Manchester City FC v. UEFA

III. FACTUAL BACKGROUND

5. Below is a summary of the main relevant facts, as established on the basis of the written submissions of the Parties and the evidence examined in the course of the proceedings including at the hearing. This background information is given for the sole purpose of providing a synopsis of the matter in dispute. Additional facts may be set out, where relevant, in connection with the legal discussion.

A. Proceedings before the Investigatory Chamber as to the Referral Decision

6. On 16 May 2014, following an investigation opened on 11 February 2014 into perceived breaches by MCFC of the UEFA CL&FFPR, UEFA and MCFC entered into a settlement agreement (the “Settlement Agreement”), which, inter alia, specifies that MCFC did not admit to be in breach of the UEFA CL&FFPR.

7. Between 2 and 16 November 2018, several articles were published by Der Spiegel, Reuters and Mediapart about MCFC (the so-called “Football Leaks”).

8. On 10 December 2018, the Chief Investigator of the Investigatory Chamber wrote to MCFC about these “Football Leaks”, attaching extracts of publications and inviting MCFC to comment on the accuracy thereof.

9. On 7 March 2019, following the exchange of various correspondences between the Investigatory Chamber and MCFC, the Investigatory Chamber notified MCFC that “further to our letters for your attention dated 14 and 19 February 2019, your club’s response dated 1st March 2019 and subsequent information and documents recently made public in various media outlets, an investigation is hereby formally opened in accordance with Article 12 (2) of the Procedural rules governing the UEFA Club Financial Control Body – Edition 2015 [the “CFCB Procedural Rules”]” (the “Investigation”).

10. On 28 March and 11 April 2019 respectively, hearings took place before the Investigatory Chamber.

11. On 15 May 2019, the Investigatory Chamber issued the Referral Decision. The Referral Decision contains the following conclusions in respect of the recommended sanction and the following operative part:

“[…].”

B. Proceedings before the Investigatory Chamber as to the Leaks Decision

12. On 13 May 2019, before the Referral Decision was issued, the newspaper The New York Times published an article entitled “UEFA Investigators Set to Seek Manchester City’s Ban From Champions League”, […].

13. On 14 May 2019, MCFC wrote to the Investigatory Chamber about the First Leak indicating¸ inter alia, that “the processes of the [Investigatory Chamber] should be paused forthwith pending investigation given the process is now contaminated and the [Investigatory Chamber’s] independence compromised”.

14. Also on 14 May 2019, the Associated Press published a further article entitled “Man City facing 1-season ban from Champions League”, which article, according to MCFC, contained more information than in The New York Times article, confirming that it was a separate and further leak (the “Second Leak”). […].

15. On 15 May 2019, before the Referral Decision was issued, MCFC wrote to the Investigatory Chamber about the Second Leak, inter alia, requesting that the Investigatory Chamber pause the Investigation to investigate the leaking of information by the Investigatory Chamber.

16. The Investigatory Chamber did not respond to MCFC’s requests at that time and issued the Referral Decision in the evening of 15 May 2019.

17. On 16 May 2019, MCFC wrote to the Investigatory Chamber again about the First and Second Leaks.

18. On the same date, the newspaper The New York Times published a further article entitled “What it means for furious Manchester City after Uefa moves case for judgment”. According to MCFC, also this article contained details that were not included in either the The New York Times or the Associated Press articles, thus confirming that there had been a yet further leak (the “Third Leak”). […].

19. On 20 May 2019, the CFCB Chief Investigator acknowledged receipt of MCFC’s letters dated 14, 15 and 16 May 2019 and informed MCFC as follows:

“I must vehemently reject your allegations of unlawful activities, either by myself or by any of the members of the UEFA CFCB, in particular of its Investigatory Chamber (IC).

Your allegations are groundless in the merits and unacceptable in tone. Please be advised that I will not continue such an exchange of correspondence and that I will not respond further to groundless accusations directed against me personally and/or against my fellow members of the IC.

I can assure you that at no time, myself or any of my fellow members of the IC have violated any rights of your club. As you are well aware, all procedural rights of your club have been respected and all requests, insofar as justified and relevant, have been granted. The proceedings before the IC were conducted in good faith and in an independent, objective and fair manner, as you know well.

