Arnaud di Benedetto, Bastien Cotte-Barrot v. Federation of International Touch (FIT)
Arbitration CAS 2014/A/3519 Arnaud Di Benedetto v. Fédération Internationale de Touch (FIT) & CAS 2014/A/3520 Bastien Cotte-Barrot v. FIT, award of 25 August 2014
Panel: Mr Quentin Byrne-Sutton (Switzerland), Sole Arbitrator
Touch Disciplinary Proceedings for misbehaviour Scope of review of a sport’s association internal adjudicatory body Standard of proof in disciplinary cases Lacuna in the applicable regulations regarding the sanction
1. A Judiciary Committee of a sports organization governing a sport worldwide may potentially have the competence to investigate (and take disciplinary sanctions) for incidents that took place off the field of play provided that for example the incident in question took place during an official ceremony (albeit at the very end of the ceremony) which – by nature – was not a public event and if the persons involved in the incident were either members or representatives of different national entities forming the sports organization.
2. It follows from CAS jurisprudence addressing disciplinary sanctions that in cases where the disciplinary offence being invoked is of a very serious nature, the applicable standard of proof is that of “comfortable satisfaction”, which is a stricter standard than the standard of “balance of probability”.
3. In the absence of any directly applicable and clear rules of the international federation for the type of offence which occurred in a specific case, the adjudicating body must make up for this lacunae by adopting a sanction which, in light of the facts of the case as established, is relevant to the type of misconduct, proportional, reasonable, just and fair.
I. THE PARTIES AND THE ORIGIN OF THE DISPUTE
A. The Parties
a) The Appellants
1. Mr. Arnaud di Benedetto and Mr. Bastien Cotte-Barrot (hereinafter referred to individually by their names or jointly as “the Appellants” or “the Players”), respectively born in 1982 and 1990, are both French players of the sports game known as “Touch”.
b) The Respondent
2. The Federation of International Touch (the Respondent, hereinafter also referred to as “the FIT”) is the sports organization that governs Touch worldwide.
B. The origin of the dispute
3. This summary is made for the sole purpose of providing a synopsis of the matter in dispute. It is based on the written documents on record. Further relevant details of the Parties’ factual allegations and legal arguments are set out in sections III. and IV. of this award.
4. The dispute relates to a serious incident (hereinafter the “incident”) that occurred at the end of the 2012 European Touch Championships (hereinafter the “European Championships” or “the Event”), which were organized by “Touch Italia” and took place in Italy from 11-16 September 2012.
5. The following facts surrounding the incident are uncontested to a large extent:
The incident took place in the middle of the night of 16-17 September 2013 at the end of the prize giving and closing ceremony of the European Championships (hereinafter the “Closing Ceremony”).
The Closing Ceremony took place in the sports complex/area (hereinafter the “Sports Area”), including the playing fields, where the Event had been staged.
The chief local organizer for Touch Italia of the Event, Mr. Stefano Emmi (hereinafter “Stefano Emmi”), was responsible for overseeing the Closing Ceremony.
The Closing Ceremony also constituted a form of party in which about 400 people, including players, entourage, referees and public, were present.
Stefano Emmi had some difficulty in getting the last party-makers to leave the Sports Area.
To facilitate the flow of people leaving, he had parked his car, a Ford Mondeo, on one of the playing fields (field n° 4) with headlights on to light up the path.
Several French players, members of the French Men’s Open team (“MO”), which had won the bronze medal in that category, were among the last to leave the Sports Area, around 01:20 am (on 17 September 2012).
Upon leaving, two of the French players mistook Stefano Emmi’s car for that of their coach, Erick Acker, who at the time had the same model of car, and determined to play a joke on their coach by moving his car. One of them got in the driving seat and the other in the passenger seat, and they began slowly driving across the field.
When Stefano Emmi saw his car move forward he immediately shouted to the driver
to stop and began running after it. He managed to catch up and open the door on the driver’s side. He ended up on the ground with the player who had been driving. A short scuffle ensued.
A third French player and member of same MO team, who had left the Sports Area at the same time, saw the scuffle and decided to run over to help his teammate. He became involved in the scuffle, which ended quite quickly with Stefano Emmi managing to extract himself and leave the scene to ask for help.
Since his nose was bleeding profusely, Stefano Emmi called a medic and the police.
At 03:24 am (on 17 September 2012), Stefano Emmi was examined in the emergency unit of the Treviso hospital and was diagnosed with “fracture to bone in nose and contusion of left shoulder from reported blows”.
6. The details of what happened exactly just before, during and after the scuffle are less clearly evidenced by the documents and by the declarations of the persons involved and those of one alleged witness, among others because there are variations in accounts.
7. Stefano Emmi, as the victim of the incident, commented on what happed in several exchanges of email shortly after the incident, but also made two separate recorded declarations at the time, as well as recent comments by email for use by the FIT in these proceedings. Although no doubt Stefano Emmi intended to be truthful in his description of the events, his own versions of the facts in the various declarations and emails do not always concur on all points.
8. His first official declaration was made to the local police, in the police headquarters in Treviso, at 14:00 pm on 17 September 2012, i.e. approximately 12 hours after the incident, where he filed a form of criminal complaint.
9. According to the English translation of his declaration to the police made on such occasion, his statement included the following assertion:
“As organiser of the Championships I was also responsible for overseeing the end of the evening and, in that capacity, as agreed beforehand with the different team managers, shortly after midnight I began to ask the guests to head towards the exit. The departure was organised with two Pullmans, which were going back and forth to the Municipio di Villorba, picking the people up and taking them to their hotels. To facilitate the flow of people leaving I had got my car, a Ford Mondeo registration DN828SA with the headlights on to light up the path.
About 1.20 as I was going to the exit with the last revellers (sic), I noticed my car slowly move; I ran over quickly and opened the ANT SX door and saw two people in the car, I tried to grasp the steering wheel to stop the car moving. At that moment I only remember getting hit hard in the face and I fell and rolled on the ground. My attacker also rolled on top of me so I also felt a major compression of my chest. I got up and I suddenly noticed my nose was bleeding heavily; this didn’t prevent me running after the car, but then I noticed that other people had managed to stop it and therefore I looked for help knowing that amongst the people present were medics and/or other people who could treat this type of injury”.
10. On 17 September 2012 in the evening, i.e. the same day, he addressed an email to Erick Acker, in which he stated, among others:
“… Thanks for my work was a punch in the face, a shoulder with a big problem, the door’s car with a stroke …. It’s only a question between me and ONLY one man. If you help us, I promise that will be remain a question between me and him …”.
