ACS Poli Timisoara v. Romanian Football Federation (RFF), Romanian Professional Football League (RPFL)

IV. FACTUAL BACKGROUND

6. Below is a summary of the main relevant facts and allegations based on the Parties’ written submissions and relevant documentation produced. Additional facts and allegations may be set out, where relevant, in connection with the further legal discussion. While the Sole Arbitrator has considered all the facts, allegations, legal arguments and evidence submitted by the Parties in the present proceedings, it refers in the award only to the submissions and evidence it considers necessary to explain its reasoning.

7. On 11 July 2014, the RFF’s Executive Committee approved the amendment of the RFF Regulations governing the Organization of Football Matters (the “RFF Regulations”) introducing, among others, certain changes to the First League Competition system, which came into force on 15 July 2014 and to be effective as from the sporting season 2015/2016.

8. Such system is based on 14 teams competing in two different phases, the regular season (phase I), at the end of which the teams placed on the first six positions shall qualify for the play-off phase (at the end of which the team which rank first is the winner of the Championship), while the last 8 teams shall participate in the play-out phase (Phase II).

9. According to the amended version of the RFF Regulations, the provision of article 29 (4) related to the “Competition system”, reads as follows: “Teams participating in the play-out, placed at the end of the second phase on 6th, 7th and 8th position, must obtain at least 15 points in the play-out or else begin the following season with a point penalty calculated as a difference between the minimum score (15) and the number of points obtained in the play-out, irrespective of the competition level in which they participate”.

10. During sporting season 2015/2016, the Appellant finished the regular season (first phase of the competition) at the 11th position with 25 points and was therefore qualified for the play-out phase pursuant to article 29 (2) of the RFF Regulations.

11. At the end of sporting season 2015/2016, on 28 June 2016, the Decision of the Emergency Committee approved the final rankings of the First and the Second League National Championship in accordance with the provisions of the RFF Regulations, as follows: “According to art. 36 of the Statutes of the Romanian Football Federation, the Emergency Committee consisting of Razvan Burleanu, President of the RFF, Gino Iorgulescu, First Vice President of the RFF, Octavian Goga, Vice President of the RFF, unanimously decides:

• It approves the final rankings of the First and Second League National Championships, 2015-2016 edition.

• It approves the date of 22 July 2016 as the start date of the First League National Championship, 2016-2017 season.

• It approves the competition calendar of the First League National Championship, 2016-2017 edition”.

12. In accordance with the provision of article 29 (3), the Club begun phase II of the First League Championship with half the points obtained in the regular season, rounded by 0.5, i.e. 13 points.

13. According to the final rankings, the Appellant qualified in the 7th position with a total amount of 20 points, of which 13 points were obtained in matches played during the regular season and the remaining 7 points during the play-out phase.

14. In a footnote of the final ranking of the First League play-out approved by the Emergency Committee, it is indicated that “ACS Poli Timisoara is relegated to the Second League and will start the 2016/2017 season with a -8 point sanction for failing to achieve the minimum point number”.

15. On 7 July 2016, the Executive Committee of the RFF approved the Decision of the Emergency Committee as follows:

“(…)

The Executive Committee of the Romanian Football Federation of 7 July 2016, duly convened according to art. 33 par. (Z) of the Romanian Football Federation, in the presence of the majority of its members, Mr Kyros Vassaras, Stefan Stana and Emilian Hulubei being absent with justification, Mr Gino Iorgulescu, Valeriu Argaseala and Florian Prunea being absent without justification, hereby adopts the following decisions: (…)

Unanimously validates the Decision of the emergency committee no. 12 of 28 June 2016.

(…)”.

16. As a consequence of the foregoing, a deduction of 8 points was imposed on the Appellant at the end of the sporting season 2015/2016, although the Club was not relegated to the Second League due to a vacant position left by the club FC Rapid Bucharest which was not eligible to participate because of a bankruptcy procedure.

V. SUMMARY OF THE PROCEEDINGS BEFORE THE COURT OF ARBITRATION

FOR SPORT

17. On 20 July 2016, the Club filed a statement of appeal before the Court of Arbitration for Sport (the “CAS”) against the First and the Second Respondent with respect to the Appealed Decisions in accordance with Articles R47 and R48 of the Code of Sports-related Arbitration, Edition 2013 (the “CAS Code”) and pursuant to articles 34 (9) and 36 (5) of the RFF Statutes. The Appellant chose English as the language of the present arbitration proceedings.