Moreover, I confirm that there is no intention to publish the [Referral Decision] in whole or in part. I refer to Article 14 of the [CFCB Procedural Rules] which does not foresee the publication of a decision of the [Investigatory Chamber] to refer the case to the [Adjudicatory Chamber].

I also note that you continue to comment on issues that fall within the scope of the Referral Decision, which was rendered by the IC on 15 May 2019. You will be aware that these matters are now before the [Adjudicatory Chamber]. Your club will have all rights to defend itself before that chamber, in accordance with the applicable UEFA rules and I am not in a position to comment on such matters further.

For all issues that do not fall within the scope of the Referral Decision, and as far as these issues remain pending before the IC, I can again assure you that your club will be granted all the rights to defend its position. Insofar as this will be necessary and requested, you club will again be heard accordingly by the IC, in compliance with the applicable UEFA rules.

Your club will be informed, in due course and in line with the applicable rules, of any further procedural steps that may be taken in this respect.”

20. On 5 June 2019, after MCFC had already filed its appeal before the Court of Arbitration for Sport (“CAS”) referred to below, the Associated Press published another article entitled “AP Sources: Man City asks court to block UEFA case”. MCFC submits that it is clear that yet further confidential information contained in the Referral Decision was leaked and that it is clear that “it is obvious that the ‘people with knowledge of the case… [who] spoke on condition of anonymity because details of the ongoing investigation are confidential…’ are UEFA personnel, whether from the IC or from the UEFA administration” (the “Fourth Leak”).

21. Also on 5 June 2019, newspaper The Sun published a further article entitled “GO TO THE LAW Man City Champions League ban fears grow as club launch appeal to CAS over FFP probe”. The article expressly refers to an “insider” at UEFA disclosing information (the “Fifth Leak”).

IV. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT

22. On 24 May 2019, MCFC filed a Statement of Appeal with CAS against the Referral Decision and the so-called Leaks Decision, in accordance with Articles R47 and R48 of the 2019 edition of the CAS Code of Sports-related Arbitration (the “CAS Code”). MCFC named UEFA as the sole respondent. MCFC nominated Mr Andrew de Lotbinière McDougall, Attorney-at-Law in Paris, France, as arbitrator.

23. On 4 June 2019, further to a request of MCFC to confirm that Articles R43 and R59 CAS Code apply to the present appeal arbitration proceedings and that “the content of the Referral Decision and all materials relating to the present appeal must be kept confidential by the parties, the arbitrators and CAS”, the CAS Court Office replied that “[a]lthough Article R59 of the Code is crystal clear, the Parties are advised that it is not for the CAS Court Office to confirm whether the Parties’ understanding of the Code Rules is correct”.

24. On 11 June 2019, UEFA nominated Mr Ulrich Haas, Professor of Law in Zurich, Switzerland, as arbitrator.

25. On the same date, in accordance with Article R51 CAS Code, MCFC filed its Appeal Brief.

26. On the same date, MCFC filed an application for provisional measures, with the following prayers for relief:

“(a) a declaration that Article R43 and R59 of the CAS Code apply to the present proceedings;

(b) an Order that the Respondent (including all of its servants and agents) keep strictly confidential the content of the Referral Decision and not disclose or allow to be disclosed its contents, in whole or in part, to any third party, including but not limited to media outlets;

(c) an Order that the Respondent (including all of its servants and agents) keep confidential all materials and their contents relating to the present arbitration and not disclose or allow to be disclosed those materials and their contents, in whole or in part, to any third party, including but not limited to media outlets;

(d) an Order that the Respondent disclose the steps that it took on discovering the breaches of confidence relating to its Investigation of the Appellant and the present arbitration, including disclosing to the Appellant any internal or external communications in relation to such steps;

(e) any further Order or other measure that the CAS considers necessary to prevent the disclosure by the parties and arbitrators to the present arbitration, or the CAS, of any information relating to the dispute or the proceedings, without the express prior written consent of the parties, the arbitrators and the CAS; and

(f) an Order that UEFA pay the costs of this Application.”

