Review of Disciplinary Sanctions in Football: The Question of Proportionality - Dr. Despina Mavromati, LL.M, M.B.A. FCIarb - SportLegis
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Review of Disciplinary Sanctions in Football:
The Question of Proportionality
Dr. Despina Mavromati, LL.M, M.B.A. FCIarb
Attorney-at-Law (Bar of Thessaloniki / Ordre des Avocats Vaudois)
Disciplinary
The Question of
Review of Sanctions in Proportionality
Football
Definition in
By UEFA? Doping private / public /
criminal /
Misconduct administrative /
EU law…
By the CAS?
Corruption
A common
By the Swiss denominator for
Federal Tribunal? Financial Fairplay Sports sanctions?
Definition of Proportionality – CAS No real definition, but several criteria: - Evaluation on a a case-by-case basis - Interests at stake must be balanced in respect of the principle of proportionality - Seriousness of the facts and other related circumstances - Damage that the penalized conduct entails for the parties involved, for federations and athletes - Evaluation of any aggravating and/or extenuating circumstances related to the infringement (CAS 2013/A/3358)
Definition of Proportionality – SFT Swiss Federal Tribunal: • Reasonable balance between the kind of the misconduct and the sanction Swiss Federal Supreme Court, N., J., Y., W. c/ FINA, Judgment of March 31, 1999, reported in CAS Digest II, p. 767, 772 • Art. 190 (2) e Swiss Private International Law Act – Ordre Public • Within the scope of Art. 27-28 Swiss Civil Code – excessive commitments
1) Review of disciplinary sanctions by the AB
1. UEFA AB Decision –25.9.2015 –SC Portugal
• SC Portugal Player Eduardo was • Sanction: EUR 60,000
sent off by the referee for kicking • Arguments re: proportionality invoked
the PFC CSKA Moskva player by the Appellant:
Ahmed Musa to his stomach.
• Not in line with case law
• No record
• Article 15 (1) (e) DR
• UEFA AB Decision: confirms sanction –
• Act of assault vs act of rough play dismisses one of the charges
(insufficient body searching)Appeals Body’s practice: Discretion of CEDB abused if - Untrue or erroneous elements - Failure to apply fundamental principles - Consideration of irrelevant facts - Failure to consider essential circumstances Recidivism - Aggravating circumstance Absence of a record - Mitigating circumstance? - Basic rule of fair play – not a mitigating circumstance in itself! - Previous cases! - Comparison
Absence of a record also to be evaluated and compared to other cases Absence of exceptional circumstances (comparison to the John Terry case)
2) Review by the CAS: Art. R57 CAS Code
The Principle: Proportionality in the regulation-drafting does not exclude control of proportionality when reviewing the sanction. Conditions. CAS 2005/A/830 - S. v. FINA Substantial elements of the doctrine of proportionality have been implemented in the rules of sport federations by adopting the WADA Code but this does not exclude the possibility for greater or lesser reduction of a sanction. A mere “uncomfortable feeling” alone that a one year penalty is not the appropriate sanction cannot itself justify a reduction of the sanction. Individual circumstances need to be taken into account. Proportionality would apply in case of attack on personal rights serious and totally disproportionate to the behaviour penalised.
CAS 2012/A/2762
Bayer 04 Leverkusen v. UEFA:
Even though a CAS panel has full power of review of
the disputed facts and law in the exercise of its
jurisdiction, the measure of the sanction imposed by
a disciplinary body in the exercise of the discretion
allowed by the relevant rule can be reviewed only
when the sanction is evidently and grossly
disproportionate to the offense.
- Full power of review but:
- When evaluating a sanction within the framework of the
rules: Review limited to disproportionality
Review of a disciplinary sanction by the CAS – Doping casesCAS 2015/A/3944 Galatasaray
Sportif A.S. v. UEFA
According to a steady line of jurisprudence, the CAS has Full power of review but:
When evaluating a sanction
to show reservation or restraint in evaluating whether a
within the rules: Review
sanction is appropriate; the measure of the sanction limited to disproportionality
imposed by a disciplinary body in the exercise of the
discretion allowed by the relevant rule can be reviewed
only when the sanction is evidently and grossly
disproportionate to the offence
No mitigating circumstances:
Incidents occurred in connection with an away match & possible “inofficial” supporters
Panel’s review limited to evident / gross disproportionality of the sanction!
“Gross disproportionality” ≠ minimum amendment of the sanction
Review of a disciplinary sanction by the CAS in cases of MisconductCAS 2016/A/4492
Galatasaray v. UEFA
- Appellant’s argument:
- The Panel must consider
mitigating factors which
affected the finances of the
club
- Syrian refugee crisis,
- terrorist attacks in Turkey
- Major match-fixing scandal...
- Sanction too heavy for the
survival of the club…
Review of Financial Fair Play Decisions by the CASCAS 2016/A/4492
Galatasaray v. UEFA
Panel’s findings
- Second violation!
- Missed opportunity after the
settlement agreement
- Exclusion limited in time
- The sanction is proportionate
to the offence
Review of the Financial Fair Play Decisions by the CASCAS 2011/A/2426
Amos Adamu v/ FIFA
- Comparison to other CAS
Awards
- 2010/A/2172 Oriekhov v.
UEFA
- No mitigating circumstances
- Bad reputation for FIFA
Reference to Oriekhov v UEFA
Zero tolerance towards corruption of match officials Art. 22, 10.c FDC
(ife ban for serious damage to the image of UEFA & of football) Art. 17 FCE
3-year ban & fine CHF 100’000
Review of a disciplinary sanction by the CAS – Corruption casesTAS 2016/A/4495
Seraing v. FIFA
Proportionality of the sanction Lack of relevant jurisprudence
Examination of various sanctions under the FIFA Disciplinary Code: as a mitigating factor?
Art. 28 FDC (expulsion from competition)
Art. 30 FDC (deduction of points)
Art. 29 FDC (relegation)
Art. 15 FDC (fine)
Amount of the sanction was not proven to be excessive
However: first case of TPO prohibition and Art. 18ter RSTP – no
relevant internal jurisprudence / during the transitional period:
Mildly mitigating factors!
Reduction of the sanction from 4 to 3 transfer seasons
Review of Third Party Ownership Decisions by the CAS3) Review by the Swiss Federal Tribunal
Swiss Federal Tribunal
Ordre public: «le caméléon court toujours»
Ph. Schweizer
Part of Substantive Ordre Public
Prohibition of Excessive Commitments
Matuzalem Jurisprudence!
Very Limited Review within the Scope of Substantive Public PolicySwiss Federal Tribunal –
Matuzalem Judgment (4A_558/2011)
Very Limited Review within the Scope of Substantive Public PolicyReview of Disciplinary Sanctions in Football:
The Question of Proportionality or…
In The Quest for Proportionality
mavromati@sportlegis.com
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