The role of the UEFA Ethics and Disciplinary Inspector in disciplinary proceedings

Published 07 June 2017 By: Miguel Liétard Fernández-Palacios

Football cleats and ball on grass

Article 32(1)(b) of the UEFA Statutes sets out UEFA’s “Organs for the Administration of Justice” as follows:

UEFA’s Organs for the Administration of Justice are:

a. the UEFA disciplinary bodies, i.e. the Control, Ethics and Disciplinary Body and the Appeals Body;
b. the Ethics and Disciplinary Inspectors;
c. the Club Financial Control Body.

Ethics and Disciplinary Inspectors (EDIs) participate in disciplinary proceedings, representing UEFA independently in cases before its Control, Ethics and Disciplinary Body (CEDB) and Appeals Body (AB). EDIs play a key role in this framework, performing both investigative and representative duties with the aim of ensuring the correct application of the UEFA Disciplinary Regulations and other UEFA rules.

 This article explains the role of UEFA’s EDIs.  Specifically it looks at:

  • The appointment process, necessary qualifications and term of service;

  • General duties of EDI’s

  • Their role in proceedings before the CEDB

  • Their role in proceedings before the AB

  • Their role in proceedings before the Court of Arbitration for Sport (CAS)

  • Conclusions

 

Appointment, Qualifications and Term

Pursuant to Article 32(2) of the UEFA Statutes and Article 25(1) of the Disciplinary Regulations, EDIs are appointed by the UEFA Executive Committee from candidates proposed by its member associations for a four-year term and designates one of them Chief Inspector. Such appointments are then presented to the UEFA Congress for ratification. While the UEFA regulations are silent on the number of EDIs that are to be appointed at a given time[1], there are currently seventeen inspectors on UEFA’s roster, including the Chief Inspector.

Neither the Statutes nor the Disciplinary Regulations establish any specific requirements that EDIs must meet to be appointed. They only determine that they are independent and may not belong to any other organ or committee of UEFA. They shall not take any measure nor exercise any influence in relation to a matter where a conflict of interest exists or is perceived to exist.[2] This, in practice, means that EDIs will not intervene in cases involving officials, players or clubs from their national association.

 

General duties of EDIs

Article 25(2) of the Disciplinary Regulations sets out the main function of the EDIs, which is to represent UEFA in proceedings before the CEDB and the AB. In such capacity, EDIs may:[3]

  • initiate disciplinary investigations;

  • propose standard disciplinary measures to be imposed on member associations, clubs and individuals in line with Annex A of the Disciplinary Regulations;

  • lodge appeals against decisions of the CEDB;

  • support UEFA in the event that a party lodges an appeal against a decision by the AB before the Court of Arbitration for Sport.

The Disciplinary Regulations specify the actions that are undertaken by EDIs within the scope of the investigations that they carry out, as well as in disciplinary proceedings before the CEDB and the AB (as explained in more detail below).

 

Proceedings Before the CEDB 

Disciplinary Investigations Prior to the Initiation of Disciplinary Proceedings

According to Article 25(4) of the Disciplinary Regulations, the UEFA Executive Committee, the UEFA President, the UEFA General Secretary and the disciplinary bodies may commission EDIs to conduct investigations, either alone or in cooperation with other UEFA or non-UEFA bodies.

In such cases, an EDI will be informed of such request by the UEFA administration, including the possible offenses to be analyzed.  They will then initiate the relevant investigation, which will follow the general principles set out in Article 25(5) of the Disciplinary Regulations. In principle, the opening of the investigation is notified to the parties concerned, unless it is not deemed appropriate due to the specific object of the investigation (for example in match-fixing cases).

Investigations are conducted by means of written inquiries to the relevant parties or witnesses and, where necessary, the questioning of individuals, whose interviews are generally recorded either electronically or in the form of minutes which are then read and signed by the person questioned. Such interviews may be conducted in person, either at UEFA’s headquarters or any other location agreed upon, or by telephone or videoconference. In cases concerning suspected breaches of Article 12 of the Disciplinary Regulations (i.e. match-fixing and related offenses), all persons bound by UEFA’s rules and regulations must provide EDIs with any information, documents, data recordings and storage devices in connection with the investigation.

At the outset of an investigation, the EDI will either request the opening of disciplinary proceedings against the relevant party pursuant to Article 48(1)(d) of the Disciplinary Regulations, or decide that such proceedings are not necessary if no violation of the applicable regulations has been found. In both cases, the EDI may make recommendations of possible sanctions to impose on the party involved or, in the case that no violations are found, submit a recommendation that would help prevent future conducts that led to the investigation in question.  When an investigation is opened on the basis of a complaint filed by an interested party, such complaint must necessarily be evaluated by an EDI, who can decide to not approve the opening of disciplinary proceedings. Only in this last case can this decision of an EDI be appealed before the CEDB.[4]

It is important to note that unlike official reports (which are presumed accurate pursuant to Article 38 of the Disciplinary Regulations and may on their own serve as the basis for the opening of disciplinary proceedings under Article 48(1)(a) Disciplinary Regulations) EDI reports do not benefit from such presumption and must therefore be supported by convincing evidence that will allow UEFA’s disciplinary bodies to reach a conclusion to their comfortable satisfaction.[5] Also, while the general practice is that only one EDI is assigned to a specific matter, the Disciplinary Regulations do not establish the number of EDIs who are to investigate a offence or participate in an disciplinary proceeding, and there have been cases in which more than one EDI has been involved in the same investigation or proceeding.

Disciplinary Investigations After the Initiation of Disciplinary Proceedings

As mentioned earlier, the CEDB, as a UEFA disciplinary body, may commission an EDI to conduct an investigation into potential disciplinary offences.[6] This in practice occurs when disciplinary proceedings have already been opened on the basis of Article 48 Paragraphs (a), (b), (c) or (e) of the Disciplinary Regulations.