18. On 25 July 2016, upon request of the CAS Court Office, the Appellant provided a translated copy of the Appealed Decisions as well as the official translation of the provisions within the RFF which were originally submitted in Romanian language.

19. By fax letter on the same date, the Appellant proposed that a sole arbitrator be appointed to hear the present case.

20. On 29 July 2016, the Appellant applied for an extension of its time limit to file the appeal brief in accordance with Article R32 para. 2 of the CAS Code.

21. By fax letter dated 3 August 2016, in view of the Appellant’s request, the CAS Court Office invited the Respondents to state whether they consent to the relevant extension of the Appellant’s time limit to file its appeal brief and whether they agree with the nomination of a sole arbitrator.

22. By fax letter on 5 August 2016, the Second Respondent informed the CAS Court Office that it did not object to the Appellant’s request for extension for the filing of its appeal brief and that it agreed with the Appellant’s choice of language as well as with the nomination of a sole arbitrator.

23. On 11 August 2016, in the absence of any response by the First Respondent, the CAS Court Office informed the Parties that the time limit for the Appellant to file its appeal brief had been extended until 22 August 2016.

24. On 22 August 2016, the Appellant filed its appeal brief.

25. By fax letter dated 26 August 2016, the First Respondent requested to the CAS Court Office that the time limit for the filing of its answer be fixed after the payment by the Appellant of its share of the advance of costs in accordance with Article R 55 para. 3 of the CAS Code.

26. By fax letter dated 31 August 2016, also the Second Respondent requested that its time limit for filing the answer be postponed according to Article R55 para. 3 of the CAS Code.

27. On 16 September 2016, the Appellant sent a fax letter to the CAS Court Office informing that, on 26 August 2016, the Executive Committee of the RFF had approved certain amendments to the RFF Regulations by deleting article 29 (4) on the basis of which the Club was sanctioned under the Appealed Decisions.

28. On 20 September 2016, the CAS Court Office informed the Parties that the Division President had decided to submit the present matter to a sole arbitrator in accordance with Article R50 para. 1 of the CAS Code.

29. By fax letter on 4 October 2016, the CAS Court Office acknowledged receipt of the payment by the Appellant of its share of the advance of costs and granted the Respondents a time limit of 20 days from receipt of the same fax letter to file their answers. The Parties were also informed that Mr Fabio Iudica, attorney-at-law in Milan, had been appointed as a sole arbitrator in the present proceedings.

30. On 12 October 2016, following the First Respondent’s request for a 10-day extension of its time limit to file its answer, the CAS Court Office invited the Appellant and the Second Respondent to file their position in this regard, by 14 October 2016.

31. By fax letter dated 14 October 2016, the Appellant informed the CAS Court Office that it agreed with the First Respondent’s request for an extension. The Second Respondent failed to provide its position regarding the mentioned request.

32. On 17 October 2016, the CAS Court Office informed the Parties that the First Respondent’s request for a 10-day extension had been granted.

33. On 27 October 2016, the First and the Second Respondent respectively filed their answers in accordance with Article R55 para. 1 of the CAS Code.

34. By fax letter dated 3 November 2016, the CAS Court Office invited the Parties to inform the CAS, by 10 November 2016, whether they preferred a hearing to be held in the present arbitration proceedings or for the Sole Arbitrator to issue an award based solely on the Parties’ written submissions.

35. On the same day, the First Respondent informed the CAS Court Office that it preferred that a hearing be held in the present proceedings.

36. By fax letter of 9 November 2016, the Appellant expressed its preference for a hearing to be held in the present matter.

37. By fax letter dated 10 November 2016, the Second Respondent stated its preference for the Sole Arbitrator to issue an award based solely on the Parties’ written submissions.

38. By fax letter dated 6 December 2016, the CAS Court Office informed the Parties that a hearing would be held in the present arbitration proceedings on 12 January 2017, in Lausanne.

39. On 23 December 2016, the CAS Court Office forwarded the Order of Procedure to the Parties.

40. The Order of Procedure was returned to the CAS Court Office duly signed by the Appellant on 2 January 2017 and by the First Respondent on 4 January 2017.

