FC Dynamo Kyiv (UPL), FC Dynamo Kyiv (U-21), FC Dynamo Kyiv (U-19) v. Football Federation of Ukraine (FFU)

II. FACTUAL BACKGROUND — A. Background Facts

3. Below is a summary of the relevant facts and allegations based on the parties’ written submissions, pleadings and evidence adduced at the hearing. Additional facts and allegations found in the parties’ written submissions, pleadings and evidence may be set out, where relevant,

FC Dynamo Kyiv (U-21) v. FFU FC Dynamo Kyiv (U-19) v. FFU, award of 30 July 2018 (operative part of 19 February 2018)

in connection with the legal discussion 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 it considers necessary to explain its reasoning.

4. On 2 June 2017, a General Meeting of the Ukrainian Premier League (the league of the firsttier football clubs in Ukraine, “UPL”) was held. The representative of FC Dynamo Kyiv, Mr Mochnik, Deputy Director General, expressed security fears with respect to travelling to the city of Mariupol, where the home matches of FC Mariupol were expected to be held and, according to the press reports submitted in the case file, informed the representatives of the other clubs of FC Dynamo Kyiv’s decision not to travel to Mariupol for the away game against FC Mariupol in the coming season.

5. On 30 June 2017, the draw for the UPL, the U-21 and the U-19 football championships was held in Kiev. On Matchday 7, FC Mariupol was to host FC Dynamo Kyiv and the respective matches were scheduled on 18 August 2017 at Zakhidnyi stadium for the U-19 teams (the “U- 19 Match”), on 26 August 2017 at Zakhidnyi stadium for the U-21 teams (the “U-21 Match”) and on 27 August 2017 at Illichivets stadium for the UPL teams (the “UPL Match” and, collectively, the “Matches”).

6. On 24 July 2017, Mr Vitalii Sivkov, first Vice-President of FC Dynamo Kyiv, sent a letter to the FFU and the UPL requesting them to take into account the existing armed conflict within the Ukrainian territory in the Donbass region and the proximity of the established Anti-Terrorist Operation Zone to Mariupol, which created justified concerns for the safety of players, staff and supporters which were expected to be attending the Matches. FC Dynamo Kyiv enclosed in its letter correspondence with the Ukrainian internal and security services which suggested that there was “potential threat that acts of terrorist nature may be committed” in the area of Mariupol and that “it would be dangerous and inexpedient to hold matches of the Ukrainian Football Championship in this city” (letters of the Security Service of Ukraine to the FFU, dated 19 June 2017 and 27 July 2017 accordingly). In this context, FC Dynamo Kyiv made the following request to the FFU and the UPL:

“(…) Based on above circumstances and the fact that protection of safety of life and health of players, Clubs and supporters should be among top priorities of football entities, and based on Article 11 of Regulations of the Ukrainian Premier League, we ask to render decision to stage 7 round match between FC Mariupol and FC Dynamo Kyiv on neutral venue, which is approved for Ukrainian Premier League matches, in other Ukrainian city”.

7. On 15 August 2017, Mr Vitalii Sivkov wrote a second letter to the FFU and the UPL, enclosing similar letters from the Ukrainian internal and security services and explaining that in the absence of applicable recommendations and conclusions of the FFU and the UPL bodies

FC Dynamo Kyiv (U-21) v. FFU FC Dynamo Kyiv (U-19) v. FFU, award of 30 July 2018 (operative part of 19 February 2018)

concerning safety issues of organization of football matches in the Anti-Terrorist Operation Zone, FC Dynamo Kyiv had taken the initiative to submit the case to the national authorities, in order “to receive eligible recommendations and guidelines on the topic”. The letter concluded as follows:

“(…) Based on above circumstances and the fact that protection of safety of life and health of players, Clubs and supporters should be among top priorities of football entities, and based on Article 11 of the UPL Regulations, we hereby submit for the second time request to render the decision on staging of calendar matches of Matchday 7 of the Ukrainian Premier Leagues Championship, U21 Championship and U19 Championship between FC Mariupol and FC Dynamo Kyiv on neutral venue, which is approved for Ukrainian Premier League matches, in other Ukrainian city”.

8. On 17 August 2017, the FFU Committee for Stadiums and Competitions Safety decided to allow the UPL and national cup matches to continue to be held in Mariupol in the season 2017/2018.

9. On 22 August 2017, the above-mentioned decision was confirmed by the FFU Executive Committee.

10. On 23 August 2017, FC Dynamo Kyiv sent another letter to the FFU and the UPL expressing its security concerns and requested the following:

“Considering the above circumstances and the fact that protection of safety of life and health of players, Clubs and supporters should be among top priorities of football entities, and based on Article 11 of Regulations of the Ukrainian Premier League, we ask to render decision to stage 7 round match between FC Mariupol and FC Dynamo Kyiv on neutral venue, which is approved for Ukrainian Premier League matches, in other Ukrainian city.

