Facts
The appellant, Klubi Sportiv Skënderbeu (the club), is an Albanian professional football club and a member of the Albanian Football Federation, which is affiliated with UEFA, an association governed by Swiss law with its seat in Nyon (the respondent). UEFA operates, together with the company Sportradar, a betting fraud detection system (BFDS) which, since 2010, has identified more than fifty matches of the club allegedly fixed.
In 2016, UEFA inspectors requested that the club not be admitted to the 2016/2017 Champions League. By award of 21 November 2016 (CAS 2016/A/4650), the CAS confirmed the ban on participating in UEFA competitions for the 2016/2017 season.
New disciplinary proceedings were opened on 8 February 2018 on the basis of the BFDS reports concerning four matches: the 2-3 defeat against FC Crusaders (21 July 2015), the 1-4 defeat against NK Dinamo Zagreb (25 August 2015), the 1-5 defeat against Sporting Clube de Portugal (22 October 2015) and the 0-3 defeat against FC Lokomotiv Moscow (10 December 2015). By decision of 29 March 2018, the UEFA Control, Ethics and Disciplinary Body suspended the club from all European competitions for ten seasons and imposed a fine of one million euros on it. The Appeals Body confirmed this decision on 26 April 2018.
Seized by the club on 14 May 2018, the CAS (a panel of three arbitrators, proceedings conducted in English) dismissed the appeal by award of 12 July 2019 (CAS 2018/A/5734). During the investigation, the Panel limited hearings to written testimony, summoning to the hearing only those witnesses whose cross-examination was requested by the opposing party; it accepted that UEFA disclose only the name and curriculum vitae of four Sportradar collaborators, due to death threats received by employees. The refusal of access to the mathematical formulas, algorithms and data of the BFDS, deemed sensitive and belonging to Sportradar, was also upheld. The Panel held that the two-phase procedure (administrative exclusion followed by disciplinary sanction) did not violate the ne bis in idem principle, that the BFDS was reliable, that UEFA had proven to the standard of comfortable satisfaction that the four matches had been fixed, that the principle of legality was respected and that the sanction was proportionate.
The club lodged a civil law appeal with the Federal Supreme Court on 16 September 2019, seeking annulment of the award. UEFA requested dismissal. The CAS proposed dismissal of the appeal. The parties spontaneously filed a reply and a rejoinder.
Considerations
The Federal Supreme Court drafts its judgment in French, the language chosen by the appellant in its appeal, in accordance with art. 54 para. 1 FSCA (ATF 142 III 521 consid. 1). The civil law appeal against an international award is admissible under art. 77 para. 1 let. a FSCA and arts. 190 to 192 PILA, the seat of the CAS being in Lausanne and one of the parties having no seat in Switzerland (art. 176 para. 1 PILA). The appeal may only be brought on the grounds exhaustively listed in art. 190 para. 2 PILA, and the complaint must be substantiated in accordance with the principle of allegation (art. 77 para. 3 FSCA). The Federal Supreme Court rules on the basis of the facts established by the CAS (art. 105 para. 1 FSCA), without full review, and may not review the assessment of evidence.
First ground: violation of procedural public policy (art. 190 para. 2 let. e PILA) through violation of the ne bis in idem principle. The Federal Supreme Court leaves open the question of whether this criminal principle applies to sports disciplinary law. It recalls that the first exclusion (administrative, aimed at protecting the integrity of the competition) and the second sanction (disciplinary, of a repressive nature, with suspension and fine) pursue different aims, in accordance with judgment 4A_324/2014 concerning a Turkish club. The appellant cannot dispel this solution through a selective semantic analysis of the awards. From the perspective of the identity of the facts (Zolotoukhine judgment of the ECHR) and the repetition of proceedings (judgments A. and B. v. Norway and Rivard v. Switzerland), there is a sufficiently close material and temporal connection between the two phases to form a single system: identical adjudicatory bodies, express reservation of a subsequent disciplinary sanction, different rules and range of sanctions, consideration of the exclusion in the disciplinary sanction, and rapid succession. The complaint is dismissed.
Second ground: violation of the right to be heard (arts. 182 para. 3 and 190 para. 2 let. d PILA), divided into six branches. The minimum duty of the arbitral tribunal to examine the relevant issues is only violated if important allegations, evidence or offers of evidence are ignored, and it is incumbent on the injured party to show that these elements were capable of influencing the outcome of the dispute (ATF 142 III 360 consid. 4.1.1 and 4.1.3). (i) The refusal of access to the BFDS formulas and data cannot be criticized: the CAS found the algorithms irrelevant in themselves, and the appellant does not challenge the additional grounds of confidentiality and risk of circumvention. (ii) The complaint based on equality of arms and adversarial principle is ill-founded: the Forrest report was commissioned by Sportradar and not by UEFA, the qualification of the report as expert evidence falls within the assessment of evidence, and the appellant waived its right to have Prof. Forrest heard. (iii) The refusal of a judicial expert opinion falls within anticipatory assessment of evidence, which is not reviewed except in the extremely limited case of a breach of public policy, which is not alleged. (iv) The comparison with tax fraud detection software does not constitute an unforeseeable legal norm and does not amount to an element of surprise. (v) The rules on the burden of proof are not part of substantive public policy (art. 190 para. 2 let. e PILA, judgment 4A_616/2016), and there was no reversal, UEFA…