
Finally,
in the unlikely event that the Panel considers the point deduction was the
appropriate
sanction under the applicable law, Olympiacos implores the Panel to
consider
that, prior to that untimely amendment of the law, the infringements
PAOK and
[Xanthi] committed were sanction [sic] with the harshest punishment
possible at
the time. This precedent, together with the sheer gravity of the
infringing
act (the intentional creation of a multiple ownership scheme), more
than
justifies the imposition of the harshest sanction that is now possible: a
deduction
of 10 points for each club involved”.
62. On this
basis, Olympiacos submits the following prayers for relief:
“a. Set
aside the HFF Appeals Committee Decision no. 20/2020 insofar as it confirms
the
decision of the Disciplinary Body of First Instance Super League 1 Hellas
imposing a
7-point deduction on the Second and Third Respondent;
b. Apply
article 69 (12) of Law 2725/1999, as it was in force on 27 January 2020,
and order
the expulsion of PAOK FC and XANTHI FC from the Greek Super
League 1;
c.
Subsidiarily, apply article 69 (12) of Law 2725/1999, as amended by article 30
of
Law
4659/2020, and impose a 10-point deduction on PAOK FC and XANTHI FC
on the
points accumulated by each club either:
i. during
the 2019/2020 Greek Super League 1 season, if the final decision in
this matter
is rendered before the end of said season; or
ii. during
the 2020/2021 Greek Super League 1 season, if the final decision in
this matter
is rendered after the end of the 2019/2020 season, and
accounting
for the 7-point deduction already enforced during the 2019/2020
season.
d. Order
the Respondents to pay the costs of these proceedings and a contribution
towards the
Appellant’s
legal
fees”.
ii. PAOK
63. PAOK
provided the following summary of its submissions in its Answer:
“[PAOK]
submits once again, that the Appellant lacks standing to appeal the
[Appealed
Decision] and that, therefore, the appeal filed by [Olympiacos] shall
be
dismissed […].
If
against all odds the Panel finds that [Olympiacos] has standing to appeal in
the
present
matter, it shall dismiss [Olympiacos’] appeal for lack of jurisdiction of the
HFF
judicial bodies to issue the [Appealed Decision] […].
Further,
the Panel shall find that the HFF judicial bodies, assuming they had
jurisdiction
to rule on the dispute, erred in refusing to assess the merits of the
case, as
the rule instituted a duty to fully adjudicate the case. HFF thus committed
a material
denial of justice and the Panel shall rule de novo on the whole dispute,
without any
limitation […].
In that
regard, the Panel has a full power of review and find that [PAOK] does
not
exercise any decisive influence on another football club, namely [Xanthi],
pursuant to
all applicable laws, including FIFA Regulations, UEFA Regulations
and Greek
Law […]. Besides, contrary to what [Olympiacos] alleges, the Panel
shall find
that, should [PAOK] be subject to any possible disciplinary sanction,
the lex
mitior principle shall apply and, accordingly, the Greek law Law
2725/1999
as amended by Law 4659/2020 applies to any possible sanction to be
imposed on
[PAOK]. Finally, [Olympiacos’] requests for the imposition of
harsher
sanctions on [PAOK] are inadmissible […]”.
64. On this
basis, PAOK submits the following prayers for relief:
“I. The
appeal filed by OLYMPIACOS FC on 29 May 2020 against the Hellenic
Football
Federation Appeals Committee Decision n°20/2020 is dismissed.
II.
OLYMPIACOS FC shall bear all the arbitration costs, if any, and shall be
ordered to
reimburse PAOK FC all advances of costs paid by the latter.
III.
OLYMPIACOS FC is ordered to reimburse Panthessaloníkios Athlitikós Ómilos
Konstantinoupolitón
all procedural costs borne by the latter within the Hellenic
Football
Federation proceedings.
IV.
OLYMPIACOS FC shall be ordered to pay Panthessaloníkios Athlitikós Ómilos
Konstantinoupolitón
a contribution towards the legal and other costs incurred in
the framework
of these proceedings”.
iii. Xanthi
65. The
submissions of Xanthi, in essence, may be summarised as follows:
Olympiacos lacks standing to appeal in the present matter and thus, its appeal
needs
to be
dismissed.
The
findings in the CPS Decision are wrong and unsubstantiated. Xanthi has not
infringed
Article 69(9) of Law 2725/1999, as mistakenly concluded in the CPS
Decision.
The HFF
judicial bodies have mistakenly denied to examine the substantive
validity of
the CPS Decision.
Article
30 of Law 4659/2020 and its retroactive application is perfectly legal and in
compliance
with the Greek Constitution and general principles of law.
Olympiacos’ alternative request that 10 points should be deducted from PAOK and
Xanthi in
the current championship is to be dismissed. A higher sanction could only
be imposed
if the sanction is evidently and grossly disproportionate to the gravity of
the infringement,
which is not the case.
66. On this
basis, Xanthi submits the following prayers for relief:
“1. to rule
that the Appellant has no standing to appeal in the present matter and to
dismiss the
Appeal as unfounded;
2. to
condemn the Appellant to the payment in the favour of the Third Respondent
of the
legal expenses incurred;
3. to
establish that any cost of the arbitration procedure shall be borne by
the
Appellant. Subsidiarily, and only in the event that the above is rejected,
the CAS is
respectfully requested:
1. to
dismiss the Appeal of the Appellant in its entirety as totally unfounded;
2. to
condemn the Appellant to the payment in the favour of the Third Respondent
of the
legal expenses incurred;
3. to
establish that any cost of the arbitration procedure shall be borne by the
Appellant”.
iv. The HFF
67. The HFF
provided the following summary of its submissions in its Answer, which
addresses
both the appeal of Olympiacos in CAS 2020/A/7019 as well as the appeal of
PAOK in CAS
2020/A/7035:
“Greek
law applies to the case at hand by virtue of Art. 1(5) of the HFF
Statutes
and the inclusion of Greek sports federations and clubs within the
subjective
and material scope of Law 2725/1999.
The
amendment of Art. 69(12) of Law 2725/1999 binds the HFF judicial bodies.
Both the
Disciplinary Body and the HFF Appeals Committee cannot do anything
other than
comply with the legal framework in force.
The
application of a sanction that had already been repealed would have been a
severe
breach of the Greek legal system. It would have violated the legitimate
expectations
of the accused and the general interest.
According
to Law 2725/1999, the CPS has neither authority to impose sanctions
nor to
determine its scope. The only bodies that have jurisdiction are the HFF
judicial bodies.
In any case, the penalty of deduction of 7 points imposed on
PAOK and
Xanthi FC is not grossly disproportionate. Therefore, the sanction
imposed
should respectfully be confirmed without further assessments according
to well-
established CAS jurisprudence.
As it was
decided by the majority of the HFF Appeals Committee, the CPS
Decision
binds the HFF judicial bodies limiting their powers to the determination
of the
scope of the sanction provided for in Art. 69(12) of Law 2725/1999 as well
as to the imposition
of such a penalty.
According
to long-standing CAS jurisprudence, Panel’s review’s scope is limited
to that
which the HFF Appeals Body had when rendered the Appealed Decision.
Accordingly,
the CPS finding and the establishment of the violation of Art. 69(9) of
Law
2725/1999 cannot be reviewed in the present instance”.
68. On this
basis, the HFF submits the following prayers for relief:
“1. The
appeals lodged by Olympiacos and PAOK against the Hellenic Football
Federation
Appeals
Committee’s
decision of 14 April 2020 are rejected, and the decision confirmed.
2. The
entire costs of the proceedings and a contribution towards the legal fees and
other
expenses of the Hellenic Football Federation are paid by the Appellants”.
69. PAOK
provided the following summary of its submissions in its Appeal Brief:
“The
present dispute is subject to the HFF regulations, including UEFA and
FIFA
regulations which are explicitly incorporated in HFF regulations […];
the HFF
Appeal Committee had neither jurisdiction to apply the laws enacted by
the Greek
legislator, nor any legal basis in the HFF regulations to issue the
Challenged
Decision […];
the First
Instance Body and the HFF Appeal Committee committed a due process
violation
and a denial of justice by failing to consider whether the Appellant had
actually
committed any possible violation and basing their disciplinary sanctions
exclusively
on the findings of a report issued by a public authority (the [CPS]),
unrelated
to HFF […];
ruling de
novo on the merits of this case pursuant to the HFF regulations, the
Appellant
has not
violated
any rule on Clubs’ Multi-Ownership and is not subject to any sanction
[…];
Alternatively, ruling de novo on the merits of this case pursuant to Greek law,
assuming
that it is subsidiarily applicable, the Appellant has not violated any rule
on Clubs’
Multi-Ownership and is not subject to any sanction […]”.
