Όλη η γνωμοδότηση Λαγαρία στο CAS για την υπόθεση της φερόμενης πολυϊδιοκτησίας ΠΑΟΚ-Ξάνθης

Στην ιστοσελίδα του Ινστιτούτου Διεθνούς Ευρωπαϊκού και Αθλητικού Δικαίου δημοσιεύθηκε πριν λίγες ημέρες το πλήρες κείμενο της γνωμοδότησης του γνωστού νομικού Νίκου Λαγαρία, όπως παρουσιάστηκ κατά την συζήτηση της φερόμενης υποθέσεως πολυϊδιοκτησίας ΠΑΟΚ-Ξάνθης στο CAS.

Το κείμενο εσταλη προς δημοσίευση από τον συντάκτη της «στα πλαίσια του επιστημονικού διαλόγου που αναπτύσσεται στους κόλπους του ΙΔΕΑΔ». Οπως ο ίδιος αναφέρει, το κείμενο συντάχτηκε «κατόπιν αιτήματος της ΠΑΕ ΠΑΟΚ και υποστήριξα ως πραγματογνώμων (expert witness) ενώπιον του CAS στις 6/7/2020, κατά τη συζήτηση της υπόθεσης της φερόμενης πολυϊδιοκτησίας ποδοσφαιρικών ανωνύμων εταιρειών».

Η γνωμοδότηση δημοσιεύθηκε στην ιστοσελίδα του ΙΔΕΑΔ και αφορά:
α) στη δεσμευτικότητα ή μη της απόφασης της Επιτροπής Επαγγελματικού Αθλητισμού, εν όψει της αυτονομίας του αθλητικού κινήματος και της διάκρισης των λειτουργιών και
β) στο έννομο συμφέρον και την ενεργητική νομιμοποίηση της πειθαρχικά καταγγέλλουσας ΠΑΕ ΟΛΥΜΠΙΑΚΟΣ, ενώπιον του CAS, με τη διαδικασία εφέσεων.

Το πλήρες κείμενο – στην αγγλική γλώσσα – έχει ως εξής:

OPINION

Nikos Lagarias
Attorney-at-Law in Athens
Omirou 20 str., 106 72
Greece

____________________________________________________

In view of the CAS 2020/A/7019 and CAS 2020/A/7035 cases hearing before the Court of Arbitration for Sport (CAS) of Lausanne and taking under consideration the decisions 95/2020 of the First Instance Single-Member Disciplinary Body SUPER LEAGUE 1 Greece, 20/2020 of the HFF Appeal Committee, and ΔΕφΑθ ΕΑ 86/2020 of the Administrative Court of Appeal of Athens, the Sports Company “PANTHESSALONIKIOS ATHLITIKOS OMILOS KONSTANTINOUPOLITON- PAOK” (hereinafter referred to as: PAOK FC) asked my opinion on the following issues, on June 19, 2020.

QUESTION (Α)

“Olympiacos FC lodged with the Professional Sports Committee (“PSC”) its complaint dated 4/12/2019 in which it claims that PAOK FC exercises a dominant influence on XANTHI FC which constitutes a precluded multi-club ownership pursuant to Greek Sport Act (L. 2725/1999). With such complaint Olympiacos FC submitted specific non-athletic requests such as, among others, for PSC to take actions in order to review any relations between commercial companies, as well as to enforce the sanctions provided for by Law against the natural and legal persons, etc., involved. On the basis of such complaint PSC adopted a report and based on the Greek Sport Act it brought a disciplinary procedure before the Disciplinary Bodies of Greek professional football. PAOK FC had requested the HFF Appeal Committee to exercise its full jurisdiction, i.e. to review the case on a de novo basis, and to judge that it had not committed any infringement of the multiple-ownership prohibition. In its appeal, PAOK FC also complained about the due process violation throughout the whole procedure. The HFF Appeal Committee did not exercise its full jurisdiction even though it had the power and the opportunity to assess the facts in all respects. Olympiacos FC had requested the expulsion of PAOK FC from the 2019-2020 SL1 championship. Following these proceedings, the no. 20/2020 decision of the HFF Appeal Committee was adopted, enforcing on PAOK FC the sporting sanctions (i.e. reduction of points from the current championship) provided in the Greek Sport Act (L. 2725/1999) rather than in the HFF and federal football regulations. All internal legal remedies provided for in the HFF rules have been exhausted. Olympiacos FC has already appealed against the above decision to the CAS. With its Appeal Brief on this case (CAS 2020/A/7019) Olympiacos FC alleges that (para. 139 of its Appeal Brief): “The underlying facts regarding PAOK FC and Xanthi FC’s infringements of the prohibition against multiple ownership were proven to the satisfaction of the CPS, the public administrative body in Greece tasked with the investigation of such matters. Given the binding nature and presumption of legality that this administrative act carries, the ensuing disciplinary procedure accepted the CPS Decision’s conclusions without further evaluation. In view of this, and because this particular matter was not within the scope of the Appealed Decision, it falls outside the scope of review of the Panel in this case. The object of the Appealed Decision, and thus the only matters before the Panel for review, are whether the correct source of law was used to apply the relevant sanctions, and if so, whether the applied sanctions were insufficient”.

