TAS - CAS 1392 de 2007

Tribunal Arbitral du Sport Court of Arbitration for Sport Arbitration CAS 2007/A/1392 Federación Panameña de Judo (FPJ) & Federación Venezolana de Judo (FVJ) v. International Judo Federation (IJF), award of 9 September 2008

Panel: Mr Efraim Barak (Israel), President; Prof. Massimo Coccia (Italy); Mr Bernard Hanotiau

(Belgium) Judo Governance Locus standi and “lack of legitimate interest” Respect of the agenda of a congress and last minute issues Recognition by an International Federation of a decision taken by a Continental Union and rules of public policy Right to be heard and principle of legality Right to be heard and absence of rule expressly providing for such principle Recognition of a National Federation

1. The principle according to which the decisions of Sports Federations or Associations may be challenged by the members of those Associations or Federations, without restrictions as regards the locus standi or the standing right, is part of the transnational general principles applicable to the world of sport, the so-called Lex sportiva, irrespective of any national rule of law. The fact that the appealed decision is not directly affecting the situation of the Appellant Federation is not relevant. The submission that the challenged decisions contravene legal or statutory provisions is sufficient as regards the admissibility of the appeal.

2. According to the well-established CAS case law, the respect of the agenda is an important principle. When considering to take part in a congress and in order to seek information on the items to be addressed, a member of an association needs a clear view of the issues which are to be addressed, especially when these issues are of vital importance. However, it is equally admissible for the agenda of a congress to be formulated in general terms, in order to have the opportunity to deal with last minute items.

3. It is a general principle that one always shall have the possibility to disregard a decision

or an action which is totally null and void. In that respect, one has to distinguish between decisions or actions that are legal according to the law and the statutes, the ones that are illegal, that is to say contrary to the law applicable to the Federation or to the statutes of this Federation and, finally, the decisions which are totally invalid, because they infringe the most basic fundamental principles, which are internationally recognized and admitted. These internationally recognized principles are part of the concept of international public policy. A decision infringing the public policy is not only open to annulment, after having been challenged in legal proceedings, but has to be considered as totally null and void, that is to say inexistent even if not judicially CAS 2007/A/1392 2 FPJ & FVJ v. IJF, award of 9 September 2008 cancelled. Therefore, a decision taken by a Continental Union is not binding for the International Federation if it appears that this decision was contrary to the concept of public policy. A CAS panel is also bound by the principles of public policy, irrespective of the material law applicable to the case, in application of the relevant provisions of Swiss arbitration law, that is to say of the Lex arbitri. The arbitrators have to take into account the legitimate interest of the States to guarantee the application of the very fundamental rules of international public policy. In that respect, arbitrators may directly apply the mandatory laws or rules of public policy which deserve to be applied, without having to proceed via provisions such as Article 7 of the Rome Convention or Art. 19 of the Swiss PIL, which are addressed to Courts.

4. The right to be heard is not respected in case of a decision taken by a Continental Union suspending the President of a national Federation for five years, without any possibility to appeal or to have the sanction debated in front of the Continental Union’s congress, on the sole basis of several letters written by this President, expressing criticism against the way the Continental Union is managed. Moreover, the principle of legality, that is

to say the fundamental principle according to which no sanction shall be taken in the absence of a rule providing for such a sanction, is also being infringed if such decision has been taken without a provision in the Statutes of the Continental Union providing for the possibility to take it. Those two principles are clearly part of international public policy and have to be qualified as transnational principles of international public order.

5. It is a general principle of sports law, constantly recognized by CAS jurisprudence, that the right to be heard has to be respected, even if there is no applicable rule expressly providing for such principle. Furthermore and according to the Swiss Supreme Court, the respect of the right to be heard has also to be considered as being part of international public policy, at least under the conception adopted under the Lex arbitri, that is to say Swiss law. According to the Swiss Supreme Court, the procedural public order is violated if the right to be heard is not respected.

6. A general assembly’s preference for the recognition of the National Federation by the National Olympic Committee where the International Federation’s statutes clearly give the same weight to the recognition by the National Olympic Committee as to the recognition by the highest sporting organization of the country, is to be considered as a deviation from the statutes.