70. On this
basis, PAOK submits the following prayers for relief:
“I. The
decision issued on 14 April 2020 by the Appeal Committee of the Hellenic
Football
Federation is null and void.
Alternatively
to I
II. The
decision issued on 14 April 2020 by the Appeal Committee of the Hellenic
Football
Federation is annulled.
III. No
sanction shall be imposed on Panthessaloníkios Athlitikós Ómilos
Konstantinoupolitón.
In any case
IV. The
Hellenic Football Federation shall bear all the arbitration costs, if any, and
shall be
ordered to reimburse PAOK FC all advances of costs paid by the latter.
V. The
Hellenic Football Federation is ordered to reimburse Panthessaloníkios
Athlitikós
Ómilos Konstantinoupolitón all procedural costs borne by the latter
within the
Hellenic Football Federation proceedings, in an amount of EUR 2000.
VI. The
Hellenic Football Federation shall be ordered to pay Panthessaloníkios
Athlitikós
Ómilos Konstantinoupolitón a contribution towards the legal and other
costs
incurred in the framework of these proceedings”.
ii. The HFF
71. The
summary of the HFF’s submissions with respect to the appeal filed by PAOK in
CAS
2020/A/7035
has been set out above in respect of the proceedings in CAS 2020/A/7019.
Also the
requests for relief are identical.
VII.
JURISDICTION
72. Article
R47 CAS Code provides that:
“An appeal
against the decision of a federation, association or sports-related body
may be
filed with CAS if the statutes or regulations of the said body so provide or if
the parties
have concluded a specific arbitration agreement and if the Appellant has
exhausted
the legal remedies available to it prior to the appeal, in accordance with
the
statutes or regulations of that body”.
73. Article
60(3) HFF Statutes provides as follows:
“The
decisions of the Appeals Committee may be challenged before the Court of
Arbitration
for Sport (CAS) in Lausanne, Switzerland, in accordance with the
specific
provisions of the relevant regulations of the HFF”.
74. Article
5(5) HFF Rules Governing the Procedures before the Judiciary Bodies provides as
follows:
“Decisions
of the Appeals Committee may be challenged before the Court of
Arbitration
for Sport (CAS) in Lausanne, Switzerland, in accordance with what is
specified
in its procedural regulations”.
75. The
Appealed Decision also provides as follows:
“Reference
is made to the fact that an appeal against this decision may be brought
before the
Court of Arbitration for Sport (CAS) in Lausanne, Switzerland (Article 60
(3) of the
Statute / HFF and Article 5 (5) of the Procedural Regulation of Judicial
Bodies /
HFF)”.
76. The
jurisdiction of CAS derives from Article 60(3) of the HFF Statutes (2019
edition) and
Article
5(5) of the HFF Rules Governing the Procedures before the Judiciary Bodies
(2019
edition).
77. The
jurisdiction of CAS is not contested and is further confirmed by the Order of
Procedure
duly signed by all Parties.
78. It
follows that CAS has jurisdiction to adjudicate and decide on the present
dispute.
VIII.
ADMISSIBILITY
79. Article
R49 CAS Code provides as follows:
“In the
absence of a time limit set in the statutes or regulations of the federation,
association
or sports- related body concerned, or in a previous agreement, the
time limit
for appeal shall be twenty-one days from the receipt of the decision
appealed
against”.
80. The HFF
Statutes or regulations do not provide for a specific time limit to lodge an
appeal,
as a
consequence of which the default time limit of 21-days to file an appeal set
forth by
Article R49
CAS Code shall apply.
81. The
Appealed Decision was communicated to Olympiacos and PAOK on 14 April 2020.
82. The
Statement of Appeal of Olympiacos was filed on 28 April 2020 and the Statement
of
Appeal of
PAOK on 4 May 2020.
83.
Accordingly, both appeals were filed within the 21-day time limit to appeal.
The appeals
also
complied with all other requirements of Article R48 CAS Code, including the
payment of
the CAS Court Office fee. The admissibility of the appeals is also not
disputed.
84. It
follows that both appeals are admissible.
IX.
APPLICABLE LAW
85. Article
R58 CAS Code provides the following:
“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”.
86.
Olympiacos submits that the Panel shall decide the present dispute on the basis
of the HFF
regulatory
framework, which also extends to Greek law.
87. PAOK
maintains that the dispute shall be decided pursuant to the HFF regulations and
only
subsidiarily
to Greek law, being the law of the country in which the HFF is domiciled.
88. The HFF
argues that, pursuant to Article R58 CAS Code and Article 1(5) HFF Statutes,
the
HFF
regulations and Greek law apply to these proceedings.
89. Xanthi
maintains that, in accordance with Article R58 CAS Code, the present dispute
shall be
decided primarily according to the various regulations of the HFF and
subsidiarily
by Greek law.
90. Article
1(5) of the HFF Statutes provides as follows:
“[…]
Hellenic Football Federation is a legal entity governed by the rules of the
Greek rule
of law and operating based on the Statutes thereof and the rules and
guidelines
of FIFA and UEFA”.
91. The
Panel finds that, pursuant to Article R58 and Article 1(5) HFF Statutes, the
various
regulations
of the HFF are primarily applicable. Subsidiarily, the present dispute is to be
decided on
the basis of Greek law, given that the HFF is domiciled in Greece.
X. MERITS
92.
Although the Disciplinary Committee is a body of the League and the Appeals
Committee
of the HFF, pursuant to Article 4(1) of the HFF Procedural Rules, both bodies
are HFF
judicial bodies. The Panel will therefore jointly refer to these bodies as
such.
A. The Main
Issues
93. The
main issues to be resolved by the Panel are:
i) Do the
HFF judicial bodies have jurisdiction to sanction football clubs directly
on the
basis of Law 2725/1999?
ii) Should
the CPS Decision have been referred to the HFF prosecutor before referring
it to the
Disciplinary Committee?
iii) Is the
CPS Decision binding on the HFF judicial bodies?
iv) If the
CPS Decision is not binding on the HFF judicial bodies, what are the
consequences
thereof?
i. Do the
HFF judicial bodies have jurisdiction to sanction football clubs on the basis
of Article
69(12) of Law 2725/1999?
a. The
legal framework concerning the prohibition of multiple ownership of football
clubs
94. Article
18(3) HFF Statutes provides the following:
“No natural
or legal person (including holding companies and subsidiaries) may
exercise
control over more than one Club or Group whenever the integrity of any
match or
competition could be jeopardised”.
95. No rule
in the various regulations of the HFF however provides for disciplinary
sanctions
in case of
breach of the afore-mentioned provision, as acknowledged in the Appealed
Decision.
96. It is
not in dispute that, until 2018, Article 30 of the HFF Regulation on Football
Matches
(edition
2018) provided as follows:
“Article 30
Multi-ownership
With a
regulation issued by decision of the HFF Board of Directors all issues
concerning
multi-ownership and multi-participation are regulated.
1. Any
natural person who is a shareholder in another FC is precluded from being
assigned
and taking over the management of a Football Societe Anonyme (FC),
as
specified in the Licensing Regulation. The same preclusion applies to any
private
legal entity in which natural persons – who are shareholders or
members of
another FC – participate as members or shareholders.
2.
Infringers of the above provisions are punished by decision of the competent
judicial
body following their referral by decision of the BoD of the
professional
association:
a) The
assigning FC is punished by relegation to the lower League;
b) The
natural or legal persons who accept – in infringement of the above –
the
aforementioned assignment, undertaking the management of the FC,
are
punished by disqualification or dismissal from any office, capacity or
competence
in the field of professional football, for minimum three (3)
years;
c) The FC
whose President or BoD member participates – and for as long
as he/ she
still participates – in the assignment and undertaking of the
management
of another FC or has the capacity of President or BoD
member of
the legal entity that undertakes the aforementioned
management
by paying in any way an amount of money or proceeding
with the
acquisition of shares or share capital increase – is also punished
with match
forfeiture and a fine from eight thousand (8,000) to forty
thousand
(40,000) euro for each match of the current League;
d) The
President or BoD member of the FC that proceeds with the actions
of
paragraph (c) hereof is punished with disqualification or dismissal
from any
office, capacity or competence in the field of professional
football.