1) In your opinion, is the PSC report binding – in terms of its substantive assumptions and legal qualification of the facts – in the hearing before CAS, in view of the autonomy of sport? 2) In your opinion, it is legitimate – in terms of Sports Law – such cross-operation of powers and proceedings between the Professional Sports Committee and the Judicial/Disciplinary Bodies of Greek professional football on the issue of multi-club ownership, as well as the enforcement of the disciplinary sanctions provided for in Law rather than in the HFF and federal football regulations, in view of the autonomy of sport”?

ANSWER (Α)

Preamble

There is no reason to consider arbitration as a renunciation of the main safeguards accompanying the State adjudication, i.e. independence and impartiality (“Arbitration under the Fair Trial Safeguards of Art. 6 §1 ECHR”, Kyriakos P. Papanikolaou, Democritus University of Thrace, Law School).

Judges must be independent from other State organs; this is crucial in any democracy. As the European Court of Human Rights itself has stated, “the notion of separation between the executive and the judiciary powers has assumed a growing importance in the case-law of the Court” (see Stafford v. the United Kingdom [GC], no. 46295/99, § 78, ECHR 2002-IV).

Intervention of the executive in ongoing judicial proceedings may reveal a lack of respect for judicial office and undermine the guarantees of a fair trial under Article 6 of the European Convention on Human Rights. What is at stake here is the confidence which the courts in a democratic society must inspire in the public (ECHR Judicial Seminar 2018, The Authority of the Judiciary, Background Document).

Article 15 of the FIFA Statutes (“Member association’s statutes”) state that “Member associations’ statutes must comply with the principles of good governance and shall in particular contain, at a minimum, provisions relating to the following issues: … d) to ensure that judicial bodies are independent (separation of powers);…”.

1. The Greek Constitution (para. 9 of art. 16) provides that sport shall fall under the protection and supervision of the State.

2. Article 5 of the Fundamental Principles of Olympism (IOC, Olympic Charter in force as from June 26th 2019) states that:

“Recognising that sport occurs within the framework of society, sports organizations within the Olympic Movement shall apply political neutrality. They have the rights and obligations of autonomy, which include freely establishing and controlling the rules of sport, determining the structure and governance of their organisations, enjoying the right of elections free from any outside influence and the responsibility for ensuring that principles of good governance be applied”.

3. The recognition of autonomy of sport came in a resolution adopted by consensus at the 69th regular session of the UN General Assembly (UNGA) in New York. The document states that the General Assembly “supports the independence and autonomy of sport as well as the mission of the IOC in leading the Olympic Movement”.

4. FIFA and UEFA Statutes state that member associations shall manage their affairs independently and with no undue influence from third parties (para. 2 of article 19 of the FIFA Statutes and para. 2 of article 7bis of the UEFA Statutes). Thus any intervention by public authorities in internal professional football affairs must be confined to what is necessary, in view of the autonomy of sport.

5. According to its current codified statutes, the Hellenic Football Federation (HFF) is a private legal entity, a third-class non-profit association pursuant to Civil Code, which is governed by the rules of Greek legal order and functions under its statutes, as well as the FIFA and UEFA rules and regulations.

6. Previously the Article 29 (12) (1), L.3479/2006, which had instituted the so-called “self-regulation” of HFF, provided that all issues of HFF function and organization related to sport and its members were independently (self-) regulated by the Hellenic Football Association and its bodies, in compliance with its own Statute and regulations, as well as those laid down by the World and European Football Federation, even if different regulations were provided for in L.2725/1999, as currently in force, and in general sports legislation.

7. This provision was repealed by Article 15 (1), L.4326/2015; while with Article 15 (2) of the same Law, the “new self-government” of HFF was established, as follows: “Any issues of football and the organization and operation of the football federation are regulated by the Hellenic Football Federation (HFF), under its self-government function, in compliance with its statutes and regulations, which should be harmonized with the Constitution, the legislation in force, given that HFF manages its affairs independently, without influence from any third parties, and in compliance with the rules of the World and European Football Federation, of which the Hellenic Football Federation is a member”. The difference between the previous and the current “self-government” lies in the express establishment of a “legality clause”. Although HFF may be “self-regulated”, its regulatory texts, on the basis of which it is “self- regulated”, should be harmonized with the Constitution and current legislation. However, it has been noted that, at least from a legal point of view, this has always been the case. HFF is a private legal entity, yet this does not mean that a special “reminder” is required in its statutes, so as not to infringe the Constitution and the Greek State Laws.

