TAS - CAS Bulletin 2024-1

2024/01 Bulletin TAS CAS Bulletin Boletín del TASTRIBUNAL ARBITRAL DU SPORT/COURT OF ARBITRATION FOR SPORT/TRIBUNAL ARBITRAL DEL DEPORTE ______________________________________________________________________________

Bulletin TAS CAS Bulletin Boletín del TAS 2024/1

Lausanne 20241

Table des matières/Table of Contents/Indice de Contenidos

Editorial ......................................................................................................................................................... 3

Articles et commentaires / Articles and Commentaries / Artículos y comentarios .......................... 5 Safeguarding and beyond - The role of sports regulations, human rights and the balance between the rights of interested parties in sports investigations and the disciplinary proceedings that arise from them Janie Soublière and Björn Hessert ......................................................................................................... 6 Caselaw of the Swiss Federal Tribunal on appeal against CAS awards (2020-23) Alexis Schoeb ......................................................................................................................................... 33

Jurisprudence majeure / Leading Cases / Casos importantes ............................................................ 53

CAS 2019/A/6594

Cardiff City Football Club Limited v. SASP Football Club de Nantes 26 August 2022 ...................................................................................................................................... 54

CAS 2020/A/7314

Horacio Luis Rolla v. Palermo Football Club S.p.A & Fédération Internationale de Football Association (FIFA) 12 April 2023 .......................................................................................................................................... 62

CAS 2021/A/7912

Olympiakos Nicosia v. Club Necaxa 15 March 2023 ........................................................................................................................................ 71

CAS 2021/A/8060

Association Sporting Club Bastiais & SC Bastia v. Fédération Internationale de Football

CAS 2021/A/7912

Olympiakos Nicosia v. Club Necaxa 15 March 2023 ........................................................................................................................................ 71

CAS 2021/A/8060

Association Sporting Club Bastiais & SC Bastia v. Fédération Internationale de Football Association (FIFA) & FSV Mainz 05 25 April 2023 .......................................................................................................................................... 75

CAS 2021/A/8471

Al-Hilal Khartoum Club v. Jesi Last 6 February 2023 ..................................................................................................................................... 83

CAS 2021/A/8531

Mohamed Zakaria Khalil, Soufiane El Mesbahi & Yassir Kilani v. The International Tennis Integrity Agency (ITIA) 9 March 2023 .......................................................................................................................................... 87

CAS 2022/A/8574

Marcos Lavín Rodríguez v. FC Voluntari 15 March 2023 ........................................................................................................................................ 92

CAS 2022/A/8582

Dawid Lange v. International Paralympic Committee (IPC) 11 May 2023 ........................................................................................................................................... 97

CAS 2022/A/8592

USD Lavagnese 1919 v. Fédération Internationale de Football Association (FIFA)2

17 April 2023 (operative part of 20 June 2022) ............................................................................... 102

CAS 2022/A/8621

Nikola Djurdjic v. Chengdu Rongcheng Football Club LTD 30 December 2022 ............................................................................................................................... 107

CAS 2022/A/8737

Hellas Verona FC S.p.A v. FC Sellier and Bellot Vlasim & Udinese Calcio S.p.A & Fédération Internationale de Football Association (FIFA) 7 March 2023 ........................................................................................................................................ 116

CAS 2022/A/9033

International Tennis Federation (ITF) v. Mikael Ymer 17 July 2023 .......................................................................................................................................... 124

CAS 2022/A/9113

Internationale de Football Association (FIFA) 7 March 2023 ........................................................................................................................................ 116

CAS 2022/A/9033

International Tennis Federation (ITF) v. Mikael Ymer 17 July 2023 .......................................................................................................................................... 124

CAS 2022/A/9113

Nairo Alexander Quintana Rojas v. Union Cycliste Internationale (UCI) 5 June 2023 (operative part of 3 November 2022) ......................................................................... 130

CAS 2022/A/9219

Jubilo Co. LTD v Fédération Internationale de Football Association (FIFA) 14 June 2023 (operative part of the award of 22 December 2022) .............................................. 135