3. For
amateur clubs. With a regulation issued by decision of the HFF Executive
Committee
all issues concerning multi-participation are regulated.
The
participation of the same person in the BoD of more than one different clubs,
belonging
to the same organizer, is precluded. In case of non-compliance with this
preclusion,
any match of the teams is awarded to the opposing team”.
97. The
above-cited provision was however deleted from the 2019 edition of the HFF
Regulation
on Football Matches, in force as from 13 August 2019. This is confirmed by a
decision of
the HFF Executive Committee dated 31 July 2019, confirming, inter alia, the
following:
“It
completely eliminates, following a suggestion of the HFF President, Mr.
Grammenos,
Article 30 of the Regulation of Football Matches”.
98. On the
same day, 31 July 2019, the HFF issued a press release containing, inter alia,
the
following:
“Article 30
on FC Multi-Ownership issues is completely deleted from the HFF
Regulation
of Football Matches, given that the issue comes under the competencies
of the
Professional Sports Committee, while there is a relevant explicit provision
also in law
2725/99”.
99. Article
69(9) of Law 2725/1999 provides the following:
“Any Sports
Company, Sports Company shareholder, Members or managers of a
private
legal entity or company holding the share capital of a Sports Company, as
well as
their spouses and all up to 2nd degree kins of all the above natural persons,
are
precluded – with absolute nullity of the legal act – from acquiring, directly
or
indirectly,
as well as especially through interposed persons, shares or management
rights or
undertake managerial duties of another Sports Company, of the same or
another
sport.
The
precluded indirect acquisition, in the sense of the previous paragraph, is also
considered
the one performed through another legal entity or company, if it is an
associated
company within the meaning of Article 42e (5), Codified Law 2190/1920
or in which
the person subject to the above restrictions either holds more than
twenty
percent (20%) of the share capital or voting rights or participates in its
governing
body or in any way in its management or exercises a dominant influence
on
administration or its operation, regardless of the percentage of share capital
held”.
100.
Article 69(12) of Law 2725/1999 provides as follows:
“In case of
violation of any of the provisions of the previous paragraphs of this
article
because of fault of the Sports SA organs, it is imposed on its team, by
decision
of the
relevant judicial body, which acts upon after a report by the Committee on
Professional
Sports or at the request of anyone having legitimate interest, the
penalty of
deducting five (5) to ten (10 points from the current professional
championship
in which it participates, depending on the gravity of the violation. In
case the
violation is found after the end of the season, the above penalty is imposed
for the
next professional championship. The penalty of this paragraph shall be
imposed
regardless of the legal characterization of the violation by the relevant
disciplinary
provisions”.
b. The
position of PAOK
101. PAOK
maintains, supported by the expert opinion of Mr Nikos Lagarias, that the HFF
Statutes
and regulations do not provide for HFF jurisdiction to issue a disciplinary
sanction in
a case of multiple ownership of football clubs. The HFF rather left the issue
of multiple
ownership to the competence of the national Greek judicial instances, to be
decided
pursuant to Law 2725/1999.
102.
According to PAOK, the press release issued by the HFF on 31 July 2019 is
subject to
interpretation
and the HFF Appeals Body’s interpretation thereof in the Appealed Decision
is wrong.
The press release does not indicate that Law 2725/1999 was to be directly
incorporated
into the HFF regulations. On the contrary, PAOK submits that the matter of
multiple
ownership was withdrawn from the HFF regulatory framework because the issue
came under
the competence of the CPS and Greek national law, which provides for
administrative
and criminal sanctions.
103. PAOK
also maintains that, in any event, if the HFF really had the intention of
incorporating
Law
2725/1999 in its rules through such statement, such vague statement cannot
constitute
a legal act capable of affecting the legal situation of its members. Indeed,
the
HFF did not
proceed with the normal legislative procedure, that is to say by specifically
providing
for the direct incorporation of Articles 69(9) and (12) of Law 2725/1999 into
the
HFF
regulations. For instance, when the HFF decided to incorporate the rule of non-
issuance or
revocation of a club’s certificate by the CPS as foreseen in Article 77A of Law
2725/1999
into its regulations, it adopted an Annex A precisely citing this article and
included it
in its Disciplinary Code.
104. PAOK
further submits that, pursuant to Article 15(2) of Law 4326/2015, Greek public
law
never
applies directly to football matters unless the rules are incorporated in the
HFF
regulations.
Since this did not happen, Articles 69(9) and (12) of Law 2725/1999 are not
applicable
to the present matter.
105. The
disciplinary measures imposed on PAOK were therefore pronounced in violation of
the
principle
of legality and nulla poena sine lege scripta et certa, because the HFF
regulations
do not contain any legal basis to impose disciplinary sanctions for multiple
ownership
of clubs. In any event, any possible ambiguity as to whether or not Law
2725/1999
was incorporated in the HFF regulations shall be interpreted against the HFF.
106.
Finally, PAOK submits that the sanctions have been inadmissibly enforced and
are null and
void,
because they conflict with the rules of FIFA and UEFA on the obligation for
national
federations
to maintain their autonomy and independence and to prevent excessive state
interference.
c. The
position of the HFF
107. The
HFF does not concur with PAOK that the HFF judicial bodies had no power to
impose
sanctions
on the basis of Article 69(12) of Law 2725/1999. The HFF maintains that PAOK
fails to
take into consideration Article 1(5) HFF Statutes, which provision sets forth
that the
HFF is
governed by the rules of the Greek rule of law. The position of the HFF is
supported
by
Olympiacos and the expert opinion of Mr Panagiotis Perakis.
108.
Furthermore, Greek sports federations and football clubs fall within the
subjective and
material
scope of Law 2725/1999, which sets out a certain number of rights and
obligations
to both
types of entities. Articles 69(12) and 77A(2) of Law 2725/1999 provide the
powers
and
establish the obligation on judicial bodies of sports federations in Greece to
impose on
the accused
the statutory sanction for violations identified by the CPS.
d. The
findings of the Panel
109. The
Panel finds that as a legal entity domiciled in Greece, PAOK is subject not
only to the
various
rules and regulations of the HFF, but also to Greek law. Indeed, PAOK, like any
football
club in Greece, is subject to both.
110. The
wording of Article 69(12) of Law 2725/1999 is clear in that it grants the power
to the
judicial
bodies of sports federations to impose sanctions on its members if a violation
of
Article 69
is considered to be committed. The range of sanctions that can potentially be
imposed is
also clearly set out in Article 69(12) of Law 2725/1999.
111. The
Panel finds that such provision is in accordance with the principle of legality
and nulla
poena sine
lege scripta et certa. As referred to by PAOK, CAS jurisprudence has
interpreted
the latter concept as follows:
“The
purpose of disciplinary sanctions is to influence the behaviour of its members,
in
particular to encourage them not to engage in certain unwanted activity by
threatening
to sanction them. In order to achieve this goal, there must be clarity for
all
stakeholders on what constitutes misconduct. Furthermore, equal treatment of
all
members is
only possible if there is legal certainty with respect to the contents of the
rule. In
order to protect the aforementioned interests, criminal law follows the
principles
of nullum crimen, nulla poena sine lege scripta et certa, pursuant to which
no sanction
may be imposed unless there is an express provision describing in
sufficient
clarity and specificity, not only the misconduct but also the applicable
sanction.
The Panel finds that this principle is applicable by analogy to disciplinary
proceedings”
(CAS 2017/A/5272, para. 62 of the abstract published on the CAS
website).
112. PAOK
however omitted to cite a subsequent paragraph of such CAS award, which
provides
the following:
“While
acknowledging the applicability of the above criminal principle in general
terms, this
Panel wishes to emphasize that not the same high criminal law standards
with
respect to legal certainty (“Bestimmtheitsgrundsatz”) apply to disciplinary
proceedings.
