CEDH · CASELAW;CLIN;ENG — 11 février 2020

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Switzerland (dec.) - 526/18 Decision 11.2.2020 [Section III] Article 8 Article 8-1 Respect for private life Arbitral decision resulting in disciplinary suspension in professional sports context, with adequate institutional and procedural safeguards: inadmissible Facts – The applicant is a former professional football player, having been captain and coach of the France national team. He was an adviser to X.Y., then president of FIFA (Fédération Internationale de Football Association), and has served as president of UEFA (Union of European Football Associations) and as vice-president of FIFA. In 2011 X.Y. approved the payment to the applicant of an invoice for 2 million Swiss francs (CHF), presented by the applicant as a salary “supplement” that had been agreed orally. The payment was endorsed by FIFA’s finance board. In 2015, following the opening of criminal proceedings against X.Y. in connection with the payment, disciplinary proceedings were brought against the applicant for breaching the FIFA Code of Ethics. FIFA imposed a sanction consisting of a six-year suspension from any football-related professional activity, at national and international levels, plus a fine of CHF 80,000. The Court of Arbitration for Sport (CAS) reduced the suspension period from six years to four and lowered the fine to CHF 60,000. The Swiss Federal Court found that it had jurisdiction and dismissed an appeal by the applicant. Law (a) Switzerland’s international responsibility under the Convention / Court’s jurisdiction ratione personae The impugned sanction had been imposed by FIFA, a private-law association, and upheld by an arbitral tribunal, the CAS, which emanated from a private-law foundation. That being said, Swiss law provided for the legal effects of CAS awards and for the jurisdiction of the Federal Court to examine their validity. The dismissal of the applicant’s appeal by the Federal Court had given the arbitral decision the force of res judicata in the Swiss legal order. Accordingly, the impugned acts and omissions were capable of engaging the responsibility of the respondent State under the Convention (see Mutu and Pechstein , nos. 40575/10 and 67474/10, 2 October 2018, Information Note 222 ) and the Court thus had jurisdiction ratione personae to examine the applicant’s complaints about the CAS decision, as endorsed by the Swiss Federal Court. (b) Article 8 (i) Applicability (notion of “private life”) – Even though the grounds underlying the sanction related to the applicant’s professional life, the Court found that the threshold of severity required to engage Article 8 in its private life aspect had been attained (see Denisov v. Ukraine [GC] (no. 76639/11, §§   115-117, 25 September 2018, Information Note 221) on account of its repercussions for the applicant’s private life: – the ban on earning a living from football, his sole source of income throughout his life (a situation aggravated by his age and by FIFA's dominant position or even monopoly in the organisation of football worldwide); – an interference with the possibility of establishing and developing social relations with others, in view of the very broad nature of the sanction, which extended to "any" football-related activity, given that the applicant was commonly identified with football by the general public and the media; – the negative impact on his reputation (as a result of a certain stigmatisation). (ii) Existence of adequate institutional and procedural safeguards to protect the applicant’s private life – As the complaint could not be regarded as a measure taken by the State – since the sanction had been imposed by a private-law association –, it had to be examined in terms of the State’s positive obligations and margin of appreciation. The Court took account of the specificity of the applicant’s situation, in that he had freely chosen a career in football, first as player and coach, then in official capacities in football’s federative governing bodies, which were private entities and thus not directly bound by the Convention. While that career had no doubt endowed him with many privileges and benefits, it had nevertheless involved waiving certain rights, provided any contractual restrictions were agreed freely (see Fernández Martínez [GC], no. 56030/07, 12 June 2014, Information Note 175 ) – and the applicant had not claimed the contrary. The Court then turned to the applicant’s appeals in his dispute with FIFA. –   Private arbitral tribunal : Taking the specificity of the sports arbitration procedure into account, the CAS had responded to the applicant’s complaints in an exhaustive and comprehensive manner, delivering a sufficiently detailed award and convincingly weighing up the interests at stake. The CAS had in particular found that a four-year period was reasonable in view of the aim pursued: to impose a sufficiently harsh sanction for the breach, which it deemed serious, of the Code of Ethics, in order to send a “strong signal” to restore the reputation of football and of FIFA. Neither the applicant’s current situation nor his outstanding services to football had been overlooked by the arbitrators; on the contrary, the CAS had given due regard to the applicant’s senior position in the highest football bodies at the time of the offences of which he stood accused, and also to his lack of remorse. –   State court : The Swiss Federal Court, to which the applicant had been able to appeal at last instance, had subsequently upheld the CAS award on the basis of plausible and convincing reasoning. It had taken the view that the duration of the suspension did not appear manifestly excessive in view of the criteria set out by the arbitral tribunal, which had taken account of all the incriminating and exonerating factors in the file before it, and had not disregarded any material circumstance in deciding on that duration. The applicant had thus been afforded adequate institutional and procedural safeguards through a system of adjudicatory organs, first private bodies then a State court, which had properly weighed up the interests at stake and had addressed all of the applicant’s complaints in duly reasoned decisions. To the extent that the Court had jurisdiction to examine them, those decisions did not appear arbitrary or manifestly unreasonable, and pursued not only the legitimate aim of punishing breaches of the relevant rules by a high-ranking official of FIFA, but also the general-interest aim of restoring the reputation of football and of FIFA. Accordingly – and given the broad margin of appreciation afforded to it in the present case –, the respondent State had not failed to fulfil its positive obligations. Conclusion : inadmissible (manifestly ill-founded). The Court also found inadmissible (incompatible ratione materiae ) the complaint raised under Article 7 of the Convention, finding that the impugned measure was not a sanction for a “criminal offence” but for a breach of specific internal rules applying to a member of a small group with a special status.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes