South African Football Association (SAFA) v. Federação Cabo-verdiana de Futebol (FCF), Fédération Burkinabé de Football, Fédération Internationale de Football Association (FIFA), Fédération Sénégalaise de Football

II. FACTUAL BACKGROUND — A. Background facts

7. Below is a summary of the relevant facts and allegations based on the Parties’ written submissions and evidence adduced. References to additional facts and allegations found in the Parties’ written submissions and evidence will be made, where relevant, in connection with the legal analysis that follows. While the Panel has considered all the facts, allegations, legal arguments and evidence submitted by the Parties in the present proceedings, it refers in its award only to the submissions and evidence that it deems is necessary to explain its reasoning.

B. The FIFA World Cup, Edition 2018

8. The FIFA World Cup is an event embodied in the FIFA Statutes (Article 1 of the Regulations for the 2018 FIFA World Cup Russia; “the WC Regulations”). It takes place every four years. As a general rule, every association affiliated to FIFA may participate in the FIFA World Cup with its representative team (Article 5 para. 1 of the WC Regulations).

9. The final phase of the next edition of the FIFA World Cup is to take place in Russia between 14 June and 15 July 2018.

10. The characteristics of the 2018 FIFA World Cup, relevant for the present dispute, are the following1:

1 There are two editions of the WC Regulations. One version is dated September 2016, (the “Old Version”) and the other

version is dated February 2018, (the “New Version”). The Panel relies on the New Version in its Award unless indicated otherwise.

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- The FIFA World Cup consists of two stages: a) the preliminary competition; b) the final competition (Article 5 para. 2 of the WC Regulations).

- The FIFA Council has appointed the Organising Committee for FIFA Competitions (“Organising Committee”) to organise the competition (Article 1 para. 6 and Article 3 para. 1 of the WC Regulations).

– The Organising Committee organises all official FIFA competitions in compliance with the provisions of the regulations applicable to the respective competitions, the hosting documents and the hosting requirements contained or referred to therein (Article 43 of the Statutes).

– The Organising Committee is responsible for organising the FIFA World Cup in accordance with the FIFA Statutes and the FIFA Governance Regulations (Article 3 para. 1 of the WC Regulations). It may, if necessary, appoint a bureau and/or a subcommittee to deal with emergencies. Any decision taken by the bureau or the subcommittee shall come into effect immediately but shall be subject to confirmation by the plenary committee at its next meeting (Article 3 para. 2 of the WC Regulations).

– The decisions taken by the Organising Committee and/or its bureau/subcommittee are final and binding and not subject to appeal (Articles 3 para. 3 and 20 para. 1 of the WC Regulations).

- Pursuant to Article 4 para. 2 of the WC Regulations “All Team Delegation Members shall comply with the Laws of the Game and the FIFA Statutes and all applicable FIFA regulations (including these Regulations), in particular the FIFA Disciplinary Code, the FIFA Stadium Safety and Security Regulations, the FIFA Anti-Doping Regulations, the FIFA Code of Ethics, the FIFA Media and Marketing Regulations and the FIFA Equipment Regulations as well as all circulars, directives and decisions of FIFA bodies unless these Regulations stipulate otherwise”.

C. The Proceedings before the Organising Committee

i) In general

11. The format of the preliminary competition to the World Cup could vary depending on the continental Confederation. With respect to the CAF, the competing teams had to go through two first preliminary stages in order to bring the number of representative teams down to 20. These remaining teams were divided into five groups of four teams to play home-andaway round-robin matches (the “Third Preliminary Stage”). The winners of each group qualified for the 2018 FIFA World Cup.

12. The representative teams of Senegal, Burkina Faso, Cape Verde and South Africa were in the same group (Group D) of the Third Preliminary Stage. The matches were played between 8 October 2016 and 14 November 2017.

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13. During the second round of matches, the representative team of South Africa won against the representative team of Senegal on the score of 2 - 1. The result was eventually cancelled because the referee of the match was found to have manipulated the outcome of the game, which had to be replayed on 10 November 2017, just before the final round of the Third Preliminary Stage. The exact events and their chronology will be addressed more specifically later in the present award. Beforehand, however, it is noteworthy to display the standing of each team of Group D during each series of the Third Preliminary Stage.