In the view of the Panel it suffices that the misconduct covered by the
respective
rule and the sanction applicable to such misconduct be determinable by
interpretation”
(CAS 2017/A/5272, para. 64 of the abstract published on the CAS
website).
113. The
Panel observes that it is not in dispute that a violation of the prohibition on
multiple
ownership
of football clubs is contemplated by Law 2725/1999 and that the sanctions set
forth in
Article 69(12) may be applied in such case. The core of PAOK’s argument
appears to
be that the authority of the HFF judicial bodies to sanction a violation of
multiple
ownership
may not
derive directly from such domestic law provision, but that a regulatory link
between the
HFF regulations and such domestic law provision must be established in order to
do so.
114. The
Panel dismisses this argument. Based on Article 69(12) of Law 2725/1999 it was
or
must have
been clear (i.e. predictable) to PAOK that the HFF judicial bodies could
inflict
the
sanctions set forth in this provision on it.
115.
Indeed, Article 69(12) of Law 2725/1999 provides that “[t]he penalty of this
paragraph
shall be
imposed regardless of the legal characterization of the violation by the
relevant
disciplinary
provisions”. Accordingly, notwithstanding any possible federative provision
sanctioning
the prohibition of multiple ownership, the sanction set forth in Article 69(12)
would prevail
over any such association provision, which renders the latter redundant.
116. The
above conclusion is further corroborated by the fact that the prohibition on
multiple
ownership
of football clubs was set out in Article 30 of the HFF Regulation on Football
Matches
(edition 2018). There is no indication on file suggesting that the HFF
Executive
Committee’s
decision dated 31 July 2019 to eliminate such provision from its regulations
had the
purpose of condoning multiple ownership of clubs and no longer making such
offence
sanctionable.
117.
Rather, it appears from 18(3) HFF Statutes that such conduct remained
undesirable. The
Panel finds
that it is clarified by the press release issued by the HFF on 31 July 2019
that
Article 30
of the HFF Regulations on Football Matches (edition 2018) was considered
obsolete
because “there is a relevant explicit provision also in law 2725/99”.
118. The
Panel therefore fully concurs with the reasoning of the HFF Appeals Body in the
Appealed
Decision in this respect:
“[…] The
HFF Regulation of Football Matches drafter’s will, therefore, was to
adopt the
internationally established – in professional football – preclusion of multi-
ownership
in Sports Companies, by directly applying, as evident from the above
Statement
of the HFF Executive Committee, of the relevant provisions of law
2725/1999,
which in fact establish the authority of the relevant judicial body to
enforce the
sanctions enshrined. […]”.
119. The
Panel finds that no other interpretation is reasonably possible than concluding
that
Article
69(12) of Law 2725/1999 is directly applicable and provides the HFF judicial
bodies with
the required authority to sanction football clubs for any potential violation
of
Article 69
of Law 2725/1999.
120.
Finally, the Panel finds that PAOK’s argument that the sanctions must be
declared null and
void,
because the direct application of Law 2725/1999 would result in excessive state
interference
must be dismissed, exactly because the CPS is not permitted to rule on
expulsion
or deduction of points directly, but affords such authority to the judicial
bodies of
the HFF.
121.
Consequently, the HFF judicial bodies have jurisdiction to sanction football
clubs on the
basis of
Article 69(12) of Law 2725/1999.
ii. Should
the CPS Decision have been referred to the HFF prosecutor before
referring
it to the Disciplinary Committee?
122. PAOK
maintains on a subsidiary basis that, even assuming that the HFF judicial
bodies
have a
valid basis to issue sanctions on football clubs in case of a violation of the
prohibition
on multiple ownership, a fundamental breach of procedure was committed,
because,
pursuant to Article 25 HFF Disciplinary Code, the matter should have been
referred to
the HFF Prosecutor instead of being directly prosecuted by the Disciplinary
Committee.
PAOK considers it inconceivable that the same person prosecutes and
judges his
own prosecution.
123.
Article 25 HFF Disciplinary Code provides as follows:
“The [HFF]
operates a body for the disciplinary prosecution of football related
offences.
The prosecutor of disciplinary proceedings is competent to: Prosecute
infringements
of the Statutes or the Regulations of [HFF] and refer the offending
natural or
legal person to the competent committees (of the organising authority of
[HFF], case
accordingly) disciplinary offences not contained in a match sheet that
became
known to him as a result of:
i) a matter
referred to him by the Executive Committee of [HFF] or by the body
appointed
by the Executive Committee of [HFF];
ii) a
matter referred to him by the committees or bodies of the organising
authority
or [HFF], case accordingly;
iii) ex
officio from his own knowledge of facts or statements covered by the Media;
iv)
documented named complaints;
v) a report
by a team or team officials, exclusively for the disciplinary offence of
adverse
judgements and defamation of football authorities and bodies.
The power
to prosecute on the basis of the visual material (i.e. not included in the
Match
Sheet) does not lie with the Disciplinary Committee but solely with the
Prosecutor
of football related offences.
The
prosecution for offences coming to the knowledge of the prosecutor of
football
related offences through one of the aforestated ways, is exercised within
five (5)
days from the day of notification or complaint”.
124. The
Panel finds that, also here, the text of Article 69(12) of Law 2725/1999 is
clear in that
“the
relevant judicial body” acts upon receipt of “a report by the Committee on
Professional
Sports”. There was therefore no requirement that the CPS Decision had to
be filed
with the prosecutor,
prior to
submitting the report with the Disciplinary Committee. In any event, the
issuance of
a CPS Decision is not listed in the categories of offences listed in Article 25
HFF
Disciplinary Code.
125.
Consequently, it was not required that the CPS Decision was first referred to
the HFF
prosecutor
before referring it to the Disciplinary Committee.
iii. Is the
CPS Decision binding on the HFF judicial bodies?
a) Factual
background
126. As
indicated supra, the CPS is a body of the Greek public administration,
independent from
the HFF.
127.
Following a complaint lodged by Olympiacos, the CPS, inter alia, decided that
PAOK and
Xanthi had
violated Article 69(9) of Law 2725/1999.
128. The
relevant part of the operative part of the CPS Decision is reproduced here for
ease of
reference:
“(a) By a
majority (4 – 1), that XANTHI F.C. and PAOK F.C. violated Article 69 par.
9, 12 of
Law 2725/1999.
(b) This
infringement is, by a majority (4 – 1) classified as ‘Gross’.
(c)
Forwards the decision as a ‘Report’ to the competent Court for the imposition
of the
prescribed penalty, in accordance with article 69 (12) of Law 2725/1999.
(d)
Forwards the decision as a “Finding” to the Federation concerned for the
imposition
of the prescribed
penalty, in
accordance with article 69 (12) of Law 2725/1999.
(e)
Forwards the decision to the competent Prosecution Authority for the criminal
proceedings
under article 69 (13) of Law 2725/1999; and
(f)
Unanimously imposes a fine of Three Hundred Thousand (300,000) Euros on
each of the
above F.Cs” (emphasis in original).
129. This
operative part can be divided into three or four separate sections: i) the CPS
Decision is
forwarded as a “Report” to the competent Court for the imposition of the
penalty set
forth in Article 69(12); ii) the CPS Decision is forwarded as a “Finding” to
the
Federation
concerned for the imposition of the penalty set forth in Article 69(12); iii)
the
CPS
Decision is forwarded to the competent Prosecution Authority for the
commencement
of criminal proceedings; and
iv) a fine
of EUR 300,000 is directly imposed.
130. It is
not entirely clear to the Panel what the purpose is of distinguishing between
forwarding
the CPS
Decision to the competent Court as well as to the Federation concerned, i.e.
para. (c)
and (d) of
the operative part, because on both occasions reference is made to Article
69(12)
of Law
2725/1999, which only applies to the relevant judicial bodies of the Federation
concerned.
It may be, as testified by Mr Perakis, that one of the two references was
related to
licensing.
131. Be it
as it may, the CPS Decision has a hybrid nature. On the one hand, the CPS
Decision is certainly a final and binding decision insofar as it imposes an
administrative fine of EUR
300,000 on
PAOK and Xanthi. This also transpires from the fact that the CPS Decision
could be
the object of an appeal before the Athens Administrative Court of Appeal.