8. The Supreme Civil and Criminal Court of Greece [Areios Pagos, ST΄ (6th) Criminal Section, in Council] has judged on the autonomous way in which sports organizations operate in Greece , by its no. 804/2019 decision posted on its website:

http://www.areiospagos.gr/nomologia/apofaseis_DISPLAY.asp?cd=LMK19NLSZXLHWDTCYJPUA60G366ODN&apof=804_2019&info=%D0%CF%C9%CD%C9%CA%C5%D3%20-%20%20%D3%D4

“…Furthermore, the provision of Article 19 (1) of the same Law 2725/1999 stipulates as follows: “Sports federation is the highest organization of sports clubs or sports associations (private legal entity) that cultivates the same sport or branch of sport, aims at cultivating and developing it throughout the country and operates in compliance with the provisions of Article 78 et seq. of Civil Code (§1). For each sport or branch of sport the establishment of only one (1) federation for the whole country is allowed. The federation represents the sport internationally, pursuant to the current regulations of the relevant international sports federation and the International Olympic Committee (IOC) and its seat is determined in its statutes …… In addition, Article 27 of the above law also stipulates: “Without prejudice to Article 104 (2), under general or special regulations, voted by the general assembly of the members of each sports federation of the relevant sport or the relevant branch of sport, the rules governing all issues of the organization and conduct of the sport or sports under it, as well as any other relevant detail, are stipulated. For the preparation of the above regulations the current international regulations have been taken under consideration. Compliance with these rules is compulsory for sports clubs and sports associations under the relevant federation. Such regulations and their amendments are subject to legality verification by the Minister of Culture. One month after being lodged, such regulations shall be deemed legally adopted. If the legality verification of a regulation establishes that its provisions should be amended, supplemented or harmonized, this regulation shall be referred to the relevant federation, the Board of Directors of which should comply accordingly, within ten days from its remittance. In case of non-compliance, the Minister may suspend the regular granting of state subsidies to the federation…”.

9. All sporting institutions, and in particular all international federations, must abide by the general principles of law. Due to the transnational nature of sporting competitions, the effects of the conduct and deeds of international federations are felt in a sporting community throughout various countries. Therefore, the substantive and procedural rules to be respected by international federations cannot be reduced only to its own statutes and regulations and to the laws of the country where the federation is incorporated or of the country where its headquarters are. Sports law has developed and consolidated along the years, particularly through the arbitral settlement of disputes, a set of unwritten legal principles – a sort of lex mercatoria for sports or, so to speak, a lex ludica – to which national and international sports federations must conform, regardless of the presence of such principles within their own statutes and regulations or within any applicable national law, provided that they do not conflict with any national «public policy» («ordre public») provision applicable to a given case. Certainly, general principles of law drawn from a comparative or common denominator reading of various domestic legal systems and, in particular, the prohibition of arbitrary or unreasonable rules and measures can be deemed to be part of such lex ludica (CAS 98/200 AEK Athens and SK Slavia Prague / UEFA, award of 20 August 1999 , para. 156).

10. The awards of CAS are studied and it is argued that five different legal principles are employed: a lex ludica, good governance, procedural fairness, harmonisation of standards between international sporting federations and equitable treatment (Ken Foster, Lex Sportiva and Lex Ludica: the Court Of Arbitration for Sport’s Jurisprudence).

11. Should it be accepted that the PSC’s conclusions are “binding without further evaluation and legal qualification” needed, that would deter PAOK FC from lodging an appeal in these disciplinary proceedings, which would without a doubt violate PAOK FC’s fundamental right to exercise legal remedies (CAS 2014/A/3944 Galatasaray Sportif Sinai A.S. v. UEFA, para 45). Additionally this would lead to the evidently baseless conclusion that a national administrative act on professional football matters should be eo ipso “binding” in terms of its legal qualification of the facts, domestically and internationally, even before the CAS.

12. Olympiacos FC alleges indirectly but clearly that the matter is “res judicata” in these disciplinary proceedings because of the so called “rulings” of the PSC which is an executive body.

13. An administrative body (such as PSC) does not satisfy the requirements of Article 6 § 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Article 6 § 1 in principle requires that a court or tribunal should have jurisdiction to examine all questions of fact and law relevant to the dispute before it (Terra Woningen B.V. v. the Netherlands, § 52; Sigma Radio Television Ltd v. Cyprus, §§ 151-57).

14. Any decision taken by a UEFA organ (such as the HFF Appeal Committee) may be disputed exclusively before the CAS in its capacity as an appeals arbitration body, to the exclusion of any ordinary court or any other court of arbitration.

15. PAOK FC requested the HFF Appeal Committee to exercise its full jurisdiction, i.e. to review the case on a de novo basis, and declare that it had not committed any infringement of the multi-club ownership prohibition. In its appeal, PAOK FC also complained about the due process infringement throughout the whole procedure. The HFF Appeal Committee did not exercise its full jurisdiction even though it had both the power and the opportunity to assess the facts in all respects.