14. At the end of round 1 of the Third Preliminary Stage (8 October 2016), the results were the following:

• Senegal 1 victory, 3 points

• Burkina Faso 1 draw, 1 point

• Cape Verde 1 defeat, 0 point

• South Africa 1 draw, 1 point

15. At the end of round 2 of the Third Preliminary Stage (12 November 2016), the results were the following before the game between Senegal and South Africa was cancelled:

• Senegal 1 victory, 1 defeat for a total of 3 points

• Burkina Faso 1 victory, 1 draw for a total of 4 points

• Cape Verde 2 defeats, for a total of 0 point

• South Africa 1 victory, 1 draw for a total of 4 points

16. At the end of round 3 of the Third Preliminary Stage (1-2 September 2017), the results were the following before the game between Senegal and South Africa was cancelled:

• Senegal 1 victory, 1 draw, 1 defeat for a total of 4 points

• Burkina Faso 1 victory, 2 draws for a total of 5 points

• Cape Verde 1 victory, 2 defeats for a total of 3 points

• South Africa 1 victory, 1 draw, 1 defeat, for a total of 4 points

17. At the end of round 4 of the Third Preliminary Stage (5 September 2017), the results were the following before the game between Senegal and South Africa was cancelled:

• Senegal 1 victory, 2 draws, 1 defeat for a total of 5 points

• Burkina Faso 1 victory, 3 draws for a total of 6 points

• Cape Verde 2 victories, 2 defeats for a total of 6 points

• South Africa 1 victory, 1 draw, 2 defeats, for a total of 4 points

18. The decision to cancel and to replay the match between Senegal and South Africa was taken on 6 September 2017. The Appellant as well as the South African Football Association filed a petition before the Court of Arbitration for Sport (“CAS”) for a stay of the execution of the decision. Both requests were dismissed by CAS on 17 October and 6 November 2017, respectively.

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19. At the end of round 5 of the Third Preliminary Stage (7 October 2017), the results were the following before the game between Senegal and South Africa was cancelled:

• Senegal 2 victories, 2 draws, 1 defeat for a total of 8 points

• Burkina Faso 1 victory, 3 draws, 1 defeat for a total of 6 points

• Cape Verde 2 victories, 3 defeats for a total of 6 points

• South Africa 2 victories, 1 draw, 2 defeats, for a total of 7 points

20. On 10 November 2017, the game between South Africa and Senegal was played again. The visiting team won on the score of 2 - 0.

21. Before the last game of the Third Preliminary Stage, taking into account the new result of the first game between South Africa and Senegal, the standing was the following:

• Senegal 3 victories, 2 draw, 0 defeat for a total of 11 points

• Burkina Faso 1 victory, 3 draws, 1 defeat for a total of 6 points

• Cape Verde 2 victories, 3 defeats for a total of 6 points

• South Africa 1 victories, 1 draw, 3 defeats, for a total of 4 points

22. At the end of the Third Preliminary Stage (14 November 2017), the final results were the following:

• Senegal 4 victories, 2 draws, 0 defeat for a total of 14 points

• Burkina Faso 2 victories, 3 draws, 1 defeat for a total of 9 points

• Cape Verde 2 victories, 0 draw, 4 defeats, for a total of 6 points

• South Africa 1 victory, 1 draw, 4 defeats, for a total of 4 points

23. With the above results, the representative team of Senegal was the winner of Group D and, thus, qualified for the final phase of the 2018 FIFA World Cup.

ii) The litigious match between South Africa and Senegal

24. On 12 November 2016, the second round of the Third Preliminary Stage took place in South Africa, where the representative team of South Africa played against the representative team of Senegal (the “Match”). Mr Joseph Odartei Lamptey (“Mr Lamptey”), of Ghanaian nationality, was the referee.

25. The representative team of South Africa won on the score of 2 - 1. It opened the score by converting a penalty into a goal at minute 43 of the Match. It scored again two minutes later. Finally, the representative team of Senegal scored the final goal of the Match at minute 75.

26. According to the official match report, Mr Lamptey awarded the penalty for a nonexistent handball. In addition and according to the betting monitoring company Sportradar Integrity Services, there was “a clear and overwhelming evidence that the course or result of this match was unduly influenced. The betting evidence ultimately indicated that bettors held prior knowledge of at least three goals being

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scored in total”. Likewise, Early Warning System Gmbh provided FIFA with an alert that it detected irregular betting patterns during the Match.

27. The FIFA Disciplinary Committee eventually initiated disciplinary proceedings against Mr Lamptey and, on 15 March 2017, issued a decision whereby it found Mr Lamptey guilty of having unlawfully influenced the Match results and, therefore, of breaching Article 69 para. 1 of the FIFA Disciplinary Code. As a consequence, Mr Lamptey was “banned from taking part in any kind of activity at national and international level (administrative, sports or any other) for life ”.