11. On 25 September 2012, i.e. one week later, he duly completed, signed and filed the official FIT “Federation Complaint Form”, in which he stated the following, among others:
“In the night between Sunday and Monday (16th and 17th September 2O12), I was present on the Lancenigo’s venues as Tournament Director. Around half past midnight I began to ask the attending players to leave the party since I had to close the grounds before one o’clock (as communicated in my official Memo No. 5). Some people were quite drunk and it was very difficult to talk to them. I had to ask several times for the cooperation of these players. In particular, I had a lot of trouble with a group of French players. These players was (sic) dressed like the characters from the comics “Asterix and the Romans”. I remember these people very clearly because I had to go up and talk to them quite often between midnight and half past one. They were singing and as I tried to speak with them they sang even more. Their attitude was provocative and when approaching them I had to try to keep myself calm and composed. After one o’clock most of the players had gone away. According to my rough estimate, there were still about a hundred left […]. In order to illuminate the way and thus provide best security for the leaving party attendants, I had placed my car on field No. 4 […]. Finally, when the French players were kind enough to leave, I followed them because I wanted to be present in case any possible risk should arise. When I came nearer to my car (left on field No. 4), I saw it moving forward. Since the person behind the wheel was very drunk, I was immediately aware of the terrible danger it represented to all other people walking close by. At once I shouted “Are you crazy ??? lt’s my car !!! Stop immediately!” but without any success. I started to run in the direction of the car. When I reached the left-hand side of the car, I opened the driver door with my left hand. I saw two people inside the car - one in the driver’s seat and another in the passenger’s seat. Both were dressed in the white Roman dress that I knew very well from before. I stuck my head into the car to try to stop it (it is an automatic car). I was able to see that the driver had a short beard and the next moment I perceived a rapid movement of the driver. This is when I felt a strong punch on my face. I fell on the grass and, for few seconds, I wasn’t able to understand anything. When I started to regain my capability of reason, I saw that my car was still moving. It had
moved approximately 50 meters from the point where I lay. I tried to run in direction of my car but I saw that some people had blocked it and were shouting that everything was alright. When I saw that my car was safe, I called Dr. Claudio da Ponte (MD) by phone since I was bleeding profusely and needed help. On my way back to the party area, a girl who spoke English came to me. I remember that I said something which I could not understand, so I continued on. After I was given first aid, I called the police. The police officers arrived and started their inquiry. The guard went to get my car which was inspected by the police. The girl who spoke English came to me and said that I should not believe that she was involved in the matter. At this I apologized for having put her under pressure. She said that nothing had happened and that she had seen the boy dressed as a Roman get out of the car. She said she did not know who he was, but she saw that he had the wedding ring …”.
12. In his email to the FIT at the beginning of these proceedings, i.e. approximately one-and-a-half years later, of which the FIT filed a copy with its Answer, he stated, among others:
“On 20 September I sent my complaint form like Dennis asked me. See the attached file. I haven’t specified the roles of Teddy and Arnaud because I don’t know still who had given me a fist. Very important: the Italian Police, after receiving the names, has made a lot of identikits (sic) and they have check a lot of photos before to identify Teddy Sockel like the driver that gives me the fist”.
13. The alleged witness of the incident, Ms Linda Acker, sent an email, at midday on 18 September 2012, to the then Secretary General of the FIT (Dennis Coffey), i.e. approximately 18 hours after the scene, with a copy to Stefano Emmi, in which she stated:
“Firstly like Erick I would like to apologise for the incident on Saturday night and as one of the witnesses of this event I will give you my version of what I saw be it from a distance. With my daughter Florence we had just walked through the opening to field number 4 when Stefano ran past us screaming “hey that’s my car what are you doing are you crazy” we saw him arrive at the car open the door as the car was still moving, pull somebody out, throw him to the ground and started hitting him that’s when I saw someone else approach the scene and everyone was on the ground. Stefano stood up from this scuffle and walked back towards the party area as he passed us we asked him what happened and he brushed us aside. When we arrived at the car the vehicle was stationary an Italian guy arrived to drive the car away. There was an English girl by the car who said that the vehicle was now in park and in the scuffle she had been hit in the chest by Stefano however she was okay but really I don’t know who she was and it’s just by her accent that I am claiming she is English.
My daughter and I then walked towards the exit […]”.
14. In a mail addressed the same day to Dennis Coffey, Stefano Emmi denied, as follows, Linda Acker’s foregoing description of the incident:
“… Linda’s reconstruction of the facts is not right. I have not fought with anyone. I have only tried to stop the car. The abusive driver hit me in face when I opened the door to try to stop the car. The English woman came back with me and, after, we have talked together. We have clarified all, because she has thought that I blamed her. A lot of people have seen so. She have told us that the driver was married (because she has seen the ring). It’s evident that she didn’t any problem with me, because she has cooperated …”.
15. In a witness statement filed by the Appellants in these proceedings, Linda Acker declared the following:
“With my daughter Florence we had just walked through the opening to field number 4 when Stefano Emmi ran past us screaming “hey that’s my car what are you doing are you crazy”.
We saw him arrive at the car, open the door as the car was still moving and then pull somebody out of the vehicle, throw him to the ground and start hitting him. That’s when I saw someone else approach the scene and everyone was on the ground. Stefano stood up from this scuffle and walked back towards the party area. As he passed us we asked him what happened and he brushed us aside.
When we arrived at the car the vehicle was stationary. I saw Teddy Sockel, one of the French players in the driver’s seat, and asked him what he was doing and he said he was trying to stop the car. I told him
to get his sorry self out of the car which was in park.
An Italian guy arrived to drive the car away. There was an English girl by the car who said that the vehicle was now in park and in the scuffle she had been hit in the chest by Stefano however she was okay. But really I don’t know who she was and it’s just by her accent that I am claiming she is English.
My daughter and I then walked towards the exit …”.
16. The first account of the French players’ version of what happened is only on record as an indirect account, i.e. in the form of an email of 19 September 2012, two days after the incident, from Erick Acker to a member of Touch Italia (Mr. Riccardo Brizzi) with copies to a number of members of the FIT and to Stefano Emmi. In this email, Erick Acker states the following, among others:
“…The most pressing matter is the issue of Stefano and Touch France has got and is copying you hereunder the summation of the boys who were involved.
I have identified at least 3 players who were more or less involved: 3 from the French Men’s Open team (Arnaud Di Benedetto, Bastien Cotte-Barrot, and Teddy Sockel wearing Roman outfits). One from the French Mixed Open team was wearing the Obelix dress was not far and had been already heard by the Police on the spot… and he has been cleared. I haven’t heard from him yet.
I resume the 3 mens (sic) story (they agree for a hearing if necessary). Arnaud and Teddy were drunk. They went into Stefano’s car, a Ford station wagon which was in the middle of the field, thinking it was my car (I have a similar car). The engine was running and the lights on. They thought it was mine so, they wanted to move it to the end of the field to tease me. Arnaud was driving and Teddy on the passenger seat. Stefano came to stop the car, screaming, very furious. He opened in a hurry the door and Teddy saw him falling on the grass. Did Stefano hurt the door then with his head the car still moving? He came back to pull out Arnaud off who didn’t have time to stop the car. Arnaud was forced down the grass and Stefano went on the top of him, started to attack him. Bastien came to rescue his friend. He pushed away Stefano without hurting him. During this laps (sic) of time, the car was still moving slowly forward (it is an automatic car). Teddy went on the driver seat to stop the car few meters away. When he left the car, Stefano was already gone and Arnaud was recovering helped by Bastien. They didn’t run away. The police came few minutes later and they could talk to them in front of the town hall with Linda. No one was charged with assault”.