41. By fax letters on 4 January 2017 and on 6 January 2017, the CAS Court Office reminded the Second Respondent to return its signed copy of the Order of Procedure by return.

42. The Second Respondent submitted its signed copy of the Order of Procedure on 9 January 2017.

43. With the signature of the Order of Procedure, the Parties also confirmed the jurisdiction of the CAS.

44. On 12 January 2017, a hearing was duly held in Lausanne, Switzerland. The following persons attended the hearing:

• For the Appellant: Mrs Roxana Giurea, Mr Lucian Novacescu and Mr Heiner Kahlert, counsel;

• For the First Respondent, Mr Adrian Stangaciu, Head of RFF Legal Department, and Mr Paul-Filip Ciucur, counsel;

• For the Second Respondent, Mr Mircea Calin, Chief Cabinet General Secretary, Mr Constantin Statescu, Legal Director and Mr Paul Alexandru Mincu, counsel

• Mr Fabien Cagneux, Counsel to the CAS, assisted the Sole Arbitrator at the hearing.

45. At the outset of the hearing, the Parties confirmed that they did not have any objection to the appointment of the Sole Arbitrator, nor to the jurisdiction of the CAS.

46. During the hearing, the Parties were granted the opportunity to present their oral arguments and answer the questions posed by the Sole Arbitrator. At the conclusion of the hearing, the Parties confirmed that they had no objection with respect to the manner in which the hearing had been conducted, and in particular explicitly agreed that their right to be heard and to be treated equally in these arbitration proceedings had been fully observed. The Parties were also satisfied that due process had been fully observed.

VI. SUBMISSIONS OF THE PARTIES

47. The following outline is a summary of the main positions of the Appellant and the Respondents which the Sole Arbitrator considers relevant to decide the present dispute and does not comprise each and every contention put forward by the Parties. The Sole Arbitrator, however, has carefully considered all the submissions made by the Appellant and the Respondents, even if no explicit reference has been made in what follows. The Parties’ written submissions, documentary evidence and the content of the Appealed Decisions were all taken into consideration.

A. Appellant’s Submissions and Requests for Relief

48. The Appellant made a number of submissions in its statement of appeal and in its appeal brief which can be summarized as follows.

49. The Club contests the deduction of 8 points which was imposed on it at the end of the sporting season 2015/2016, by the Decision of the Emergency Committee (which was confirmed by the Decision of the Executive Committee), as a result of the final ranking of the First League Play- Out.

50. According to the Appellant’s position, such a deduction has no legal basis and is disproportionate for the following reasons.

51. At the end of the “regular season” (phase I) of the First League Championship during sporting season 2015/2016, the Club placed on 11th position with 25 points, and qualified for the playout phase, pursuant to article 29 of the RFF Regulations.

52. In accordance with the provision of article 29 (3), the Club started phase II of the First League Championship with half the points obtained in the regular season, rounded by 0.5, i.e. 13 points, and obtained 7 further points in the play-out matches.

53. As a consequence, the official final ranking of the play-out reported that the Club had obtained a total of 20 points and placed on the 7th position at the end of the relevant season.

54. In this context, the Club maintains that it allegedly satisfied the minimum threshold required by article 29 (4) of the RFF Regulations (i.e. 15 points), since the relevant rule shall be interpreted in the sense that both the first and the second phase (and not only the play-out phase) must be taken into consideration for the purpose of the points count as “it is evident that the final result depends on the performance in both phases, i.e. a team’s performance in games during phase II of the season (play-off/play-out) is not viewed in isolation, but only in combination with the performance during phase I (regular season)”.

55. Such an interpretation, in fact, is consistent with the general principle that any legal provision shall be taken into account within the whole systematic context and not as an isolated item. As a consequence, the Appellant suggests that the minimum 15 points indicated under the provision of article 29 (4) of the RFF Regulations simply refers to the number of points that a

club holds in the final ranking of the play-out phase (including the points achieved in the previous regular phase) and not to the points achieved by said club in play-out matches only.

56. In support of the said conclusion, the Appellant also relies on the provision of article 27 para. 1 of the RFF Regulations which provides that “The merit-based hierarchy of the teams participating in the championships shall be established through the accumulation of points during the entire course of the competition”.

57. On the contrary, the Club avers that the Decision of the Emergency Committee wrongly imposed the relevant deduction of 8 points, probably based on the fact that the Club obtained only 7 points during the play-out phase of the Championship, without considering that the Club finished the play-out phase with more than 15 points.

58. The Appellant contends that, in fact, even though it was not expressly mentioned in the relevant decision, the sanction imposed by the Emergency Committee of the RFF and confirmed by the Executive Committee, is supposedly based on the false assumption that the Club failed to achieve “the minimum point number”, under article 29 (4) of the RFF Regulations: “the only explanation for the Appealed Decision is that the RFF must have interpreted Article 29 para 4 RFF ROAF to mean that 15 points ought to be obtained solely from matches played during the play-out phase”.

59. However, according to the Appellant, the Appealed Decisions “does not provide a sufficient legal basis for sanctioning a club that has 15 points or more at the end of the play-out, no matter from which games during the season those points came”.

60. In this respect, the Appellant argues that the relevant provision is ambiguous and that the consequences of its unclear wording shall go to the detriment of its author, i.e. the RFF and not its members, in accordance with the principle “interpretation contra proferentem”. In any case, consistent with CAS jurisprudence, article 29 (4) shall be interpreted as restrictively as possible.

61. The Appellant also asserts that the Appealed Decisions are unreasonably discriminatory against the Club, when compared to clubs competing in the play-off phase which are not bound to any minimum number of points, which fact is also in violation of the European and Romanian competition law (in consideration of the alleged dominant position of the Respondents), as well as Romania’s public policy, and what is more, sanctioning only clubs which qualifies from 6 th to 8th position in the play-outs increases the gap between the top clubs and the less successful clubs against the principle of fair play. Moreover, the relevant sanction, if upheld, would have a significant financial impact on the Club, especially with respect to TV rights.

62. In addition, the Club contends that, in any case, the sanction imposed by the Appealed Decisions is excessive and disproportionate with respect to the supposed goals of the provision of article 29 (4) of the RFF Regulations (i.e. to increase the level of competition and to fight match-fixing), considering that such a deduction was imposed simply on the basis of the Club’s sporting performance. In fact, there is no evidence that the Club committed any disciplinary misconduct justifying a deduction of points and, on the other hand, a deduction of 8 point is even stricter that the maximum sanction provided for under the RFF Disciplinary Regulations for very severe offences.

63. Besides the foregoing, the Appellant underlines that the sanction based on article 29 (4) of the RFF Regulations is not even able to prevent match-fixing, considering that a club determined to influence the outcome of certain matches could easily reach the minimum 15 points to avoid deduction.

64. In support of the abovementioned arguments, on 16 September 2016, the Appellant sent a faxletter to the CAS Court Office reporting that on 26 August 2016, the Executive Committee of the RFF had approved some changes to the RFF Regulations, according to which article 29 (4) had been repealed. In this respect, the Appellant insists that such circumstance further demonstrates that article 24 (9) was a flawed and abusive provision which fact entails the illegitimacy of the Appealed Decisions.

65. In its appeal brief, the Appellant submitted the following requests for relief:

“I. To annul the Decision of the Emergency Committee adopted by the Respondents on 28 June 2016 with regard to the deduction of 8 points imposed upon the Appellant;

II. To annul the Decision of the Romanian Football Federation (“RFF”) adopted within the Executive Committee on 7 July 2016, to the extent that it confirms the deduction of 8 points as imposed upon the Appellant by the Decision of the Emergency committee issued on 28 June 2016;

III. To grant the Appellant the eight points deducted by means of the Appealed Decisions and to adjust the table of the Romanian First League season 2016/2017 accordingly;

IV. To order the Respondents to bear the costs of these arbitration proceedings and;

V. To grant ACS Poli Timisoara a contribution towards its legal fees and other expenses incurred in connection with these arbitration proceedings”.

B. The First Respondent’s Submissions and Requests for Relief

66. The position of the First Respondent is set forth in its answer and can be summarized as follows.

67. The Appealed Decisions are lawful and grounded and are based on the following facts: a) The Appellant failed to meet the criteria established under article 29 (4) of the RFF Regulations since the Club did not obtain the minimum number of points at the end of the play-out phase; b) The Emergency Committee approved the final ranking of the Liga 1 Championship in which the Appellant qualified in the 7th position; c) On 7 July 2016, the Executive Committee duly confirmed the Decision of the Emergency Committee regarding the abovementioned final ranking and relevant point deductions.

68. With regard to the Appellant’s criticism against article 29 (4) of the RFF Regulations, the First Respondent contests that neither the Club, nor any other affiliated member to the RFF never

challenged the RFF Regulations before the present arbitration proceedings were instigated, with regard to the minimum requirement of 15 points.

69. As to the violation committed by the Club, it is evident from the very wording of article 29 (4) that a club must achieve a minimum number of 15 points in the 14 matches from the play-out phase, while, on the contrary, the Club itself admits that 13 points out of 20 were achieved in the first phase of the competition.

70. Therefore, the Club only obtained 7 points during the play-out phase, thus 8 points less than the minimum required under article 29 (4) and shall therefore begin the following season with a corresponding penalty.

71. In fact, another club in a similar position, Petrolul Ploiesti was also sanctioned with a deduction of 1 point as it obtained only 14 points during the play-out phase. Such club would be unreasonably discriminated in the event that the Appealed Decisions were set aside by the CAS.

72. With respect to the applicability of the provision at stake, the First Respondent, maintains a) that the provision contained in article 29 (4) of the RFF Regulations was in force when the relevant deduction was imposed on the Club and b) that such provision was never challenged by the Club or by any other member of the RFF, before the present dispute was brought in front of the CAS.

73. The First Respondent submitted the following requests for relief: “A. to dismiss the appeal lodged by the Claimant/Appellant against the decision of the Emergency Committee of the Romanian Football Federation issued on 28 June 2016 as well as against the Decision of the RFF Executive Committee (CEx) from 7 July 2016;

B. to maintain and consider the challenged Decisions undisturbed;

C. to order the Claimant/Appellant to pay all the costs, expenses and legal fees relating to the arbitration proceedings before CAS encumbered by the First Respondent”.

C. The Second Respondent’s Submissions and Requests for Relief

74. The position of the RPFL is set forth in its answer and is the following.

75. As a preliminary issue in relation to the appeal filed by the Club, the Second Respondent firstly points out that it acquiesces in the arguments put forward by the Appellant and that its submissions are only limited to the request to not be ordered to pay the costs of the present arbitration proceedings.

76. With regard to the facts of the case, according to the Second Respondent, article 29 (4) of the RFF Regulations was introduced with a view to protect the integrity of the competition and fight match-fixing and other acts of corruption. In this sense, the said provision aimed at motivating teams participating in the play-out to obtain a minimum number of points in that phase of the championship, irrespective of the competition level, under penalty of a deduction of points in the next championship. In fact, this system sought to preserve the value of the

points obtained by the Club until the very last championship match with the purpose to avoid the voluntary throwing of points by teams that had mathematically relegated during the playout phase.

77. Notwithstanding the clear intention of the relevant rule, as specified above, its actual application did not lead to achieving the original purpose and, as a result, it was finally removed from the RFF Regulations by the Decision of the Executive Committee on 26 August 2016.

78. The RPFL underlines that such a provision was not challenged by any of the affiliated clubs after it was adopted in July 2014, within the prescribed time limit, nor did any of the member clubs seek any clarification on the functioning or the application of the relevant provision.

79. Moreover, the Second Respondent observes that it has no direct responsibility and implication in the present dispute since it merely acknowledged the Appealed Decisions.

80. In any case, contrary to what the Appellant argues, the application of article 26 (4) to the Club was not discriminatory against the latter, as it is also demonstrated by the fact that also FC Petrolul Ploiesti, which was in the same situation as the Appellant, was sanctioned with a 1 point deduction for failing to comply with the minimum number of points at the end of the play-out phase, which is to say that the Executive Committee equally imposed the same rule to all teams that failed to comply with the 15-point threshold.

81. The Second Respondent submitted the following requests for relief: “- we partially acquiesce to the Appellant’s claim in this statement of appeal; - we object to the claim seeking to compel the undersigned Professional Football League to pay the costs of these proceedings (arbitration costs, share of the Appellant’s legal fees)”.