28. On 31 March 2017, Mr Lamptey lodged an appeal before the FIFA Appeal Committee, which, on 27 April 2017, upheld the decision of the first instance.

29. On 6 June 2017, Mr Lamptey filed an appeal with CAS. The matter was recorded under CAS 2017/A/5173 Joseph Odartei Lamptey v. FIFA.

30. On 2 August 2017, CAS issued the operative part of its award, whereby it dismissed the appeal filed by Mr Lamptey and confirmed the decision of the FIFA Appeal Committee. On 4 December 2017, the complete award was notified. In substance, CAS concluded that Mr Lamptey had intentionally taken wrong decisions in order to influence the result of the Match. “This conclusion, in addition, is reinforced by the obvious link between the wrong Field Decisions, deliberately taken, and the deviation from normality in betting patterns for the live Totals market. Such link shows that the Field Decisions were taken to influence the Match in a manner contrary to sporting ethics as they appear dictated by purposes contradicting the principles of fair play and compliance with the rules which are at the basis of sporting activities” (CAS 2017/A/5173, consid. 85).

iii) The replay of the Match

31. On 6 September 2017, FIFA notified both the South African Football Federation and the Fédération Sénégalaise de Football of the decision of the Bureau for the FIFA World Cup™ Qualifiers (the “FIFA Bureau”). This document has the following content (the “Appealed Decision”):

“3rd round of the 2018 FIFA World Cup Russia™ Qualifiers, African zone - Group D - Matchday 2 - Replay of the match South Africa vs Senegal, which was held on 12 November 2016 Dear Sirs, Please take note that, with regards to the captioned match, FIFA was made aware that the result of the match may have been influenced by the referee, Mr Josef Odartei Lamptey. FIFA immediately launched a thorough preliminary investigation, following which disciplinary proceedings were opened against Mr Lamptey. Taking into account: 1. The FIFA Disciplinary Committee decision of 15 March 2017 to impose a lifetime ban on the match referee, Mr Joseph Odartei Lamptey, for unlawfully influencing the match result. 2. The FIFA Appeal Committee decision of 27 April 2017, confirming the first instance decision in its

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entirety. 3. The Court of Arbitration for Sports decision of 2 nd August 2017, confirming in full the decision passed by the Appeal Committee. 4. The FIFA zero tolerance policy on match manipulation. 5. The remaining match schedule fixtures and available replay dates for the teams in group D. 6. The provisions of article 3, paragraph 3, letter o)2 of the Regulations for the 2018 FIFA World Cup Russia™.

The Bureau for the FIFA World Cup™ Qualifiers took the following decision: 1. The first-leg match South Africa vs Senegal shall be replayed. 2. The result of the match of 12 November 2016 shall be cancelled for all purposes. 3. The match shall be replayed during the international match window of November 2017. 4. The order of the matches between the two teams shall be respected, thus South Africa shall first host Senegal prior to playing the last match day in Senegal a few days later. In accordance with Article 3, paragraph 4 3 of the Regulations for the 2018 FIFA World Cup Russia™, this decision is final and binding and not subject to appeal. On behalf of the Bureau for the FIFA World Cup™ Qualifiers”.

32. On 8 September 2017, the Appellant wrote to FIFA to contest the authority of the FIFA Bureau to decide the replay of a match. In addition, it submitted that the regulatory requirements for a match to be replayed were not met. The Appellant concluded that the Appealed Decision was illegal, arbitrary and to be annulled. On 10 September 2017, FIFA answered to the various allegations of the Appellant, which maintained its position and brought up further arguments in another letter, sent on 12 September 2017 to FIFA.

33. On 14 September 2017, the Organising Committee “confirmed the decision of the Bureau for the FIFA World Cup™ Qualifiers, which had ordered a replay of the qualification match between South Africa and Senegal held on 12 November 2016. This confirmation came after the [CAS] upheld the lifetime ban on match referee Joseph Lamptey for match manipulation, the ruling imposed by the FIFA Disciplinary and Appeal Committee. The match will be replayed during the November 2017 international window, with the exact date to be confirmed in due course” (the “14 September 2017 Decision”).

34. On 10 November 2017, the Match was replayed and the representative team of Senegal won on the score of 2 - 0.

2 This citation refers to the Old Version. This provision does not exist in the New Version. 3 This citation refers to the Old Version. This paragraph corresponds with Article 3 para. 3 of the New Version.

