The trouble with Ostarine: Jimmy Wallhead’s
16th March 2018
The short answer is No. Unfortunately, no. Disastrously, no.
Mind you, FIFA is not alone in its nonchalant approach to match-fixing in the beautiful game. UEFA is a good partner in crime, (but at least UEFA took some minimum action, as will be described here). As regards the CAS, the Court of Arbitration for Sport, its only role here is to sanctify this corruption.
Before we start, please be aware that the purpose of this article is not to take the side of one football club versus another. Nor is it to check facts and acts of corruption. I leave this to experts. My only purpose here is to offer a commentary on the way that sports organisations such as FIFA , UEFA and a national football federation acted once presented with evidence of match-fixing (this not in dispute) and on the efficiency of the Court of Arbitration for Sport in that regard. The main question is: are all these sport organisations fit for the purpose intended (to fight match-fixing, and, thus, corruption in sport)?
My words are deliberately harsh since I am true football lover. As far as I can remember, growing up in Munich, football has been a passion of mine. That is why I chose to become a sports lawyer and to teach sports law, inter alia.
Having a son who plays professionally (and thus being a former devoted soccer mom), keeps me well rooted in the world of the beautiful game. Having also devoted a few years of my life to sports governance as a Board Director on the Canadian National Federation of Football (Canada Soccer) Board of Directors taught me a lot about the organisational bodies of the beautiful game.
I have an insider’s knowledge of the world of the Football Federation and thus FIFA, and I saw all its shortcomings (and there are many of them). But what I have learned in this past week defies imagination. All of this does not come from tales that some obscure individual whispered to me. Nope, it all came to me after reading an (unpublished) decision rendered by the Court of Arbitration for Sport (CAS).
The said case is about match-fixing, and, thus, corruption in the world of football and it involves FIFA, UEFA, the Turkish Football Federation (TFF) and two Clubs from the Super league of Turkey. We are talking about corruption here, which is not disputed by either party in the case before the CAS. We have a clear cut case of a club that became Champion as a result of fixed matches.
The question then is: how did the organisations in charge of the sport (TFF, UEFA, FIFA and CAS) sanction such corruption once they knew about it? Surely the cheating club is no more the Champion of that season, right? One could draw a comparison with doping, which is also cheating. When an athlete is found guilty of doping, he or she loses his or her medal, which goes to the next ranked athlete.
I am sure you will agree with me when I say that when a game is won due to match-fixing, all the noble principals of sportsmanship are violated. Integrity in sport is an ‘international’ value in terms of both time and geography. This means that it is a concept that is valid in all countries, from the time of Greek Antiquity to modern Olympics. Therefore, one can only assume that defending integrity in sport should be of value to FIFA, UEFA, TFF and CAS.
So when you know that a game has been fixed, whether you are a player on the field, a fan in the stadium, a soccer mom, or a sponsor, you are disgusted beyond words. You feel betrayed.
For real aficionados, football is not just a game. It is much more than that. it is a religion. A way of life. One of my favourite quotes in life and in the classroom when I have the chance to teach sports law, is from the great French author Albert Camus: “Tout ce que je dois à la morale, je le dois au football”, which means: “everything than I know about morality, I owe it to football”.
Indeed, as a young person, football teaches you to play with your buddies by respecting a set of rules. Football teaches you to share, to be humble. Football teaches you that a team is stronger than an individual. At the end of grassroots games, every player shakes hands with the players of the other team, as a way to teach him to respect his opponents.
Conversely, match-fixing completely disrespects the other team. Match-fixing is the antithesis of sport.
So when when it becomes public knowledge that a match has been fixed in the beautiful game, you expect very strong retaliation from the organisations in charge. This is 2019, after all. And I am talking about Europe, FIFA and the CAS. Not a deserted place in the middle of nowhere. These are Sports organisations that every sports lawyer wishes to join. A minimum expectation is that they do their job.
When they fail miserably, as a football lover, a huge fan of Pelé, Socrates and Grietzman, as a sports lawyer and a teacher, as a soccer mom and a former Football high ranking officer, I feel it is my duty to make sure that the public knows about all of it. With this in mind, here are the facts as described in the unpublished arbitral decision by the CAS.