132.
However, on the other hand, the CPS is also forwarded to the “competent
Prosecution
Authority”.
It is not in dispute that the public prosecutor can then decide whether or not
to
initiate
criminal proceedings against a club on the basis of the CPS Decision. Thus,
insofar,
the
referral is not of an adjudicatory nature.
133. The
dispute between the Parties centres around the remaining aspect of the CPS
Decision,
i.e. the status of the CPS Decision for the proceedings before the HFF judicial
bodies.
Olympiacos and the HFF submit that the CPS Decision is final and binding on the
HFF
judicial bodies insofar as it establishes the infraction against the prohibition
on
multiple
ownership. According to the HFF and Olympiacos, the power of the HFF judicial
bodies is,
thus, strictly limited to issuing the appropriate sanction provided for by
Article
69(12) of
Law 2725/1999. PAOK and Xanthi, on the contrary, submit that the CPS
Decision is
merely an opinion and not of an adjudicatory nature. According to them, the
HFF
judicial bodies, when deciding whether or not to sanction a club for an alleged
violation
of multiple ownership, adjudicate the matter de novo.
134. Not only
the positions of the Parties differ, but also the positions of the Disciplinary
Committee,
the Appeals Committee and the HFF Football Court of Arbitration for Sport in
the First
Instance Decision, the Appealed Decision and the HFF Football Court of
Arbitration
for Sport decision on the one hand, and the position of the Athens
Administrative
Court of Appeal on the other, are different.
135. The
Disciplinary Committee determined, inter alia, as follows in the First Instance
Decision:
“From all
the foregoing provisions, based on the foregoing findings, but also from
the
grammatical wording of Article 69 (12) of Law 2725/1999, it is clear that the
[CPS] is
the sole competent body to exercise audit over multi-ownership, which it
examines
exclusively and bindingly (67/2015 HFF Appeals Committee decision), as
it is
explicitly stated in the [CPS Decision]. The [CPS] then forwards the relevant
Report to
the relevant judicial body for the imposition of the applicable penalties.
The
judicial body concerned, in the context of which this provision defines its
jurisdiction
but also restricts the regulatory framework of the HFF, as stated above,
can only –
and is obliged (see CtS 1596/2004) – impose the corresponding penalties,
such as
they are set out in Article 69 (12) of Law 2725/1999, without being able to
(re) judge
the substantive or legal merits of the violation found or the legality of the
relevant
[CPS]
report,
since, in addition to the above, the disciplinary body, not being a Court
within the
meaning of Article 26 (3) and Article 87 (1) of the Constitution nor an
Arbitration
Tribunal, derives its jurisdiction solely from Article 69 (12) of Law
2725/1999,
in view of the fact that the Regulation and the Disciplinary Code of the
HFF, as
stated above, do not provide for provisions relating to multi-ownership
issues.
Moreover, the above article does not refer to the re-examination of the
verification
of the infringement. It should be noted that for the present case, in the
reasoning
of the [CPS Decision], the [CPS] expressly states that “this judgement
must be
referred to the relevant judicial body in accordance with Article 69 (12) for
the
imposition of the applicable penalties”. (pg. 82). Consequently, the
allegations
made by the
defendants of the non-binding nature of this [CPS Decision] must be
rejected is
illegitimate”.
136. The
Appeals Committee determined, inter alia, as follows in the Appealed Decision:
“[…] [T]his
Report prepared by a specially established body such as the [CPS] is
not a mere
opinion of the relevant judicial body. Thus, the judicial body is bound by
the Report
prepared by the [CPS] in the context of the broader competencies (review
and
decision) assigned to it by the legislature. Article 69(12) Law 2725/1999 does
not allow
the relevant judicial body to verify the [CPS’s] inclusion of the facts in
the rule
(or in the set of rules) of law precluding the multi ownership in Sports
Companies,
since such a review would conflict with the presumption of legitimacy of
the
administrative act, as in the case of the [CPS] Report. According to this
presumption,
from the entry into force and until it is annulled, revoked or
abolished,
either administratively or legally, the administrative act produces all its
legal
effects against its recipient and any third party as well as against the courts
and
administrative
authorities, regardless of errors of law […]”.
137. In
disciplinary proceedings commenced by Olympiacos against PAOK and Xanthi for
the
alleged
violation of Article 35 of the HFF Regulation on Football Matches by by-passing
the
jurisdiction of the HFF judicial bodies and filing an appeal against the CPS
Decision
with the
Athens Administrative Court of Appeals, the HFF Football Court of Arbitration
for Sport
determined, inter alia, as follows:
“The sole
competence of the [Disciplinary Committee] is to measure/compute the
imposable
sanction for violations already established by the CPS, which cannot be
revised by
it”.
138. The
Athens Administrative Court of Appeals determined, inter alia, as follows:
“Whereas,
with the above provision of Article 69 (12), it is stipulated that the
competent
"judicial" body decides in order to enforce the sanction
enshrined hereby,
i.e., its
legal competency to decide on a specific case is activated in two ways, which
legislator
by no means differentiates as of the scope of competence of the competent
"judicial"
body. One is forwarding a relevant [CPS Decision] and the other is the
(direct)
appeal of any party with a legitimate interest. Both methods constitute types
of
proceedings brought before the present judicial body, in the form of an
"introductory
document". In another words, lodging the [CPS Decision] serves as a "disciplinary
proceeding", while the appeal of any third party with a legitimate
interest,
as a disciplinary report. In view of these facts, it cannot be convincingly
argued that
the "judicial" body, having, of course, full power to decide
based on the facts and the law and eventually establishing
guilt and
sentencing on a case, does not (nevertheless) have the power to decide
based on
the facts of the infringement committed when it decides following the
lodging of
the relevant [CPS Decision]. In view of this and taking into consideration
the nature
of the disciplinary body, as "judicial", but also the use by
the legislator
of the term
"decides", as well as the characterization of the [CPS]
reviewed findings
as
"Report" or "Conclusion", it should be
accepted that [CPS Decision] does not
bind the
'judicial" body as of the facts of the infringement committed,
the
substantiation
of which therefore comes under the competence of the
"judicial" body,
which as a
disciplinary body cannot be deprived of full jurisdiction in terms of
establishing
guilt and sentencing, i.e. it does not mean that the disciplinary
procedure
is separated between two different bodies, one of which is to decide on the
guilt and the
other is to decide only on sentencing. However, due to the fact that the
[CPS] is a
specially established body, composed of persons with special knowledge
and
expertise (Article 77 (4), L.2725/1999), the "judicial" body,
when deviating from
the
conclusions, appraisals and weightings of the [CPS], the report of which is
merely an
opinion, should do so on an explicit, specific and clear justification. In this
light, the
[CPS Decision], which establishes an infringement of the provisions of Law
2725/1999,
can only base enforceability only on the inherent legal consequence that
consists in
the obligation of the judicial body to hear and to adopt a decision on the
alleged
disciplinary infringement (see Council of the State 1596/2004)”.
139. Also
the views of the various experts called upon by the Parties that gave evidence
at the
hearing
were diametrically opposed.
b) The
position of PAOK
140. PAOK
maintains, supported by the expert opinion of Prof. Evgenia Prevedourou, that
pursuant to
Article 69(12) of Law 2725/1999, the “findings” of the CPS Decision only
constitute
a “report” on the basis of which the judicial body, i.e. the Disciplinary
Committee
and the Appeals Committee, must review and verify the substantive elements
of the
case, namely to the constitutive elements of Article 69 and decide, with an
unlimited
scope of review, whether there has been any violation of the applicable rules.
141.
Article 4 of the HFF Procedural Rules prescribes that the adjudicatory bodies
of the HFF
“adjudicate
the above disciplinary infringements”.
142. By
analogy, the HFF Disciplinary Code provides that, when the CPS issues reports
on the
issue of
licensing, then the matter can be brought before the Disciplinary Committee and
the Appeals
Committee, which have full power to review the case on the merits and
revoke or
grant the licence.
143. Mr
Kyriákos Mitsotákis, Prime Minister of Greece, indicated in the Greek
Parliament
that the
CPS Decision was not a formal decision binding the HFF judicial bodies, but
that
it merely
constituted an opinion.