27. On 24 June 2019, UEFA filed a combined Answer to MCFC’s Application for Provisional Measures / Request for Bifurcation of the Proceedings, with the following joint prayers for relief:

“127. UEFA respectfully submits the following Prayers for Relief to CAS in relation to Appellant’s Request for Provisional Measures:

1. The Request for Provisional Measures shall be dismissed.

2. All costs in relation to the Request for Provisional Measures shall be charged to Appellant.

128. Furthermore, UEFA respectfully submits the following Request for Bifurcation:

1. The Proceedings CAS 2019/A/6298 shall be bifurcated.

2. CAS shall render a Preliminary Award on Admissibility and it shall declare the Appellant’s Appeal inadmissible.

3. All costs in relation to the Appeal shall be charged to Appellant.

129. UEFA respectfully requests that its deadline to submit its Answer to the Appeal be suspended, pending the determination on the above- mentioned Request for Bifurcation.

130. In any event, UEFA also requests that Appellant be ordered to pay a significant contribution to UEFA’s legal fees, which were triggered by

this illegitimate Appeal and Request for Provisional Measures, at an amount of at least CHF 60’000.-

131. Finally, UEFA reserves the right to modify and amend its Prayers for Relief and to amend its factual and legal submissions, should UEFA surprisingly be forced to submit a full Answer to the Appeal.” (emphasis in original)

28. On 5 July 2019, in accordance with Article R54 CAS Code, and on behalf of the President of the CAS Appeals Arbitration Division, the CAS Court Office informed the Parties that the Panel appointed to decide the present matter was constituted as follows:

➢ Mr Manfred Nan, Attorney-at-Law in Arnhem, the Netherlands, as President; ➢ Mr Andrew de Lotbinière McDougall, Attorney-at-Law in Paris, France; and ➢ Mr Ulrich Haas, Professor of Law in Zurich, Switzerland, as arbitrators.

29. On the same date, MCFC filed its reply to UEFA’s Request for Bifurcation of the Proceedings, requesting that such application be rejected.

30. On the same date, the CAS Court Office informed the Parties that Mr Dennis Koolaard, Attorney-at-Law in Arnhem, the Netherlands, would act as Ad hoc Clerk.

31. On 15 July 2019, the CAS Court Office informed the Parties as follows:

“On behalf of the Panel, the Parties are informed that the Panel took note of the Appellant’s Application for Provisional Measures dated 11 June 2019 and the Respondent’s Answer thereto, dated 24 June 2019.

Considering the nature of the requests made and the Respondent’s Answer to the Request for Provisional Measures, the Panel does not deem it necessary to issue a full-fledged procedural order at this stage. The Panel considers it sufficient to inform the parties that the Code of Sports-related Arbitration (2019 edition) was applicable to the present proceedings since the filing of the Statement of Appeal and that, at least as from receipt of the present letter, all aspects of this procedure are confidential, including “the content of the Referral Decision” and “all materials and their contents relating to the present arbitration”. The Parties are requested to refrain from commenting on this procedure to the media or any person or body not directly involved in the case, in any form. In light of this Panel’s determination, the Appellant is requested to inform the CAS Court Office by 22 July 2019 whether it wishes to maintain its Request for Provisional Measures, bearing in mind that such Request has been addressed by the Panel.

As to the Appellant’s claim for damages on the basis of an alleged breach of confidentiality obligations by the Respondent, such claim may be addressed at a later stage, subject to the outcome of the Respondent’s objection to the admissibility of the present appeal.

In relation to the Appellant’s request for relief d) in its Request for Provisional Measures, this request is denied given i) the lack of a legal basis for the Panel to issue such order and ii) because such finding would imply that the Panel is satisfied that information was leaked to the media by UEFA, which conclusion the Panel considers premature at this stage.

Further, having considered the Respondent’s Request for Bifurcation dated 24 June 2019 and the Appellant’s Response thereto dated 5 July 2019, the Parties are informed that the Respondent’s request for bifurcation of the proceedings on admissibility is granted. The Respondent’s deadline to file its Answer therefore remains suspended pending the issuance of an arbitral award on the bifurcated issue of the admissibility of the appeal.