On a nice day at the end of July 2019, when absolutely everybody (including the media) is on vacation, the CAS quietly renders its decision on the match-fixing case opposing Turkish Football Club Trabzonspor Kulubu Dernegi to the Turkish Football Federation and FIFA by a panel of three arbitrators headed by Luigi Fumagalli, from Milan. The two other arbitrators are Philippe Sands from London and Patrick Lafranchi from Bern.
Here is a summary of the case as presented by the CAS itself:
• In the season 2010/2011 of the Turkish Super Lig, the Turkish club Fenerbahçe wins first place while Trabzonspor ranks second.
• However, later in the summer of 2011, several persons are arrested in Turkey for match-fixing and in August 2011 the Turkish Federation withdraws Fenerbahçe from the 2011/2012 UEFA Champions league and replaces it with Trabzonspor.
• In December 2011, the Turkish Federation issues a report holding several acts of match-fixing involving officials (including the President and Vice-President) of Fenerbahçe.
During that time, Trabzonspor files a request with the Turkish Federation to be thus declared champion for the season 2010/2011. The Turkish Federation’s answer: since only some officials of Fenerbahçe (including the President and Vice-President!) were involved in the match-fixing, it was not proven that the other members of the Board were aware of these activities and, therefore, the club could not be held responsible.
In June 2012, the Turkish Federation decides that Trabzonspor did not have the right to file an appeal against a decision to sanction another club. In the meantime, the Turkish criminal court found that a criminal organisation had been formed under the leadership of Aziz Yildirim, the President of Fenerbahçe and that match-fixing and incentive bonus activity by his club had taken place with respect to 13 matches during the 2010/2011 season. Several officials of Fernerbahçe were convicted. However, this later judgment was reversed in 2015 due to lack of evidence.
After TFF’s refusal to move against the cheating Club, Trabzonspor applied in 2012 to UEFA to have sanctioned Fenerbahçe for match-fixing. UEFA opened disciplinary proccedings against Fernerbahçe, but not against the Turkish Federation.
On July 10th, 2012 the UEFA appeals body excluded Fernerbahçe from two consecutive UEFA competitions for violation of the principle of loyalty, integrity and sportsmanship (art 5, UEFA Disciplinary Regulations) which CAS confirmed in a 2013 decision (proceedings CAS 2013/A/3256).
However, UEFA refused to intervene at a national level in Turkey to declare Trabzonspor Champion of the 2010/2011 season, claiming lack of competence. CAS confirmed its decision. (Proceedings CAS 2015/A/4343). In 2015, Trabzonspor petitioned UEFA to sanction the Turkish Federation since it had not sanctioned Fernerbahçe at a national level.
In a June 2011 letter, Trabzonspor informed FIFA President Joseph ‘Sepp’ Blatter of the match-fixing story and by 2013, Trabzonspor filed an official complaint with FIFA declaring that the Turkish Football Federation (TFF) had breached FIFA Statutes. FIFA responded more than a year later stating that, since UEFA had been involved, FIFA Disciplinary Committee intervention was ‘inopportune’ at the stage. In July 2017, Trabzonspor filed a formal complaint with the FIFA Ethics Committee and the FIFA Disciplinary Committee (FIFA DC) against Fernerbahçe and the TFF.
In 2018, the Secretary of the FIFA DC sent a letter to Trabzonspor that it was not in a position to intervene since ‘as it appears that the matter was prosecuted in compliance with the fundamental principles of law’, after having thoroughly analysed the relevant documents, in particular the decisions of the TFF Disciplinary Committee rendered on May 2012 and the decision of the TFF Board of Appeals rendered on 4 June 2012. (Since when is the-not-sanctioning-match-fixing a ‘compliance with the fundamental principles of law’, really FIFA? [Editor’s note: FIFA may have been referring to a criminal trial, which took place in 2015])
In April 2018, Trabzonspor filed an appeal with FIFA Appeals Committee. However, in a letter dated April 27, 2018, the Deputy Secretary of FIFA AC wrote to Trabzonspor, saying that ‘according to article 118 of FIFA Disciplinary Code, since Trabzonspor was not a party to the proceedings, thus Trabzonspor could not appeal the decision nor intervene in the case in which the FIFA disciplinary Committee has no jurisdiction’. Thus Trabzonspor filed a case in front of the CAS.