144. The
reasoning of the Appeals Committee in the Appealed Decision is in clear
contradiction
with the
reasoning of the Athens Administrative Court of Appeal. In the absence of a
clear
rule
providing that the relevant judicial body cannot review the merits and facts of
the case,
the merits
should be examined. The HFF judicial bodies cannot rely on the “presumption
of
legitimacy of the administrative act”, because a presumption can by definition
be
rebutted.
145.
According to CAS jurisprudence, relying on Swiss jurisprudence, when a
federation
renders an
arbitrary decision in breach of a statutory provision, this can constitute a
substantive
denial of justice, a violation of due process and a violation of PAOK’s right
to
be heard.
146. PAOK
also argues that the Appealed Decision is contradictory in itself, because the
Appeals Committee
admitted that “the present Committee is not even provisionally
bound by
the decisions of the administrative or civil courts”. It can therefore also not
be
bound by a
report issued by the CPS. It must also be stressed that one of the three
members of
the Appeals Committee issued a dissenting opinion, sharing PAOK’s views.
c) The
position of Xanthi
147. Since
the position of Xanthi largely overlaps with the position of PAOK, for the sake
of
brevity,
this section is limited to arguments raised by Xanthi that have not already
been set
out in the
section above concerning PAOK’s position.
148. Also
Xanthi submits, supported by the expert opinion of Prof. Panos Lazaratos, that
the
rulings of
the Disciplinary Committee and the Appeals Committee are wrong and fail to
address the
matter correctly. The First Instance Decision and the Appealed Decision
deprived
PAOK and Xanthi of their legal right and of the opportunity to challenge the
CPS
Decision
and its findings. Xanthi however acknowledges that it did not file an appeal
against the
Appealed Decision and that it shall therefore, in principle, limit itself to
refuting
the appeal filed by Olympiacos.
149. Xanthi
submits that it would be irrational to hold that the CPS Decision is binding,
while
appeals can
be filed against a decision of the Disciplinary Committee with the Appeals
Committee
and subsequently CAS. The more instances and legal measures exist, the more
clear it is
that the CPS Decision is only a simple opinion.
150.
Pursuant to Article 69(12) of Law 2725/1999, the Disciplinary Committee hears
the case
following
either i) a report of the CPS; or ii) an appeal by a party having a legitimate
interest.
Xanthi submits that it is obvious that both ways of initiating the procedure
need
to be
treated in a uniform way from a procedural and substantive point of view and
especially
in relation to the scope of the power of the deciding judicial body. However,
if
the
reasoning of Olympiacos would be followed, it would be bound by the CPS
Decision
in the
first case, while it would enjoy full power to review in the second. This is
confirmed
in the
decision of the Athens Administrative Court of Appeal, the primarily competent
Court to
decide on the matter and to clarify and confirm whether a report of the CPS
issued in
the framework of Article 69(12) is binding on sports judicial bodies. The
Appeals
Committee obviously erred by not taking
into
account the findings of the Athens Administrative Court of Appeals in the
Appealed
Decision.
d) The
position of the HFF
151. The
members of the Disciplinary Committee and the Appeals Committee, who enjoy full
independence
under the HFF regulations, although they were able to get into the merits of
the case,
decided that the determination of the violations of PAOK and Xanthi fell
outside
their scope
of review. The CPS Decision is an enforceable administrative act, which is
referred to
the Disciplinary Committee for the sole purpose of determining the scope of the
statutory
sanction and enforcing it on the parties concerned.
152. The
HFF maintains that there is no provision in Greek law which could suggest that
the
judicial
body of a sports federation, which is a private entity, can re-examine the
findings
or overturn
a decision of a Greek public administrative body such as the CPS.
e) The
position of Olympiacos
153.
Olympiacos submits, supported by the expert opinion of Mr Panagiotis Perakis
and Prof.
Spyridon
Vlachopoulos, that the CPS Decision is to be considered as an enforceable
administrative
act that is in no case subject to review by a private disciplinary body. It is
completely
inadmissible for any private entity or body to re-evaluate the findings of the
CPS
Decision, as it is not conceivable for individuals or private entities to be
able to
revise,
abolish or even refuse to comply with decisions of state bodies of their own
accord.
At most, it
can be subject to a revision on the merits by the CPS itself or annulment
proceedings
before the ordinary administrative courts.
154.
Olympiacos alternatively submits that, if the fact that the CPS Decision is
transmitted to the
Disciplinary
Committee for imposition of sanctions is understood to mean that the CPS
Decision is
not enforceable in and of itself, this administrative act is nonetheless a
binding
proposal
under Greek administrative law. Such proposal is submitted to the adjudicatory
bodies, who
may only do one of two things: i) accept the proposal and comply with its
content; or
ii) abstain from issuing the enforceable act if, and only if the relevant law
provides
for such discretion. However, Olympiacos maintains that it is clear from the
literal
text of the applicable law that the content of the proposal is binding on the
decision-
making
body, which therefore cannot under any circumstances issue a decision that
diverges
from that content. This view is supported by a decision cited in the First
Instance
Decision, decision no. 67/2015 of the Appeals Committee.
155. There
is no specific legislative or sporting provision that recognises any discretion
for the
HFF
judicial bodies. As opposed to the CPS, the inquisitorial powers of the HFF
judicial
bodies are
limited. The CPS is a specialised body that has the ability to engage in
thorough
fact-
finding
efforts with the assistance of the State, if necessary, in order to prosecute
potential
infringements
of the national law pertaining to the prohibition of multi-ownership.
156.
According to Olympiacos, therefore, the determination of the infringements of
Law
2725/1999
by PAOK and Xanthi as established in the CPS Decision is not subject to review
before any
instance and lies outside the scope of the Panel’s power of review.
f) The
findings of the Panel
157. The
first element deemed relevant by the Panel is that Law 2725/1999 does neither
explicitly
set forth that a decision by the CPS is binding on the judicial bodies of a
sports
federation,
nor that it is not binding. The Panel finds that it is therefore subject to
interpretation
whether or not the CPS Decision is binding on the HFF judicial bodies.
158. The
Panel finds that if the CPS Decision were considered to be binding on the HFF
judicial
bodies,
i.e. if the HFF judicial bodies had no choice but to sanction PAOK and Xanthi,
the
CPS might
just as well have decided on the expulsion or point deduction from PAOK and
Xanthi
itself. The referral of the case to the HFF judicial bodies for the latter to
intervene in
this case
would not serve any real purpose.
159.
Rather, it appears that the sporting consequences have been left at the
discretion of the HFF
judicial
bodies. This, however, implies that the HFF judicial bodies indeed must enjoy a
certain
discretion with respect to the handling of the matter.
160.
Although one could argue that the discretion of the HFF judicial bodies
consists of the
freedom to
decide on a point deduction between 5 and 10 points, this does not appear to
have been
the rationale of the system, because the same system was in place already
before
Article 69(12) of Law 2725/1999 was amended. Indeed, before such amendment
the only
possible sanction for a violation of the prohibition on multiple ownership of
clubs
was
expulsion, i.e. there was no discretion for the HFF judicial bodies with
respect to the
severity of
the sanction. Accordingly, the Panel finds that the discretion of the HFF
judicial
bodies would logically have lied in the decision whether or not to accept the
finding of
the CPS and impose a sanction in the first place.
161.
Furthermore, the Panel considers the wording of Article 69(12) of Law 2725/1999
relevant:
“In case of
violation of any of the provisions of the previous paragraphs of this
article
because of fault of the Sports SA organs, it is imposed on its team, by
decision of
the relevant judicial body, which acts upon after a report by the
Committee
on Professional Sports or at the request of anyone having legitimate
interest,
the penalty of deducting five (5) to ten (10 points from the current
professional
championship in which it participates, depending on the gravity of the
violation.
In case the violation is found after the end of the season, the above
penalty is
imposed for the next professional
championship.
The penalty of this paragraph shall be imposed regardless of the
legal
characterization of the violation by the relevant disciplinary provisions”
(emphasis
added by the Panel).
162. The
provision refers to a “decision” of the judicial body, not a mere ratification,
recognition
or
implementation of the CPS Decision. The provision also refers to a “report” of
the CPS,
not a
(final and binding) “decision” of the CPS. The Panel finds that this wording is
not
consistent
with an alleged adjudicatory nature of the CPS Decision.