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III. PROCEEDINGS BEFORE THE COURT OF A RBITRATION FOR SPORT

35. On 18 September 2017, the Appellant lodged with CAS its statement of appeal aga inst the Appealed Decision. The brief was in French and did not meet all the requirements of Article R48 of the Code of Sports-related Arbitration (the “Code”). Only FIFA was named as Respondent.

36. On 19 September 2017, the CAS Court Office acknowledged receipt of the statement of appeal and granted the Appellant a 3-day deadline to file a statement of appeal compliant with the applicable provisions of the Code.

37. On 25 September 2017, the CAS Court Office acknowledged receipt of the complete statement of appeal filed on 21 September 2017 by the Appellant as well as of its payment of the CAS Court Office fee. It noted that the Appellant chose French as the language of the arbitration. In this respect, it informed FIFA that, unless it objected within three days, the procedure would be conducted in French. The CAS Court Office took note of the Appellant’s nomination of Mr François Klein as arbitrator and invited FIFA:

• to comment within two days on the Appellant’s request to proceed in an expedited manner as provided under Article R52 of the Code;

• to file within 10 days its position on the Appellant’s request for a stay of the execution of the Appealed Decision.

38. On 28 September 2017, FIFA confirmed to the CAS Court Office that it did not object to the Appellant’s request to proceed in an expedited manner.

39. Via facsimile dated 27 September 2017 but received on 28 September 2017, the Appellant informed the CAS Court Office that its appeal was actually lodged not only against FIFA but also against the South African Football Association, the Fédération Sénégalaise de Football and the Federação Caboverdiana de Futebol.

40. On 29 September 2017, the CAS Court Office invited:

• the Respondents to appoint a common arbitrator within 10 days;

• the South African Football Association, the Fédération Sénégalaise de Football and the Federação Caboverdiana de Futebol: – to comment within two days on the Appellant’s request to proceed in an expedited manner as provided under Article R52 of the Code; – to state within two days whether they objected to the present procedure be conducted in French; – to file within 10 days their respective position with respect to the Appellant’s request for a stay of the execution of the Appealed Decision.

41. On 28 September 2017, the Appellant filed its appeal brief.

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42. On 28 September 2017, FIFA confirmed that it objected to the Appellant’s request for a stay of the execution of the Appealed Decision. According to FIFA, CAS had no jurisdiction over the dispute, as the Appealed Decision was final, binding and not subject to appeal. Furthermore, FIFA was of the view that the Appellant’s request for provisional measures did not comply with the requirements of Article R37 of the Code.

43. On 4 October 2017, the Fédération Sénégalaise de Football confirmed that it agreed to proceed in French and in an expedite manner.

44. On 5 October 2017, the South African Football Association lodged with CAS its statement of appeal against the 14 September 2017 Decision. The case was recorded under CAS 2017/A/5356 South African Football Association v. FIFA, Fédération Burkinabé de Footba ll, Fédération Sénégalaise de Football & Federação Caboverdiana de Futebol (“CAS

45. On 5 and 6 October 2017, the CAS Court Office informed the Parties that neither the South African Football Association nor the Federação Caboverdiana de Futebol had taken position as to the language of the procedure or to the Appellant’s request for a stay of the execution of the Appealed Decision.

46. On 12 October 2017 and in a motivated brief, the Fédération Sénégalaise de Football confirmed that it objected to the Appellant’s request for a stay of the execution of the Appealed Decision.

47. On 13 October 2017, the CAS Court Office informed the Parties that the South African Football Association had lodged with CAS an appeal against the 14 September 2017 Decision. The CAS Court Office invited the Parties to state on or before 19 October 2017 whether they agreed to submit the present procedure to the same Panel as in the proceedings CAS

48. In an order issued on 17 October 2017, the President of the Appeals Arbitration Division of the CAS decided to dismiss the Appellant’s request for a stay of the execution of the Appealed Decision. It is noteworthy to mention that, in another order issued on 6 November 2017 in the procedure CAS 2017/A/5356, the President of the Appeals Arbitration Division of the CAS dismissed the request for a stay of the execution of the 14 September 2017 Decision filed on 5 October 2017 by the South African Football Association.

49. On 19 October 2017, FIFA and the Fédération Sénégalaise de Football confirmed to the CAS Court Office that they agreed to the proceedings CAS 2017/A/5324 and CAS 2017/A/5356 be submitted to the same Panel and also expressed the opinion that both proceedings should actually be consolidated.