Alternatively, we suggest playing first leg match in Kyiv on the date determined by the Ukrainian Premier League, with second leg match to be played in Mariupol in case of normalization of the situation in the combat zone. Since it is commonly known that President of Ukraine Petro Poroshenko addressed Normandy Four leaders in order to achieve mutual ceasefire in Counter-Terrorist Operation Zone”.

11. FC Dynamo Kyiv teams did not travel to Mariupol and, as a result, the matches of the Club’s U-19, U-21 and UPL teams were not held.

B. Proceedings before the FFU judicial bodies

12. The FFU initiated disciplinary proceedings against FC Dynamo Kyiv and on 11 September 2017, the FFU Control and Disciplinary Committee passed three decisions with respect to the non-attendance of each of the FC Dynamo Kyiv teams at the U-19 Match, the U-21 Match and the UPL Match respectively and sanctioned them with a forfeit and a 3-0 loss of the Matches

FC Dynamo Kyiv (U-21) v. FFU FC Dynamo Kyiv (U-19) v. FFU, award of 30 July 2018 (operative part of 19 February 2018)

due to non-attendance of the FC Dynamo Kyiv teams. The FFU Control and Disciplinary Committee also imposed fines on FC Dynamo Kyiv as follows: UAH 5,000 on the U-19 team, UAH 12,500 for the U-21 team and UAH 125,000 for the UPL team.

13. On 9 October 2017, FC Dynamo Kiev appealed against the aforementioned decisions of the FFU Control and Disciplinary Committee.

14. On 14 November 2017, the FFU Appeal Committee rendered three decisions and rejected the appeals of FC Dynamo Kyiv (“Appealed Decisions”). The Appealed Decisions were communicated to FC Dynamo Kyiv on 24 November 2017 and received on 27 November 2017, determining, inter alia, the following:

“(…) According to paragraph 20 of Article 9 of the Rules of the All-Ukrainian football competitions among the club teams of the Ukrainian Premier League 2017/2018, a team which failed to appear at the match without a good reason shall receive a default loss (3:0), the opposing team wins by default (3:0), and the Club whose team failed to appear at the match shall be subject to disciplinary sanctions. The match shall not be deemed to have been conducted. In accordance with clause 2 of Annex 2 of the FFU Disciplinary Rules, a team which failed to appear at the match for a good reason (in case of a proven guilt of the Club/team) shall be subject to a sanction in the form of a default loss with a score of 0:3 and a compulsory cash contribution in the amount of up to 125,000 hryvnias.

FC Dynamo Kiev does not challenge the fact of non-attendance of the team in the match and the reality of the report of the FFU match delegate A.V. Prokhorovych, however insists on recognizing the reasons for nonattendance as important and the lack of the Club’s guilt. Moreover, it is stated that the Appellant, as of the date of hearing the case by the FFU Control and Disciplinary Committee, argued that he did not appear intentionally in view of dangerous conditions of the match, that indicates his intent to commit the said disciplinary violation.

(…)

In this regard, the FFU Appeal Committee considers it necessary to find out whether the reasons of nonattendance of the Appellant in the match were important. The Club claims that, adhering to the unchanged priority of a human life and health, it decided that it is impossible to send a team to a dangerous zone. Taking into account that the materials of the case lack the decisions of the executives of the Ukrainian Premier League or the FFU on postponing the date, time or place of holding the match in accordance with the Rules of All- Ukrainian football competitions among the club teams of the Ukrainian Premier League 2017/2018, in this case the assessment by FC Dynamo Kyiv of the level of safety of the conditions of holding the match shall be proven.

(…)

FC Dynamo Kyiv (U-21) v. FFU FC Dynamo Kyiv (U-19) v. FFU, award of 30 July 2018 (operative part of 19 February 2018)

The FFU Appeal Committee believes that in Mariupol the law enforcement agencies shall, while ensuring public safety and public order in accordance with the applicable laws of Ukraine, take into account the proximity of the city to the ATO zone. This fact is a source of artificial danger when preparing and staging the football matches in the city of Mariupol in terms of the aforementioned legislation. However, FC Dynamo Kyiv has not provided evidence, and the FFU Appeal Committee does not have sufficient grounds to believe that the law enforcement agencies do not take into account the proximity of the city to the ATO zone, and the measures envisaged by the law are not carried out properly in the given situation. Therefore, the Club’s argument that the procedures for ensuring public safety and public order are inconsistent with the actual threat is not a valid reason for not attending the match.