Finally, considering that the Parties have already exchanged written submissions on the admissibility of the appeal, the Parties are informed that no further submissions shall be authorized to supplement or amend their requests or their argument, nor to produce new exhibits, nor to specify further evidence on which they intend to rely in relation to the admissibility of the appeal, without leave of the Panel.

[…]” (emphasis in original)

32. On 19 and 22 July 2019 respectively, further to an inquiry from the CAS Court Office, UEFA indicated that it did not consider it necessary to hold a hearing limited to the admissibility of the appeal, whereas MCFC requested a hearing to be held.

33. Also on 22 July 2019, MCFC informed the CAS Court Office as follows in respect of its request for provisional measures:

“The Appellant accepts the Panel’s determination with respect to the confidentiality of the present proceedings and, accordingly, no longer requests the Panel to determine its Request for Provisional Measures at this stage. The Appellant reserves the right to renew its Request for Provisional Measures or make a further application for Provisional Measures should the Respondent commit any further breaches of confidentiality during the course of the present proceedings.

The Appellant also reserves the right to claim damages in respect of the Respondent’s prior, and any future, breaches of confidentiality.”

34. The same day, on 22 July 2019, the CAS Court Office informed the Parties that:

“[…] pursuant to Article R57 of the CAS Code, the Panel has decided to hold a hearing strictly limited to the admissibility of the appeal.” (emphasis in original)

35. On 2 August 2019, following consultation of the Parties, the CAS Court Office confirmed that the hearing strictly limited to the admissibility of the appeal would be

held on 15 October 2019. In light of UEFA’s request to issue a reasoned award by 15 November 2019, the CAS Court Office advised the Parties that the Panel would “render the operative part of the preliminary award on admissibility within a month after the hearing” and that the Panel would “make their best efforts to issue the grounds of such preliminary award within the same timeframe, but at this stage the Panel is not in the position to assure it”.

36. On the same date, MCFC sought leave from the Panel to produce three new documents, enclosing such documents to its letter.

37. On 7 August 2019, UEFA objected to the production of new documents by MCFC.

38. On 8 August 2019, the CAS Court Office informed the Parties as follows:

“The President of the Panel, with the agreement of the co-arbitrators, has decided to admit into the file the new evidence filed by the Appellant on 2 August 2019, namely exhibits A-92, A93 and A94. The reasons of this decision will be communicated by the Panel in the preliminary award on the admissibility of the appeal.”

39. On 7 October 2019, MCFC informed the CAS Court Office that both Parties preferred a professional transcriber to be present at the hearing to prepare a transcript.

40. On 9 October 2019, the CAS Court Office informed the Parties that the President of the Panel had approved the Parties’ joint request for a professional transcriber to attend the hearing to prepare a transcript, subject to certain modalities.

41. On 15 October 2019, a hearing was held in Lausanne, Switzerland. At the outset of the hearing, both Parties confirmed that they had no objection to the constitution and composition of the Panel.

42. In addition to the Panel, Mr Antonio De Quesada, CAS Head of Arbitration, Mr Dennis Koolaard, Ad hoc Clerk, and Ms Lisa Garforth, Stenographer, the following persons attended the hearing:

For MCFC:

1) Mr Simon Cliff, General Counsel, City Football Group; 2) Mr James Cranston, Head of Litigation, City Football Group; 3) Mr Josh Blake, Trainee Solicitor, City Football Group; 4) Mr Paul Harris QC, Barrister; 5) Mr Jean-Cédric Michel, Counsel; 6) Mr Massimiliano Maestretti, Counsel; 7) Mr Rhodri Thomas, Counsel; 8) Ms Natalie Sheehan, Counsel

For UEFA:

1) Dr Jan Kleiner, Counsel; 2) Mr Luca Tarzia, Counsel

43. No witnesses or experts were heard. Both Parties had a full opportunity to present their case, submit their arguments and answer the questions posed by the Panel.

44. Before the hearing was concluded, both Parties expressly stated that they did not have any objection to the procedure adopted and that their right to be heard had been respected.

45. On 21 October 2019, MCFC sent an unsolicited communication to the CAS Court Office, highlighting that during the hearing UEFA had for the first time suggested that breaches by the Invesitigatory Chamber of the UEFA CL&FFPR and the CFCB Procedural Rules could potentially be investigated and remedied by UEFA’s Control, Ethics and Disciplinary Body (the “UEFA CEDB”).

