CAS Confirmed Strict Liability Principle in Match-Fixing

Karpaty_MetalistOn 2 August 2013, the Court of Arbitration for Sport (CAS) published a press-release about the decision made in a complex and highly controversial case on match-fixing, involving ten individuals and two football clubs from Ukraine – FC Metalist Kharkiv (“FC Metalist”) and FC Karpaty Lviv (“FC Karpaty”).

The Tribunal sanctioned the Sports Director of FC Metalist and six football players for being directly or indirectly involved in the manipulation of a match between FC Karpaty and FC Metalist. It also found that FC Karpaty officials illegally used information about the fixed match and failed to take proper actions, eg to communicate it to the football federation authorities. And finally, both clubs were held liable for the behaviour of their players or officials under the principle of strict liability.

The CAS Award was rendered during UEFA competitions, where FC Metalist was playing in the Champions League play-offs. So, in contrast to the over 2.5-years long CAS proceedings, all further decisions and related proceedings before UEFA, the CAS and Swiss Supreme Court have been impressively speedy. Consequently, the competition has proceeded according to its schedule and the integrity of its results has been preserved.

Background

The football match in question between FC Metalist and FC Karpaty took place on 19 April 2008. FC Metalist won 4-0.

However, the irregularities during the match, which gave rise to multiple proceedings both in Ukraine and in Switzerland, came to light much later as a result of a chain of events.

As follows from the available decision in the local disciplinary proceedings, on 16 May 2008, Honorary President of FC Karpaty Mr Dyminskyy recorded on video his conversation with one of the players of FC Karpaty, Mr Lashchenkov. During this conversation Mr Lashchenkov informed that the match with FC Metalist of 19 April 2008 had been fixed and the players of FC Karpaty had received money from Mr Krasnikov (Sports Director of FC Metalist) in exchange for agreeing to lose the match.

FC Karpaty did not report this information to the football authorities; instead, they used it in a dispute with one of their players. The player brought a claim to the Football Federation of Ukraine (“FFU”) over the payment of salary by the club. FC Karpaty objected to the claim arguing that the player had committed a serious breach of the principle of “Fair Play”.

However, FC Karpaty did not submit any evidence with respect to such breach in the course of the proceedings before the Control and Disciplinary Committee of the FFU (“CDC”) and the Appeal Committee of the FFU (“AC”). Both FFU Committees ruled against the club and ordered it to pay the salary to the player. For failure to honour these decisions, in December 2009 the CDC prohibited FC Karpaty from registering any new players.

In January 2010, FC Karpaty filed an appeal against this decision with the CAS and attached as evidence of breach by the player of the principle of “Fair Play” the video recording of the conversation between Mr Dyminskyy and Mr Lashchenkov dated 16 May 2008.

The FFU, as a party to the CAS proceedings, received the above video recording directly from the CAS and in February 2010 launched an investigation into the matter of match-fixing.

Proceedings before FFU

In its decision the CDC found the match between FC Metalist and FC Karpaty on 19 April 2008 fixed and applied various sanctions to the clubs, their officials and football players.

The CDC rejected the arguments of FC Metalist that there existed no admissible pieces of evidence under Ukrainian criminal law for a “guilty verdict” and regarding the overturning the presumption of innocence guaranteed by the Constitution of Ukraine, as well as references of FC Metalist to the decisions of the Ukrainian prosecutor’s office on the refusal to open a criminal investigation into the alleged bribery.

According to the CDC, the breach of the principle of “Fair Play” and match-fixing constitute different and much wider infringements than bribery, which is a criminally punishable offence under Ukrainian law. In addition, the CDC relied on CAS precedents in establishing the standard of proof in such types of cases, which is different from the standard of proof under national criminal law (eg the facts shall be proved “to the comfortable satisfaction of the Court having in mind the seriousness of allegation which is made” (CAS 2005/A/908 para. 6.2)).

On 19 October 2010, the AC confirmed the decision of the CDC with respect to the match-fixing but reduced and changed other sanctions imposed on the clubs, their officials and football players.

Both clubs and ten of their officials and players appealed the decision of the AC to the CAS.