The FFU Appeal Committee has no reason to believe that the activity and reinforced measures taken by law enforcement agencies are insufficient to prevent and disrupt terrorist acts. Nevertheless, given the Club’s concern about the risk of hostilities that may be initiated in the city of Mariupol from the areas not controlled by Ukraine, the FFU Appeal Committee believes that the Appellant’s arguments are biased and pursue its own goals. Analysis of the available case records demonstrates that, as far as possible hostilities are concerned, the situation in the city of Mariupol is stable, in other words, no conflicts are being envisaged.

The FFU Appeal Committee also notes that in its appeal and during the immediate speech, the representative of the Appellant confused and substituted the concept of “a terrorist threat” and “a threat of military actions”. According to the Club, a high level of a terrorist threat would have caused the postponement or cancellation of the match. However, pursuant to Attachment 22 to The Regulations Governing the All-Ukrainian Football Competitions for Teams of the Ukrainian Premier League Member Clubs in Season 2017/18 and Annex 6 to The Rules on Infrastructure of Stadiums and Security Measures at the FFU Football Matches, all matters relating to the combating of terrorism shall be viewed by the appropriate government authorities as part of the general strategy of national security; furthermore, these authorities shall provide specific recommendations concerning the terrorist threat before a match takes place. Anti-terrorist measures should be incorporated into action plans for emergency situations at the stadium if possible. If there is an increased risk of terrorist activity at a particular stadium or during the event as a whole, there may be a need for a more detailed inspection of people and vehicles entering the stadium.

Based on the analysis of available materials, it was found that on 17.08.2017 the Committee for stadiums and safety of holding the FFU competitions examined the possibility of staging the matches of the Ukrainian Premier League in the city of Mariupol, decided to continue the matches and obliged FC Mariupol to take additional safety measures. According to the protocol of the meeting, the Committee considered the positions of FC Dynamo Kyiv, the Ukrainian Premier League and law enforcement agencies. The FFU Appeal Committee disagrees with the Appellant’s assessment of the ability of organizers, local self-government authorities, bodies ensuring public safety to technically, financially and organizationally counteract the threats that may arise in the city of Mariupol on the day of the match. Based on this argument, the representative of FC Dynamo Kyiv subjectively, at his own discretion, conducts an assessment of the work of entities ensuring public safety and safety when holding the football matches without any evidence of incompetence of the entities. In the opinion of the FFU Appeal Committee, the Ukrainian Premier League and the FFU impartically

FC Dynamo Kyiv (U-21) v. FFU FC Dynamo Kyiv (U-19) v. FFU, award of 30 July 2018 (operative part of 19 February 2018)

assessed the lack of safety risks when staging the match and deliberately did not change the date, time or place of the match without the reasonable grounds.

However, the Club states that all law enforcement agencies have reported on the inexpediency of staging the football matches in the city of Mariupol and the need for their postponement due to the existence of a real threat to safety and even the lives of players and fans. According to the Appellant, the letters from the law enforcement agencies should have been the ground for the postponement of the date, time or place of the match. However, the FFU Appeal Committee believes that recent prior to the match day confirmations by the Donetsk Regional Military and Civil Administration, the Security Service of Ukraine and the National Police of Ukraine of guarantees that all safety measures envisaged by the applicable legislation are the prevailing and actual evidence of the situation of ensuring public safety and public order in the territory of the city of Mariupol. In other words, the letters received by the FFU and the Ukrainian Premier League later on are more relevant, actual, have an overwhelming evidentiary effect.

As to the substantiation of the exclusivity of holding the match with the participation of FC Dynamo Kyiv due to the events of the Revolution of Dignity and some examples of inhuman treatment in the areas controlled by the terrorist, in the opinion of the FFU Appeal Committee, these circumstances are not connected with the match FC Mariupol –FC Dynamo Kyiv, at which FC Dynamo Kyiv team failed to appear. The FFU Appeal Committee also notes that the materials of the case lack evidence of terrorist or military actions when staging the match of the Matchday 5 of the Ukrainian Premier League FC Mariupol – FC Karpaty Lviv held on 13.08.2017, where the fans of the latter have no less active position regarding the above issue. Therefore, the FFU Appeal Committee does not consider that the existence of a terrorist threat or a danger depends on the club itself or on the fact that the national symbols of the country are present in the form of a team. FC Dynamo Kyiv provided no evidence that the presence of their club in Mariupol may change the situation compared with the presence of other clubs of the Ukrainian Premier League and the Professional Football League which attended matches in2016/2017 and in the beginning of 2017/2018.