16. Olympiacos alleges that the PSC “decision’s conclusions” were not within the scope of the Appealed Decision.

17. The factual basis and conclusions should have been examined and evaluated by the HFF Appeal Committee, since they actually constituted the basis on which the sanctions were pronounced. The assumption that they haven’t been examined and evaluated and that are not “within the scope” of the Appealed Decision leads to the evident conclusion that the sanctions are null and void due to the error that they have been imposed in infringement of the fundamental principle under the rule of law, “No punishment without guilt”, “Nulla poena sine culpa”.

18. CAS has full power to resolve disputes involving matters of principle relating to sport or matters of pecuniary or other interests relating to the practice or the development of sport and may include, more generally, any activity or matter related or connected to sport (CAS Procedural Rules, Art. R27).

19. The Panel shall rule on its own jurisdiction. It shall rule on its jurisdiction irrespective of any legal action already pending before a State court or another arbitral tribunal relating to the same object between the same parties, unless substantive grounds require a suspension of the proceedings (Art. R55).

20. In accordance with Swiss Private International Law, CAS has the power to decide upon its own jurisdiction. In this regard, article 186 PILA states:

“1. The arbitral tribunal shall rule on its own jurisdiction.

1bis. It shall rule on its jurisdiction irrespective of any legal action already pending before a State court or another arbitral tribunal relating to the same object between the same parties, unless noteworthy grounds require a suspension of the proceedings. (CAS 2012/A/2852 S.C.S Fotbal Club CFR 1907 Cluj S.A. & Manuel Ferreira de Sousa Ricardo & Mario Jorge Quintas Felgueiras v. FRF, award of 28 June 2013, para. 49).

21. Pursuant to Article R57 of the Code, the Panel has full power to review the facts and the law. The Panel consequently hears the case de novo and is not limited to considerations of the evidence that was adduced before the Disciplinary Commission: the Panel can consider all new evidence produced before it (CAS 2004/A/714 F. v. IOC, award of March 31st 2005, para. 11).

22. Article 20 (2) of the FIFA Statutes states that:

“Every member association shall ensure that its affiliated clubs can take all decisions on any matters regarding membership independently of any external body. This obligation applies regardless of an affiliated club’s corporate structure. In any case, the member association shall ensure that neither a natural nor a legal person (including holding companies and subsidiaries) exercises control in any manner whatsoever (in particular through a majority shareholding, a majority of voting rights, a majority of seats on the board of directors or any other form of economic dependence or control, etc.) over more than one club whenever the integrity of any match or competition could be jeopardized”.

23. The British investment company ENIC plc has been a pioneer in multi-club ownership of European clubs. In season 1997-1998, three of its football clubs, i.e. Vicenza, AEK Athens and Slavia Prague, reached the UEFA Cup quarterfinals. This fact, which gave rise to pressing questions about the integrity of the competition, alarmed the European Football Confederation and its executive committee then enshrined the milestone-rule against multi-club ownership, the rule on the integrity of UEFA competitions and independence of clubs – the so-called “50+1” rule. Its main idea was – and still remains – that when two or more clubs belong to the same owner and qualify for the same UEFA competition, only one of them shall be eligible to play in it. Not all the clubs of the multi-club ownership are expelled from the competition, but rather only one club is selected and participates in the competition, specifically the “best club” in terms of sporting merit, to avoid any conflict of interest. ENIC appealed to CAS, on the argument that the rule adversely affected competition and infringed the EC Treaty. CAS, in its final decision in summer 1999, ruled that the participation of two or more clubs under the same owner in the same UEFA competition creates suitable grounds for conflict of interest. The UEFA rule against multi-club ownership came into force shortly after, in season 2000-2001. Under later UEFA rules on competitions, such as Article 5 of the UEFA Champions League regulations, a natural or legal person is presumed to control two football teams, not only when it is their legal and apparent owner (“50+1”), but also when it is not apparently their rightful owner but is able to exercise decisive influence on them in any way.

24. Decisive influence may be mentioned, yet it is not precisely defined in the rules of football. However, it is not the same as the “significant influence” mentioned and defined in the licensing regulation. In May 2017, the UEFA Club Financial Control Body (UFCB) made some significant considerations in its decision on the Red Bull-Salzburg-Leipsig case. There were suspicions that the sponsoring company Red Bull exercised decisive influence on both teams, which would participate in the Champions League. However, UFCB, pointing out – among others – that decisive influence should concern issues affecting the performance of a team in a competition rather than only issues of general commercial, financial or other business activities that do not directly affect its athletic performance, decided that Red Bull’s decisive influence over the two teams had not been established and that it was merely a standard sponsorship relationship.

It should also be noted that while Leipzig was receiving loans from Red Bull on favorable terms, Salzburg was renting its stadium and offices from a subsidiary of Red Bull, as well as that UEFA allowed Salzburg to take specific actions to be partially released from its sponsor (Red Bull), while the UFCB audit had already begun.