17. Apparently, the French players were then not heard during the investigation by the Judiciary Committee which was appointed by the FIT (hereinafter the “FIT Judiciary Committee”) to investigate the incident and make a recommendation to the FIT as to the measures to be taken or by the FIT before it made its decision (the FIT Judiciary Committee’s report/recommendation to the FIT is dated 29 November 2013 and latter’s decision is dated 5 February 2014).
18. Furthermore, no evidence was adduced regarding any hearings or statements of the Player’s during the internal investigation and disciplinary procedure that took place within Touch France prior to the investigation/procedure within the FIT, and which led to the two Appellants being
sanctioned by Touch France with warnings dated 31 March 2013.
19. Also, for reasons which are unknown, the evidence on record indicates that the disciplinary procedure within Touch France and then the investigation by the FIT Judiciary Committee and the ensuing decision by the FIT were only directed against two French players – the Appellants; one of them, Arnaud di Benedetto, being the player who allegedly initially got in the driver’s seat to move the car as a joke, the other, Bastien Cotte-Barrot, being the player who joined the scuffle allegedly to assist Arnaud di Benedetto. Thus, the third player, Teddy Sockel, allegedly involved as being initially in the car’s passenger seat, was not subject to an investigation or sanction and is not an appellant in this proceeding.
20. With his appeal brief in these proceedings, Arnaud di Benedetto filed a written declaration, in which he described as follows the events surrounding the incident:
“Le dimanche du championnat d’Europe de Touch 2012 à Trévise en Italie, une fête était organisée pour clôturer la compétition. Cette fête avait lieu en plein air, sur l’ère sportive constituée de plusieurs terrains de Touch. En quittant la fête, je suis passé devant une voiture que je croyais être celle de mon entraîneur Erick Acker (break noir, boîte automatique …). Elle était juste à côté de l’endroit où nous avions fait la fête, en plein milieu de l’ère sportive, sur un des terrains de Touch. Je pensais qu’il l’avait mise ici en sa qualité de représentant de la FIT (Fédération Internationale de Touch) pour charger du matériel dans le coffre comme il a l’habitude de le faire. Le moteur de la voiture était démarré, les phares allumés et les portières ouvertes.
Pour lui faire une blague, j’ai voulu éloigner la voiture de quelques mètres, car nous sommes coutumiers de ce genre de plaisanteries avec Erick.
Mon coéquipier Teddy Sockel est monté à côté de moi. J’ai eu à peine le temps de faire quelques mètres au ralenti sans même toucher l’accélérateur, qu’un homme a couru à côté du véhicule en me criant “it’s my car”. C’est à cet instant là que j’ai compris la méprise, et qu’il ne s’agissait pas de la voiture de mon entraineur. J’ai freiné. Avant que la voiture ne s’arrête, l’homme m’a saisi très énergiquement et m’a éjecté hors de la voiture. Je me suis retrouvé plaqué au sol, sonné par la chute, avec cet homme au-dessus de moi. Puis il m’a lâché. Mon coéquipier Bastien Cotte-Barrot était à côté de moi, il m’a aidé à me relever et à reprendre mes esprits. J’ai compris que Bastien, en voyant l’attitude agressive de l’individu, était venu à mon secours et l’avait repoussé pour me libérer de son emprise.
La voiture (boite automatique) avait continué son avancée au ralenti puisqu’il n’y avait plus de chauffeur pour appuyer sur la pédale de frein. Lorsque j’ai repris mes esprits, le propriétaire n’était plus à côté de nous et Teddy avait arrêté la voiture quelques dizaines de mètres plus loin, toujours sur le terrain de Touch. L’incident s’est terminé comme ça. Nous avons ensuite pris la direction de notre hôtel. Toute cette histoire est partie d’une confusion. J’ai conscience d’avoir commis une erreur et j’en suis sincèrement désolé”.
Free translation by the Sole Arbitrator: “On the Sunday of the 2012 European Touch Championships in Treviso in Italy, a party was organized to close the competition. The party took place outside, on the sporting grounds made up of several Touch playing fields. When leaving the party, I passed by a car, which I thought belonged to my coach Erick Acker (black station wagon, automatic gear box). It was just next to the area where we had been
celebrating, in the middle of the sporting grounds, on one of the Touch playing fields. I thought he had left it there in his capacity as representative of the International Touch Federation (FIT) in order to load all the equipment into the boot, as he usually does. The motor was running, the headlights were on and the doors were open.
In order to play a joke on him, I wanted to move the car a few meters, as we are used to these sorts of jokes with Erick.
My teammate Teddy Sockel got in next to me. I had hardly had time to advance a few meters at a slow pace, without even using the accelerator, when a man began running next to the vehicle shouting at me “it’s my car”. At that instant, I realized my mistake and that it was not my coach’s car. I braked. Before the car stopped, the man grabbed me very forcefully and pulled me out of the car. I found myself pinned to the ground, stunned by the shock, with the man on top of me. Then he let go of me. My teammate Bastien Cotte-Barrot was next to me; he helped me get up and recover my senses. I understood that Bastien, seeing the aggressiveness of the person, had come to help me and had pushed him away in order to free me from his grip.
The car (automatic gearbox) had continued to advance slowly because there was no driver to press on the brake pedal. When I recovered my senses, the owner was no longer next to us, and Teddy had stopped the car a few dozen meters away, still on the Touch playing field. The incident ended in such fashion. We then headed for our hotel. This whole affair is the result of misunderstanding. I realize that I made a mistake and am sincerely sorry for it”.
21. In response to written questions from the Sole Arbitrator in these proceedings, Arnaud di Benedetto added the following:
“J’avais consommé de l’alcool en quantité raisonnable la nuit du 17 septembre 2012 pour fêter la bonne performance sportive de l’équipe MO (médaille de bronze) lors des championnats d’Europe qui venaient de se dérouler. Les évènements faisaient que j’étais joyeux mais parfaitement conscient. Pour preuve, j’ai immédiatement compris (1) ma méprise lorsque j’ai entendu M. Emmi crier que c’était sa voiture et (2) la dangerosité de la situation en voyant que M. Emmi courait à côté de la voiture en mouvement avec la porte ouverte. C’est pourquoi j’ai immédiatement freiné, mais M. Emmi m’a empêché d’immobiliser la voiture en me tirant violemment hors de la voiture et me planquant au sol”.
Free translation by the Sole Arbitrator: “I had consumed a reasonable quantity of alcohol the night of 17 September 2012 to celebrate the good performance of the MO team (bronze medal) at the European Championships that had just taken place. The circumstances were such that I was joyful but in a state of perfect control. This is demonstrated by the facts that I immediately understood (1) my mistake when hearing Mr. Emmi shout that it was his car and (2) the danger of the situation, when seeing Mr. Emmi running next to the moving car with the door open. That is why I immediately braked, but Mr. Emmi prevented me from stopping the car by violently pulling out of the car and pinning me to the ground”.
