How will Blatter and Platini challenge the decision of the FIFA Ethics Committee?

Published 06 January 2016 By: Andrew Smith

Blatter_and_Platini_at_Conference

This article examines what may happen next in the Blatter and Platini case. Both men have publically announced their intention to challenge the decision of the FIFA Ethics Committee.1 Below we explore their rights of appeal to the FIFA Appeals Committee and the Court of Arbitration for Sport, together with other potential actions they may choose to pursue.

 

Background

Following a hearing in Zurich on 18 December 2015, by a decision announced on 21 December 2015, the adjudicatory chamber of the FIFA Ethics Committee (chaired by Mr Hans-Joachim Eckert):

  1. Banned Joseph S. Blatter and Michel Platini from all football related activities for a period of eight years;
  2. Fined Mr Blatter the sum of CHF 50,000; and
  3. Fined Mr Platini the sum of CHF 80,000.2

These disciplinary sanctions arose out of an investigation into a payment of CHF 2 million (c. £1.35 million), which had been transferred from FIFA to Mr Platini in February 2011 (“the Contested Payment”). The key conclusions of the adjudicatory chamber may be summarised as follows:

  1. The Contested Payment had no legal basis in the written agreement signed by Messrs Blatter and Platini on 25 August 1999;
  2. The assertion that the Contested Payment was made pursuant to an oral agreement (for the provision of services) was rejected;
  3. There was insufficient evidence to establish, to the extent required, that the Contested Payment was made or received in furtherance of the execution or omission (by Mr Platini) of an “official act” within the meaning of article 21, paragraph 1 of the FIFA Code of Ethics3 (Bribery and corruption);
  4. However, the parties’ conduct constituted a breach of article 20, paragraph 1 of the FIFA Code of Ethics (accepting gifts and other benefits);
  5. The parties found themselves in a situation of conflict of interest, despite which they continued to perform their related duties;
  6. The parties failed to disclose this situation and the existence of personal interests linked to their prospective activities, in violation of article 19, paragraphs 1, 2 and 3 of the FIFA Code of Ethics (Conflicts of interest);
  7. The parties failed to place FIFA’s interests first and abstain from doing anything which could be contrary to FIFA’s interests, thereby violating their fiduciary duty to FIFA and breaching article 15 of the FIFA Code of Ethics (Loyalty). In addition, Mr Platini failed to act with complete credibility and integrity, showing unawareness of the importance of his duties and concomitant obligations and responsibilities;
  8. The parties did not show commitment to an ethical attitude, failing to respect all applicable laws and regulations as well as FIFA’s regulatory framework to the extent applicable to them and demonstrating an abusive execution of their respective positions as high-ranking FIFA officials, thereby violating article 13 of the FIFA Code of Ethics (General rules of conduct).

What could happen next?

Messrs Blatter and Platini have both publically announced their intention to appeal against the decision of the Ethics Committee.4

Appeal to FIFA Appeals Committee

The Ethics Committee is one of the three recognised FIFA judicial bodies – the other two being the Disciplinary Committee and the Appeals Committee (see article 73 of the FIFA Disciplinary Code5).

Article 80 of the FIFA Code of Ethics governs the process for pursing an ‘internal’ appeal against a decision of the adjudicatory chamber of the Ethics Committee. It provides as follows:

80 Appeal

1. Unless this Code stipulates that the decisions of the adjudicatory chamber and the chairman of the adjudicatory chamber of the Ethics Committee may not be contested,6 an appeal may be lodged by the party concerned, having a legally protected interest justifying amendment or cancellation of the decision, to the Appeal Committee against any decision, with the exception of decisions in which the sanction pronounced is:

a) a warning;

b) a reprimand;

c) a suspension for less than three matches or of up to two months;

d) a fine of less than CHF 7,500.

….

The provisions governing the lodging of an appeal and proceedings before the Appeal Committee are set out in chapter II, section 3 of the FIFA Disciplinary Code. In order for an appeal to be admissible, the appellant must (as per article 120 (1) and (2) of the FIFA Disciplinary Code):

  1. Inform the FIFA Appeal Committee of its intention to appeal in writing, within three days of notification of the contested decision; and
  2. Provide reasons for the appeal in writing within a further period of seven days (which period starts after the first deadline of three days has expired).

Article 120 (3) of the FIFA Disciplinary Code states that “If these requirements have not been complied with, the appeal is not admissible.” Having regard to these strict procedural rules, one presumes that the lawyers acting on behalf of Messrs Blatter and Platini will have had a busy Christmas and New Year period, preparing and lodging the necessary appeal documentation with the FIFA Appeal Committee.

With regard to the permissible bases for appealing a decision to the FIFA Appeal Committee, Article 121 of the FIFA Disciplinary Code provides that “The appellant may object to inaccurate representation of the facts and/or wrong application of the law.

Appeal to the Court of Arbitration for Sport

In the event that appeals are pursued unsuccessfully by Messrs Blatter and/or Platini before the FIFA Appeal Committee, it seems highly likely that proceedings will be instituted by the parties before the Court of Arbitration for Sport (“CAS”). Article 81 of the FIFA Code of Ethics provides as follows:

81Court of Arbitration for Sport

1. Decisions taken by the Appeal Committee are final, subject to appeals lodged with the Court of Arbitration for Sport (CAS) in accordance with the relevant provisions of the FIFA Statutes.

….

Article 67 of the FIFA Statutes 7 provides as follows:

67 Jurisdiction of CAS

1. Appeals against final decisions passed by FIFA’s legal bodies and against decisions passed by Confederations, Members or Leagues shall be lodged with CAS within 21 days of notification of the decision in question.

2. Recourse may only be made to CAS after all other internal channels have been exhausted.

….

 

Possible further actions

Any ruling by CAS may not, however, be the end of the road in this matter.

According to media reports, Mr Blatter has already indicated a willingness to take his case to the Swiss Federal Tribunal8 and proceedings before the European Court of Justice have also been mooted.9

Furthermore, Mr Platini has indicated a desire to file a civil suit for damages, reportedly stating

In due course I will go to the civil court to claim all the damages my reputation has suffered over too many long weeks.10

This dispute is likely to run for some time yet.

 

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Author

Andrew Smith

Andrew Smith

Andrew is a barrister practising from Matrix Chambers in London. He is an employment law specialist, and has a keen interest in sports law and sport generally. His Matrix profile (including Directory recommendations) may be viewed here.

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