Jugements du Tribunal fédéral / Judgements of the Federal Tribunal / Sentencias del Tribunal federal ........................................................................................................................................................ 140 4A_22/2023 16 mai 2023

A. c. Professional Tennis Integrity Officers .................................................................................... 141

4A_170/2023 28 juin 2023 Fédération Internationale de Football Association c. A. ............................................................... 146 4A_254/2023 12 juin 2023

A. C. Fédération Internationale d’Escrime ................................................................................... 154

4A_580/2022 26 avril 2023

A. c. B. & Fédération Internationale de Football Association ...................................................... 158

Informations diverses / Miscellanous / Información miscelánea ..................................................... 161 Publications récentes relatives au TAS/Recent publications related to CAS / Publicaciones recientes relacionadas con el CAS ..................................................................................................... 1623

Editorial

Between the last internal CAS seminar in Budapest in 2019 and the recent one held in Geneva, the CAS has gone through a major period of adaptation. This four -year cycle marked by the COVID -19 pandemic, has led to a major evolution of internal and technical practices, including the development of

Budapest in 2019 and the recent one held in Geneva, the CAS has gone through a major period of adaptation. This four -year cycle marked by the COVID -19 pandemic, has led to a major evolution of internal and technical practices, including the development of hearings by videoconference and e -filing systems. Many important changes will occur soon in the CAS IT sector ; more specifically, the CAS website will be refreshed, a new efiling system will be implemented allowing automatic filings without pri or intervention form the Court Office, and a new system will host the database for jurisprudence. Furthermore, a mobile application will be also developed simultaneously.

Importantly, increasing attention is being paid to human rights issues in sport with the “Guidelines for the hearing of vulnerable witnesses and testifying parties in CAS Procedures” issued by the ICAS in December 2023 to recommend best practices in this area. Each CAS Panel is encouraged to take the se Guidelines into account when it faces a situation involving vulnerable witnesses, bearing in mind its duty to comply with the parties’ right to a fair trial, including the right to be heard and to benefit from equal treatment. These Guidelines are recommendations with respect to the implementation of Articles R44.2 and R57 (hearing), as well as Articles R46 and R59 (publication of award) of the Code of Sportsrelated Arbitration (the Code) when there is a vulnerable witness but shall not prevail over the Code. It is noteworthy that t hese Guidelines do not constitute mandatory procedural rules and cannot be used by parties seeking to challenge the application or nonapplication of these Guidelines by any CAS Panel.

The recruitment of additional staff in 2023, made necessary by the constant increase in the number of cases registered by the CAS – more than 900 cases registered in 2023 - brings the number of CAS employees to 53 , all based at

application of these Guidelines by any CAS Panel.

The recruitment of additional staff in 2023, made necessary by the constant increase in the number of cases registered by the CAS – more than 900 cases registered in 2023 - brings the number of CAS employees to 53 , all based at the new CAS premises, at the Palais de Beaulieu in Lausanne. The CAS headquarters were selected in the competition organized by the magazine Bilan Immobilier and won the 2023 award of the best real estate renovation in Suisse romande. This award was granted by a jury of experts in architecture.

We are pleased to publish in this issue an article co-written by Janie Soublière, CAS arbitrator, and Björn Hessert , CAS counsel, entitled “Safeguarding and beyond - The role of sports regulations, human rights and the balance between the rights of interested parties in sports investigations and the disciplinary proceedings that arise from them ”, and an article by Alexis Schoeb, CAS arbitrator, summarising the caselaw of the Swiss Federal tribunal on appeal against CAS awards for the period from 2020 to 2023.

As usual, because most CAS cases are related to football, this new issue of the Bulletin includes a majority of selected “leading cases” related to football, that is ten football cases , three doping cases (in equestrian, powerlifting and cycling respectively), and one case of match-fixing in tennis.