22. With his appeal brief in these proceedings, Bastien Cotte-Barrot filed a written declaration, in which he described as follows the events surrounding the incident:
“J’étais à la fête de clôture du championnat d’Europe de Touch 2012 avec tous les joueurs de la compétition quand un homme, dont je ne connaissais pas l’identité, a commencé à tous nous virer de manière agressive en montrant des signes d’énervement.
J’ai donc décidé de suivre la plupart des joueurs et de quitter le lieu de la fête. En partant j’ai croisé Arnaud di Benedetto, mon coéquipier. Sur le terrain de Touch à côté duquel se déroulait la fête il y avait une voiture avec les portières ouvertes, le moteur et les phares allumés. Arnaud a cru que c’était la voiture de notre coach (Erick Acker) car il est allé à Trévise en voiture et sa voiture est très ressemblante. Il a donc décidé de la déplacer de quelques mètres pour faire une blague à Erick car il est très fréquent que nous nous fassions des blagues entre les personnes de notre équipe de Touch.
Moi j’ai continué à partir en direction de l’hôtel. La voiture a commencé à avancer tout doucement jusqu’à ma hauteur, et un homme poursuivait la voiture à pied.
Comme la voiture roulait très doucement, il a réussi à la rattraper facilement, et il a saisi Arnaud, l’a jeté agressivement hors de la voiture et l’a plaqué au sol. Il avait une attitude menaçante et Arnaud, sonné par la chute, n’était pas du tout en mesure de se défendre.
Comme ils sont tombés tout prêt de moi, je suis intervenu et j’ai mis un coup de poing au monsieur sur Arnaud pour qu’il le lâche et pour le défendre car je le pensais en danger vu qu’il était au sol, groggy et coincé sous cet homme qui était très énervé. Comme l’homme était au-dessus d’Arnaud, j’ai porté un coup du bas vers le haut pour le repousser. Je l’ai frappé au niveau du torse. Après le coup, l’homme s’est tout de suite relevé et il est parti. Pendant ce temps j’ai aidé Arnaud à se relever car il était un peu sonné par l’intervention de cet homme ainsi que de sa chute de la voiture. Ensuite j’ai vu, au loin, la voiture arrêtée avec du monde autour. J’ai emprunté la direction de la sortie du parc avec Arnaud pour retourner à notre Hôtel pour retrouver le reste des Français”.
Free translation by the Sole Arbitrator: “I was at the party of the closing ceremony of the 2012 European Touch Championships with all the players who competed, when a man, that I did not know, began, in an aggressive manner and showing signs of annoyance, obliging us to leave.
I consequently decided to follow the majority of the players and to leave the party area. As I left, I crossed my teammate Arnaud di Benedetto. On the Touch playing field next to the party area there was a car with open doors, the motor running and the lights on. Arnaud thought it was our coach’s (Erick Acker) car because he had travelled to Treviso by car and the cars were very similar. He therefore decided to move it a few meters to play a joke on Erick since between members of our Touch team we often play jokes on each other.
I continued to leave in the direction of the hotel. The car began moving very slowly and reached my level, with a man running after it on foot. Because the car was moving very slowly, he easily caught it up, and he grabbed Arnaud, pulled him aggressively out of the car and pinned him to the ground. His attitude was threatening and Arnaud, shaken by his fall, was not in a position to defend himself. Since they fell right near me, I intervened and punched the man on top of Arnaud, so as to get him to let go and in order to defend Arnaud because I thought he was in danger, given that he was on the ground, groggy and stuck under the man who was very annoyed. Since the man was on top of Arnaud, I gave a blow from the
bottom up to get him off. I hit him at torso level. After the blow, the man got up immediately and left. Meanwhile, I helped Arnaud get up because he was a bit stunned as a result of the man’s action and from his fall from the car. Then, I saw, at a distance, the car stop with people around it. I headed in the direction of the exit with Arnaud, to return to our hotel to join the rest of the French group”.
23. In response to written questions from the Sole Arbitrator in these proceedings, Bastien Cotte- Barrot added the following:
“Au moment des faits, le 17 septembre 2012, j’avais consommé de l’alcool en petite quantité. Cependant j’étais parfaitement clair d’esprit et en pleine possession de mes moyens. J’ai d’ailleurs eu la présence d’esprit de venir secourir mon ami Arnaud di Benedetto qui était rudoyé par M. Emmi. J’ai uniquement cherché à repousser M. Emmi pour mettre Arnaud hors de danger. J’ai ensuite relevé mon ami et l’ai réconforté. M. Emmi étant parti. J’étais parfaitement lucide et mes souvenirs sont très clairs”.
Free translation by the Sole Arbitrator: “At the time of the facts, on 17 September 2012, I had consumed alcohol in a small quantity. Nevertheless, my mind was perfectly clear and I was in full possession of my abilities. I therefore had the presence of mind to help my friend Arnaud di Benedetto who was being treated roughly by Mr. Emmi. I only endeavored to get Mr. Emmi off to put Arnaud out of danger. I then picked up my friend and comforted him, Mr. Emmi having left. I was perfectly lucid and very clearly remember what happened”.
24. Concerning the procedures preceding this Appeal to the Court of Arbitration for Sport (the “CAS”), the chronology of events and the content of the various recommendations/decisions were as follows.
25. After the incident at the European Championships, Touch France nominated the members of a disciplinary committee to investigate the matter.
26. By letters of 31 March 2013, Touch France’s decisions were notified to Arnaud de Benedetto and to Bastien Cotte-Barrot.
27. Both decisions of Touch France contained the same summary of findings and conclusions as follows:
“During the night 16th to 17th of September 2012, after the closing ceremony of the European Touch Championships, you were involved with your team mate Bastien Cotte-Barrot in an exchange of blows with Stefano Emmi, member of the Touch Italia Federation. Stefano Emmi was injured in this exchange of blows.
After deliberation, the Touch France Board judged that this behaviour in contradiction with Touch sporting ethic. However, the Board recognises that you admitted you fault and expressed regrets.
Thus, the Board decided to give you a warning.
By this warning, the Board wish to remind you of your obligation, as a Touch France representative, to maintain a sporting spirit at all times, on and off the field. You’re also expected to not behave in a way,
or publicly make statements, that could damage the reputation of Touch France, of the organisation of competition or of Touch in general”.
28. At its level, the FIT appointed an FIT Judiciary Committee of three members to investigate the incident and make recommendations to the FIT Executive.
