(CAS) Bulletin - Tribunal Arbitral du Sport / TAS

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longer fulfi lling statutory conditions, That this is manifestly the case of a national federation who can no longer exercise an activity as such, Based on considerations mentioned above, the resolution proposed by the Executive Committee to the Annual General Meeting is to exclude the Croatian Golf Federation in Bankruptcy from the European Golf Association”. On 6 October 2009, the Appellant sent a letter to all members of the EGA, explaining its situation and arguing against its expulsion. On 17 October 2009, the following decision by the EGA’s Executive Committee (taken at its meeting on 15 October 2009) was presented to its member federations at the AGM 2009: “ Last September, the Executive Committee sent all member federations a resolution, proposing to exclude as member from the EGA the Croatian Golf Federation, due to information that they were in bankruptcy proceedings. The proposition was based on the fact that, to be a member of the EGA, you must be a national golf federation representing the golf activities of its country. The Croatian Golf Federation in bankruptcy proceedings with due respect doesn’t look like meeting that condition. Up till now, the Executive Committee has not received formal proof whether the Croatian Golf Federation in bankruptcy is recognised by Croatian authorities. There is therefore a doubt affecting the legal situation of the entity. The following proposal is based on discussions in zone meetings and the Executive Committee: to allow evidence to be brought forward by the federation and the Croatian authorities, the Executive Committee has decided to postpone its resolution to the next EGA General Assembly in 2010, hoping in the meantime to receive a clarifi cation of the legal situation for the good sake of development of golf in Croatia”. The AGM 2009 unanimously agreed with the Executive Committee’s proposal. By letter dated 20 October 2009, the EGA’s counsel informed the Appellant that it was its responsibility to submit proof of its legal situation and of its qualifi cation as national federation recognised by the “ Croatian olympic authorities ” and by the Ministry of Science, Education and Sport. By letter dated 22 July 2010, the Appellant informed the Respondent that the “ Croatian Golf Federation went out from the bankruptcy proceedings on 29 June 2010. […] Our bankruptcy plan was voted unanimously with 100% of votes and was immediately confi rmed in full by bankruptcy judge. Court issued formal decision in writing, effective immediately, ending bankruptcy proceedings. […] It became enforceable and valid on 20 July 2010. […] I emphasise that Croatian Golf Federation is obliged to continue and permanently execute all activities as national sports federation for golf within Republic of Croatia; it is strictly stated in bankruptcy plan. That means organizing national championships, governing national teams and representing Croatian golf and itself at international golf institutions as main activities plus many others. We are already doing that; Croatian Team Championship was completed on 27 June after six days of play during two months. Croatian Individual Championship is scheduled from 9 – 12 September this year ”. It is undisputed that the EGA received this letter and was thus aware of the decision of the Zagreb Commercial Court to which the Appellant’s foregoing letter referred. In the certifi ed English translation on record, the decision’s operative part reads, in relevant part, as follows: “ I The bankruptcy proceedings against the Bankruptcy Debtor “CROATIAN GOLF FEDERATION” [...] are concluded. II Upon the issue of this Decision the functions of the Bankruptcy Trustee and members of the Board of Creditors cease to exist. III The Debtor regains the right to avail itself of the bankruptcy estate ”. On 3 September 2010, the EGA sent to its member federations the agenda for the 2010 AGM. The agenda did not include any item relating to the Appellant’s expulsion. On 7 September 2010, the Croatian Olympic Committee (COC) took the decision to terminate the Appellant’s membership. According to the Appellant’s submissions which were not contested by the EGA, the Appellant was not heard before the decision was taken. The main reasons given by the COC for the termination were that the Appellant’s bodies were not elected (but appointed by the Zagreb Commercial Court by adopting the Insolvency Plan), that its statutes were not in accordance with the Croatian Sports Act and Association Act, that the majority Jurisprudence majeure / Leading cases - 95
of golf clubs in Croatia had withdrawn from the Appellant and that the Appellant’s debts had been “ rescheduled until 2023, which indicates that there were no material conditions for the Associations’s proper functioning”. By letter dated 16 September 2010, the COC informed the EGA that the Appellant’s membership with the COC had been terminated and that the COC had decided to “admit the Croatian Golf Association (HGU) to the associate members of the Croatian Olympic Committee”. In the same letter, the COC also outlined the reasons for the Appellant’s expulsion. On 13 October 2010, the Respondent’s Executive Committee received a letter from the Croatian Ministry of Science, Education and Sport, which according to the certifi ed English translation provided by the Respondent reads as follows: “ The Croatian Olympic Committee is defi ned by the Sport Act as the supreme nongovernmental national sport organization, which is autonomous in its operation and performs the following activities according to the Sport Act: provides conditions for undisturbed development of sport, provides consent to the Articles of Associations of its members that must be in conformity to the Articles of Association of the Croatian Olympic Committee, represents Croatian sport before the International Olympic Committee, and represents Croatian sport before the relevant international sport organizations and associations. The Ministry of Science, Education and Sport is not competent in connection with status issues of organizations, but supports any efforts and measure of the Croatian Olympic Committee contributing to provision of conditions for undisturbed development and promotion of golf as a sport”. On 16 October 2010, Mr. Dino Klisovic, Chairman of the Appellant’s Board of Directors, gave a report on the current state of golf in Croatia to the EGA South Zone meeting, inter alia mentioning that the Appellant was no longer in bankruptcy proceedings. The EGA’s President, Mr. Luis Gonzaga Escauriaza, was present at the South Zone meeting in his role as the President of the Spanish golf federation. There were no specifi c questions raised as to the legal or fi nancial situation of the Appellant. Also, no plans were mentioned to expel the Appellant the next day. Just before dinner on 16 October 2010, the EGA’s President and General Secretary explained to both of the Appellant’s delegates (Mr. Klisovic and Mr. Bozidar Ivacic) that around 7 pm that evening, the EGA Executive Committee had decided to propose a resolution to the AGM 2010 to expel the Appellant. The General Secretary said that the EGA was in possession of documents from relevant Croatian authorities which compromised the Appellant’s status as the representative national golf federation. However, the EGA General Secretary refused to hand over said documents to the Appellant’s delegates. The EGA President offered as a reason for the expulsion that the Appellant had lost its membership with the Croatian Olympic Committee and the Secretary General reminded the Appellant’s delegates of the bankruptcy proceedings. The next day, during the AGM 2010, the EGA Secretary General reminded the members present of the decision of the