The Federación Panameña de Judo (FPJ) is an entity which is recognised by the Instituto Panameño de Deportes (“INDE”) and by the Panamerican Judo Union (PJU) to represent the Judo of Panama at an international level.

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FPJ & FVJ v. IJF, award of 9 September 2008 The Federación Venezolana de Judo (“FVJ”) is a national sporting federation that is responsible for the organisation of Judo in the territory of Venezuela. It is a member of the PJU and of the International Judo Federation. The International Judo Federation (IJF), a company limited by guarantee and incorporated in Ireland,

is an international sporting federation created in 1951. It is recognised by the International Olympic Committee as being responsible for the organisation and representation of Judo. It has 195 national Judo Federations affiliated as members, through one of the five Continental Judo Unions, amongst which is the PJU. The elements set out below are a summary of the main relevant facts, as established by the Panel on the basis of the written submissions of the parties, the exhibits produced and the hearing held on 16 September 2008, in Lausanne, Switzerland. The Federación Puertorriqueña de Judo (“the Puerto Rican Federation”), whose status and nature of incorporation was not clearly explained or proved to the panel, is however a national Federation member of the IJF and member of the PJU. It is undisputed that Mr Jorge Armada was the validly elected President of the Puerto Rican Federation during the years 2006 and 2007. After the Juegos Centroamericanos y del Caribe, organized in the summer of 2006 in Colombia, various communications were sent by Mr Jorge Armada to members of other national judo federations of Central and South America. In these communications, Mr Jorge Armada criticized the activity of the PJU as regards the referees. Such communications were sent on 17 August 2006 and 9 November 2006. On 10 November 2006, Mr Jorge Armada sent, on behalf of the Puerto Rican Federation, a letter to the General Secretary of the PJU, requesting information from the PJU in connection with the incomes and expenses of the said Union, suggesting amendments to the statutes of the PJU to be submitted to the congress of the PJU to be held on 28 November in the city of Maracaibo, Venezuela, and addressing other matters regarding the suspension of three referees. On 27 November 2006, Mr Jorge Armada sent an e-mail to all the other Presidents of the National

Federations members of the PJU. In this e-mail, Mr Jorge Armada suggested to organize an extraordinary congress of the PJU, in order to challenge Mr Jaime Casanova as President of the PJU. Also in this e-mail, Mr Jorge Armada alleged that he was denied the entrance to Venezuela, so that he would not be able to take part to the PJU congress scheduled on 28 November 2006 in Maracaibo. On 28 November 2006, the President of the FVJ sent a letter to the President of the PJU, in which he declared that no visa was needed for a Puerto Rican citizen to enter Venezuela and that Venezuela never prohibited the entrance of a Puerto Rican citizen or of a United States citizen, Mr. Jorge Armada having the United States citizenship. Various other letters were exchanged between the President of the PJU, Mr Jorge Armada and the Sports Minister of Venezuela regarding the allegation that Mr Jorge Armada was impeded to enter Venezuela. The PJU relied on the information provided by the Venezuelan authorities, while Mr Jorge Armada confirmed that he was denied the access to the host country of the 2006 PJU congress.

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FPJ & FVJ v. IJF, award of 9 September 2008 On 10 and 11 February 2007, the PJU Executive Committee held a meeting in the Cayman Islands, during which it took a decision, which states, in relevant parts, as follows: “Suspend, with the effect of suspension of all activities related to organized Judo at the international level, the President of the Judo Federation of Porto Rico, Mr Jorge Armada, for a period of five years, in view of his inappropriate behaviour and his lack of respect within documents which he issued, in an insulting form, using disqualifying terms against the members of the UPJ (…). He also expressed in such communications unfounded accusations which have not been demonstrated so far against the Judo Federation of Venezuela and the UPJ,