(…)

Thus, taking into account the available materials of the case, the FFU Appeal Committee believes that the assessment by FC Dynamo Kyiv of safety of the match was subjective, it was based on its own unwillingness to go to Mariupol and did not give any legal grounds not to appear on 27.08.08 at the match of the Matchday 7 of the Ukrainian Premier League Championship FC Mariupol – FC Dynamo Kyiv. In the opinion of the FFU Appeal Committee, the FFU Control and Disciplinary Committee fully and correctly applied the regulations of the FFU and the Ukrainian Premier League, as well as the practice of the Court of Arbitration for Sport (CAS) (Lausanne, Switzerland) to substantiate its position. Given this, FC Dynamo Kyiv had no good reason not to show up at the match, and therefore the penalties of the FFU Control and Disciplinary Committee were applied correctly. (…)” (The above-cited extracts are selected from the decision rendered in the matter regarding the non-attendance of the UPL team, as the grounds of all three Appealed Decisions are almost identical. The translation of the quoted extracts into English is an unofficial translation provided by the Appellant).

FC Dynamo Kyiv (U-21) v. FFU FC Dynamo Kyiv (U-19) v. FFU, award of 30 July 2018 (operative part of 19 February 2018)

III. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT

15. On 8 December 2017, the Appellant lodged three statements of appeal in accordance with Articles R47 and R48 of the Code of Sports-related Arbitration (the “Code”) with the Court of Arbitration for Sport (the “CAS”), against the FFU, challenging the Appealed Decisions. The CAS Court Office initiated three arbitration proceedings as follows: CAS 2017/A/5448 for the Appealed Decision issued with respect to the UPL Match, CAS 2017/A/5449 for the Appealed Decision issued with respect to the U-21 Match and CAS 2017/A/5450 for the Appealed Decision issued with respect to the U-19 Match.

16. With its statements of appeal, the Appellant nominated Mr Michele A.R. Bernasconi, attorneyat-law in Zurich, Switzerland, as arbitrator in all three proceedings. The Appellant also requested that these matters be expedited in accordance with Article R52 of the Code and that, given the similarity of the cases, the three proceedings be consolidated in a single procedure before the CAS.

17. On 14 December 2017, the Respondent confirmed that it agreed to submit the three proceedings to the same Panel. The Respondent further informed the CAS Court Office that, although it did not agree to expedited proceedings, it had a keen interest to the present matters being resolved expeditiously and will make all appropriate efforts to ensure that.

18. On 15 December 2017, the CAS Court Office wrote to the parties confirming that the three matters will be submitted to the same Panel and that no expedited procedure shall be implemented.

19. On 16 December 2017, the Appellant filed three appeal briefs, requesting the CAS to:

“(1) CONFIRM that the present appeal is admissible and CAS has jurisdiction to entertain the present dispute.

(2) PROCEED in this case as swiftly and promptly as possible within the standard procedure and within reasonable possibility to issue the operative part of the decision before 20 February 2018.

(3) CALL witnesses listed in section VIII of the AB who can testify to the facts referred to in the AB.

(4) REVIEW the present case as to the facts and as to the law, in compliance with Article R57 of the Code of Sports-related Arbitration.

(5) ISSUE a new decision, by which:

FC Dynamo Kyiv (U-21) v. FFU FC Dynamo Kyiv (U-19) v. FFU, award of 30 July 2018 (operative part of 19 February 2018)

i. SET ASIDE the FFU AC Decision dated 14 November 2017 in the case reviewed on appeal submitted by FC Dynamo Kyiv against the FFU CDC decisions of 11.09.2017 “Regarding the FC Dynamo Kyiv’s non-attendance at the match of the Matchday 7 of the UPL Championship between FC Mariupol and FC Dynamo Kyiv on 27.08.2017”;

ii. CONFIRM that FC Dynamo Kyiv has not committed the disciplinary violation provided for by cl. 2 of Annex 2 to the FFU DR, recognise that Dynamo’s team had valid (good) reasons for non-attendance to the match of the Matchday 7 between FC Mariupol and FC Dynamo Kyiv in the Ukrainian Premier League Competitions, and determine that the Club was not at fault;

iii. ORDER that the Respondent provides for the match of the Matchday 7 between FC Mariupol and FC Dynamo Kyiv in the Ukrainian Premier League Competitions to be replayed at a suitable date, time and venue (neutral venue in a different city than Mariupol).

(6) ORDER the Respondent to bear all costs and legal expenses relating to the present procedure”.

“(1) CONFIRM that the present appeal is admissible and CAS has jurisdiction to entertain the present dispute.

(2) PROCEED in this case as swiftly and promptly as possible within the standard procedure and within reasonable possibility to issue the operative part of the decision before 20 February 2018.

(3) CALL witnesses listed in section VIII of the AB who can testify to the facts referred to in the AB.

(4) REVIEW the present case as to the facts and as to the law, in compliance with Article R57 of the Code of Sports-related Arbitration.