46. On 23 October 2019, UEFA indicated that this was stated in response to a question of one of the members of the Panel as to which body within UEFA would be competent to investigate a breach by an individual member of the UEFA CFCB of his/her confidentiality obligations, which statement UEFA considered to be in line with the existing regulatory framework.

47. On 31 October 2019, the CAS Court Office confirmed that MCFC’s letter dated 21 October 2019 and UEFA’s letter dated 23 October 2019 were admitted into the case file and that no further unsolicited submissions would be accepted by the Panel.

48. The Panel confirms that it carefully took into account in its decision all of the submissions, evidence, and arguments presented by the Parties, even if they have not been specifically summarised or referred to in the present arbitral award.

V. SUBMISSIONS OF THE PARTIES — A. The Appellant

49. MCFC provided the following summary of its written submissions:

➢ “MCFC submits this Appeal against the Referral Decision and Leaks Decision of the IC. In short:

(a) the Referral Decision and Leaks Decision are both final decisions of the IC and therefore within the scope of CAS’s jurisdiction;

(b) the IC exceeded its jurisdiction in making the Referral Decision;

(c) UEFA has systematically breached, and continues to breach, its duty of confidence;

(d) the Referral Decision was made improperly and prematurely, while the Investigation was still ongoing, despite the fact that the IC is only empowered to make a decision to refer a case at the end of an Investigation;

(e) the Investigation and the Decision lacked procedural fairness and due process; and

(f) the Decision and the Leaks have caused, and continue to cause, MCFC serious harm and loss.

➢ CAS has jurisdiction to hear this Appeal. In accordance with Article R47 of the CAS Code: (a) the Decisions are decisions of an association, namely, UEFA; (b) the statutes and regulations of UEFA provide for appeal to CAS against decisions taken by UEFA bodies; and (c) any internal remedies have been exhausted. The Statement of Appeal and this Appeal Brief have been filed within the applicable time limits, pursuant to Article R49 of the CAS Code. The present Appeal is, therefore, admissible.

➢ The IC exceeded its jurisdiction in making the Referral Decision. The Referral Decision makes no allegations concerning the reporting periods 2016-17 and 2017-18, which are the only periods that it had jurisdiction to review (and on which it stated that its Investigation was focused). The IC has no jurisdiction to make determinations on matters relating to any earlier point in time:

(a) breaches alleged against MCFC before the 2016-2017 reporting period are covered by the Settlement Agreement. The IC does not have jurisdiction in respect of the subject matter of the 2014 Settlement Agreement because:

(i) the Settlement Agreement created a bespoke “Settlement Regime” covering the entirety of the periods referred to in the Referral Decision, including to the end of the reporting period 2015-2016;

(ii) in any event, the IC has issued a decision through which MCFC has been formally released from the Settlement Agreement and the Settlement Regime;

(b) the IC is time-barred from reopening the proceedings that were concluded by the Settlement Agreement and letter of release;

(c) all breaches alleged against MCFC more than five years prior to the communication of the Referral Decision to the AC are time- barred by virtue of Article 37 of the Procedural Rules, which

prohibits prosecution of any breach that took place more than five years ago; and

(d) in any event, the temporal jurisdiction of the IC is limited to the current “monitoring period” and, specifically, the “reporting periods” 2016-2017 and 2017-2018.

➢ UEFA has systematically breached, and continues to breach, its express obligations of confidentiality, including under Article 10 of the [CFCB Procedural Rules], Article 53 of the [UEFA CL&FFPR], and Article R43 and R59(7) of the CAS Code with respect to proceedings before the IC, the [AC] and CAS. The breaches have been timed such that MCFC suffers serious prejudice in those proceedings, […]. These ongoing and egregious breaches undermine the very integrity of UEFA’s adjudicatory process, which is a consensual dispute resolution mechanism with confidentiality at its core. They also fundamentally undermine UEFA’s “good faith” participation in the process, in breach of article 2(1) of the Swiss Civil Code [the “SCC”] and article 52 of the Swiss Code of Civil Procedure [the “SCCP”].