25. In particular the UEFA CFCB has ruled that (Decision with Grounds in case AC-01/2017, RASENBALLSPORT LEIPZIG GMBH FC RED BULL SALZBURG GMBH, para 37):

“Ιn this respect, the aim of Article 5.01 of the UCLR is to “ensure the integrity of the UEFA club competitions” with regard to “the decision making of the club” and so the CFCB Adjudicatory Chamber considers that it is necessary to limit the nature of the decision making under scrutiny to decisions that impact on the integrity of a competition. It is implicit therefore that such decisions must necessarily relate to matters that affect the performance of a club in a competition and not simply generic corporate, commercial, financial or other business activities which do not directly affect sporting performance. Since Article 5.01 of the UCLR aims to protect the integrity of the UEFA club competitions (including, applying the ENIC Case, the risk of collusion between clubs) and not to regulate the commercial transactions or financing of clubs, the words of the provision must be interpreted in this context”).

Such matters are stated in detail in the CAS 98/200 AEK Athens and SK Slavia Prague/ UEFA, award of August 20th 1999: “…39. Executives might have various ways of affecting or conditioning the performance of their teams in a given match, or set of matches, without even getting close to violating laws or sporting regulations and without even speaking to players or coaches. A first way might be connected with performance-related bonuses, which are wholly legitimate under any law …  Accordingly, it would be easily possible and perfectly legal for multi-club executives, by adjusting bonuses, to highly motivate the players of one team with suitable incentives and not at all (or much less) the players of the other team….  40. A second way might be connected with players’ transfers. Up to a certain point in the football season (nowadays, very late in the season) it is always possible to obtain new players or to let players leave. It is quite easy to induce players to move from one club to another through a wage hike or the opportunity to play in a winning team. Therefore, at any moment before a match between the commonly owned clubs, team rosters could easily change because of management and business needs rather than coaching decisions. One can find in the sporting press plenty of examples of players given away or hired by club owners and executives without the prior consent, and sometimes even without the prior knowledge, of the coaching staff.  41. A third relevant way of influencing the outcome of a match between commonly owned clubs might be connected with «insider information». One team could have, through common executives, access to special knowledge or information about the other team which could give the first team an unfair advantage. There is a relevant difference between widely available information (such as tapes of the other team’s official matches or any news which has appeared in the press) and confidential information obtained from a person within the opponent club’s structure (e.g. with regard to unpublicized injuries, training sessions, planned line-up, match tactics and any other peculiar situation concerning the other team).  42. Another, more trivial, way of conditioning team performances could even be connected with the day-to-day administration of a team in view of a match, particularly of an away match. There are plenty of choices usually made by club executives e.g. with regard to travel, lodging, training, medical care and the like which may condition either positively or negatively the attitude and performance of professional football players…” .

It is worth mentioning that no similar issues are stated in the Appealed Decision.

26. Article 61 of the HFF Statutes states that the HFF Judicial Bodies and its members, such as Superleague 1, may only pronounce the disciplinary sanctions provided for in the HFF statutes and regulations. In fact, the same provision of the HFF statutes stipulates that if sanctions not provided for in the HFF statutes and regulations are pronounced, these do not apply and should not be acknowledged by HFF and its members. Also, Article 24 (8) of the HFF Disciplinary Code states that the Judicial Bodies are independent and their members are solely bound by the HFF Statute, regulations and decisions. The fact that the Judicial Bodies of football should not and cannot enforce any sanctions provided by Law, except those provided for in the rules of football, derives from a number of provisions: from Article 2 (3) (b) of the Regulations of Football Matches (KAP), from Article 24 (7) of the HFF Disciplinary Code, from Article 3 (1) and Article 4 of the HFF Procedural Regulation for the Operation of Judicial Bodies. Federal football does not wish any disciplinary sanctions to be enforced under state Law, but only on the basis of football regulations. More specifically, Articles 53 and 54 of FIFA Statute state that the function of the Disciplinary Committee and the Ethics Committee is governed by the provisions of its Disciplinary Code and the Code of Ethics (“…may pronounce the sanctions described in these Statutes, the FIFA Code of Ethics and the FIFA Disciplinary Code on …”).

27. On 25/2/2020 the Hellenic Republic/Greek State and UEFA signed a Declaration of Intent in which the following are stated: “Without prejudice to sovereign rights of the State, the HR declares respect to the self-governance of professional football and the autonomy of football organisations. At the same time, HR declares its will to fully enforce rules concerning Greek professional football through the imposition of proportionate sanctions when there is a breach of national laws, without prejudice to the competence of the relevant HFF bodies as far as sporting sanctions are concerned. This Declaration of Intent was concluded shortly after the publication of the PSC’s administrative act (Report). This fact undoubtedly assures that Hellenic Republic recognizes and respects that HFF Statutes and regulations strictly preclude the implementation of sanctions not provided for in the HFF and federal football statutes and regulations.

28. On these grounds,I am of the opinion that the PSC report is not binding in terms of its substantive assumptions and legal qualification of the facts in the hearing before the CAS (independence, impartiality, separation of powers).

