(CAS) Bulletin - Tribunal Arbitral du Sport / TAS

The Panel considers that the sanctions, i.e. the
declaration of the matches as forfeited and as a
consequence the exclusion of OLA from the UEL
2011/2012 serves to guarantee a proper functioning
of the football competition within the UEL
2011/2012. The sanctions are appropriate, necessary
and proportionate. In a previous decision, the CAS
expressly considered that the ratio legis and the
justifi cation of the sanctions are to ensure a legal
certainty in the sports competition of the UEL
2011/2012 (CAS 2007/A/1278 and 1279, para. 131).
It must be underlined that UEFA is bound to apply
those sanctions to all the participants of the UEL
2011/2012 in the same manner.
In conclusion, the UEL Regulations as well as the
sanctions based on the UEFA DR are rules imposed
by UEFA as organiser of the UEL 2011/2012. They
are appropriate, necessary and proportionate.
By properly enforcing its own rules UEFA did in
no way abuse its dominant market position. The
disciplinary measures imposed by UEFA on 13
September 2011 were justifi ed and have not been
rendered in violation of Article 7 CA.
Even if one were to take the view that UEFA
abused its dominant position by applying the rules
and sanctions according to the UEL Regulations
and the UEFA DR, UEFA’s behaviour would have
been justifi ed by legitimate reasons. The purpose of
these rules is to ensure that each football club plays
the matches with duly registered players and, as a
consequence, to guarantee a fair sports competition.
The enforcement of the rules guarantees the equal
treatment of the participants of the UEL 2011/2012.
Finally, the Panel refers to the fact that OLA signed
the entry form in May 2011 according to which OLA
accepted to respect UEFA’s statutes, regulations,
directives and decisions, in particular the UEL
Regulations and the UEFA DR. Respondent
therefore knew the consequences of playing with
players that were ineligible.
Even if one were to assume that, contrary to the UEFA
Appeals Body decision dated13 September 2011, the
Players were qualifi ed to play the two matches against
Celtic FC, it is still the Panel’s fi nding that UEFA did
not abuse its dominant market position.
UEFA had justifi able reasons to consider the Players
were ineligible. In the view of the Panel, the Appeals
Body decision of the UEFA of 13 September 2011 was
neither arbitrary nor contrary to Swiss Competition
Law.
Moreover, UEFA’s practice of assessing the eligibility
of players only once a protest is fi led by a club cannot
be challenged from a competition law point of view.
Given the club’s possibility to fi le a protest in case an
ineligible player is fi elded by the opponent club it would
be inappropriate, unnecessary and disproportionate
to require UEFA to control the eligibility of all
players at the beginning of a tournament.
It is the Panel’s view that UEFA had justifi able
reasons to rely on the FIFA DRC’s decision of 25 May
2011. OLA appealed against the decision with CAS,
however, on 8 August 2011, withdrew the appeal.
Moreover, the SFL initially rejected OLA’s request for
registration of the Players. The SFL Appeals Tribunal
confi rmed this decision. The Players were only
qualifi ed to play in the Swiss national league based on
the Orders by the District Court of Martigny and St-
Maurice dated 3 August 2011 and 27 September 2011.
The Panel wishes to underline that UEFA treated all
the clubs alike.
The Panel reaches the conclusion that UEFA did not
abuse its dominant market position, as it had justifi ed
reasons to act in the way it did. The Panel would not
reach a different conclusion under the assumption
that, contrary to the UEFA Appeals Body’s decision
dated 13 September 2011, the Players were qualifi ed
to play the two qualifi cation matches.
UEFA fi led two experts’ reports supporting its
position that UEFA, by excluding OLA from the
UEL 2011/2012, did not violate Swiss competition
law.
In his expert report, Professor Amstutz stressed that
UEFA applied the UEL Regulations to all football
teams alike. He stated and confi rmed at the hearing
that UEFA did not abuse its dominant market
position nor discriminate against other clubs. He
denied that the conditions of Article 7 para. 1 lit. b
CA and Article 7 para. 1 lit. a CA have been met.
He reached the conclusion that, even if UEFA had
abused its dominant market position, there were
legitimate reasons for doing so.
Professor von Büren, in his expert report, concurs
with Professor Amstutz. He points out that the UEL
Regulations serve to guarantee a football competition
in a proper manner and that the registration of the
players is necessary to ensure the orderly running
of football matches under equal conditions for all
participating clubs. UEFA’s issuance of the UEL
Regulations cannot be considered as an abuse of a
dominant market position. For the same reasons,
Professor von Büren confi rms the Panel’s fi nding
Jurisprudence majeure / Leading cases
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