(5) ISSUE a new decision, by which:

i. SET ASIDE the FFU AC Decision dated 14 November 2017 in the case reviewed on appeal submitted by FC Dynamo Kyiv against the FFU CDC decisions of 11.09.2017 “Regarding the FC Dynamo Kyiv’s non-attendance at the match of the Matchday 7 of the Ukrainian Championship U-21 between FC Mariupol and FC Dynamo Kyiv on 26.08.2017”;

ii. CONFIRM that FC Dynamo Kyiv has not committed the disciplinary violation provided for by cl. 2 of Annex 2 to the FFU DR, recognise that Dynamo’s team had valid (good) reasons for non-attendance to the match of the Matchday 7 between FC Mariupol and FC Dynamo Kyiv in the Ukrainian Premier League Competitions, and determine that the Club was not at fault;

FC Dynamo Kyiv (U-21) v. FFU FC Dynamo Kyiv (U-19) v. FFU, award of 30 July 2018 (operative part of 19 February 2018)

iii. ORDER that the Respondent provides for the match of the Matchday 7 between FC Mariupol and FC Dynamo Kyiv in the Ukrainian Premier League Competitions to be replayed at a suitable date, time and venue (neutral venue in a different city than Mariupol).

(6) ORDER the Respondent to bear all costs and legal expenses relating to the present procedure”.

“(1) CONFIRM that the present appeal is admissible and CAS has jurisdiction to entertain the present dispute.

(2) PROCEED in this case as swiftly and promptly as possible within the standard procedure and within reasonable possibility to issue the operative part of the decision before 20 February 2018.

(3) CALL witnesses listed in section VIII of the AB who can testify to the facts referred to in the AB.

(4) REVIEW the present case as to the facts and as to the law, in compliance with Article R57 of the Code of Sports-related Arbitration.

(5) ISSUE a new decision, by which:

i. SET ASIDE the FFU AC Decision dated 14 November 2017 in the case reviewed on appeal submitted by FC Dynamo Kyiv against the FFU CDC decisions of 11.09.2017 “Regarding the FC Dynamo Kyiv’s non-attendance at the match of the Matchday 7 of the Ukrainian Championship U-19 between FC Mariupol and FC Dynamo Kyiv on 18.08.2017”;

ii. CONFIRM that FC Dynamo Kyiv has not committed the disciplinary violation provided for by cl. 2 of Annex 2 to the FFU DR, recognise that Dynamo’s team had valid (good) reasons for non-attendance to the match of the Matchday 7 between FC Mariupol and FC Dynamo Kyiv in the Ukrainian Premier League Competitions, and determine that the Club was not at fault;

iii. ORDER that the Respondent provides for the match of the Matchday 7 between FC Mariupol and FC Dynamo Kyiv in the Ukrainian Premier League Competitions to be replayed at a suitable date, time and venue (neutral venue in a different city than Mariupol).

(6) ORDER the Respondent to bear all costs and legal expenses relating to the present procedure”.

20. On 27 December 2017, the Respondent nominated Mr Hendrik Willem Kesler, attorney-at-law in Enschede, The Netherlands, as arbitrator.

21. On 3 January 2018, the Appellant wrote a letter to the CAS Court Office requesting that the operative part of the decision be rendered before 20 February 2018. This request was made on

FC Dynamo Kyiv (U-21) v. FFU FC Dynamo Kyiv (U-19) v. FFU, award of 30 July 2018 (operative part of 19 February 2018)

the basis that it was imperative that the matter be decided by that time because of the format of the UPL, which is conducted in a double round robin system in the first half of the season, after which the league teams are split in half into two groups and the teams of each group play another double round robin tournament with the clubs of their own respective group.

22. On 17 January 2018, the CAS Court Office informed the parties that the Panel appointed to decide the present matters was constituted as follows:

President: Mr Sofoklis Pilavios, attorney-at-law in Athens, Greece Arbitrators: Mr Michele A.R. Bernasconi, attorney-at-law in Zurich, Switzerland Mr Hendrik Willem Kesler, attorney-at-law in Enschede, The Netherlands.

23. On 5 February 2018, the Respondent filed its answer requesting the CAS:

“230. (…) (i) to dismiss the appeal filed by FC Dynamo Kyiv on 8 December 2017 in relation to its UPL

(ii) to confirm the decision of the Appeal Committee of the Football Federation of Ukraine dated 14 November 2017;

(iii) to order FC Dynamo Kyiv to pay the full CAS arbitration costs;

(iv) to order FC Dynamo Kyiv to make a contribution to the Respondent’s legal and other costs related to these proceedings, in an amount that the Panel deems appropriate.

231. (…) (i) to dismiss the appeal filed by FC Dynamo Kyiv on 8 December 2017 in relation to its U-21

(ii) to confirm the decision of the Appeal Committee of the Football Federation of Ukraine dated 14 November 2017;

(iii) to order FC Dynamo Kyiv to pay the full CAS arbitration costs;

(iv) to order FC Dynamo Kyiv to make a contribution to the Respondent’s legal and other costs related to these proceedings, in an amount that the Panel deems appropriate.