At last, s ummaries of the most recent judgements rendered in French by the Swiss Federal Tribunal (SFT) in connection with CAS decisions have also been enclosed in this Bulletin. The decision 4A 22/2023 states that the failure to comply with the time limit referred to in article R59 paragraph 5 of the CAS Code does not automatically deprive the arbitrators of their power to rule on the merits

CAS decisions have also been enclosed in this Bulletin. The decision 4A 22/2023 states that the failure to comply with the time limit referred to in article R59 paragraph 5 of the CAS Code does not automatically deprive the arbitrators of their power to rule on the merits of the dispute. In the judgement 4A 254/2023, the SFT recalls that because the filing on the4

CAS platform is a condition for the validity of the statement of appeal and not a mere formality, strict compliance with Article R31 of the CAS Code ( Notifications and Communications) is essential for reasons of equal treatment and legal certainty. Likewise, in 4A 580/2022, the SFT stresses that if the conditions of article R31 of the CAS Code are not met, the CAS Court Office may refuse to hear the case and there is no formal denial of justice. Finally, in 4A_170/2023, the SFT states that the fact that it is materially impossible for the CAS to hear witnesses via a video conferencing system neither contravenes generally recognised fundamental principles nor leads to an intolerable contradiction with the sense of justice.

I wish you a pleasant reading of this new edition of the CAS Bulletin.

Matthieu Reeb CAS Director General5

_____________________________________________________________________________________ Articles et commentaires Articles and Commentaries Artículos y comentarios6

______________________________________________________________________________ Safeguarding and beyond - The role of sports regulations, human rights and the balance between the rights of interested parties in sports investigations and the disciplinary proceedings that arise from them Janie Soublière and Björn Hessert ______________________________________________________________________________

I. Introduction

II. Basis for the subsequent discussion

A. How did safeguarding become a high profile topic?

B. Who needs to be protected and what legal assistance do they need?

C. Who are the perpetrators?

______________________________________________________________________________

I. Introduction

II. Basis for the subsequent discussion

A. How did safeguarding become a high profile topic?

B. Who needs to be protected and what legal assistance do they need?

C. Who are the perpetrators?

D. Sports rules and regulations and mandatory statutory provisions

III. Balancing the rights of interested parties in sports investigations

A. What are sports investigations?

B. Undertaking sports investigations

C. The provisional suspension of the alleged rule violator and requests related thereto

IV. The provisional suspension of the alleged rule violator and its stay thereof

V. How to balance the rights of all parties in disciplinary proceedings resulting from sports investigations

A. Standing to be a party in disciplinary proceedings in first instance and before the CAS in safeguarding cases

B. Legal aid

C. De novo power in appeals proceedings before the CAS

D. Burden and standard of proof

E. Protection of victims and witnesses

VI. Conclusion ______________________________________________________________________________

I. Introduction

Sports lawyers and adjudicators are well aware that properly regulating sport requires balancing the interests and rights of sporting associations, their members, athletes of all levels and ages, athlete support personnel, and other stakeholders. As the co mplexity of sporting disputes grows, so too does the need for investigations and disciplinary proceedings that protect the rights and interests of all these

Janie Soublière, Attorney -at-Law, CAS Arbitrator. A trained trauma -informed investigator, she has been conducting sports investigations and disciplinary proceedings in antidoping, safe sport and anti-corruption for over 15 years. Björn Hessert, Attorney -at-Law, CAS Counsel. He is the author of the book “ Sports Investigations Law and the ECHR ” (Routledge, 2023). 1 Mountjoy et al., ‘The International Olympic Committee (IOC) Consensus Statement: Harassment and abuse (nonBjörn Hessert, Attorney -at-Law, CAS Counsel. He is the author of the book “ Sports Investigations Law and the ECHR ” (Routledge, 2023). 1 Mountjoy et al., ‘The International Olympic Committee (IOC) Consensus Statement: Harassment and abuse (nonaccidental violence) in sport’, Br J Sports Med (2016) 1, 3; see also, e.g., Rule 2 para. 18 of the Olympic Charter; Article 4 stakeholders in an expanded effort to prevent, uncover and punish wrongdoings of all kinds that threaten the integrity of sport. This has been especially prevalent in safe sport matters, but also in anti -doping and anti -corruption matters.