I am also of the opinion that the interference of PSC in the jurisdiction and powers of the Disciplinary Bodies of Greek football on the issue of multi-club ownership constitutes -in terms of Sports Law- excessive State interference in the internal affairs of professional football. The most serious manifestation of such excessive interference is the alleged “obligation”, by means of Greek Sport Act, of the Disciplinary Bodies to pronounce sanctions not provided for in the regulations, while it is well known that the right of associations to enforce sanctions or disciplinary measures on athletes and clubs is not the exercise of a power delegated by the State, rather it is the expression of the freedom of associations and federations. I also believe that excessive State interference is accomplished by defining a different concept of multi-club ownership in the provisions of the Greek Sport Act. While federal football uses the catch-all-provisions concept of “decisive influence” as well as the “50 + 1” (original rule), the Greek Sport Act (art. 69, L. 2725/1999 etc.) introduces a completely different approach to the subject. PSC is a legal formation introduced in the 00’s. Since then, however, the UEFA Club Licensing and Financial Fair Play have been established. It is clear that the statutes and regulations of federal football should not conflict with any national “public policy” (“ordre public”) provision applicable to a given case. Respectively, however, it is clear, at least for Sports Law, that where there is no conflict with any national “public policy”, domestic law should also avoid causing a negative external effect on FIFA Statutes. Article 20 (2) of FIFA Statutes states that “[i]n any case, the member association* shall ensure that neither a natural nor a legal person (including holding companies and subsidiaries) exercises control in any manner whatsoever (in particular through a majority shareholding, a majority of voting rights, a majority of seats on the board of directors or any other form of economic dependence or control, etc.) over more than one club whenever the integrity of any match or competition could be jeopardized”.

 (* and not a State entity)

I am of the opinion that the cross-operation of the Professional Sports Committee executive powers with the HFF’s Disciplinary Bodies jurisdiction on the issue of multi-club ownership, as well as the enforcement of the disciplinary sanctions provided for in Law rather than in the HFF and federal football regulations, is not legitimate in view of the autonomy of sport and the separation of powers [Article 15 (d) of the FIFA Statutes].

QUESTION (Β)

In conjunction with the previous question and with regard to Appellant’s legitimate interest/standing in lodging its appeal, the Appellant states in its dated 4/12/2019 complaint before PSC only that: “(I request) Your Committee (PSC) to decide on the present complaint which is brought before You legally and due to the legal interest of Olympiacos FC resulting from our participation with the above FCs in the same professional championship of Super League 1”.

In the proceedings before the Disciplinary Bodies of Greek professional football, the Appellant was acknowledged as a party. The Appellant has neither been sanctioned by the above decision of the HFF Appeal Committee, nor have any of its rights or interests in relation to this case been infringed. It is also explicitly stated in its Appeal Brief that “the factual basis of the case is not within the scope of this (its) appeal” (para. 8 of its Appeal Brief).

In your opinion, Olympiacos FC has legitimate interest/ standing to appeal before CAS in this case, taking under consideration the above facts, the PSC report, the Appealed Decision, the Appellant’s statement on the factual basis of the case, the CAS Procedural Rules, the HFF Regulations and subsidiarily the  Greek law?

ANSWER (Β)

29. Article R58 of the CAS Procedural Rules (“Law Applicable to the merits”) states that: “The Panel shall decide the dispute according to the applicable regulations and, subsidiarily, to the rules of law chosen by the parties or, in the absence of such a choice, according to the law of the country in which the federation, association or sports-related body which has issued the challenged decision is domiciled or according to the rules of law the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision”.

30. The authority by which a sporting association may set its own rules and exert its disciplinary powers on its direct or indirect member is in principle not based on public or penal law, but on civil law [CAS 2015/A/3944 Galatasaray Sportif Sinai A.S. v. Union des Associations Européennes de Football (UEFA), para 2]. Under Swiss law the right of associations to impose sanctions or disciplinary measures on athletes and clubs is not the exercise of a power delegated by the state, rather it is the expression of the freedom of associations and federations (cf. CAS 2005/C/976 & 986, no. 125: “The jurisdiction to impose (…) sanctions is based on the freedom of associations to regulate their own affairs”)…’ CAS 2008/A/1583 Benfica v. UEFA & FC Porto CAS 2008/A/1584 Vitória Guimarães v. UEFA & FC Porto, award of 15 July 2008, para. 41).

31. As a general principle the disciplinary proceedings in a National Federation are primarily meant to protect an essential interest of the Federation itself, i.e. the full compliance with the decision rendered by its bodies (CAS 2015/A/3880 FC Steaua Bucuresti v. Gabriel Muresan, award of 29 July 2015, para. 21). In a recent case was stated that “in an appeal against a decision of FIFA, by means of which disciplinary sanctions have been imposed on a party, only FIFA has standing to be sued….in other words, only FIFA can be the correct Respondent having standing to be sued” (see CAS 2012/A/3032, par. 43; CAS 2008/A/1620, par. 4.7; CAS 2007/A/1367 par. 43 et seq.).