232. (…) (i) to dismiss the appeal filed by FC Dynamo Kyiv on 8 December 2017 in relation to its U-19

(ii) to confirm the decision of the Appeal Committee of the Football Federation of Ukraine dated 14 November 2017;

FC Dynamo Kyiv (U-21) v. FFU FC Dynamo Kyiv (U-19) v. FFU, award of 30 July 2018 (operative part of 19 February 2018)

(iii) to order FC Dynamo Kyiv to pay the full CAS arbitration costs;

(iv) to order FC Dynamo Kyiv to make a contribution to the Respondent’s legal and other costs related to these proceedings, in an amount that the Panel deems appropriate”.

24. On 7 February 2018, the Appellant wrote a letter to the CAS Court Office commenting on the issue of lack of standing to be sued, which was raised by the Respondent in its answer, claiming namely that the appeals were not directed against FC Mariupol even though it was clearly also an affected party. The Appellant argued that, in accordance with Article R56 of the Code, the parties were allowed to supplement or amend their requests or their arguments and to produce new exhibits on the basis of exceptional circumstances.

25. On 8 February 2018, the CAS Court Office wrote a letter to the parties informing them that the Panel will decide on the admissibility of the Appellant’s comments on the issue of standing at the hearing.

26. On 12 February 2018, a hearing took place at the CAS Headquarters in Lausanne, Switzerland for the present consolidated case.

27. The Panel was assisted by Mr José Luis Andrade, Counsel to the CAS.

28. The following persons attended the hearing:

- The Appellant was represented by Mr Ihor Surkis, President of the Club, and by its legal counsels, Mr Ralph Oswald Isenegger, Mr Dmytro Brif and Ms Olga Zhukovska.

- The Respondent was represented by Mr Andriy Pavelko and Mr Yuriy Zapisotskyi, its President and General Secretary respectively, and by its legal counsels, Mr David Casserly and Mr Anton Sotir.

29. At the outset of the hearing, the parties confirmed that they did not have any objection as to the constitution and composition of the Panel.

30. The Panel heard evidence by the following witnesses:

- Mr Mykhailo Glugovskyi, former Deputy Chairman of the Ukrainian Security Services, Mr Olexsandr Bandurko, FFU first Vice-President, Mr Igor Kochetov, FFU Vice- President, Mr Andriy Madzianovskyi, FC Dynamo Kyiv Vice-President and Mr Artem Frankov, journalist, called by the Appellant.

- Mr Vladyslav Golub, member of the FFU Executive Committee, Mr Gennadiy Prokopovych, head of the FFU Stadiums Committee, Mr Andriy Sanin, Vice-President of

FC Dynamo Kyiv (U-21) v. FFU FC Dynamo Kyiv (U-19) v. FFU, award of 30 July 2018 (operative part of 19 February 2018)

FC Mariupol, Mr Aleksei Khakhlev, President of FC Veres, Mr Oleg Lysak, Vice- President of FC Vorskia, Mr Maskym Efimov, member of the FFU Executive Committee and President of the Donetsk Regional Football Federation, Mr Sergiy Makarov, President of UPL, called by the Respondent.

31. During the hearing, the Panel directed the parties to communicate directly with the objective of reaching a settlement and also allowed for a short recess of the hearing, whereas the representatives of FC Mariupol were at some point contacted by the Respondent to this end. However, and in spite of the Panel’s attempts, it was impossible for the parties to reach a settlement. As a result, the proceedings were resumed.

32. At the conclusion of the hearing, the parties confirmed that their right to be heard and to be treated equally in the present proceedings before the Panel had been fully respected, following which the Panel closed the hearing and announced that the operative part of its award would be rendered until 20 February 2018.

33. Considering that the reasoning of the Appealed Decisions was virtually identical, as was the applicable regulations, and that the parties submitted common arguments in all three arbitrations, the Panel decided to issue one single award for the three appeals.

IV. SUBMISSIONS OF THE PARTIES

34. The following outline of the parties’ positions is illustrative only and does not necessarily comprise every submission advanced by the Appellant and the Respondent. The Panel has nonetheless carefully considered all the submissions made by the parties, whether or not there is specific reference to them in the following summary.

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

- The Appellant argues that it had a valid (justified) reason to not attend the Matches because of the legitimate concerns for the players’ and spectators’ safety, caused by the proximity of the Mariupol venues and particularly the Illichivets stadium to the established Anti-Terrorist Operation Zone near Mariupol and the fact that the holding of the Matches was scheduled close to Ukraine’s Independence Day. Therefore, the provision of the FFU Disciplinary Code on non-attendance without good reason does not apply and no disciplinary sanctions may be imposed to it by the Respondent.