stating within an e-mail of 27/11/2006 sent to the Federative Presidents of the Pan-American Judo Union that “he had been denied the entry in Venezuela”… in order to take part to the UPJ ordinary congress which was held on 28 November 2006 in the city of Maracaibo, State of Zulia, Venezuela”. This decision was notified to the Judo Federation of Puerto Rico and to the IJF, on 23 March 2007. On 31 March 2007, the Puerto Rican Judo Federation expressed its disagreement with this decision but informed that it had appointed its vice-president as its representative within the PJU, in order to avoid any sanction against the Puerto Rican athletes. On 2 April 2007, Mr Jorge Armada appealed against the decision of the Executive Committee of the PJU. In his appeal, Mr Jorge Armada referred to various provisions of the PJU statutes, providing for the right to be heard of any member to be sanctioned. On 3 April 2007, the President of the National Olympic Committee of Puerto Rico requested the President of the PJU to reconsider the sanction made against Mr Jorge Armada. On 21 April 2007, the PJU refused to consider the appeals made by Mr Jorge Armada and by the National Olympic Committee of Puerto Rico. On 17 July 2007, the President of the IJF, who was at that time Mr Yong Sung Park, sent a letter in which he informed that the suspension of Mr Jorge Armada “is ratified by the International Judo Federation (…)”. In September 2007, the IJF held a congress in Rio de Janeiro, in Brazil. At the outset of this congress, Mr Jorge Armada was asked by the IJF General Secretary to leave the congress room, as he was suspended by the Executive Committee of his Continental Union. Later during the IJF congress, some representatives of members of the PJU took the floor to address the question of the suspension of Mr Jorge Armada. This issue was debated by the congress and, after

many delegates intervened, the President of the IJF proposed the congress to decide the following: “Considering the fact that any individual affiliated to the IJF has the right to appeal for a sanction taken against him, and after examination of the appeal file presented by Mr Georges Armada, President of the Porto Rico Judo Federation, it is evident that Mr Armada’s five year suspension by the EC of the Pan-American Union is based on political raisons (sic) rather than on a prejudice to the spirit of Judo or the smooth running of this sport. Consequently, the IJF President proposes that this sanction be repealed immediately”.

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FPJ & FVJ v. IJF, award of 9 September 2008 According to the minutes of the congress, this proposition was approved by the absolute majority of the congress. On 1st October 2007, the President of the FVJ sent an e-mail to the President of the IJF, complaining about several violations of the IJF statutes during the congress held on 10 September 2007 in Rio, amongst which the decision to repeal Mr Jorge Armada’s sanction. As a preliminary remark concerning the facts related to the membership and the representation of the FPJ within the IJF, the Panel underlines that the situation of the administration and organization of Judo in Panama is very confusing. In spite of the efforts of the Panel during the hearing and of the evidence produced by the parties, amongst which the witness statements and the witnesses heard during the hearing, the Panel has still not been able to get a clear picture of the situation. The declarations of the witnesses have been often contradictory and impossible to reconcile. Furthermore, the witnesses are all more or less related to one of the interested parties to the case, so that their testimonies should be considered taking into account that they have not appeared as neutral. That being said, the following facts have been reconstructed by the Panel. A Judo Federation exists in Panama since many years. This Federation has been a member of the IJF. None of the parties

provided the Panel with any documents evidencing the creation of the Federation and its existence. Nor has the Panel seen any statutes of the FPJ, minutes of any statutory general assembly or executive committee. At one moment in time, which the Panel has not been able to identify more precisely than being during the nineties, there has been in Panama a struggle between two different groups of persons who both wanted to run and organize the sport of Judo at a national level. The first group was represented by Mr Ernesto Arce. The second group was represented by Mr Miguel Vanegas, President of the FPJ. According to Mr Miguel Vanegas, he has been elected as President of the FPJ, to replace Mr Arce. According to the witness Rosa Santamaria Bush, the Secretary of the club as well as of the Federation run by Mr Ernesto Arce, Mr Arce’s Federation was created in the nineties, in order to gather several people who were not satisfied of the way judo was promoted and organized within Panama. For the reasons set out previously, the Panel has not been able to determine exactly where the truth lies. In the Panel’s opinion this point is not relevant to decide the merits of the case. The confusion of the situation of the sport’s governing bodies in Panama is not limited to judo. It appears that the National Olympic Committee of Panama was suspended by the International Olympic Committee, between 1st July 2007 and 10 April 2008. Furthermore, as regards judo, the IJF disaffiliated the FPJ, by a decision made during the IJF ordinary congress held in Munich, Germany, in 2001. In a letter dated 5 July 2006, the President of the IJF informed the President of the Panama Olympic Committee of this decision and added that he sincerely hoped “that in the near future, the Panamerican Judo Union will submit a request to the IJF Executive Committee, that the Executive Committee and the Ordinary Congress reconsider the above decision in order to allow the athletes, coaches and referees to take part in international judo events throughout the world”.