29. On 29 November 2013, the FIT Judiciary Committee rendered its report with recommendations, which contained, among others, the following findings, conclusions and recommendations:
“Our Investigation
6. We have sifted through a number of emails and reports provided by FIT of the incident (see Annex B). These were often conflicting or lacking detail, however, certain key documents have allowed us to state that:
a. Stefano Emmi sustained serious injuries to his nose and shoulder though our medical advice is that neither were permanent or debilitating (see Annex C). b. Arnaud di Benedetto and Bastien Cotte-Barrot have not contested their involvement in what Touch France describe as ‘an exchange of blows’ with Stefano Emmi. (see Annex A). c. Prior to the assault, Stefano Emmi’s car was stolen by one of the assailants and Mr Emmi opened the door in an attempt to stop the driver. This lead directly to the assault (see the emails at Annex B and the police statement at Annex D). d. There is no report of any injury sustained by either Arnaud di Benedetto or Bastien Cotte-Barrot in their fight with Stefano Emmi. Therefore even if the altercation was ‘an exchange of blows’ as was reported by the Touch France disciplinary process then it appears that the outcome was one-sided.
Our Conclusions
7. We considered that in light of the potential theft of his car that Mr Emmi’s reaction was not unreasonable in trying to protect his property. We also concluded that while it is possible that Mr Emmi may have tried to hit back it is on the balance of probability that this was in self-defence and therefore a reasonable reaction.
8. Arnaud di Benedetto and Bastien Cotte-Barrot initiated the incident through the taking of Mr. Emmi’s car and then followed up by engaging him resulting in the injuries sustained by Mr. Emmi as evidenced on the medical report.
Our Recommendation
9. We recommend that FIT impose the following additional sanction on Arnaud di Benedetto and Bastien Cotte-Barrot:
A ban on all active participation (playing, coaching or refereeing) in any affiliated Touch event for a period of 3 years. FIT should advise all national touch associations of the ban to ensure compliance.
10. It is noted that both players were active this past season, representing France during the 2013 Mainland Cup. We therefore believe that the ban should commence once FIT writes to the players concerned.
11. In terms of the length of the ban we considered the following: In the absence of a formal European disciplinary guide, we looked at the recommended sanctions imposed by Touch Football Australia. (see Annex E and the highlighted sections in the table); The serious nature of the injuries sustained; The damage to the reputation of the sport of Touch, Touch France, FIT and the European Federation of Touch; That actions such as this need to be seen to carry a severe penalty to deter similar instances of this kind; and To demonstrate that FIT takes seriously any assault on its officials and will take severe action to protect them as they carry out their duties”.
30. On 5 February 2014, in light of the foregoing report and recommendations of its Judiciary Committee, the FIT rendered and notified the following decision (hereinafter the “FIT Decision”), which was received by Touch France on 12 February 2014:
“[…] Background Immediately following the ETC2012 an incident was reported to Event Officials, the incident was attributed to members of the Touch France group. This was: an alleged assault on Stefano Emmi the local tournament organiser, by Arnaud di Benedetto and Bastien Cotte-Barrot;
Those responsible for the assault have received a written warning from Touch France. The committee considered that this is an insufficient sanction and have investigated the matter further. The committee’s investigation consisted of considering a number of emails and written reports provided by FIT and others of the incident. Certain key documents have allowed the committee to arrive at a final determination.
With this in mind the FIT Board has considered the finding of the committee and has ratified their recommendations of imposing the following additional sanction on the two French players namely Arnaud di Benedetto and Bastien Cotte-Barrot: A ban on all active participation (playing, coaching, refereeing, managing or administrating) in any affiliated Touch competition or event for a period of 3 years effective from the date Touch
France receives this notification. FIT will advise all national touch associations of the ban to ensure compliance.
In accordance with the Federation of International Touch constitution clause 43 (a) an appeal (if any) must be directed to the Court of Arbitration for Sport (CAS) Switzerland. As English is the official language of FIT it is expected that Touch France will translate this letter into French and distribute to and inform the players named of the content”.
31. On 13 February 2014, Touch France notified a copy of the FIT Decision to the Players.
II. SUMMARY OF THE ARBITRATION PROCEEDINGS
32. On 5 March 2014, the Appellants filed their statements of appeal with the Court of Arbitration for Sport (“CAS”) against the FIT Decision dated 5 February 2014, together with a request for stay of the sanctions being challenged.
33. Together with their statements of appeal, the Appellants filed a request for the stay of execution of the decision appealed against.
34. On 11 March 2014, the CAS informed the Parties that unless an objection was made within a deadline of three days from receipt of its letter, the arbitral proceedings would take place in French, being the language in which the appeal was filed. Subsequently, French was confirmed as the language of the arbitration.
35. On 16 March 2014, the Appellants filed their Appeal Briefs, including the following requests for relief:
“- que la décision de la FIT soit annulée,
que l’affaire soit rejugée par le Tribunal Arbitral du Sport,
le remboursement par la FIT des frais de procédure, soit 1000 Euros …”.
Free translation by the Sole Arbitrator: “- that the decision of the FIT be set aside,
that the case be re-judged by the Court of Arbitration for Sport
the reimbursement by the FIT of the costs of the proceedings, i.e. 1000 Euros”.
36. On 7 April 2014, the CAS informed the Parties that the two arbitration proceedings would be joined and decided by a Sole Arbitrator.
37. On 21 April 2014, the Respondent filed its Answer in which it concluded in essence that it would be awaiting the judgment of the CAS in this matter.
38. On 24 April 2014, the CAS Court Office invited the Parties to indicate whether they requested an oral hearing.
39. By decisions of 25 April 2014, the President of the Appeals Arbitration Division of the CAS rejected the Appellants’ requests for stay.
40. On 1 May 2014, the Appellants informed the CAS that they were not requesting an oral hearing.
41. On 7 May 2014, the CAS Court Office informed the Parties that Mr Quentin Byrne-Sutton, Attorney-at-law in Geneva, Switzerland, had been appointed as Sole Arbitrator in this proceeding.
42. On 4 June 2014, the CAS Court Office informed the Parties that the Sole Arbitrator had noted that none of the Parties were requiring an oral hearing and he had therefore decided to issue an arbitral award on the basis of the written documents. In the same letter, each party was requested to reply to various written questions from the Sole Arbitrator, and, in that relation, the Parties were informed that given the Respondent’s difficulty of corresponding in French and subject to any objections from the Appellant, procedural instructions would be given in English and the Parties were free to communicate with the CAS in French or English as they preferred.
43. On 7 and 13 June 2014, respectively, the Appellants and the Respondent filed their written replies to the Sole Arbitrator’s questions.
44. On 23 June 2014, the CAS Court Office informed the Parties that the Sole Arbitrator deemed himself sufficiently informed to render an award and that consequently there would be no further exchange of submissions.
45. On 4 of July 2014, the CAS Court Office informed the Parties that due to the number of underlying documents on record in English, the Sole Arbitrator invited them to indicate whether they would agree to the award being drafted in English.
46. On 8 July 2014, the Parties confirmed they had no objection to the award being made in English.
47. On 16 July 2014, the operative part of the award was notified to the Parties.
III. THE PARTIES’ SUBMISSIONS
48. This section of the award does not contain an exhaustive list of the Parties’ contentions; its aim being to provide an overview of the substance of the Parties’ main arguments. Nevertheless, in considering and deciding upon the parties’ claims in this award, the Sole Arbitrator has accounted for all of the Parties’ submissions and evidence on record.