163. The
Panel finds that it would also be highly unusual to submit a mere ratification
of the
CPS
Decision by the Disciplinary Committee to two further instances of appeal (i.e.
before the
Appeals Committee and subsequently before CAS). If the duty of the
Disciplinary
Committee was merely to rubber-stamp the findings of the CPS one would
have
expected no recourse of appeal at all. Conversely, it does make a lot of sense
to have
appeal
instances if the Disciplinary Committee was to make its own independent
assessment
of the situation on the basis of the CPS Decision.
164.
Another argument in favour of the non-binding nature of the CPS Decision is
that a
potential
violation of the prohibition on multiple ownership of clubs can be instigated
in
two ways,
i.e. by means of a CPS decision, or by means of a direct complaint being filed
with the
HFF judicial bodies. This derives from the wording of Article 69(12) of Law
2725/1999,
determining that “after a report by the Committee on Professional Sports or
at the
request of anyone having legitimate interest” (emphasis added by the Panel).
165. The
Panel adheres with PAOK and Xanthi that it would be rather strange if the HFF
judicial
would not
be allowed to examine the substance of a CPS report, but that they would be
allowed to
make their own independent assessment in case of a direct complaint being filed
by anyone
having a legitimate interest.
166. What
is more, and the Panel considers this to be the most compelling argument, the
Athens
Administrative
Court of Appeals concluded that the CPS is not binding on the HFF judicial
bodies in a
decision rendered following an application for provisional measures filed by
PAOK
against the CPS Decision. Obviously, considerable weight is to be afforded to
the
HFF
judicial bodies, but the Panel finds that a ruling of the Athens Administrative
Court
of Appeals
is in principle to be perceived as being more authoritative, because it is the
sole
appeal
instance dealing with appeals against decisions of the CPS.
167. In any
event, the Panel finds the reasoning of the Athens Administrative Court of
Appeals
compelling:
“[I]t
cannot be convincingly argued that the "judicial" body,
having, of course, full
power to
decide based on the facts and the law and eventually establishing guilt and
sentencing
on a case, does not (nevertheless) have the power to decide based on the
facts of
the infringement committed when it decides following the lodging of the
relevant
[CPS Decision]. In view of this and taking into consideration the nature of
the
disciplinary
body, as "judicial", but also the use by the legislator of
the term
"decides",
as well as the characterization of the [CPS] reviewed findings as
"Report"
or
"Conclusion", it should be accepted that [CPS Decision] does
not bind the
'judicial"
body as of the facts of the infringement committed, the substantiation of
which
therefore comes under the competence of the "judicial" body,
which as a
disciplinary
body cannot be deprived of full jurisdiction in terms of establishing guilt
and
sentencing, i.e. it does not mean that the disciplinary procedure is separated
between two
different bodies, one of which is to decide on the guilt and the other is
to decide
only on sentencing. However, due to the fact that the [CPS] is a specially
established
body, composed of persons with special knowledge and expertise (Article
77 (4),
L.2725/1999), the "judicial" body, when deviating from the
conclusions,
appraisals
and weightings of the [CPS], the report of which is merely an opinion,
should do
so on an explicit, specific and clear justification. In this light, the [CPS
Decision],
which establishes an infringement of the provisions of Law 2725/1999,
can only
base enforceability only on the inherent legal consequence that consists in
the obligation
of the judicial body to hear and to adopt a decision on the alleged
disciplinary
infringement (see Council of the State 1596/2004)”.
168. The
Panel notes that the Appeals Committee reasoned as follows in the Appealed
Decision:
“Article
69(12) Law 2725/1999 does not allow the relevant judicial body to verify
the [CPS’s]
inclusion of the facts in the rule (or in the set of rules) of law precluding
the multi
ownership in Sports Companies, since such a review would conflict with
the
presumption of legitimacy of the administrative act, as in the case of the
[CPS]
Report”.
169. The
Panel agrees with such analysis insofar as the Appeals Committee finds that the
CPS
Decision is
presumed to be legitimate. However, as argued by PAOK, presumptions can by
definition
be rebutted. A presumption of legitimacy is therefore something else than a
binding
decision that cannot be challenged. Notwithstanding the presumption of
legitimacy
of the CPS Decision, the Appeals Committee deprived PAOK of the
possibility
to try and rebut such presumption by refusing to look at the substance of
PAOK’s
arguments and considering the CPS Decision as binding.
170. The
Panel also notes that the decision on PAOK’s request for provisional measures
by the
Athens
Administrative Court of Appeal was issued on 10 March 2020, while the
Disciplinary
Committee issued the First Instance Decision on 5 March 2020 and appeals
were filed
against the latter decision with the Appeals Committee on 9 March 2020.
171. Accordingly,
the Appeals Committee had the benefit of being able to take into account the
Athens
Administrative Court of Appeal decision in rendering the Appealed Decision.
Notwithstanding
the HFF’s argument in the present proceedings before CAS that there is
no
provision in Greek law suggesting that the judicial body of a sports federation
can re-
examine the
findings or overturn a decision of a Greek public administrative body such
as the CPS,
the majority of the three-person tribunal constituting the Appeals Committee
that issued
the Appealed Decision does not make reference to the decision of the Athens
Administrative
Court of Appeal and does not contain any reasoning as to why the
Appeals
Committee
deemed it
appropriate to deviate from the reasoning of the Athens Administrative Court of
Appeal.
172. Only
the minority of the Appeals Committee refers to the Athens Administrative Court
of
Appeals
Decision in supporting its conclusion that the CPS Decision was not binding on
the HFF
judicial bodies.
173. If the
reasoning of the HFF and Olympiacos were followed, and the HFF judicial bodies
rightly
considered themselves to be bound by the CPS Decision, it appears inconsistent
to
the Panel
that the HFF judicial bodies would be free to ignore the findings of the Athens
Administrative
Court of Appeal, i.e. the only court competent to deal with a direct appeal
against the
CPS Decision.
174. The
Panel finds that the decision of the HFF Football Court of Arbitration for
Sport does
not have
much relevance, as the subject matter decided upon in such decision was
different.
175.
Furthermore, the Panel finds that considering the CPS Decision as binding on
the HFF
judicial
bodies could potentially also result in unfairness.
176. The
CPS Decision only acquires res judicata effect when all appeal instances
against
such
decision are exhausted, which was not yet the case at the time of issuance of
the
operative
part of the present award. Now, if the HFF judicial bodies would simply ratify
the
CPS
Decision without assessing the substance and expel clubs or deduct points from
the
championship
ranking, this would have immediate sporting consequences on the clubs.
Fairness
would be trampled if the appeals against the CPS Decision would subsequently
turn out to
be successful, because the entire basis for expulsion or points deduction would
disappear,
while it would be impossible or very difficult to remedy the sporting damages
incurred by
the clubs retrospectively.
177. Such
unfairness would not exist if the HFF judicial bodies make their own
independent
assessment
of the CPS Decision and decide to impose sanctions on the clubs. In that case,
even if the
CPS Decision would ultimately be set aside, the imposition of sporting
sanctions
by the HFF
judicial bodies is nonetheless justified because they made their own
independent
assessment of the facts in front of them. A possible annulment of the CPS
Decision
would not per se deprive the sanctions imposed by the HFF judicial bodies of
their
legitimacy.
178. This
conclusion does not mean that the HFF judicial bodies can simply ignore or
disregard
the CPS
Decision. Indeed, the description of the Appeals Committee in the Appealed
Decision of
the CPS Decision as being presumptively legitimate is probably a fair
description.
179.
Furthermore, the Panel deems it relevant to reiterate the finding made above
with respect to
the
jurisdiction of the HFF judicial bodies to sanction clubs on the basis of
Article 69(12) of
Law
2725/1999. In that section, the Panel dismissed PAOK’s argument that the
sanctions
imposed
must be declared null and void, because the direct application of Law 2725/1999
would
result in excessive state interference. The Panel finds that this is relevant
for present
purposes as
well.