Sport should be conducted in an “ environment that is respectful, equitable and free from all forms of non-accidental violence to athletes ”1. This is what is now widely recognized as “safe sport” or7

“safeguarding”. Unfortunately, young athletes and other sportsmen and women are exposed on a daily basis to risks of abuse of all kinds. Menacing perpetrators have been able to weaponize fear and intimidation without facing any consequences, their misconduct concealed under a widely applied cloak of silence. Recent reports indicate that victims and survivors of, inter alia , physical, mental and sexual abuse, neglect, harassment and discrimination suffer not only from the physical and mental pain that has been inflicted to them, but also from the effect of the lack of clarity, independence and confidentiality in the reporting process, the distrust often shown towards victims and survivors upon reporting their complaint, the inaptitude or straight out failure of sports organizations to carry out thorough and efficacious investigations, and the absence, shortcomings or inadequacies of regulated disciplinary measures and meaningful consequences for perpetrators if and when they are effectively brought to justice.

As a result of growing allegations of abuses of all kinds, including competition manipulation,

organizations to carry out thorough and efficacious investigations, and the absence, shortcomings or inadequacies of regulated disciplinary measures and meaningful consequences for perpetrators if and when they are effectively brought to justice.

As a result of growing allegations of abuses of all kinds, including competition manipulation, corruption and bribery, fraud or other abuses committed to the detriment of other athletes and the integrity of sport, national and international federations are increasingly investigating athletes of all levels and ages, as well as their support teams. The investigation into safe sport -related misconduct serves different purposes, i.e. (i) to assess the legal merits of a complaint or allegation (ii) to right the wrong inflicted on the victim where a complaint is established to the required legal standard by effectively and proportionally prosecuting the perpetrator and (iii) to prevent future maltreatment of any of the

of the Fédération Internationale de Gymnasticque (“FIG”) Policy and Procedures for Safeguarding and Protecting Participants in Gymnastics (2018); UEFA and German FA, ‘Human Rights Declaration for UEFA EURO 2024’ (2023), p. 13, availbale at https://editorial.uefa.com/resources/02871974889fe8d8-d387b4a44a67organization’s members. In an effort to safeguard that such investigations and proceedings are conducted within a proper legal framework, varying questions arise for lawyers when drafting regulations in an effort to balance the interests of all stakeholde rs involved or affected by the same. What are legitimate truth -finding investigatory measures? Should alleged wrongdoers be informed of the investigations being conducted against them? When does the balance of interests favor at-risk sportspersons and justify a determination that the protection of their substantive and procedural rights supersedes those of others?

Once investigations are completed and charges

informed of the investigations being conducted against them? When does the balance of interests favor at-risk sportspersons and justify a determination that the protection of their substantive and procedural rights supersedes those of others?

Once investigations are completed and charges brought against alleged perpetrators, similar questions related to the balance of interests of parties arise for adjudicators when assessing requests for provisional measures, de novo hearings and the procedural axiom that the rights of natural justice of all parties must be protected in disciplinary proceedings to ensure that justice can be carried out.

This article first provides a brief overview of the terminology and legal landscape. Then it considers the varying rights of individuals involved in safeguarding sports investigations and sports proceedings, with special attention to minor athletes and the rules and regulations that apply to them. Finally, it offers suggestions on how to balance some differing rights and interests involved in investigating and prosecuting safe sport matters as well as other matters like anti -doping and anti -corruption before first instance association tribunals or the Court of Arbitration for Sport2 (“CAS”). While the discussion in this paper focuses on internal 1000/human_rights_documents_uefa_euro_2024.pdf (“HRD UEFA EURO 2024”). 2 See e.g. CAS 20210/A/2311 & 2312 Stichting AntiDoping Autoriteit Nederland (NADO) & the Koninklijke Nederlandsche Schaatsenrijders Bond (KNSB) v. Wesley Loomers, award of 22 August 2011; CAS 2020/A/6807 Blake Leeper v. International8

measures and best practices to adopt with regards to safe sport investigations and safe sport proceedings, it is important to emphasize that – in the best-case scenario3 – victims and survivors can also find redress through the parallel investigations and criminal proceedings conducted by law enforcement agencies.

measures and best practices to adopt with regards to safe sport investigations and safe sport proceedings, it is important to emphasize that – in the best-case scenario3 – victims and survivors can also find redress through the parallel investigations and criminal proceedings conducted by law enforcement agencies.