50. On 20 October 2017, the CAS Court Office observed that the Appellant, the South African Football Association and the Federação Caboverdiana de Futebol failed to state within the granted deadline whether they agreed to submit the cases recorded under CAS 2017/A/5324 and CAS 2017/A/5356 to the same Panel. It also took note that within the procedure CAS

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2017/A/5356, the South African Football Association had agreed to submit the case to the same Panel as the one in charge of the present procedure. In addition:

• should both CAS procedures be submitted to the same Panel and bearing in mind that, in their respective appeal, the Appellant and the South African Football Association had nominated Mr Henk Kesler as arbitrator, the CAS Court Office invited the Parties to state on or before 25 October 2017, if they agreed that FIFA, the Fédération Sénégalaise de Football and the Federação Caboverdiana de Futebol appoint a common arbitrator;

• the CAS Court Office asked the Appellant, the South African Football Association, the Fédération Sénégalaise de Football and the Federação Caboverdiana de Futebol to state, within the same deadline, whether they agreed for the procedure to be in English;

• the CAS Court Office confirmed that the procedure would not be conducted in an expedited manner as provided under Article R52 of the Code.

51. Eventually, the Parties either expressly or tacitly (Federação Caboverdiana de Futebol) agreed a) to submit the cases CAS 2017/A/5324 and CAS 2017/A/5356 to the same Panel, b) to proceed in English and c) that Mr Henk Kesler be nominated as common arbitrator appointed by the Appellant and the South African Football Association and Mr Jean-Philippe Rochat as common arbitrator appointed by FIFA, the Fédération Sénégalaise de Football and the Federação Caboverdiana de Futebol.

52. On 23 October 2017, FIFA and the Fédération Sénégalaise de Football requested the time limit to file their respective answer be fixed after the payment by the Appellant of its share of the advance of costs. On the same day, the CAS Court Office confirmed that the deadline of FIFA and of the Fédération Sénégalaise de Football to submit their answer was set aside.

53. On 25 October 2017, the CAS Court Office observed that the Federação Caboverdiana de Futebol did not file its answer in the matter CAS 2017/A/5324 within the prescribed deadline.

54. On 2 November 2017, the CAS Court Office informed the Parties that the President of the CAS Appeals Arbitration Division had decided a) that the proceedings CAS 2017/A/5324 and CAS 2017/A/5356 were to be submitted to the same Panel, b) that the language of the present procedure was English and c) that all previous submissions filed in French did not need to be translated.

55. On 14 December 2017 and considering the outcome of the Third Preliminary Stage in Group D, the Appellant requested to be authorised to amend its requests for relief and to file a second brief. The South African Football Association filed a similar petition on 18 December 2017. These requests were eventually granted with the express or tacit consent (Federação Caboverdiana de Futebol) of the other Parties.

56. On 15 December 2017, the CAS Court Office acknowledged receipt of the Appellant’s payment of its share of the advance of costs and informed the Parties that the Panel to hear the case had

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been constituted as follows: Prof. Martin Schimke, President of the Panel, Mr Hendrik Willem Kesler and Mr Jean-Philippe Rochat, arbitrators.

57. On 9 January 2018 and within the prescribed deadline, the Appellant and the South African Football Association filed their second brief.

58. On 11 January 2018, the CAS Court Office invited FIFA, the Fédération Sénégalaise de Football and the Federação Caboverdiana de Futebol to file their respective answer within 20 days.

59. FIFA and the Fédération Sénégalaise de Football required their deadline to file their respective answer to be extended until 7 February 2018, which was granted in view of the agreement of the Appellant and of the South African Football Association.

60. On 14 February 2018, the CAS Court Office acknowledged receipt of the answers filed on 7 February 2018 by FIFA and by the Fédération Sénégalaise de Football. It observed that the Federação Caboverdiana de Futebol failed to file its answer within the prescribed deadline.

61. On 16 and 21 February 2018 and in reply to the request of the CAS Court Office, all the Parties (with the exception of Federação Caboverdiana de Futebol, which remained silent) confirmed their preference for the matter to be decided solely on the basis of their written submissions.

62. On 15 June 2018, the CAS Court Office informed the Parties that the Panel did not find sufficient ground to hold a hearing in this matter and announced that an award would be rendered based solely on their written submissions.