180. The
potential threat of a violation of the duty for national federations to
maintain their
autonomy
and independence and to prevent excessive state interference is considerably
larger in
case the HFF judicial bodies would be obliged to ratify the findings of the
CPS,
an
administrative body of the Greek public administration, independent from the
HFF, to
decide on
intra-federation matters such as the expulsion of clubs or the deduction of
points from
championships, than in case the HFF judicial bodies would be afforded
discretion
in deciding whether or not to follow the findings of the CPS Decision. Indeed,
the latter
scenario strikes the Panel as a reasonable and appropriate balance between the
powers of
the CPS and the HFF judicial bodies.
181.
Finally, the Panel notes that the operative part of the CPS Decision dictates
that it is to be
forwarded
to the federation concerned, i.e. the HFF, but also to the “competent
Prosecution
Authority for the criminal proceedings”. The Panel has little doubt that the
prosecution
authority and the criminal courts cannot be considered bound by the CPS
Decision,
despite the fact that the wording of Article 69(12) does not materially differ
from
Article 69(13) of Law 2725/1999, which provides that “[a]nyone who
intentionally
infringes
the preclusions of paragraphs 3, 6, 8, 9 and 10 hereof shall be punished by
imprisonment
and a fine of up to five hundred thousand (500,000) euro […]”. The Panel
is not
persuaded as to why this should be different for the HFF judicial bodies.
182. Having
examined all the evidence in front of it, the Panel finds that the CPS Decision
is not
binding on
the HFF judicial bodies. Accordingly, the Disciplinary Committee and the
Appeals
Committee should have analysed the substance of the CPS Decision and taken
this into
account in deciding whether or not PAOK and Xanthi were to be sanctioned.
183.
Consequently, the Panel finds that the CPS Decision is not binding on the HFF
judicial
bodies.
iv. If the
CPS Decision is not binding on the HFF judicial bodies, what are the
consequences
thereof?
184. Having
established that the HFF judicial bodies wrongfully failed to assess the
substance of
the CPS
Decision, absent such assessment and without an endorsement of the
conclusions
of the CPS Decision, the Panel finds that the CPS Decision cannot be used as
a direct
basis to sanction PAOK. Accordingly, the 7-point deduction imposed on PAOK
must be
annulled.
185.
Considering that Xanthi did not file an independent appeal against the Appealed
Decision,
the Panel
does not have the power to annul the 7-point deduction imposed on Xanthi.
186. A mere
annulment of the Appealed Decision would however leave the First Instance
Decision in
place, by means of which also a 7-point deduction was imposed on PAOK.
Accordingly,
the First Instance Decision must also be set aside insofar as it imposes a 7-
point
deduction on PAOK. The Panel finds that this does not lie outside its scope of
competence,
because PAOK requested in its prayers for relief that no sanction be imposed
on it and
the Appeals Committee had the authority to decide on the 7-point deduction.
187.
Article R57 CAS Code provides as follows:
“The Panel
has full power to review the facts and the law. It may issue a new decision
which
replaces the decision challenged or annul the decision and refer the case back
to the
previous instance”.
188.
Pursuant to this provision, the Panel is perfectly entitled to annul the
Appealed Decision
and render
a decision on the substance of the case to replace the Appealed Decision, i.e.
to examine
the CPS Decision and decide whether a sanction is to be imposed on PAOK.
189. The
Panel is however also perfectly entitled to annul the Appealed Decision and
refer the
case back
to the Appeals Body. To do so, no request from any party is required, it is a
discretion
afforded to the Panel by Article R57 CAS Code.
190.
Considering that both the Disciplinary Committee as well as the Appeals
Committee
incorrectly
assumed that the CPS Decision was binding on them, they did not enter into an
analysis of
the CPS Decision. Considering the technical nature of the CPS Decision and the
intricacies
of the Greek legal order to be taken into account, the Panel finds that,
notwithstanding
its power to decide the case itself, the judicial bodies of the HFF are better
placed at
this moment in time, and in fact have the duty, to assess the content of the
CPS
Decision
and the arguments raised by the Parties.
191. The
Panel does not find it appropriate to render a final and binding decision with
major
consequences
for Greek football in a situation where the HFF judicial bodies have not
reviewed
and assessed the substance of the CPS Decision. PAOK was deprived of two
instances
of justice and had to present their case within a very short timeframe before
CAS.
The Panel
facilitated the Parties’ request to hold a hearing on short notice, and the
Parties
expressed
their gratitude for and satisfaction with the modalities chosen by the Panel,
but
PAOK also
remarked that in order to have a hearing on such short notice it had to rush
and
give up
several of its defence rights. The Panel finds that such defence rights should
be
fully
respected and that the HFF judicial bodies are the primary fora for this and
only
subsequently
CAS. Indeed, the HFF judicial bodies should not be allowed to abstain from
complying
with their responsibility to decide on the substance of the case at the expense
of
PAOK’s
right to fully plead its case. This is all the more true considering that PAOK
was
sanctioned
without its right to be heard having been fully respected.
192.
Consequently, the Panel finds that the Appealed Decision and the First Instance
Decision
are to be
set aside insofar as they impose a 7-point deduction on PAOK and that the case
is to be
referred back to the Appeals Committee for adjudication, this time duly
examining
and assessing the substance of the CPS Decision and respecting PAOK’s right
to be
heard.
193.
Because the Panel reached the conclusion to refer PAOK’s case back to the
Appeals
Committee,
and in order to not unnecessarily restrict the free assessment of the case by
the
Appeals
Committee, the Panel does not address the substance of Olympiacos’ appeal in
the
present
proceedings, i.e. to decide whether PAOK and Xanthi should be expelled or
whether a
10-point deduction should be imposed rather than a 7-point deduction. Since
the
substance of Olympiacos’ appeal is not addressed, the Panel does not have to
make a
ruling on
whether or not Olympiacos has standing to challenge the Appealed Decision.
The fact
that the operative part of the present award indicates that Olympiacos’ appeal
is
partially
upheld is solely based on the formality that Olympiacos’ primary request for
relief is
upheld, i.e. that the Appealed Decision be set aside, and because the
proceedings in
CAS
2020/A/7019 and CAS 2020/A/7035 are consolidated. The reason for setting aside
the
Appealed
Decision is however not premised on arguments advanced by Olympiacos.
B.
Conclusion
194. Based
on the foregoing, and after taking into due consideration all the evidence
produced
and all
arguments made, the Panel finds that:
i. The HFF
judicial bodies have jurisdiction to sanction football clubs on the basis of
Article
69(12) of Law 2725/1999.
ii. It was
not required that the CPS Decision was first referred to the HFF prosecutor
before
referring it to the Disciplinary Committee.
iii. The
CPS Decision is not binding on the HFF judicial bodies.
iv. The
Appealed Decision and the First Instance Decision are set aside insofar as they
impose a
7-point deduction on PAOK and the case is referred back to the Appeals
Committee
for adjudication taking account of the reasons exposed above.
195. All
other and further motions or prayers for relief are dismissed.
ON THESE
GROUNDS
The Court
of Arbitration for Sport rules that:
1. The
appeal filed on 28 April 2020 by Olympiacos Football Club against decision no.
20/2020
issued by the Appeals Committee of the Hellenic Football Federation on 6 April
2020 is
partially upheld.
2. The
appeal filed on 4 May 2020 by Panthessaloníkeios Athlitikós Ómilos
Konstantinoupolitón
(PAOK) against decision no. 20/2020 issued by the Appeals
Committee
of the Hellenic Football Federation on 6 April 2020 is partially upheld.
3. Decision
no. 20/2020 issued by the Appeals Committee of the Hellenic Football
Federation
on 6 April 2020 is set aside insofar it imposes a sanction of 7 (seven) points
deduction
from the current professional championship (Super League I Hellas 2019 - 2020)
on PAOK.
4. Decision
no. 95/2020 issued by the Single-Member Disciplinary Body of First Instance of
the
Hellenic Football Federation on 5 March 2020 is set aside insofar it imposes a
sanction
of 7
(seven) points deduction from the current professional championship (Super
League I
Hellas 2019
- 2020) on PAOK.
5. The
present matter is referred back to the previous instance, i.e. the Appeals
Committee of
the Hellenic
Football Federation, which shall adjudicate and decide the dispute without
considering
the conclusions reached by the Committee on Professional Sports in its report
dated 27
January 2020 to be binding on it.
6. (…). 7. (…).
8. All
other and further motions or prayers for relief are dismissed.