In such cases, in which the CEDB considers that an offence potentially falls within its scope of review but is unable to reach a conclusion so as to either sanction the party involved or close the proceedings, the EDI is asked to conduct a further investigation on the possible offenses. The EDI will then carry out his own investigation of the issue at hand, relying on the evidence on file or conducting further inquiries (either written or in person) with the relevant parties, and it will finally inform the CEDB whether a conclusion that an offence has been committed can be reached, proposing the relevant sanction, when applicable, or whether the case should be closed without further disciplinary action.

 

Proceedings Before the Appeals Body

Until 1 June 2016, when the current version of the Disciplinary Regulations came into force, EDIs were required to participate in all disciplinary appeal proceedings in UEFA. The latest amendment to Article 56 of the Disciplinary Regulations has limited the scope of the EDIs’ intervention in such cases, and they must now only submit a reply to an appeal in case of an alleged violation of Article 12, 13 or 14 of the Disciplinary Regulations. In case of any other alleged violation, EDIs will only participate in the appeals proceedings if so decided by the Chief Inspector at his own discretion. The following description of the role of the EDI in proceedings before the AB will therefore only contemplate cases in which EDIs are effectively a party to those proceedings.

It is first of all significant that in UEFA’s disciplinary framework, EDIs are parties who have the right to appeal CEDB decisions.[7] When acting as appellant, EDIs are bound to comply with all procedural requirements for the filing of the appeal, including time limits, with the exception of the payment of the €1,000 appeal fee, which they are not subject to. However, more often than not, an EDI’s participation in AB proceedings will be as a respondent.

Regardless of whether an EDI participated in the first instance proceedings before the CEDB, once an appeal has been lodged by a party entitled to do so, it will be forwarded the full case file from the CEDB, as well as the appellant’s written statements and evidence, and shall be asked to file a reply to the appeal within the deadline set by the Chairman of the AB.[8] A notable regulatory change since the entry into force of the 2016 Disciplinary Regulations is that EDIs may no longer file a cross-appeal along with his reply, despite the fact that CAS has recognized that the institution of cross-appeals is a well-known legal instrument and fully valid under Swiss Law.[9] Thus, if EDIs wish to challenge a decision of the CEDB, they must file an independent appeal within the deadlines set out in Article 53 of the Disciplinary Regulations, but never within the scope of the reply to an appeal lodged by another party directly affected by the first instance decision.

Until the adoption of the 2013 edition of the Disciplinary Regulations, appeals proceedings were always conducted orally, with a hearing being held in every case submitted to the AB. Nowadays, such hearings only take place when requested by a party or the EDI, or where the Chairman of the AB considers it necessary. In such cases, the hearing date is set by the Chairman of the AB, who summons the parties and the EDI. If a hearing is held, the parties and the EDI are entitled to two oral pleadings (generally an opening statement, focused mainly on the factual aspects of the case, and a closing statement, focused on the main legal conclusions of the parties and their requests for relief). The Chairman of the AB decides on the sequence of the oral pleadings, normally giving the floor first to the appellant to submit its oral statement. During the course of the hearing, EDIs may also question witnesses summoned by the parties, submit procedural objections related to the other party’s submissions and, if so required by exceptional circumstances, amend the relief sought.

The parties are also afforded the possibility, under Article 34(5) of the Disciplinary Regulations, of reaching a settlement to the dispute by submitting identical requests. Such identical requests may be agreed upon either during the written phase of the proceedings or at the oral hearing, and the disciplinary bodies (in this case, the AB) may consider ruling in accordance with those requests, though they are not bound by them.

However, when the parties are unable to reach an agreement in a particular case, the AB will deliberate behind closed doors and issue a decision upholding, amending or overturning the contested decision. If the appellant is the only party to have contested the decision, or if the EDI has appealed in favour of that party, the sanction imposed by the CEDB cannot be increased by the AB.[10]

 

Proceedings Before CAS

While their main functions are mainly exercised within the scope of UEFA disciplinary proceedings and, when applicable, in the preceding investigations, EDIs are sometimes asked for support by UEFA when a party lodges an appeal against a decision issued by the AB before CAS (as foreseen in Article 25(3)(d) Disciplinary Regulations).

This will generally occur in cases with a complex factual or legal background, in which an EDI’s familiarity with the proceedings in the previous instance may constitute an asset to the appeals proceedings in CAS, particularly during the course of an eventual hearing in this court.

 

Conclusions

Since the creation of the position of the EDI almost twenty years ago, in 1998, its role in the framework of UEFA disciplinary proceedings has been clearly defined over the course of the years in each new version of the Disciplinary Regulations.  It is a role that has become especially relevant to ensure the independent investigation, prosecution and review of possible disciplinary offenses committed by persons bound to UEFA’s Statutes and regulations.

The key functions carried out by the EDIs have allowed UEFA’s disciplinary bodies to count on an independent interpretation of the confederation’s legal framework, and to better support of UEFA’s key policies and principles which have been further strengthened over the last few years,[11] notably the fight against supporter violence and misbehaviour in stadiums, racism and discrimination, and the protection of the integrity of UEFA competitions from doping and match-fixing. 

 

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Author

Miguel Liétard Fernández-Palacios

Miguel Liétard Fernández-Palacios

Private practice lawyer based in Madrid in the firm Sport Advisers, specialized in sports law, and a UEFA Ethics and Disciplinary Inspector. LLM in International Sports Law from Instituto Superior de Derecho y Economía (ISDE) and Master in Sports Law from Universidad de Lleida.

Telephone: +34 91 355 1845

 

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