(CAS) Bulletin - Tribunal Arbitral du Sport / TAS

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unclear, nor is it diffi cult to satisfy. The Appellant had taken the trouble to prepare a letter of protest in advance of the match and to carry out extensive webbased research into the Player’s nationality – it could have and should have fully reviewed and complied with Article 37.1 and the Panel does not see any reason to overturn the decision of the CAF Appeal Board on this point. D. If not, should the CAF Appeal Board have sanctioned the Burkina Faso FF under either Articles 36 or 39 of the AFCON 2012 Regulations instead? The Player had citizenship and had been included on the list of players for the AFCON 2012 tournament in accordance with Article 42 of the AFCON 2012 Regulations. The Respondent stated that Article 36 of the AFCON 2012 Regulations dealt with sanctions against players. It was the fi rst Article in the Chapter of the AFCON 2012 Regulations entitled “Sanctions of Players ”. If an association fi elded a player after he had been sanctioned for any offence and the penalty against that player was a suspension or if he had been found to be “non-qualifi ed ”, then the association would face losing that match 3-0. However, the sanction against the player was required before this sanction could be imposed against the association. In this case, there were no sanctions against the Player. The Appellant argued that Article 36.12 of the AFCON 2012 Regulations applied as the sanction against the association, if it could be established at anytime and “even without protest” that a player was ineligible (NdR: Article 36.12 states: “A team which allows a non-qualifi ed or a suspended player to take part in group matches shall lose the match by penalty (3 – 0), even in the absence of protests/reservations”..). At the hearing, the parties provided their respective views on Articles 15 to 18 of the FIFA Statutes and the Respondent cited the case CAS 2010/A/2071. The Appellant argued that as the Respondent could not provide proof that the Player had lived continuously for 5 years in Burkina Faso after 2002, when he reached his 18 th birthday, then he must fail to fulfi ll the criteria of Article 17 of the FIFA Statutes and is therefore ineligible, as under Article 32 of the AFCON 2012 Regulations, he must comply with these FIFA Statutes. If ineligible, then Article 36.12 applies. Whilst the Respondent argues that as the case CAS 2010/A/2071 stipulates Article 18 of the FIFA Statutes is applicable. Pursuant to this it is irrelevant where the Player lived for that period. The Panel again fi nds that the Appellant has not suffi ciently discharged the burden of proof. The CAF Appeal Board could only reach a decision on the Player’s eligibility if it had stronger evidence from the Appellant as to where the Player lived at what stage, as opposed to submissions that he played for foreign clubs since 2004 and an attempted reversal of the burden of proof by the Appellant. It is not suffi cient to say the CAF did not show the Player lived continuously in Burkina Faso for 5 years after he reached the age of 18. The Appellant needed to provide the evidence to demonstrate where the Player was living; to provide submissions on the application of Article 17 as against Article 18 of the FIFA Statutes; to produce submissions and evidence on what was meant be “continuously living” – is it actual residence or maintaining nationality – and to provide submissions to support Article 36.12 can be used in any event, or whether it only has application on an association after a player has been sanctioned. Turning next to Article 39 of the AFCON 2012 Regulations, the Respondent confi rmed at the hearing that it treated the Protest Letter as a notifi cation of a possible fraud and commenced an enquiry pursuant to Article 39. It ultimately determined that the allegations were not proved. Again, from the evidence produced by the Appellant, the Panel agrees with the CAF Appeals Board. The Appellant has raised eligibility issues, but has not brought Burkina Faso into the proceedings, nor sought evidence from it regarding its Player, the granting of his Burkinabe nationality, no correspondence with FIFA regarding his nationality was put in the Appeal, no real enquiries regarding where the Player lived were made. On the other hand the CAF was presented with the Player’s Burkina Faso passport, confi rmation of his residency since 1994 in Burkina Faso, his marriage and nationality certifi cates, all of which it took at face value in determining there were insuffi cient grounds and evidence to conclude there was any type of fraud. The Respondent defi ned “fraud” from its own Regulations as “(…) any deliberate intention of misleading or cheating by falsifi cation of documents (…)”. There was no evidence of any deliberate intention to mislead or any allegation that the documents were forged. The Appellant did query why the Player had received a passport the day before the fi rst match in March 2011 and then why he received another after the second match in June 2011. The Panel again notes the decision of the Appellant not to bring the Burkina Faso FF into these proceedings as a respondent. If it had, then perhaps that question could have been answered, but as regards the Respondent, the Panel agreed that there was insuffi cient proof to determine there was any type of fraud. Jurisprudence majeure / Leading cases - 205
E. Conclusion In summary, the Panel determines to confi rm the Appealed Decision of the CAF Appeal Board and to dismiss the Appeal of the Appellant. Jurisprudence majeure / Leading cases - 206
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Bulletin TAS CAS Bulletin 1 / 2012
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Arbitration CAS 2011/O/2422 .......