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FPJ & FVJ v. IJF, award of 9 September 2008 On 23 February 2006, an extraordinary general meeting of the judo organizations of Panama was set up, gathering amongst others more than 20 judo sports organizations recognized by INDE. During this general meeting, it was decided to elect a provisional commission, composed of Luis Avila, Ramon Alvarado, Boris Sanjur, Miguel Vanegas and Basilio Martinez. In a decision dated 5 May 2006, INDE, which is the competent State authority to supervise and approve the electoral procedures and sports organizations according to the sport legislation of Panama, recognized this provisional commission as the body organizing and representing the sport of judo at a national level, “until the conclusion of the electoral process for the period 2006-2010 convoked by the Board of Directors of the National Sports Institute”. The newly nominated provisional commission carried out an electoral process. During this process, the provisional commission invited the judo clubs of Panama to confirm whether they were willing to remain affiliated to the judo league recognized by INDE or not. Mr. Ernesto Arce, as responsible of the judo club “Ernesto Arce Club” received a correspondence dated 23 May 2006 relating to this object. There is no evidence that this letter was ever answered by Mr Ernesto Arce or by anyone on his behalf or on behalf of his club. On 17 July 2006, INDE sent to the PJU a correspondence regarding the electoral process carried out in Panama concerning the appointment of the bodies of the National Judo Federation. This correspondence contained a list of the clubs having expressed their interest to take part into the election process. According to this document, the club of Mr Ernesto Arce refused to be affiliated. On 14 September 2006, the delegates of the provincial leagues of judo held a meeting in order to elect the new executive committee of the FPJ, for the period 2006-2010. The newly elected executive

committee was composed, amongst others, of Mr Miguel Vanegas as President. In a decision dated 14 September 2006, INDE officially recognized this newly elected executive committee of the FPJ. On 3 October 2006, INDE informed the PJU that the executive committee of the FPJ had been elected on 14 September 2006. The same day, INDE issued a document certifying that the FPJ was a sport organization duly constituted and recognized according to the sport legislation of Panama and that the executive committee of the FPJ for the period 2006-2010 was the one elected on 14 September 2006. On 7 October 2006, Mr Miguel Vanegas, in his capacity at that moment as President of the Olympic Committee of Panama, informed the President of the IJF that he had been elected as President of the FPJ. On 24 October 2006, the President of the PJU informed the President of the Pan-American Sports Organization that the affiliation request of the FPJ would be addressed at the PJU congress to be held on 20 November 2006, in Maracaibo, in Venezuela. In this correspondence, the President of the PJU referred to the FPJ Executive Committee elected on 14 September 2006 and chaired by Mr Miguel Vanegas.

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FPJ & FVJ v. IJF, award of 9 September 2008 After the above mentioned ordinary congress, the President of the PJU wrote to the President of the Pan-American Sports Organization to inform them of the decision made by the General Assembly to accept the affiliation of the FPJ, chaired by Mr Miguel Vanegas. It was added that, due to its affiliation to the Continental Union, the FPJ was automatically affiliated to the IFJ, at that time presided by Mr Yong Sung Park. Copy of this letter was sent to Mr Yong Sung Park. On 7 December 2006, Mr Mario Vazquez Raña, as member of the Executive Board of the