Executive Committee the prior year to submit if necessary to the AGM 2010 a resolution on the expulsion of the Appellant. The Secretary General’s speech is reproduced in the minutes of the AGM 2010 as follows: “ On behalf of the Executive Committee, the General Secretary wished to remind the assembly on the decision reached at the last Annual General Meeting held in Hamburg when it was decided to adjourn the decision on the resolution to exclude the Croatian Golf Federation from membership in the EGA. To allow evidence to be brought forward by the Croatian Golf Federation and Croatian athorities, it was decided to postpone the resolution to the Annual General Meeting 2010, hoping in the meantime to receive clarifi cation of the legal situation for the good sake of the development of golf in Croatia. The proposition was based on the fact that to be a member of the EGA, you must be a national golf federation representing the golf acitivities of your country and recognised by the governing authorities for the sport in the country, in the present case, the Croatian Olympic Committee. A few days prior to the meeting, the Executive Committee received formal proof that the Croatian Golf Federation, with due respect, does not meet that condition. This has been confi rmed by our lawyers and legal experts. The Executive Committee consequently asked the Croatian Golf Federation to resign immediately from EGA membership. This offer being declined, according to article 16 of the EGA Constitution, the Executive Committee decided to submit the resolution on the exclusion of the Croatian Golf Federation. In order to be able to vote on this resoluation, according to third paragraph of article 16 of the constitution, it needs a two-thirds majority of those delegates present and represented ”. In his presentation to the AGM 2010, Mr. Klisovic, Chairman of the Appellant’s Board of Directors, unsuccessfully requested the EGA to immediately hand out to all delegates the proposed resolution and all documents it was based on. In the subsequent vote, 81 votes were cast in favour of taking a vote on expulsion of the Appellant. Thereafter, 76 votes were cast in favour of the expulsion. The total number of votes present and represented was 108. Jurisprudence majeure / Leading cases - 96
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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
Page 47 and 48: Finally, in the absence of other de
Page 49 and 50: epresentative (Respondent) argued t
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Page 57 and 58: Contrairement aux autres institutio
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Page 63 and 64: 2. Proper Defendants Article 282 of
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Page 67 and 68: against doping in sports. To achiev
Page 69 and 70: Arbitration CAS 2010/A/2091 Dennis
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Page 79 and 80: The referred letter, in its pertine
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Page 87 and 88: in the determination of the compens
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Page 91 and 92: En date du 27 août 2010, l’Appel
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Page 109 and 110: c) The resolution fi le dated Febru
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Page 113 and 114: Article 293 UCI ADR determines the
Page 115 and 116: The Decision seems to be based on t
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Page 125 and 126: in those countries is rampant. Sinc
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Page 131 and 132: illustrate that his blood values ar
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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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estrictions, non, entre les comité
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En date du 3 février 2011, la Comm
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II 271; H.M. RIEMER, Berner Komment
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onne foi et de respect de la procé
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son exploitation mais, comme observ
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des droits de la personnalité. L
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ne peut que prendre note de remarqu
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En l’espèce, celui qui cherchait
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évidence le fait que leur “condu
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toute activité liée au football
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Extracts from the legal fi ndings A
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Arbitration CAS 2011/O/2574 Union o
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SFL Appeals Tribunal of 29 July 201
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its position on OLA’s request for
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- production par la fondation du co
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(iii) To confi rm that OLA is not e
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CCP. The substantive validity of th
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2.2 Article R46 (1) of the CAS Code
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constitutive of an abuse of a domin
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Claimant to indicate its prayers fo
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It results from the above that UEFA
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The UEL 2011/2012 is an internation
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The Panel considers that the sancti
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- discriminate OLA pursuant to Arti
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Appellant requested the matter be d
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The Panel is satisfi ed that the Bu
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E. Conclusion In summary, the Panel
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Appellant described as caffeine pil
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apply the various regulations of FI
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in doping matters is to be upheld w
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* * 4A_404/2010 Judgment of 19 Apri
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BGG; Jean-Maurice Frésard, in Comm
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Art. 2.1 of the Statutes of Respond
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validity, namely with regard to its
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that he is a Turkish citizen, who p
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in the provisions of any other serv
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Respondent had their domicile, seat
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evidential submission took place ti
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un contrôle antidopage ou à l’a
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essortissant à la conception suiss
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4A_428/2011 Arrêt du 13 février 2
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interdiction d’exécuter les sanc
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Il leur a cependant échappé que c
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éférence (arrêt 4A_246/2011 du 7
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l’AMA entendait tirer de la Conve
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4A_652/2011 Arrêt du 7 mars 2012 I
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