II. Basis for the subsequent discussion

Investigating and prosecuting safe sport, antidoping and anti -corruption matters among others requires a fine balancing act in order to ensure that the rights of all involved are respected, that the integrity of sport is maintained and that the rules of natural justice and basic legal principles that arise from them prevail above all regulations, be they properly drafted and implemented or not. Accordingly, this section looks at (i) the evolution safeguarding as a right (ii) the persons whose rights need t o be protected, (iii) the perpetrators they need to be protected from, who also hold certain rights, and (iv) the applicable substantive sports regulations that govern all of them.

A. How did safeguarding become a high profile topic?

Association of Athletics Federations (IAAF), award of 23 October 2020; CAS 2019/A/6388 Karim Keramuddin v. Fédération Internationale de Football Association (FIFA), award of 14 July 2020; CAS 2019/A/6669 Sayed Aki Reza Aghazada v. FIFA, award of 28 April 2022. 3 See K. Benner and J. Macur, ‘Nassar Victims Suing F.B.I. for Early Investigative Failures’ (New York Times, 8 June 2022), available at https://www.nytimes.com/2022/06/08/us/politics/na ssar-fbi-lawsuits.html. 4 Independent, Former Olympic coach gets 17 years for sex attacks (28 September 1995), available at

8 June 2022), available at https://www.nytimes.com/2022/06/08/us/politics/na ssar-fbi-lawsuits.html. 4 Independent, Former Olympic coach gets 17 years for sex attacks (28 September 1995), available at https://www.independent.co.uk/news/formerolympic-coach-gets-17-years-for-sex-attacks1603214.html. 5 J. McPhee and J. P. Dowden, ‘The Constellation of Factors Underlying Larry Nassar’s Abuse of Athletes’ The discussion around safeguarding and child protection is not entirely new4. Yet, it took one major scandal to instigate a significant and concerted effort to better regulate national and international sports federations’ safeguarding rules. Safeguarding rules’ purpose is to enshrine the protection of sportspersons by expressly identifying various misconducts, regulating them and implementing concrete disciplinary action when a breach of these rules is uncovered and effectively established. Arguably, the case of Larry Nassar and USA Gymnastics was for safeguarding and child protection the equivalent of what the so-called “Festina doping scandal” was for the fight against doping. After Joan McPhee and James

P. Dowden published their report 5 on the Nassar case in December 2018, which was echoed to a certain extent by various other reports published worldwide regarding wrongdoing in gymnastics and other sports6, it became evident that more needs to be done by sports organizations, national legislators and law enforcement agencies to ensure that such wrongdoing can be prevented in the future, that better mechanisms are set up to report its occurrence and that pe rpetrators are more effectively prosecuted when found liable for the same. A major shift has thus occurred in the sporting world with the IOC publishing a (10 December 2018), available at

that better mechanisms are set up to report its occurrence and that pe rpetrators are more effectively prosecuted when found liable for the same. A major shift has thus occurred in the sporting world with the IOC publishing a (10 December 2018), available at https://www.ropesgray.com; see also Anna Whyte, ‘The Whyte Review’ (June 2022), available at https://sportengland-production-files.s3.eu-west2.amazonaws.com/s3fs-public/202208/The%20Whyte%20Review%20Final%20Report%2 0of%20Anne%20Whyte.pdf?VersionId=fizNx7wABns dz5GRldCKl6m6bYcIAqBb (“Whyte Review”). 6 See the Gymnastics Australia Review (2021), the Gymnastics New Zealand Cultural Review (2021), the Switzerland National Investigation into Rhythmic and Artistic Gymnastics Incidents (2021), the Dutch Gymnastics Investigation (2020), the McLaren Independent Gymnastics Canada Review (2023) Gymnastics-Report-Jan-22-2023.pdf (mclarenglobalsportsolutions.com); Independent Mali Basketball Abuse Investigation https://www.mclarenglobalsportsolutions.com/pdf/Fi baReport-09-2021.pdf.9