International Olympic Committee and President of the Association of National Olympic Committees, sent a letter to the President of the IJF, asking information about the names and composition of the Executive Board of the “National Federation of Panama recognized by the organisation you preside”. On 28 December 2006, the President of the IJF answered to the letter of Mr Mario Vasquez Raña, as follows: “In regard to your request for the names and composition of the Executive Board of the National Federation of Panama recognized by International Judo Federation, please find the attached official letter which IJF received from the Panamerican Judo Union. According to the IJF Statutes - Article 3 Affiliation, please be noted that it has been the traditional policy of the IJF Executive Committee not to supersede its authority in granting recommendation to National Federations beyond the scope of the IJF Statutes and the authority granted to each of its five Continental Unions. The IJF recognizes the leadership and organization of the National Judo Federation recognized by its Continental Union unless there comes a time in the future when the Continental Union informs us differently”. On 13 May 2007, the Panama Olympic Committee, through Mr Roger Moscote as President, sent a letter to Mr Ernesto Arce, which reads, in part, as follows: “On behalf of the Board of Directors of the Panama Olympic Committee, we reiterate, yet again, having recognized the new Board of Directors of the Panama Judo Federation, elected for the 2006-2010 period on the 18th of September 2006 and composed of the following members:

• President: Ernesto Arce
• Vice-President: Cesar Chu
• Secretary: Rosa de Santa Maria

(…)”. Except of this single letter, which even in itself was not supported by any evidentiary document, no other evidence was submitted in regard of this recognition. Between 14 and 16 June 2007, the Spanish Judo Federation organized a meeting in Madrid, during

which the present situation and the future of the IJF were discussed, as well as the candidacy of Mr Marius Vizer to the IJF Presidency. The Presidents of the Continental Unions of Europe, Africa and Asia attended to this meeting, with various other personalities from the world of judo. Mr Ernesto Arce also attended this meeting and was presented, according to a report in a newspaper article, as one representative of “eleven countries from the Panamerican Judo Union”.

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FPJ & FVJ v. IJF, award of 9 September 2008 On 27 June 2007, the FPJ sent a letter to the PJU complaining about the attitude of the Spanish Judo Federation in accepting the attendance of Mr Ernesto Arce as one of the representatives of eleven countries members of the PJU. On the same day, the PJU issued a press release expressing that it did not consider Mr Ernesto Arce as a representative of his country. On 1st July 2007, the Executive Board of the International Olympic Committee decided to withdraw all the rights, prerogatives and functions of the Panama National Olympic Committee granted by the Olympic Charter, “following a detailed report presented by Mario Vasquez Raña on the serious situation affecting the Panama National Olympic Committee”. At the outset of the IJF ordinary congress held on 10 September 2007 in Rio de Janeiro, the IJF General Secretary asked a delegate of Panama to leave the congress room, “since, as decided by the credential committee, the Panama Federation is not habilitated to participate to the congress”. After the report of the President of the PJU, some representatives of national federations members of the PJU took the floor to speak about problems regarding the PJU, amongst which the question of the Judo Federation of Panama. A request was presented, concerning “the acknowledgment of Mr Arce as sole President of the Panama Judo Federation which le (sic) only Federation recognized by the Panama Olympic

Committee”. After discussions and interventions by many delegates, Mr Marius Vizer, President of the IJF, made the following proposition: “Considering the fact that judo is first and foremost an Olympic Sport that is part of the program of the Olympic Games, from now on, the IJF and its congress will recognize only the National Federations that are recognized by their Olympic Committee when there is one in the country. If the country has no National Olympic Committee, recognition of the country must be done through the Sports Minister and supported by a duly-signed document. Consequently, he proposes that the Panama Federation which is recognized by the Olympic Committee and by ODEPA be allowed to participate to the congress”. According to the minutes of the congress, this proposition was approved by the majority of the members present or represented at the congress. On 30 September 2007, Mr Miguel Vanegas, acting as President of the FPJ, sent a letter, by e-mail, to the President of the IJF, requesting the annulment of the recognition of Mr Ernesto Arce as representative of the FPJ, during the IJF congress held on 10 September 2007 in Rio de Janeiro. On 1 October 2007, the FPJ and the FVJ (“the Co-Appellants”) filed a Statement of appeal with the Court of Arbitration for Sport (CAS) directed against the IJF. They challenged the decisions passed on the 2007 IJF ordinary congress and submitted the following request for relief:

1. Consider null and void, respectively annulled, the decisions passed by the Congress of the International Judo Federation held on 10 September 2007, amongst other those relating to - The membership of the FederaciónPanameña de Judo, chaired by Mr Miguel Vanegas - The representation at the IJF congress of the FederaciónPanameña de Judo by Mr Ernesto Arce, respectively by its current President, Mr Miguel Vanegas CAS 2007/A/1392 9

FPJ & FVJ v. IJF, award of 9 September 2008 - The representation at the IJF congress of the National Federation of Puerto Rico by Mr Jorge Armada.