In May 2018, Trabzonspor filed its statement of appeal with the CAS against FIFA DC’s refusal to intervene in the match-fixing as stated in its April letter.
At this stage, it is important to note that FIFA, TFF and Fernerbahçe strongly opposed the request of Trabzonspor for a public hearing at the CAS. It must be also noted that not only did Trabzonspor ask several times for a public hearing, even reaching out to the Secretary General of the CAS, Matthieu Reeb, but it also asked alternatively for video recording and/or live streaming of the proceedings or simply or the date of the hearing to be published on its website, all of which were denied by the CAS (Reeb himself). Indeed, the final blow came when Matthieu Reeb himself declared that ‘CAS did not have an obligation to publish all the hearings on its website’.
What about FIFA? Why would FIFA object to a public proceeding in the fight against match-fixing, when it advertises everywhere its zero corruption policy? FIFA’s argument left me speechless: ‘the hearing would only concern technical legal issues…’.
Yes, of course, who would like to follow technical legal procedures other than FIFA? Everybody should know that this is only FIFA’s prerogative and that they are the only ones to know about sports law and to care about it.
In the end, the CAS refused a public hearing despite the recent Mutu and Pechstein judgments. Paragraph 103 of the CAS decision reads as follow:
‘In the present case, the hearing of 15 march 2019 was of a preliminary nature and only concerned points of law and highly technical questions. Indeed, only procedural matters were discussed, such as the jurisdiction of CAS, the admissibility of the appeal and the standing to appeal of Tranzonspor…’
FIFA objected to Trabzonspor’s request to hear FIFA witnesses, such as FIFA officials scheduled to appear at the hearing, as well as Mr. Yeboah Anin, Chairman of the FIFA DC. Of course, Trabzonspor’s lawyers wanted to ask some questions to Mr Anin after a general and nonsense statement such as ‘as it appears that the matter was prosecuted in compliance with the fundamental principles of law’ .
What kind of court or arbitration facility is CAS when it does not even give you the opportunity to discover the facts and proofs against you? These are fundamental principles of law that are being ignored. These are acts of an obscure and totalitarian organisation and definitively not the way an administrative ‘tribunal’ of sport should act. In the end, the CAS rejected such request, by stating that Trabzonspor would ‘have opportunity to submit other arguments about any evidentiary request at the hearing’.
To add insult to injury, the CAS also added an argument not to hear FIFA officials as witnesses by invoking Article R51(2) of the Code: Trabzonspor did not put in writing the names of the witnesses in due time! May I remind CAS that it is an arbitration facility and not a court of law?
In the normal world of arbitration, procedures are much more informal that a court of law. That is why arbitration exists. To simplify procedures and go directly to the subject matter of the case. Hearing those witnesses was fundamental to the Trabzonspor case in contradicting FIFA’s arguments (these arguments based on Article 70(2) that in fine were accepted by the CAS to dismiss the case).
Indeed, Trabzonspor made its claim before FIFA on the basis of Art. 70(2) of the Disciplinary Code, alleging the lack of prosecution of serious infringements. Art. 70(2) was to the effect that the judicial bodies of FIFA reserved the right to sanction serious infringements of statutory objectives of FIFA if associations, confederations or other sport organisations fail to prosecute serious infringements of fail in compliance to the fundamental principles of the Law.
CAS dismissed that argument by stating: ‘The wording of such a provision makes it clear that FIFA has discretion to open disciplinary proceedings. Art 70(2) does not create an obligation on it to open those proceedings and adopt a sanction’. This CAS argument is, at best, fallacious.
FIFA is at the top of a pyramidal structure of the disciplinary structure of the football industry worldwide. In return for fees and the total submission of such National Federations, FIFA has to perform certain obligations versus those organisations under it. These are FIFA contractual obligations. If FIFA cannot guarantee that its own Disciplinary Code – especially crucial principles (such as match-fixing and corruption) – is not enforced, then what is the purpose of FIFA?