A. Appellants
49. In essence, the Players submit that the FIT and its Judiciary Committee were not competent to undertake a disciplinary procedure because the incident took place outside the competitions when the European Championships were over, that, in any event, the FIT breached basic principles of due process and its own regulations by not notifying them that a procedure was being initiated and failing to hear them within the procedure, while in addition, the investigation
occurred unreasonably late when the facts were difficult to determine and the matter should have been put to rest. With regards to the sanctions decided by the FIT, the Players submit that they are disproportional in light of the facts, their past good conduct/complete absence of disciplinary problems and the diligence with which they cooperated with Touch France as well as the regrets they expressed. For the forgoing reasons, the FIT Decision is null and void and the Players request that the CAS decide the case de novo.
B. Respondent
50. The Respondent did not invoke any particular arguments in defence but filed all the documents of evidence it had on record including those referred to by the FIT Judiciary Committee; and in essence submitted to the judgment of the CAS in this appeal.
51. The Respondent also included documents recently received from Touch Italy and in that regard submitted the following to the CAS:
“We did receive an email from Italy just three days ago and this email throws a different light on the whole sorry mess. I will send this email and the attachments to you for further consideration as the majority of this information has not been supplied to FIT prior to this date [….].
Good afternoon as discussed in my previous email I did say that I had received further information from Touch Italy, I have attached this in a ZIP file. I have also copied the body of the email (below in italics). The situation was not a good one and it would appear that our Judiciary committee missed one player in the process Mr Teddy Sockel. It appears that Italy are suggesting it was he who threw the punch and another was in the car. The committee’s decision was based on the information they had (supplied by me) and other reports that they did seek. The whole matter is very bad for the sport and needed to be dealt with, once the committee considered all the information they had at hand they arrived at the sanctions on the two players as mentioned. As I have mentioned in my previous email (today) I would appreciate your consideration of this matter”.
IV. DISCUSSION AND FINDINGS
A. Jurisdiction of the CAS and admissibility of the appeal
52. Article R47 of the CAS Code provides as follows:
“An appeal against the decision of a federation, association or sports-related body may be filed with the CAS insofar as the statutes or regulations of the said body so provide or as the parties have concluded a specific arbitration agreement and insofar as the player has exhausted the legal remedies available to him prior to the appeal, in accordance with the statutes or regulations of the said sports-related body”.
53. Article 43 lit. a of the Constitution of the FIT stipulates that: “Subject to all other internal Federation avenues (including, but not limited to, referral to the Board and/or a Federation Judiciary Committee) being exhausted, disputes between Members (in their capacity as Members) of the Federation, and disputes between Members and the Federation, are to be submitted exclusively to the Court of Arbitration for Sport (CAS)
Switzerland, applying its own procedural rules”.
54. In light of the foregoing provisions and because the FIT Decision was made by its Board as the final instance within the FIT and all the parties to this appeal have requested that the CAS decide the dispute (and have therefore raised no objections to its jurisdiction), the CAS has jurisdiction over this Appeal.
55. Furthermore the Appeals are admissible since the Appellants received the FIT Decision on 13 February 2014 and appealed to the CAS on 5 March 2014, i.e. within the 21-day deadline.
56. Finally, in accordance with the Appellants’ request and in application of Article R57 of the CAS Code, the Sole Arbitrator shall decide the case de novo.
B. Applicable law
57. Article R58 of the CAS Code provides that:
“The Panel shall decide the dispute according to the applicable regulations and, subsidiarily, the rules of law chosen by the parties or, in the absence of such a choice, according to the law of the country in which the federation, association or sports-related body which has issued the challenged decision is domiciled or according to the rules of law, the application of which the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision”.
58. In light of the foregoing provision, the Sole Arbitrator shall apply any applicable regulations of the FIT and in the absence of relevant FIT rules shall apply Swiss law and general principles of law because they have the advantage of having no direct link with the legal order within which one or the other party is domiciled and because none of the Parties has invoked any particular national rules of law.
C. The merits of the appeal
a) Competence of the FIT and of its Judiciary Committee
59. Although in this case the incident took place off the playing field, the Sole Arbitrator finds that, contrary to what the Appellants are contending, the FIT Board and its appointed Judiciary Committee, did have the competence to, respectively, investigate the matter and take disciplinary sanctions.
60. In that connection, the Sole Arbitrator finds that five elements are of relevance in characterizing the dispute as a matter falling within the ambit of the FIT’s jurisdiction.
61. One factor is that, albeit at the very end of the Closing Ceremony, the incident took place during an official ceremony of the FIT (organized by its local member Touch Italy), i.e. when its organisers were endeavouring to guide the participants to the exit of the reserved Sports Area.
62. A second factor is that the Closing Ceremony was not by nature a public event but was primarily organized for the participants in the European Championships.
63. A third factor is that the persons involved in the incident were either members or representatives of national entities forming the FIT.
64. A fourth factor is that the incident was not purely internal to a national member of the FIT but was international in nature, since it directly involved players of Touch France and a member of staff of Touch Italy and took place at the European Championships (as opposed to a national event).
65. Finally, it is noteworthy that the “European Touch Championship 2012 Judiciary Policy” (hereinafter the “European Championship Policy”), which was invoked by the Players in their Appeal Briefs in these CAS proceedings, provided the following broad scope of powers to the Judiciary Committee to be appointed by the FIT Board: “The purpose of the ETC2012 Judiciary Committee is to resolve/make judgement on any matter related to the ETC2012” (Clause 2, underlining added). Moreover, in this case, the FIT Board rightly appointed an ad hoc Judiciary Committee to investigate the matter, which, for reasons of independence, did not include Mr. Erick Acker (who was the Players’ coach) in its composition, although according to the European Championship Policy he would normally have chaired the Committee; thereby avoiding conflicts of interest.
66. For the above reasons, the Sole Arbitrator finds that the fact that the incident did not involve a game of Touch, i.e. that the incident took place off the playing field and without any relationship with a specific game, did not detract from the FIT Board’s competence to address the incident as a FIT disciplinary matter.
b) Due process
67. From the documents on record, it does not appear that the Players were informed at the outset that a disciplinary investigation involving them was underway by the FIT Judiciary Committee or that they were offered the possibility of being heard by the Committee before it rendered its report/recommendations and the FIT Board made its decision sanctioning them.
68. In that relation, it is clear from the evidence that the FIT, which governs an amateur sport, has very limited resources, and that although the members of the FIT Judiciary Committee may have lacked experience and professional training in such matters, they endeavoured to undertake the disciplinary investigation and to make recommendations in an independent and fair manner in what was a somewhat complex and unusual case without many internal FIT rules to rely on.
69. That said, legally speaking the FIT’s lack of resources does not reduce its obligation to strictly guarantee and abide by principles of due process, since such principles are fundamental in nature and are measured objectively. Furthermore, Clause 3.2 of the European Championship Policy stresses the importance of due process, stipulating that in making its determinations the Judiciary Committee is subject to: “Compliance with principles of natural justice (affected parties are entitled to know the nature of the charges/proceedings, have an opportunity to present their case, and enjoy impartial decision-makers/making)”.