63. On 20 June 2018, the Fédération Burkinabé de Football, the South African Football Association and FIFA signed and returned a copy of the Order of Procedure, expressly confirming that their right to be heard had been respected. The Fédération Sénégalaise de Football returned a signed copy of the Order of Procedure on 22 June 2018. The Federação Caboverdiana de Futebol did not return a signed copy of the Order of Procedure.

IV. THE SUBMISSIONS OF THE PARTIES — A. The Fédération Burkinabé de Football

64. In its second brief, the Appellant submitted the following requests for relief:

“Following the position presented by the Appellant it is hereby respectfully requested from the Court of Arbitration for Sport to issue a ruling in the following terms: I.- Admit the present appeal and issue a declaratory judgment declaring that the Decision should not have been pronounced, that it should have been subsequently annulled, and that in all scenarios, the replay of the Match was wrongfully ordered by FIFA; II.- To annul the result of the replayed Match, and declare as valid the result of the match held on the 10th of November 2016;

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III.- Order FIFA to bear entirely the Appellant’s legal fees, as they will be determined and communicated to the CAS Court Office at the end of the dispute; IV.- Order FIFA to cover entirely the costs of the CAS and the fees of the Panel in connection with the present proceedings; V.- Order any other measure deemed necessary or appropriate by the Panel”.

65. The Appellant’s submissions, in essence, may be summarized as follows:

- CAS has jurisdiction in the present matter. The fact that Article 3 para. 3 of the WC Regulations states that decisions taken by the Organising Committee are final, binding and not subject to appeal, is of no avail. As a matter of fact, such a provision is null and void as it is in conflict with Articles 57 and 58 of the FIFA Statutes concerning CAS jurisdiction, which cannot be modified by hierarchically inferior regulations.

- The Appealed Decision was issued on 6 September 2017 following the confirmation by the CAS of the decision passed by the FIFA Appeal Committee against Mr Lamptey. However, on 6 September 2017, only the operative part of the CAS award had been notified and, therefore, the CAS decision had not yet entered into force. In other words, the Appealed Decision was not only taken prematurely but it was not sufficiently reasoned as, at the time it was adopted, the detailed position of the CAS Panel was unknown. The Appealed Decision is therefore inadmissible.

- The Appellant’s right to be heard was breached as it was not a party to the disciplinary procedure initiated against Mr Lamptey. The outcome of this procedure was at the origin of the replay of the Match, which had a direct impact on the Appellant’s interest. The Appellant has never had an opportunity to present its argument before the Appealed Decision was taken.

- When the Appealed Decision was taken, two more matches were to be played by each of the representative teams of Group D of the Third Preliminary Stage. “[FIFA] gave the Senegalese representative team, in the middle of the competition, the unprecedented opportunity to play a third game and opt again to reverse its defeat in the Match.(...) Ordering the replay of the Match had an undeniable psychologic and sporting impact on the said rest of teams competing in group D”.

- FIFA must take the responsibility for the referees appointed and their possible wrongdoings. It is not for the representative teams to pay for the consequences of the bad choices made by FIFA, when selecting the referees.

- The FIFA Bureau issued its Appealed Decision without complying with the requirements of Article 20 para. 10 of the WC Regulations.

- With its Appealed Decision, the FIFA Bureau sanctioned the representative teams of Burkina Faso, Cape Verde and South Africa without giving them a chance to be heard. Such a decision is disciplinary in nature.

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- The replay of a match for disciplinary reasons is governed exclusively by the FIFA Disciplinary Code and can only be ordered by the FIFA Disciplinary Committee. The FIFA Bureau relied on Article 6 para. 7 4 of the WC Regulations to issue the Appealed Decision. However, in casu, the requirements of this provision are obviously not met.

- The replay of a match is of paramount importance and can only be ordered on the basis of explicit and clear sets of rules. “The principle of legality needs to be strictly complied with, as otherwise affiliated members of FIFA are left in the utmost legal uncertainty, what is not permissible, particularly when the stakes are as high as in the case at hand”. In this context, the “Specific Recommendations to Combat Match Manipulation Guidelines for FIFA member Associations” clearly state that “even in cases of the unlawful influencing of matches, the results of the matches remain in force”. In other words, FIFA had envisaged the situation where the outcome of a game had been manipulated and decided that, in such a situation, the result should remain in force. The FIFA Bureau and the Organising Committee cannot go beyond what FIFA - in its capacity of legislator - has decided.

- The fact that, in compliance with the WC Regulations, decisions issued by the FIFA Bureau cannot be appealed before CAS or in front of ordinary courts is in breach with FIFA Statutes, Swiss legislation and the jurisprudence of CAS.