➢ Given UEFA’s express confidentiality obligations, which it has nominally confirmed in correspondence, MCFC had a legitimate expectation not just that UEFA would respect those obligations but also that, once confidentiality had been violated, particularly so seriously and repeatedly, UEFA would suspend its Investigation, conduct an inquiry into the breaches, including the removal from the process of anyone involved in the leaks, and take preventative or remedial action to seek to ensure that there could be confidence in the integrity of the process going forward.

➢ The failure of UEFA even to investigate these repeated breaches of confidentiality, let alone to take remedial and preventative measures, notwithstanding that the Investigation, adjudication and present arbitration continue (and despite MCFC’s repeated requests for such), casts grave doubt upon the fairness, impartiality and integrity of the IC’s approach.

➢ Furthermore, the IC’s Referral Decision was made improperly and prematurely, in breach of the Procedural Rules, MCFC’s legitimate expectations as to both the substance and procedure of the Investigation, and the IC’s obligations of good faith and due process:

(a) pursuant to Article 14(1) of the Procedural Rules, the IC is empowered inter alia to issue a decision to refer the case to the AC expressly only “[a]t the end of the investigation”. The Referral Decision itself states that the Investigation is still ongoing. The IC acted in breach of the Procedural Rules by issuing the Referral Decision before concluding its Investigation;

(b) MCFC had a legitimate expectation that the Investigation had not ended and was, in fact, ongoing when the IC made the Referral Decision;

(i) at the time of the Referral Decision on 15 May, MCFC was awaiting: (a) responses from the IC in relation to matters relevant to the Referral Decision; and (b) a hearing […]. MCFC had not been given any prior notice by the IC that the Referral Decision was imminent. The IC frustrated MCFC’s legitimate expectation that the Investigation was ongoing and MCFC has suffered prejudice as a result because, in breach of fundamental due process, it has been denied the opportunity fully to present its case. The obvious, unfinished nature of the Investigation is evidenced, inter alia, by the many issues and questions that the IC raises in the Referral Decision, which MCFC has not had the opportunity to address;

(ii) the IC had not concluded its Investigation […] when it issued the Referral Decision. […];

(c) the IC breached its obligation to act in good faith pursuant to Article 2(1) of the [SCC] and Article 52 of the [SCCP], as well as Article 29 of the Swiss Federal Constitution inter alia by failing to present MCFC with the full case against it, and in failing to allow MCFC adequately to respond to that case;

(d) the Referral Decision is based on a flawed Investigation, which was not conducted with procedural fairness or due process. In particular:

(i) the IC failed to comply with relevant Procedural Rules and ensure fairness in its treatment of MCFC;

(ii) the IC repeatedly failed to respond to requests for information by MCFC;

(iii) the IC made the Referral Decision prematurely and before its Investigation had concluded;

(iv) the IC did not afford MCFC equal treatment with other clubs which it has investigated, including by making allegations in respect of matters prior to the current monitoring period; and

(v) the IC breached MCFC’s rights to a fair and impartial judicial process pursuant to Article 29 of the Swiss Federal Constitution and Articles 52-58 of the [SCCP].

➢ Accordingly, both the Referral Decision and the Leaks Decision should be annulled.

➢ […].

➢ MCFC is applying separately for provisional measures pursuant to CAS Code Article R37 in respect of the serious and ongoing Leaks.

➢ MCFC is not seeking a determination on the substantive merits of the Referral Decision from the Tribunal, as that would be outside of the scope of this Appeal. Rather, MCFC is requesting that the Tribunal make orders to cure serious procedural defects brought about by the IC. Nonetheless, and for the avoidance of absolutely any doubt, MCFC vehemently denies the allegations made in the Referral Decision and wholly rejects the conclusions reached by the IC. In particular, there is simply no substantive evidence to support the IC’s serious allegations […]. Instead, the Referral Decision repeatedly draws on unsupported adverse inferences and fails entirely to take into account the body of significant and tangible evidence produced by MCFC.”