70. For the above reasons the Sole Arbitrator finds that the Players were not afforded their right to
be heard by the FIT; and therefore, in application of Article R57 of the CAS Code, the Sole Arbitrator shall be issuing a new decision that replaces the FIT Decision and is based on his powers to fully review the facts and the law.
c) Existence and characterization of the offences and proportionality of the sanctions i. Burden of proof and applicable standard of proof
71. As a preliminary matter and on the basis of Swiss and general principles of procedural law, the Sole Arbitrator underlines that because the FIT is alleging the Players committed a disciplinary offence, the FIT has the burden of proving the facts upon which it is relying in that connection.
72. In addition, in that relation, it is important to determine what standard of proof is applicable.
73. The European Championship Policy contains no rule as to the standard of proof that should be employed in deciding upon a disciplinary matter.
74. In light of the CAS jurisprudence addressing disciplinary sanctions, the Sole Arbitrator finds that because the disciplinary offence being invoked in this case is, in part, of very serious nature – to the extent the Players are being accused of trying to steal a car and of intentionally striking/punching a member of Touch Italia’s staff – the applicable standard of proof should be one of “comfortable satisfaction”, which is a stricter standard than the “balance of probability” that the FIT Judicial Committee refers to in its report/recommendations when weighing the likelihood of occurrence of certain alleged actions.
ii. Proof of certain key facts
75. Given the FIT’s burden of proof, the Sole Arbitrator finds that the FIT Judicial Committee erred in not sufficiently examining and distinguishing what facts – relevant to characterizing the seriousness of the disciplinary offence and to determining the type/level of sanctions to be applied - could be deemed established from those that could not.
76. In that respect, the Sole Arbitrator shall now indicate what he considers to be proven or not, which also entails distinguishing certain facts pertaining to Arnaud de Benedetto’s actions from those relating to the actions of Bastien Cotte-Barrot.
77. As a preliminary matter, the Sole Arbitrator finds it established that at the time of the incident the Players were under the influence of alcohol but that it is not possible to determine how drunk they were. In this respect, it is noteworthy that in their version of the events provided at the time of the facts via their coach, Mr. Acker, in an email of 19 September 2012, the latter stated: “… Arnaud and Teddy were drunk …”, whereas in their subsequent declarations in these proceedings, the Players stated they had consumed some alcohol but were sober.
78. The Sole Arbitrator is comfortably satisfied, in light of all the evidence adduced and the circumstances surrounding the incident, that Arnaud de Benedetto did not have the intention to steal Stefano Emmi’s car, but mistook it for that of his coach, Erick Acker; on whom he wished to play a joke by moving his car and hiding it somewhere else within the Sports Area.
79. The Sole Arbitrator finds that it is not established that Bastien Cotte-Barrot took part in the decision to play a joke on their coach, or at least to participate in the joke, because it is uncontested that he did not get into the car and was walking on towards the exit when his two teammates – Arnaud de Benedetto and Teddy Sockel (who was not sanctioned by the FIT and is not a party to these proceedings) – started slowly driving the car away. Moreover, according to Bastien Cotte-Barrot’s own account confirmed by a witness, Linda Acker, he only headed towards the car and got involved in the scuffle when he saw Arnaud de Benedetto and Stefano Emmi entangled on the ground.
80. The Sole Arbitrator finds it established that Arnaud de Benedetto was driving the car when Stefano Emmi first caught up with the car and opened the driver’s door, and that he ended up in a scuffle with Stefano Emmi on the ground during which the latter got hurt.
81. However, for a number of reasons, the Sole Arbitrator finds that the evidence adduced does not establish to his comfortable satisfaction (a) whether Stefano Emmi pulled Arnaud de Benedetto from the driver’s seat or the latter pushed him away and jumped out of the car onto him, (b) whether Stefano Emmi received a punch which broke his nose upon opening the driver’s door, or suffered that injury as the result of some other impact or blow during the ensuing scuffle, or (c) if Stefano Emmi’s nose was broken as a result of a punch, whether the punch was given by Arnaud de Benedetto, Bastien Cotte-Barrot or Teddy Sockel.
82. The main motives for the Sole Arbitrator’s hesitations are the following:
Linda Acker’s initial declarations, which were made by email quite shortly after the incident, tend to coincide with those of the Players regarding the chronology of events when she writes “… we [her and her daughter] saw him [Stefano Emmi] pull somebody out, throw him to the ground and started hitting him that’s when I saw someone else approach the scene and everyone was on the ground”.
The various declarations made by Stefano Emmi shortly after the incident do not entirely match each other in a number of respects, and in his complaint form filed with the FIT he does not even mention a scuffle on the ground (which he referred to in his declaration to the police) but declares: “I stuck my head into the car to try to stop it (it is an automatic car). I was able to see that the driver had a short beard and the next moment I perceived a rapid movement of the driver. This is when I felt a strong punch on my face. I fell on the grass and, for few seconds, I wasn’t able to understand anything. When I started to regain my capability of reason, I saw that my car was still moving. It had moved approximately 50 meters from the point where I lay. I tried to run in direction of my car but I saw that some people had blocked it and were shouting that everything was alright. When I saw that my car was safe, I called Dr. Claudio da Ponte (MD) by phone since I was bleeding profusely and needed help”.
In his various declarations, Stefano Emmi never indicates that a third person/player joined the scuffle, although according to Bastien Cotte-Barrot’s own admission, confirmed by Linda Acker’s testimony, he intervened to help Arnaud di Benedetto and gave a punch to try and get the person allegedly on top of Arnaud de Benedetto off. On the contrary, in an email on the day of the incident, Stefano Emmi wrote: “It’s
only a question between me and ONLY one man”.
In Stefano Emmi’s email to the FIT in connection with these proceedings, he concedes as follows that he is not sure who allegedly punched him in the face: “On 20th September I sent my complaint form like Dennis asked me. See the attached file. I haven’t specified the roles of Teddy and Arnaud because I don’t know still who had given me a fist. Very important: the Italian Police, after receiving the names, has made a lot of identikits and they have check a lot of photos before to identify Teddy Sockel like the driver that gives me the fist”.
From the declarations reportedly made by the Players to their coach Eric Acker after the incident and from their subsequent statements, it appears that Teddy Sockel may have got into the driving seat to stop the car when Arnaud de Benedetto jumped or was dragged from the car.
83. The Sole Arbitrator does not intend to imply by his foregoing findings that, in any manner, Stefano Emmi’s was being untruthful, and it is clear that Linda Acker is not an entirely independent witness. No doubt, for all concerned, the particular circumstances led to a certain amount of imprecise recollections: according to his own declarations, Stefano Emmi was already quite stressed, annoyed and anxious by the end of the Closing Ceremony - due to alleged attitudes of members of the French team and the amount participants were drinking - and the incident occurred in the night/obscurity (even if there were some lights around), while at the same time being caught in a scuffle will have been confusing in itself. Moreover, Linda Acker admits to have been at a certain distance from the incident, whereas the Players were under the influence of alcohol meaning that their senses/exact recollections may have been affected.