32. According to the CAS jurisprudence, the requirement of legitimate interest is satisfied if it can be stated that the appellant (i) is sufficiently affected by the appealed decision and (ii) has a tangible interest, of financial or sporting nature, at stake. As is well known, the standing to appeal belong to any person putting forward a right of his own in support of his request (in doctrine, for an exhaustive analysis see DE LA ROCHEFOUCAULD E., “Standing to sue, a procedural issue before the CAS”, in CAS Bulletin 1/2011, p. 13 et seq.).

33. Third parties may have the standing to appeal exclusively if they are directly affected by the measure taken by the association. In this respect, the right of the appeal of a party must be denied if it has no tangible or legitimate interest, of financial or sporting nature, at stake and is not affected by the appealed decision (in this term, CAS 2008/A/1726 par. 66; see also for the completeness of the example of the questions arisen CAS 2014/A/3665, 3666 & 3667).

34. There is a category of third party applicants who, in principle, do not have, namely those deemed “indirectly affected” by a measure. As regards the differentiation of directly affected parties from indirectly affected parties, CAS jurisprudence displays a “common thread”, which has been succinctly put as follows: “Where the third party is affected because he is a competitor of the addressee of the measure/decision taken by the association, – unless otherwise provided by the association’s rules and regulations – the third party does not have a right of appeal. Effects that ensue only from competition are only indirect consequences of the association’s decision/measure. If, however, the association disposes in its measure/ decision not only of the rights of the addressee, but also of those of the third party, the latter is directly affected with the consequence that the third party then also has a right of appeal.” [CAS 2008/A/1583 Benfica v. UEFA & FC Porto & CAS 2008/A/1584 Vitória Guimarães v. UEFA & FC Porto, ¶9.6.1. See also Estelle de La Rochefoucauld, Standing to sue, a procedural issue before the CAS, CAS Bulletin 1/11, p. 17].

35. Τhe Panel may decide the dispute according to the applicable regulations and, subsidiarily according to the Greek Law. The following excerpt from the no. 772/2014 Decision of the Supreme Civil and Criminal Court of Greece (Areios Pagos, A1 Civil Section), with reference to a Plenum decision, which is posted on the website of the Supreme Court, contains significant legal reasonings which specify the definition of the legitimate interest/ standing to appeal in the Greek Civil Law, which in this case is applied in the alternative(freedom of associations and federations):

http://www.areiospagos.gr/nomologia/apofaseis_DISPLAY.asp?cd=AP1S3K30GIEU0YX5MQZU5JS2S0DNIL&apof=772_2014&info=%D0%CF%CB%C9%D4%C9%CA%C5%D3%20-%20%20%C11

“…Pursuant to Article 68 of Code of Civil Procedure, anyone with a direct legitimate interest has the right to request judicial protection, while, pursuant to Article 70 of Code of Civil Procedure, anyone with a legitimate interest in acknowledging the existence or non-existence of a legal relationship may bring a relevant actionThe standing of the parties (both standing to sue and to be sued) and legitimate interest constitute distinct procedural conditions of the hearingtheir judicial assistance is ex officio reviewed by the court at each stage of the hearing with free evidence and their lack implies rejection of the relevant request for judicial protection as inadmissible. As standing of the parties is considered the power to hold specific hearings on a specific legal relationship, i.e. for an actual relationship of a person with another person or object, which is determined as a rule by the substantive law – with regard to its operators and subject matter – and which has as a content or legal effect a right or obligation or a set of rights and obligationsOn the contrary, such power is not meant, nor is it provided, merely for the acknowledgement of facts or for the acknowledgement of conditions of rights or obligations (Supreme Court Plenum 18/2005). For the parties’ standing, the palintiff’s claim that he and the defendant are subject to the “contested legal relationship” and the citation in the action of the incidents substantiating such claim – failure to establish of which implies the rejection of the action as substantially unfounded, would suffice; while the defendant’s repulsion of standing to sue or judicial assistance of a legitimate interest is a denial, rather than an objectionMoreover, any material or moral benefit acknowledged by the law in favor of the person requesting judicial protection, and is in addition direct and actual (“present”), constitutes a legitimate interestDirect legitimate interest exists when the existence of a legal relationship (invalid legal act, etc.) causes uncertainty concerning a specific legal relationship between the plaintiff and a third party and a consequent risk to former’s interests (either direct and imminent or depending on additional future occurrences) for the prevention of which, the adoption of a judicial decision is requested, as an appropriate and necessary judicial act…”.

36. Under Swiss Law the burden of proof related to the existence of a legal interest worthy of protection lies on the party that has introduced the appeal. Indeed, the active legitimation is a question of material law; and it’s the party’s duty to objectively demonstrate the existence of its subjective rights and that it possesses a legal interest for its protection (ATF 126 III 59 consid. 1; 125 III 82 consid. 1a; 123 III 60 consid. 3a).