- The Appellant submitted its safety related concerns and a relocation request before the Respondent in a timely manner. Its request was further endorsed by the opinions of several national law enforcement and security authorities, which suggested in writing and

FC Dynamo Kyiv (U-21) v. FFU FC Dynamo Kyiv (U-19) v. FFU, award of 30 July 2018 (operative part of 19 February 2018)

upon request of the Appellant, in view of the security concerns and threat level, to proceed by “relocating the matches to a neutral venue at a safe distance from the Anti-Terrorist Operation zone” because “it would be dangerous and inexpedient to hold matches of the Ukrainian Football Championship in this city” and “holding football matches in Mariupol is dangerous and poses a threat – particularly of the terrorist nature – to the lives of participants of sporting events”.

- The level of terrorist activity in the Donbass region is evidenced in the records of the Ukrainian Security Service, which report the prevention of terrorist acts in Mariupol on 14 and 27 July 2017, and the press briefings of the Defence Ministry of Ukraine in August 2017, which refer to armed clashes in and around the Mariupol area, involving heavy firing and use of artillery, mortars and grenade launchers. The Appellant refers also to the most grave incident in Mariupol, which took place on 24 January 2015, when residential areas of the city sustained attacks by artillery and rocket launcher systems.

- Lastly, the journey from Kyiv to Mariupol is also dangerous as it involves a flight to Zaporizhia airport, which is the nearest to Mariupol, and a 280 km bus ride, 40 km of which is through Donetsk Oblast territory that is also on a red level of terrorist threat. The Appellant asserts that the imposition of an obligation to undergo such a journey runs counter both the UEFA decision of 2015 to ban international matches in Zaporizhia (which should also apply to Mariupol given the circumstances) and a proposal by the European Aviation Safety Agency to institute a ban on all flights in Dnipropetrovsk airspace, which includes Zaporizhia.

- The Appellant invokes several factors that constitute an increased level of threat in the specific case of its teams, staff and fans travelling through areas near the Anti-Terrorist Operation Zone, which is mostly under the control of anti-government groups. For instance, the Appellant argues that the role of the Appellant’s fans, their support for the Ukrainian Revolution and their open confrontation against the separatist groups controlling Donetsk Oblast, the use of traditional Ukrainian embroideries in some of the club’s kits, which are a national symbol of Ukraine and part of the Ukrainian national costume, as well as the fact that the Matches were scheduled very close to the Ukrainian Independence Day, are all factors which could very well cause an increase in the separatist groups activity specifically targeting the Appellant’s teams, staff and fans.

- The Appellant claims that it is not at fault for the non-attendance of the Matches, as it took all necessary actions in good time both with the State and the football authorities, in order to ensure the safety of the participants and, when this was not possible, to obtain a decision by the FFU or the UPL to relocate the Matches. The Appellant further claims that the Respondent did not take any steps to address the safety concerns voiced not only by the Appellant but by other clubs as well and its President continued to announce in public that hosting matches in Mariupol is safe.

FC Dynamo Kyiv (U-21) v. FFU FC Dynamo Kyiv (U-19) v. FFU, award of 30 July 2018 (operative part of 19 February 2018)

- The Appellant claims that the Respondent has a history of implementing a double standard against the Appellant and in favour of the club FC Shakhtar Donetsk and that both the FFU Committee for Stadiums and Safety of Competitions and the FFU judicial organs that passed the Appealed Decisions blatantly ignored the key evidence supporting the Appellant’s position. Most importantly, to the Appellant, the FFU Committee and judicial organs concluded that the safety of the Matches was not under threat on the basis of football regulations and security and safety plans that lack any specific provisions and consideration of the possibility of a terrorist attack. Moreover, Ukrainian State and local authorities never changed their assessments and position on the threat level with respect to holding the Matches in Mariupol. Lastly, the Respondent’s refusal to relocate the Matches is contrary to the international practice of relocating matches due to safety issues, particularly taking into account the examples put forward (the case of Israel and the UEFA 2006 home matches ban, a FIFA World Cup qualifier between Albania and Israel and a match of the AFC Asian Cup).

- The Appealed Decisions were rendered on the basis of political motives as the FFU President is at the same time a member of the Ukrainian Parliament. Moreover, several members of the FFU Appeal Committee had a conflict of interest involving the traditional rival of the Appellant, FC Shakhtar Donetsk.

36. The Respondent’s submissions, in essence, may be summarized as follows:

- During a UPL General Meeting on 2 June 2017, the Appellant expressed security fears and refused to go to Mariupol for the Matches on account of unspecified UEFA regulations, which allegedly required that the stadium should be located less than 110 km from an airport and also because the bus of the Appellant would be a target for the terrorists. FC Karpaty, which also supported the Appellant’s position in the first place, eventually played its scheduled match with FC Mariupol in Mariupol. Moreover, there were no security issues or threats during any of the FC Mariupol home matches during the 2017/2018 season in all competitions.