50. On this basis, MCFC submits the following prayers for relief:

“(a) a declaration that the Investigation conducted by the Respondent was not conducted in accordance with procedural fairness and due process and was contrary to legitimate expectations;

(b) a declaration that the Respondent is not entitled to make any determination or to allege any breaches in respect of periods prior to the reporting period 2016-17, being periods covered by the 2014 Settlement Agreement;

(c) a declaration that the Respondent is not entitled to make any determination or to allege any breaches in respect of any time prior to 16 May 2014 being five years prior to the date of the Referral Decision;

(d) a declaration that the Respondent is not entitled to make any determination or to allege any breaches of the [UEFA CL&FFPR] in respect of periods prior to the reporting period 2016-17, being outside of the current monitoring period;

(e) a declaration that the Swiss law personality rights of the Appellant have been violated by the Leaks and that Respondent is responsible for such violation;

(f) an order that the Referral Decision is annulled;

(g) an order that the Leaks Decision is annulled;

(h) an order that UEFA undertakes a full investigation into the sources of the Leaks in order to identify and take disciplinary measures against the identified sources, and takes full, appropriate remedial measures to ensure that strict confidentiality of both any process that may progress before the AC and of this arbitration;

(i) an order that the question of damages is bifurcated to a later stage of the proceedings;

(j) an order that the Respondent pay the Appellant damages to be assessed […] for losses incurred as a result of the Respondent’s conduct;

(k) an order that the Respondent pay interest on the damages in an amount to be determined by the Tribunal; and

(l) an order that the Respondent pay all costs and fees of the Appeal, including the administrative fees and costs of the Tribunal, CAS and the Appellant’s legal costs and other costs incurred in connection with these proceedings.”

B. The Respondent

51. The submissions of UEFA in respect of the admissibility of the appeal in its combined Answer to the Request for Provisional Measures / Request for Bifurcation, in essence, may be summarised as follows:

➢ It is one of the most important features of the CAS appeal procedure that only once a final decision is rendered by a sports federation, this decision can be appealed before CAS. Article R47(1) CAS Code is crystal-clear in this regard and has been upheld by CAS over the years and is confirmed by the Swiss Federal Tribunal (the “SFT”).

As to the Referral Decision

➢ MCFC’s case is still pending before the Adjudicatory Chamber. Therefore, MCFC’s appeal is premature and inadmissible.

➢ The Investigatory Chamber is responsible for the investigation stage of the proceedings, while the Adjudicatory Chamber is responsible for the judgment stage. If, at the end of an investigation, the Investigatory Chamber is of the view that a club has a case to answer, the case is referred to the Adjudicatory Chamber, i.e. the Investigatory Chamber presents the case “to the adjudicatory chamber for decision” (Article 18(1) CFCB Procedural Rules). Thus, any suggestion that the Investigatory Chamber could have rendered any type of final decision, which could be subject to an appeal before CAS, is simply wrong.

➢ Very recent case law of CAS (CAS 2018/A/5808 AC Milan v. UEFA) confirms that a referral decision of the Investigatory Chamber, which submits charges against a club to the Adjudicatory Chamber for a decision on the merits, is not appealable. The arguments of UEFA in CAS 2018/A/5808, in which UEFA submitted that AC Milan should have appealed the referral decision of the Investigatory Chamber, addressed the specific situation of that case: AC Milan had, before the Investigatory Chamber, requested that a settlement agreement should be concluded with it. The Chief Investigator then decided not to conclude a settlement agreement. UEFA argued that this specific aspect of the referral decision (the refusal to conclude a settlement agreement) should have been separately appealed before CAS.

➢ In its appeal to CAS, MCFC raises allegations that it also makes in the pending proceedings before the Adjudicatory Chamber. Even though these arguments are mistaken, it is formally correct to present them before the Adjudicatory Chamber. This confirms that it is impossible to present these very same arguments now, and at the same time, in a totally premature appeal before CAS.

As to the Leaks Decision

➢ MCFC is probably well aware that its case is still pending before the Adjudicatory Chamber and that any appeal concerning the merits of this case is premature and inadmissible. Therefore, MCFC tries – in a totally artificial and misleading way – to construe that the Investigatory Chamber had also rendered an additional decision, which MCFC calls the Leaks Decision.

➢ MCFC takes the view that the communication of the Chief Investigator of 20 May 2019, in which the Chief Investigator rejected the false accusations directed against him, should somehow constitute an appealable decision. This proposition is not only legally wrong, it is misleading.