- The WC Regulations do not give the authority to the FIFA Bureau to order the replay of a match. As a result, when it rendered the Appealed Decision, the FIFA Bureau exceeded its powers. Under these circumstances, the fact that the Appealed Decision is final and not subject to appeal is all the more illegitimate.

- The Appellant has a legal interest in obtaining the declaratory judgement sought in its request for relief, as such a ruling will enable it to seek compensation for the financial damages caused by the Appealed Decision and by its “economic impact further to non-qualification for the World Cup, impact over sponsors’ of the Appellant, sporting and fan engagement losses”.

B. The South African Football Association

66. In its second brief, the South African Football Association submitted the exact same requests for relief as the Appellant.

67. The submissions of the South African Football Association are similar, if not identical, to those of the Appellant. The additional following arguments were presented:

- “Ordering the replay of the Match had an undeniable psychologic and sporting impact on the rest of the teams in group D, particularly over [the representative team of South Africa], which saw how a match played a year before had to be repeated. Undeniably, before the Decision was issued, [the representative team of South Africa] was one point down from the Senegalese representative team. To make matters worse, said

4 Article 6 para. 7 of the Old Version expressly states that “the FIFA Organising Committee” is competent, whereas the New

Version stipulates that “FIFA” is competent.

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one-point difference was even smaller, as [the representative team of South Africa] benefitted from a positive vis-a-vis goal average in direct confrontations over the Senegalese representative team. However, after the Decision, [the representative team of South Africa] found itself four points down, having lost said positive goal average in direct confrontations and even more, subject to the Senegalese representative team being afforded the chance to entirely reverse the result of the Match from -3 (points) to +3 (points), i.e. the Decision could have a detrimental overall impact of + - 6,5 points over [the representative team of South Africa] in case the latter lost in the Match to be replayed. Two other matches still had to be played by [the representative team of South Africa] when the Decision was taken, particularly, the scheduled direct confrontation against the Senegalese representative team to be played on the 14th of November 2017. Accordingly, the urgency to obtain positive results of [the representative team of South Africa] as of the Decision, particularly in its direct confrontations against the Senegalese representative team became enormous, quite conversely to the position it had been if the Decision had not been pronounced, as its margin to secure its chances to qualify in the following matches would be much higher, allowing the latter to qualify in several different scenarios and results’ combination. The sudden disappearance of said several possibilities, leaving an almost nil margin to [the representative team of South Africa], dropped a disproportionate pressure over it which ended up, severely affecting it in its subsequent matches. In these circumstances, in order to having avoided making victims by repairing a wrong, for the sake of sport justice and equity, the status quo produced by the result of the Match should have been kept, in which, the Referee, was the only actor who was subject to an ongoing prosecution”.

C. FIFA

68. In its answer, FIFA submitted the following requests for relief:

“Based on the foregoing developments, FIFA respectfully requests the CAS to issue an award: – Declaring that CAS has no jurisdiction over the matter; Subsidiarily, and in the unlikely event the Panel finds it has jurisdiction, – Dismissing the Appellants’ appeals; – Confirming the Appealed Decision; In any event – Ordering the Appellants to pay the costs of the arbitration; – Ordering the Appellants to pay a significant contribution towards the legal fees and other expenses incurred by FIFA in connection with these proceedings ”.

69. The submissions of FIFA, in essence, may be summarized as follows:

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- In accordance with Article 3 para. 3 of the WC Regulations, the decisions taken by the FIFA Bureau, ratified by the Organising Committee, are final, binding and not subject to appeal. As a consequence, CAS has no jurisdiction in the present matter.

- Neither the Appellant nor the South African Football Association have any sufficient legal interest in the present proceedings:

o The relief sought by them will not change the fact that the representative team of the Fédération Sénégalaise de Football is the winner of Group D, with such a margin that “even if the Match has not been replayed and/or the [Appealed Decision or the 14 September 2017 Decision] had not been taken, the [Senegalese team] would have won Group D and qualified for the 2018 FIFA World Cup irrespectively. (...) Therefore, no matter what decision might be taken by the CAS Panel in this matter it will not have any effect over the qualification of [the representative team of the Fédération Sénégalaise de Football] as the winners (sic) of Group D”.

o They failed to establish how the Appealed Decision or the 14 September 2017 Decision could possibly have an “economic impact further to non-qualification for the World Cup” as the representative team of the Fédération Sénégalaise de Football would have been the winner of Group D in any event.

o Their request for a declaratory judgement does not meet the necessary requirements consistent with CAS jurisprudence.