CAS findings

The 250-page CAS Award of 2 August 2013 confirmed manipulation of the match between FC Metalist and FC Karpaty on 19 April 2008, as well as re-confirmed or amended the sanctions imposed on the clubs, their officials and football players. The tribunal applied the principle of strict liability and found the clubs liable for the behaviour of their players or officials.

The CAS Award confirms the application of the strict liability standard not only in doping cases, but as an effective tool in the fight against match-fixing, considered as one of the biggest threats to organised sport worldwide.

UEFA decisions

The CAS Award appeared during UEFA competitions, a couple of weeks prior to the UEFA Champions League play-off match between FC Metalist and FC Schalke 04 scheduled for 21 August 2013. So, UEFA reacted to the CAS Award very swiftly.

In less than two weeks, UEFA initiated disciplinary proceedings against FC Metalist, decided to disqualify FC Metalist from UEFA competitions for the season 2013/14, and replaced it with PAOK FC, eliminated by FC Metalist in the third qualifying round, for the remainder of the 2013/14 club competitions, with Maccabi Tel-Aviv FC qualifying for the UEFA Europa League proper.

In this way UEFA confirmed its zero-tolerance policy with respect to any incidents linked to the the manipulation of results (match-fixing), reflected in the admission criteria for participation in UEFA competitions. One of them bars admission of any club which has been directly and/or indirectly involved, since 27 April 2007, in any activity aimed at arranging or influencing the outcome of a match. As the match between FC Metalist and FC Karpaty took place in 2008, it was a sufficient ground for UEFA to reconsider its previous decision to admit FC Metalist to UEFA competitions.

Request for stay of the UEFA decision

FC Metalist filed an urgent request for provisional measures with the CAS, requesting a temporary stay of the UEFA decision excluding the Ukrainian club from UEFA competitions and its reinstatement to the 2013/2014 UEFA competitions. The next day UEFA and PAOK FC each filed a written submission in response to the club’s request for provisional measures.

On 16 August 2013, having considered the parties’ submissions, the Deputy President of the Appeals Arbitration Division decided to dismiss FC Metalist’s request. Consequently, the UEFA decision remained in force. UEFA welcomed the CAS decision.

According to FC Metalist, the same day, the Swiss Supreme Court suspended the CAS Award. Moreover, the Swiss Supreme Court further reaffirmed the suspension of the CAS Award, this time, not only with regard to the club, but with regard to the team’s Sports Director Mr Krasnikov as well. The order of the Swiss Supreme Court was directed by the Court to the CAS.  

FC Metalist submitted a new request for urgent provisional measures to the CAS on the basis of alleged new evidence.

Having considered the new request, the Deputy President of the Appeals Arbitration Division reached the same conclusion and rejected the request. Accordingly, the UEFA decision on the club’s disqualification remained in force, which was noted with satisfaction by UEFA.

The next day, on 21 August 2013, FC Schalke 04 faced PAOK FC in the first leg of their UEFA Champions League play-off tie.

Further proceedings in Switzerland

However, the CAS appeal proceedings, initiated by FC Metalist, continue. The parties have agreed to an accelerated procedural timetable to enable a decision to be issued on 28 August 2013.

Apart from that, the club is also planning to request the Swiss Supreme Court to set aside the CAS Award of 2 August 2013, alleging that the evidence used to establish the fact of match-fixing, is not convincing, and according to Swiss law is “illegal”.

Therefore, it appears that only the Swiss Supreme Court will dot the i’s and cross the t’s in this long-running and controversial case.

Olexander Droug and Olena Perepelynska

SAYENKO KHARENKO

Kyiv, Ukraine

About the Author:

Olena Perepelynska, FCIArb is a partner at Integrites, Kyiv, Ukraine, and the Board Member of the Ukrainian Arbitration Association. Olena has a law degree from the Institute of International Relations, Kyiv Taras Shevchenko National University, and diploma in International Arbitration from the Chartered Institute of Arbitrators, UK. She is listed as recommended arbitrator of various arbitration institutions in Austria, Czech Republic, Georgia, Hong Kong, Kazakhstan, Lithuania, Malaysia, Poland, Romania and Ukraine.

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