Saying that FIFA will not enforce its own Disciplinary Code automatically is to put at stake the very existence of FIFA and its intended purpose. If FIFA cannot guarantee to its members that it will enforce its Code and make sure that the federations or clubs involved in match-fixing are sanctioned accordingly, why would they need FIFA?
Apart from organising football international tournaments, the first duty of FIFA is to ensure that the principle Rules of the Game are observed worldwide. Sanctioning match-fixing and corruption is a principle Rule of the Game of Football. Not only from an ethical point of view, but also as a principle of law.
If FIFA is not doing that or doing that only when it feels like it, then who needs FIFA? Who needs an international sports body with capricious powers? National Federations should be sufficient and every four years each of them, by rotation, in alphabetical order, could organise the World Cup.
Without its (important) role as the chief policeman of the rule of the game of Football, FIFA is useless. When the CAS says that ‘FIFA has discretion to open disciplinary proceedings’, it denies FIFA its intended purpose.
Another argument against the ‘discretionary’power of FIFA into sanctioning match-fixing at all levels, is that by using a discretionary power, it will create different treatments among its members when match-fixing is involved, thus an unfair treatment. This will go against not only several articles of its Disciplinary Code but against a fundamental principle of sport law: Fairness
The CAS then dismisses the case by stating: ‘therefore there is no right of any party to bring a claim against FIFA to enforce an obligation that does not exist’ and, to top it all, orders Trabzonspor to bear all the costs of arbitration.
After reading this decision, my immediate reaction as a sports lawyer is the following: if a client came to me – a football club which has been the victim of match-fixing and is seeking justice, for example – I would tell him or her to forget about it. Keep your money. It will take 10 years; you will lose in the end and will have to bear all the costs.
Put simply, this decision, without a doubt, amounts to nothing else than a carte blanche for match-fixing in football.
From a legal perspective, this award does not stand on solid ground. It is merely based on the fact that Art. 70(2) is at the discretion of FIFA, which has no obligation to sanction. This argument could be easily defeated, as I stated before.
What I don’t understand is the attitude of the CAS in the way this case was treated. Firstly, it declined to put the date of the hearing on its website, as it usually does. Then a strong refusal to allow a public hearing or even to record the hearings. And, finally, the obstruction of access to witnesses.
Why all these breaches of the principle of transparency? Is the CAS scared? Did it receive threats? Or, conversely, is the CAS involved in corruption? This has definitively to be investigated by the real experts. Why is the CAS performing such a hara-kiri ?
As for the Award itself, it simply demonstrates the incapacity or unwillingness of CAS to address corruption in sport. This is a FUNDAMENTAL right that has to be guaranteed to all sport participants. So if CAS is totally incapable of tackling this problem, then what is the intended purpose of the CAS? Should this not be transferred to real courts where we have more guarantees that corruption in sport is taken seriously?
As to FIFA, my immediate suggestion to it would be this: make match-fixing a strict liability offence in its Disciplinary Code. What does this mean, for non-jurists? It means that if the offence is proven (the match-fixing) to have taken place, the club who benefited from it is immediately sanctioned accordingly without having to prove if the club, its management or anybody knew about it. This is the regime that applies in doping. The rule being here not to punish the club which did not cheat. As FIFA did for Trabzonspor.
In any case, FIFA needs to seriously amend the way it follows and sanctions match-fixing in football, for its statement ‘zero tolerance for corruption’ to make any sense. If not, the way FIFA tackles match-fixing in football is just a big fat joke.
I do sincerely hope that Trabzonspor will get the justice it deserves. It will not only be a victory for them. It will also be a victory for the whole football community and all the athletes who play clean and are denied justice by the organisations that were supposed to protect them and the integrity of the Game.
• This article was originally published via LinkedIn on 8 August. Click here to view the original
The author wishes to thank immensely Lisa and Emmanuel. Your help was greatly appreciated!
For the Turkish version of this paper, see Şike ile Mücadele mi, Yolsuzluk mu?
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