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“ Sports law ”: implications fo
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and procedures of the CAS 10 . The
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2. Considering the plenary power of
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over the emerging game of indoor so
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appeals arbitration proceedings, ab
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troubling because . . . United Stat
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La médiation : processus et applic
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Ainsi, la solution au confl it éma
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voir sa demande profonde comprise :
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pour les parties elles-mêmes. Cell
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divergent sur l’exécution (mer/m
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Ces deux grands courants font l’o
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peine de retomber rapidement dans u
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mémoires déposés par les parties
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d’un règlement d’obtenir un av
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• une brève description des moye
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R64.2 (…) R65 Appels contre des d
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written comments and shall give bri
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his own discretion, the questions s
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strong links between the two 1 . In
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According to Article 17.4 “If any
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Finally, in the absence of other de
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epresentative (Respondent) argued t
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Figure 2: Orders on language in CAS
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litiges pouvant être soumis à la
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au lien du litige en cause avec le
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Contrairement aux autres institutio
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coûts doivent être raisonnables 4
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Investigating magistrate no. 31 of
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2. Proper Defendants Article 282 of
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interference by state courts) with
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against doping in sports. To achiev
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Arbitration CAS 2010/A/2091 Dennis
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had stated that his claim had been
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effectiveness and validity of that
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another players’ agent (…) oper
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Beitar FC. In the Appellant’s vie
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The referred letter, in its pertine
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8. Condemn the Respondent to the pa
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It is clear for the Panel that the
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damage. There is wilful damage when
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in the determination of the compens
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Arbitration TAS 2010/A/2220 Corina
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En date du 27 août 2010, l’Appel
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2010, le droit de Greffe acquitté
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Il relève en effet que leur versio
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Arbitration C AS 2010/A/2275 Croati
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of golf clubs in Croatia had withdr
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(depending upon the translation) th
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waiting until the eve of the AGM 20
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provisional suspension and also to
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that it did not have any particular
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c) The resolution fi le dated Febru
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2011, Art. 156 no. 11 ff) if the ev
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Article 293 UCI ADR determines the
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The Decision seems to be based on t
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clenbuterol can only have entered t
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- how the Prohibited Substance ente
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entry into his system of the Prohib
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which will be addressed in detail b
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in those countries is rampant. Sinc
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as high as 1 out of 100 slaughtered
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athletes having tested positive to
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illustrate that his blood values ar
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specifi c gravity of 1.020. Without
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values of subjects that did not und
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urine tests performed the evenings
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WADA that the calculations regardin
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One of the reasons for that could b
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ingested by him was contaminated wi
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The Athlete refers the Panel to the
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athlete but withdrawn once the time
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The USOC argues that the IOC Regula
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period of ineligibility (non-partic
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Arbitrage TAS 2011/A/2433 Amadou Di
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précisions sur les offres que le Q
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Page 249: Publications récentes relatives au
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