37. According to the CAS jurisprudence, in cases which are purely of a disciplinary nature an Appellant cannot have a claim against one of the parties to the proceedings in this respect which can establish or justify an intervention or an appeal. On 9 August 2013, the CAS Court Office informed Bursaspor that the Panel decided to reject its request for intervention on the basis that, “in the specific circumstances of this case, [Bursaspor] does not have a legal interest in the present matter which can establish or justify the intervention. This case is purely of a disciplinary nature between the Appellant and UEFA following match-fixing allegations and charges. In fact, [Bursaspor] does not and cannot have any claim against one of the parties to the proceedings in this respect (CAS 2013/A/3256 Fenerbahçe Spor Kuliibii v. UEFA, para. 86). On 9 August 2013, CAS informed Bursaspor that the Panel decided to reject its request for intervention on the basis that, in the specific circumstances of the case, it did not have a legal interest in the present proceedings, as the case is of a purely disciplinary nature between the Appellant and the Respondent. The Panel further considered that Bursaspor did not and could not have any claim against the parties to the present proceedings (CAS 2013/ A/3258 Besiktas Jimnastik Kuliibii v. UEFA, para. 39).

38. According to the Principle of the Fairness and equitable treatment, following the initiation of the disciplinary proceedings, the basis of the disciplinary complaint should not be changed. This is exactly what the Procedural Regulation of the HFF Judicial Bodies stipulates, which states that it is unacceptable to change the basis of the disciplinary complaint (Article 15 (2) of the Procedural Regulation) and that the parties’ notes with their allegations, accompanied by all the evidence available to them, shall be lodged no later than the day of the hearing (Article 15 (1)).

39. With regard to the express statement of Olympiacos FC that “the factual basis of the case is not within the scope of this (Its) appeal (para. 8 of its Appeal Brief)”, it should be noted that the right to appeal and right to be sued are issues linked to and deriving from the merits of a single case [Arbitration CAS 2014/A/3639 Amar Muralidharan v. Indian National Anti-Doping Agency (NADA), Indian National Dope Testing Laboratory, Ministry of Youth Affairs & Sports, award of 8 April 2015, page 1]. The Principle “tantum devolutum quantum appellatum” is comprised in the HFF regulations (indicatively, see Article 34 of the Procedural Regulations for the Operation of HFF Judicial Bodies entitled “Appeal-Devolutive effect”). It is also a general Rule of Greek law. Indicatively, Article 522 of the Code of Civil Procedure states that “[with] the exercise of the appeal the case is transferred to the appellate court within the limits set by the appeal and the additional grounds”. Moreover, such Rule reflects a general legal Principle of international scope. Besides, Article R51 (“Appeal Brief”) of the CAS Procedural Rules states that “[w]ithin ten days following the expiry of the time limit for the appeal, the Appellant shall file with the CAS Court Office a brief stating the facts and legal arguments giving rise to the appeal, together with all exhibits and specification of other evidence upon which it intends to rely”. Therefore the merits of the case constitute the only basis on which a Court can review whether or not there is legitimate interest/ standing to appeal. And such basis can and ought to be brought for assessment before the Court only by the Appellant by means of the devolutive effect of its Appeal.

40. The Appellant lodged its complaint with PSC (executive power) rather than with a competent professional football disciplinary body (judicial power) that would have direct jurisdiction on internal affairs of professional football. Olympiacos FC’s complaint to the Professional Sports Committee is not based on a right of its own so as to justify its presence in the CAS in this case. Its request was addressed to a supervisory collective administrative body and, through it, to the State Authorities, in order (for PSC) to exercise its public law powers regarding the integrity of football. Appellant’s subsequent Intervention/Appeal in “professional football disciplinary jurisdiction”, even if it is considered to be a claim/request, and actually against one of the parties to the proceedings in this respect –something that cannot happen as this is a case that has been characterized as purely of a disciplinary nature in Greece – it cannot be considered a continuation of its original complaint. And this is mainly because there is now a different request, i.e. now the State Authorities are no longer required to exercise their own powers. At the same time, it should be noted that no preliminary procedure have been held against it (i.e. any request), such as a call to account, disciplinary action, etc. With its appeal to CAS, the Appellant seeks to legitimize its presence in a different jurisdiction/proceeding (that of sports disputes-judicial power) than the one it had initially appealed to (before the PSC and the State Authorities-executive power). In my opinion, the Appellant is not directly or indirectly affected by the sanction pronounced by the decision under appeal and has not convincingly claimed to have any interest of financial or sporting nature, at stake.

41. On these grounds, taking under consideration the above facts, the PSC report, the decision of the HFF Appeal Committee, the statement of Olympiacos FC in its Appeal Brief (“the factual basis of the case is not within the scope of this appeal”, para. 8 of its Appeal Brief), the CAS Procedural Rules, the HFF Regulations and subsidiarily the Greek law, I am of the opinion that the Appellant does not have the required legitimate interest/ standing to appeal before the CAS against the no. 20/14-4-2020 decision of the HFF Appeal Committee.

Athens, June 22nd 2020

Nikos Lagarias
Attorney-at-Law in Athens
Omirou 20 str., 106 72
Greece
T.: +30 2103622288, email adr.: nlagarias@gmail.com