84. Bearing in mind the above elements and the fact that Teddy Sockel was not even included as one of the accused players in the FIT’s disciplinary investigation, the Sole Arbitrator is not comfortably satisfied that Stefano Emmi’s nose was broken by a punch in the nose – even if it might appear “more likely than not” (which is a different and lesser standard of proof) – and, more particularly, finds that it is not established which Player, if any, among the three involved, actually gave a punch in Stefano Emmi’s face.
85. Furthermore, the Sole Arbitrator finds that the evidence is insufficient to reach the conclusion that the two Appellants were involved in committing a form of “collective” disciplinary offence, especially since it appears from the documents that Bastien Cotte-Barrot had not decided to take part in the joke of moving the car and may not even have been aware that his two teammates had agreed on the spur of the moment to play a joke on their coach.
86. In light of his above findings regarding the burden of proof, the applicable standard of proof and the establishment of certain alleged facts, the Sole Arbitrator shall now turn to the characterization of the disciplinary offence(s) committed and to the determination of their consequences in terms of sanctions. In that connection, it is necessary to distinguish between the cases of Arnaud di Benedetto and Bastien Cotte-Barrot.
iii. Characterization of Arnaud di Benedetto’s offense and proportionality of the sanction
87. With regard to Arnaud di Benedetto, the Sole Arbitrator finds, for the reasons already
mentioned, that it is not established that he intended to steal Stefano Emmi’s car, or that he hit/punched Stefano Emmi or that he dragged him onto the ground.
88. Moreover, the Sole Arbitrator finds that the Player’s intended joke of moving his coach’s car along a playing field in an attempt to hide it, was not, in itself, a serious disciplinary offence.
89. However, the Sole Arbitrator finds that since the Player was under the influence of alcohol, it was night-time and there were many other pedestrians around, it was a silly idea and a negligent act for a 32-year old, which unexpectedly led to quite serious consequences – Stefano Emmi’s nose having been broken – and might have led to others.
90. Thus, the Sole Arbitrator finds that Arnaud di Benedetto is responsible for a disciplinary offence which represented a bad example in terms of behaviour and was not at all benign in its consequences, although the outcome was not intended and it is not established that he was violent in any manner.
91. Given his foregoing characterization of the disciplinary offence committed and bearing in mind that according to the evidence on record Arnaud di Benedetto has not been responsible for any misconduct in the past, the Sole Arbitrator finds that the FIT’s sanction of three-years suspension inflicted on Arnaud di Benedetto is disproportionally high.
92. In that regard, the Sole Arbitrator notes as a preliminary matter that the list of “… recommended sanctions imposed by Touch Football Australia” which the FIT Disciplinary Committee considered “In the absence of a formal European disciplinary guide”, essentially only concerns offences committed on or around the playing field, while at the same time the list leaves open a very wide range of possible sanctions for the listed offences, distinguishing between what are described as “Minor Incidents” and “Major Incidents” within a same category of incident.
93. For example, for the incident described as a deliberate punch, the possible recommended sanction ranges between 12 games suspension and a life suspension. The commentary to the list adds among others that the “list of suggested penalties is provided as a guideline only”, thus “these are only suggested minimum and maximum penalties and tribunals may determine that it is appropriate to impose a higher or lower penalty”, “Each individual case must be judged entirely upon its own merits” and “Tribunals may impose a sentence which is partly or wholly suspended which may be used to encourage participants to improve their behaviour in the future”.
94. In the absence of any directly applicable and clear rules of the FIT for the type of off-field offence which occurred in this case, the Sole Arbitrator must make up for this lacunae by adopting a sanction which, in light of the facts of the case as established, is relevant to the type of misconduct, proportional, reasonable, just and fair.
95. Doing this, the Sole Arbitrator finds that Arnaud di Benedetto’s suspension by the FIT must be reduced to a period of seven (7) months, which is already quite a heavy sanction for an athlete in any sport and which in this case implies that he will be barred from representing France in the 2014 World Championships in August (bearing in mind that the suspension currently underway began running on 13 February 2014), despite having been shortlisted for selection on
the French team for that event.
96. A suspension of such length makes it clear that his conduct was not worthy of FIT’s ethics even if his behaviour in the past in Touch events has been without reproach, accounts for the fact that he was negligent and was at the origin of an incident that led to quite a serious injury (broken nose) of a Touch official but did not have the intention to cause any damage, and, as a lesson, in effect bars him from participating in a major Touch competition in 2014, while not preventing him for too long from playing an amateur sport which is among his passions.
iv. Characterization of Bastien Cotte-Barrot’s offense and proportionality of the sanction
97. With respect to Bastien Cotte-Barrot, the Sole Arbitrator considers that the disciplinary offence he committed is less serious, given that it is not established that this Player decided to take part in the joke (of displacing their coach’s car) with his two teammates, which by negligence triggered the incident and its unfortunate consequences, or that he even knew who was involved in the scuffle when turning back to help Arnaud di Benedetto; while at the same time the FIT has not alleged and Stefano Emmi has not declared that Bastien Cotte-Barrot threw a punch which broke Stefano Emmi’s nose.
98. Nevertheless, as already mentioned, the Sole Arbitrator finds it established that Bastien Cotte- Barrot was under the influence of alcohol at the time of the incident and the Player admits having joined the scuffle and to have hit the person who allegedly was on top of Arnaud de Benedetto in order to help free the latter, even if Stefano Emmi does not mention in his declarations that another person joined the scuffle.
99. Consequently, Bastien Cotte-Barrot’s misconduct essentially consisted of getting involved in a scuffle for the wrong reasons and demonstrating some violence after having consumed alcohol.
100. Given this lesser responsibility of Bastien Cotte-Barrot and bearing in mind the principle of proportionality but accounting for the Player’s poor behaviour, the Sole Arbitrator finds it appropriate to reduce the three-year suspension inflicted upon him by the FIT to a period of five (5) months, which, contrary to the case of Arnaud di Benedetto, will allow him to represent France in the 2014 World Championships for which he was also shortlisted, if his selection is confirmed.
ON THESE GROUNDS
The Court of Arbitration for Sport rules that:
1. The appeal filed by Mr. Arnaud di Benedetto on 5 March 2014 against the decision of 5 February 2014 of the Board of the Federation of International Touch is partially upheld.
2. The appeal filed by Mr. Bastien Cotte-Barrot on 5 March 2014 against the decision of 5 February 2014 of the Board of the Federation of International Touch is partially upheld.
3. The decision of 5 February 2014 of the Board of the Federation of International Touch is set aside.
4. The suspension of three (3) years inflicted on Mr. Arnaud di Benedetto is reduced to a period of seven (7) months, starting on 13 February 2014.
5. The suspension of three (3) years inflicted on Mr. Bastien Cotte-Barrot is reduced to a period of five (5) months, starting on 13 February 2014.
(…)
8. All other requests for relief are rejected.