Consensus Report7 and Tool Kit 8 for all IOC sports to implement. Also in the wake of the “me-too movement” sport is now, as a whole, voicing its commitment to safe sport. The IOC has further implemented Rule 2 para. 18 of the Olympic Charter which states that “ The IOC’s role is to promote safe sport and the protection of athletes from all forms of harassment and abuse”. As a result of the importance of this high -profile topic, many sports organizations have already taken important steps in this regard. The wellbeing and protection of sportspersons is considered

role is to promote safe sport and the protection of athletes from all forms of harassment and abuse”. As a result of the importance of this high -profile topic, many sports organizations have already taken important steps in this regard. The wellbeing and protection of sportspersons is considered by many sports organizations as a fundamental legislative and operational objective9 and abuse and harassment are now widely considered to be a severe violation of the integrity of sport. Yet, the sporting community’s attempt to successfully address and redress these issues has faced various roadblocks, including questioning whether the r ules and regulations of national and international sports organizations are suitable and effective to combat these offences of varying gravity.

B. Who needs to be protected and what legal assistance do they need?

7 Mountjoy et al., ‘The International Olympic Committee (IOC) Consensus Statement: Harassment and abuse (non-accidental violence) in sport’, Br J Sports Med (2016) 1, 3. 8 Duncan/Kirsty. IOC Toolkit for IFs and NOCs. Safeguarding athletes from harassment and abuse in sport. 03 November 2017. 9 See for example Article 4 lit. c) of the World Aquatics (“WAQ”) Constitution (2023 edition) (“ The objectives of World Aquatics are to promote safe Aquatics and the protection of Athletes from all forms of harassment and abuse”); Article 2.1 para. 3 and 13 of the FIG Statutes (“ The objectives of the FIG are to coordinate effort for safe and healthy physical and moral developments in gymnastics and the practice of all sports activities relating to it … to safeguard gymnasts/athletes and other participants in gymnastics from any kind of harassment and abuse”). 10 UN General Assembly, The Convention on the Rights of the Child, 20 November 1989, Treaty Series vol. 1577, p. 3 (“CRC”).

relating to it … to safeguard gymnasts/athletes and other participants in gymnastics from any kind of harassment and abuse”). 10 UN General Assembly, The Convention on the Rights of the Child, 20 November 1989, Treaty Series vol. 1577, p. 3 (“CRC”). 11 Cf. Article 2.2 of the FIG Statutes (2023 edition); Article 2 of the FIFA Statutes (2023 edition) in

Risk assessments must be conducted prior to establishing suitable and effective measures for the protection of sportspersons to determine which sportspersons are at risk and whether the scope of the applicable safeguarding policy applies to them and their perpetrator.

As a starting point, children and minors are the most vulnerable persons within society. This is no different in a sporting environment. Article 1 of the Convention on the Rights of the Child10 (“CRC”) provides that “ a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier ”. While the CRC refers to national law as opposed to sports rules and regulations, the definition of a child can nevertheless be applied by analogy to sports regulations. In other words, although most sports organizations are private entities to whom the CR C and the Convention do not directly apply (unless a sports organization has committed itself to respecting the CRC11 which will be further discussed below), sports organizations’ rules and regulations generally conjunction with articles 2, 7 and 13 of the FIFA Human Rights Policy (2017 edition); HRD UEFA EURO 2024, p. 7, in which, inter alia , UEFA and the German FA recognize that they are “committed to respecting and promoting all recognised human rights and to aligning all actions during the preparation and staging of UEFA EURO 2024 with the internationally recognised UN Guiding Principles on Business and Human Rights, which have also been put on a legal footing in

recognize that they are “committed to respecting and promoting all recognised human rights and to aligning all actions during the preparation and staging of UEFA EURO 2024 with the internationally recognised UN Guiding Principles on Business and Human Rights, which have also been put on a legal footing in German law in the form of the Act on Corporation Due Dilligence Obligations in Supply Chains, and to ensure that human rights are respected, also by third parties. ”; see also U. Haas and B. Hessert, ‘Sports Regulations on Human Rights – Applicability and Self-commitment’ in C. Chaussard, C. Fortier and D. Jacotot (eds), Le sport au carrefour des droits – Mé