2. Order the International Judo Federation to reconvene its congress as soon as possible in accordance with

its statutes, in order to pass valid decisions regarding item No. 1 above and to readdress all other decisions taken during such congress with the appropriate delegate of the National Federations.

3. Confirm that the Federación Panameña de Judo, chaired by Mr Vanegas, is the only Federation of Judo in Panama and is a member of the International Judo Federation.

4. Disallow Mr Jorge Armada to represent at the IJF congress the National Federation of Puerto Rico as long as he is suspended.

5. Order the International Judo Federation to bear all the costs, if any, of this arbitration and to reimburse the FederaciónPanameña de Judo and the FederaciónVenezolana de Judo the minimum Court office fee of CHF 500,-.

6. Order the International Judo Federation to contribute to the legal and other costs incurred by the FederaciónPanameña de Judo and the FederaciónVenezolana de Judo in connection with this arbitration.

In the Statement of appeal, the Co-Appellants requested for the stay of the deadline for filling the appeal brief, respectively for an extension of this deadline. The Co-Appellants based this application on Art. 27 of the IJF statutes, according to which the parties should try to settle amicably any legal dispute arising from or in connection to the statutes and explained that no answer had been received from the IJF to the e-mail of Mr Vanegas dated 30 September 2007, so that there was no confirmation that an amicable settlement was excluded. On 2 October 2007, the co-appellants also requested an extension of the deadline to lodge the appeal brief, relying on the fact that this extension was needed

to prepare the translation of several documents written in Spanish. On 4 October 2007, the Deputy President of the CAS Appeals Arbitration Division accepted to extend the time-limit for filling the appeal brief, in accordance with Art. R 32 para. 2 of the Code of Sports Related Arbitration, until 22 October 2007. On 11 October 2007, the Respondent agreed to the stay of the proceedings. Accordingly, the Deputy President of the CAS Appeals Arbitration Division issued an order for the stay of the proceedings. On 23 November 2007, the Respondent informed the CAS Court Office that no amicable settlement had been reached. The Respondent however did not request for a direct order to resume the proceedings. On 4 April 2008, the Co-Appellants requested the Deputy President of the CAS Appeals Arbitration Division to issue an order to resume the proceedings and filed an Appeal brief, at the end of which the request for relief submitted in the Statement of appeal was confirmed. The Co-Appellants’ submissions are, in essence, the followings: - It would have been contrary to Art. 8.5 and to the By-Laws of Art. 8.7 of the IJF Statutes to address the issue of the representation of the Judo Federation of Puerto Rico and the issue of the representation and affiliation of the FPJ during the IJF congress held on 10 September 2007 in Rio de Janeiro. The Co-Appellants submitted that the IJF Statutes provide that “the congress may consider only those items which are included in the agenda”, so that the two above mentioned issues, which were not part of the agenda, should not have been discussed during the congress. The Co-Appellants furthermore submitted that these two issues were not to be considered as urgent matters which may be discussed at the congress even if not included on the agenda.

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FPJ & FVJ v. IJF,

award of 9 September 2008 - As regards the decision to overturn the five years suspension passed against Mr Jorge Armada, the Co-Appellants argued that the IJF congress had no jurisdiction to intervene in a disciplinary case pending before a Continental Union. The Co-Appellants also submitted that the decision of the ordinary congress is contrary to Art. 22.6 of the IJF Statutes, which provides that “All actions, with the exception of expulsion, taken by a Continental Union with regards to one of its member federations shall entail the recognition of this action by the IJF”. Furthermore, the Co-Appellants relied on a letter of the IJF’s President dated 17 July 2007, ratifying the suspension of Mr Jorge Armada. Finally, the Co-Appellants contended th