- By letters of the Department of the Security Service of Ukraine in the Donetsk region and by the Donetsk Regional State Administration, sent to FC Mariupol and the UPL respectively, it was confirmed that football matches were being hosted in Mariupol since the 2016/2017 season, despite the highest level of terrorist threat in the region, and that the law enforcement and military personnel deployed in the region were capable of providing public security and safety during the UPL matches. In response to a request from the Appellant, the FFU Stadium Committee decided not to relocate the UPL matches scheduled to take place in Mariupol, as there was no reason to ban a stadium that complied with all necessary requirements. That decision was confirmed by the FFU Executive Committee on 22 August 2017.

FC Dynamo Kyiv (U-21) v. FFU FC Dynamo Kyiv (U-19) v. FFU, award of 30 July 2018 (operative part of 19 February 2018)

- In addition, prior to the UPL Match and in accordance with the UPL regulations requirements, FC Mariupol presented a plan for public security and safety during the UPL Match, as it was required to do for every home match. The same plan was presented in relation to the U-21 Match. On 23 August 2017, in accordance with the UPL regulations, FC Mariupol presented the Certificate of infrastructure readiness, confirming that the venue for the UPL Match complied with all requirements, which was signed by officers of the Security Services of Ukraine, the National Police and Mariupol City Council. The same was confirmed with respect to the U-21 Match.

- The Respondent claims that, in accordance with the FFU regulations and extensive CAS jurisprudence, the Appellant bears the burden of proof to establish that the reason it relies upon to justify the non-attendance at the Matches was indeed significant. In addition, the Respondent contradicts the Appellant’s position that criminal law principles and standards apply to the establishment of the offence at issue and argues that jurisprudence from the CAS and the Swiss Federal Tribunal dictate that criminal law standards are not applicable in the determination of whether disciplinary offences have been committed in the context of private disciplinary actions conducted within the field of freedom of associations.

- Any matter raised by the Appellant in its brief other than the challenged FFU decision and the imposition of a sanction to the Appellant is irrelevant and beyond the scope of the appeal. The only matters of relevance in these arbitrations are whether the Appellant has proven that it had a significant reason not to attend the Matches and whether the imposition of the sanctions was legal. In this respect, the Respondent also points out that the Appellant did not challenge any member of the FFU judicial bodies nor did it raise any issue of violation of its procedural rights.

- The Appellant did not file these appeals against FC Mariupol even though it is also an affected party by the challenged decision and, additionally, granting the Appellant’s prayers for relief (i) and (iii) shall affect its legal standing. Therefore, the present arbitration should not assess the Appellant’s requests related to the sanction of the technical victory awarded to FC Mariupol and to the Matches being replayed or not.

- The Appellant does not dispute that it was possible to attend the Matches; it rather claims that it decided not to travel to Mariupol on account of safety concerns. However, the Appellant failed to prove the existence of a significant reason for its non-appearance at the Matches as all the arguments of the Appellant to that regard cannot stand. The letters of Ukrainian State authorities do not expressly forbid the holding of the Matches or the Appellant’s appearance. The Appellant’s general concerns on safety in Mariupol are unfounded as several public events, including UPL matches, are held in the city without any incident at all. The Appellant has been constantly changing its position: the

FC Dynamo Kyiv (U-21) v. FFU FC Dynamo Kyiv (U-19) v. FFU, award of 30 July 2018 (operative part of 19 February 2018)

celebration of the Ukrainian Independence Day is not related to the holding of the Matches and the Appellant cannot validly claim that the club, its fans and players are specifically targeted by terrorists. In addition, there were no specific threats made to the Appellant or any individual threats made to any of its players.

- The Respondent further argues that the concept of justified grounds for non-attendance, on which the Appellant relies, should be narrowly interpreted, in line with previous CAS awards which have held in similar cases that the obligation to appear and compete in accordance with the dates set in the sporting calendar is one of the most basic obligations in the sporting system.

- In response to the Appellant’s arguments, the Respondent also points out that FC Mariupol has hosted several other teams of the UPL in the current season 2017/2018 and that even the Appellant’s second team played a match for “Persha Liga” in Mariupol against FC Illichivets on 6 May 2016, as did the Appellant’s U-19 team on 18 May 2016. Moreover, the matches hosted by FC Mariupol in the current season achieved very high attendance and all of them rank within the first three places of the attendance ranking of each Matchday.

- Therefore, the Respondent claims that the Appellant failed to prove that it indeed had a significant reason not to attend the Matches, and that the challenged decisions were passed and the sanctions imposed in accordance with the UPL Regulations.