- The Appealed Decision and the 14 September 2017 Decision were taken in accordance with the relevant FIFA Regulations and should not be interfered with.

- The Appealed Decision does not have a disciplinary character and certainly does not sanction the representative teams of Burkina Faso, Cape Verde and South Africa. The decision “only addresses the distortion of sporting competition that resulted from what the Referee did and does not imply either explicitly or implicitly any element of guilt or stigmatisation of [the representative team of the South African Football Association]. [The representative team of the Fédération Burkinabé de Football] was not even a party to the Match”.

- Contrary to the submissions of the Appellant and of the South African Football Association, the replay of a match can be ordered outside of a disciplinary procedure. Match replays may be imposed as sanctions but also as other measures. Such is for instance the case with Article 6 para. 7 of the WC Regulations.

- In its capacity of FIFA body responsible for organising the FIFA World Cup, the Organising Committee and its Bureau must have the possibility to order match replays. In this respect and pursuant to Article 32 of the WC Regulations, the Organising Committee and its Bureau are competent to decide all matters not provided for, such as the replay of a match for reasons other than the ones specifically provided for in the WC Regulations.

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- The “Specific Recommendations to Combat Match Manipulation Guidelines for FIFA member Associations” are not applicable when the match has been fixed by the referee. Furthermore these guidelines are not included in the FIFA regulatory framework and are merely recommendations.

- The Appellant and the South African Football Association have not substantiated in any manner the alleged psychological and sporting impact of the Appealed Decision or of the 14 September 2017 Decision.

D. The Fédération Sénégalaise de Football

70. In its answer, the Fédération Sénégalaise de Football submitted the following requests for relief:

“(…) [the Fédération Sénégalaise de Football] hereby respectfully request the Panel of the Court of Arbitration for Sport to: 1. Declare the CAS has no jurisdiction over the Appellant appeals; As a subsidiarily main request for relief, 2. Declare the Appellant’s appeals inadmissible. As a subsequent subsidiarily main request for relief, 3. Dismiss the Appellant’s appeals in their entirety. In any circumstances, 4. Confirm the Decision; 5. Order the Appellants to pay the full amount of the CAS arbitration costs. 6. Order the Appellants to pay a significant contribution towards the legal costs and other related expenses of the Federation Sénégalaise de Football in connection with these proceedings ”.

71. The submissions of the Fédération Sénégalaise de Football, in essence, may be summarized as follows:

- In view of the clear wording of Article 3 para. 4 of the WC Regulations (Old Version), CAS has no jurisdiction in the present matter.

- Neither the Appellant nor the South African Football Association has any sufficient legal interest in the present proceedings. Their alleged interest is unsubstantiated and purely speculative. In particular their request for a declaratory judgement “shall be rejected, as the prerequisite for such an action are not fulfilled”.

• The Appellant and the South African Football Association “have not provided - not even tried to

• substantiate their possible financial claim against FIFA. They even candidly admitted that they decided to no file (sic) relevant elements of proof, merely referring to the eventual examination of unknown witnesses at the hearing”. The Appellant and the South African Football Association have not met their

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burden to demonstrate their legal interests to request a declaratory judgement, in order to obtain financial compensations from FIFA.

- The Appellant as well as the South African Football Association has no standing to sue as they do not have any legal interest in the annulment of the Appealed Decision or of the 14 September 2017 Decision. At least, they have not established the contrary.

- The Appealed Decision was validly taken by the FIFA Bureau, which complied with all the applicable regulations.

- The Appealed Decision is not of a disciplinary nature.

- The Organising Committee and its Bureau are competent to order the replay of a match. Contrary to the submissions of the Appellant and of the South African Football Association, the FIFA Bureau took its decision on the basis of Article 3 para. 3 (o) of the WC Regulations (Old Version) and not on the basis of Article 6 para. 7 of the WC Regulations.

- With respect to the argument of the Appellant related with the “Specific Recommendations to Combat Match Manipulation Guidelines for FIFA member Associations”, the Fédération Sénégalaise de Football adopts the same position as FIFA.

- The contention of the Appellant and of the South African Football Association related to the alleged psychological and sporting impact of the Appealed Decision and of the 14 September 2017 Decision, is purely speculative and unsubstantiated.

E. The Federação Caboverdiana de Futebol

72. The Federação Caboverdiana de Futebol failed to submit its answer within the prescribed deadline.