➢ The letter of the Chief Investigator of 20 May 2019 does not decide anything: its sole content is to reject the unfounded and false accusations made by MCFC against the Chief Investigator and the members of the Investigatory Chamber. The letter lacks all the criteria of an appealable decision, as defined by the CAS Code and CAS jurisprudence.

➢ First of all, the Investigatory Chamber could not possibly have “decided” anything in relation to its investigation, because the investigation had already ended on 15 May 2019 with the rendering of the Referral Decision.

➢ Moreover, the communication of 20 May 2019 is obviously not based on an “animus decidendi”, i.e. on an intention to decide on a specific

legal matter. It does not contain any type of ruling, and it certainly does not contain any authoritative decision affecting the rights of MCFC.

➢ Finally, even if the letter of the Chief Investigator would be a decision “not to suspend the procedure”, which it is not, it is a procedural matter that will be cured by the procedure before the Adjudicatory Chamber and, possibly, in a CAS procedure against the last and final decision of the Adjudicatory Chamber. Therefore, it is again not a matter that can be put forward to CAS now.

Additional remarks

➢ MCFC brings forward erroneous and groundless arguments. All of these arguments are equally impossible to submit to CAS at this stage, while the proceedings are still pending before the Adjudicatory Chamber.

➢ By way of example, MCFC brings forward that the Investigatory Chamber allegedly “breached personality rights” of MCFC, that the Referral Decision was made “improperly and prematurely”, that the Investigatory Chamber “breached procedural rules” or “legitimate expectations of MCFC” or that the Investigatory Chamber allegedly caused damage to MCFC.

➢ These are arguments which MCFC must first present to the Adjudicatory Chamber, within the judgment stage of the UEFA CFCB proceedings. It is simply not possible to “skip” the judgment stage, as provided by the internal rules of UEFA, and directly bring such arguments to CAS.

➢ For these reasons also, MCFC’s appeal is, and remains, inadmissible.

52. On this basis, as set out above already but repeated here for the sake of convenience, UEFA submits the following prayers for relief in its combined Answer to the Request for Provisional Measures / Request for Bifurcation:

“127. UEFA respectfully submits the following Prayers for Relief to CAS in relation to Appellant’s Request for Provisional Measures:

1. The Request for Provisional Measures shall be dismissed.

2. All costs in relation to the Request for Provisional Measures shall be charged to Appellant.

128. Furthermore, UEFA respectfully submits the following Request for Bifurcation:

1. The Proceedings CAS 2019/A/6298 shall be bifurcated.

2. CAS shall render a Preliminary Award on Admissibility and it shall declare Appellant’s Appeal inadmissible.

3. All costs in relation to the Appeal shall be charged to Appellant.

129. UEFA respectfully requests that its deadline to submit its Answer to the Appeal be suspended, pending the determination on the above- mentioned Request for Bifurcation.

130. In any event, UEFA also requests that Appellant be ordered to pay a significant contribution to UEFA’s legal fees, which were triggered by this illegitimate Appeal and Request for Provisional Measures, at an amount of at least CHF 60’000.-

131. Finally, UEFA reserves the right to modify and amend its Prayers for Relief and to amend its factual and legal submissions, should UEFA surprisingly be forced to submit a full Answer to the Appeal.” (emphasis in original)

C. The Appellant’s Response to UEFA’s Objection to the Admissibility of the

Appeal

53. MCFC makes, inter alia, the following submissions in “Response to Respondent’s Request for Birfurcation”:

The Appeal is Admissible

➢ “[…] The fact-specific reasons that the Appeal is admissible are explained in detail in paragraphs 55 to 89 of the Appeal Brief and so are not repeated here. Notably, however, CAS recently issued a Consent Award in [CAS 2019/A/6083 & 6261 AC Milan v. UEFA] (the AC Milan Award), shortly after MCFC filed its Appeal Brief. In the AC Milan Award, CAS accepted the admissibility of two consolidated appeals brought by AC Milan.

➢ The first appeal was of a decision of the AC and the second appeal was of a referral decision made by the IC to the AC. The AC Milan Award is highly relevant to the Bifurcation Request because:

(a) CAS held that a referral decision made by the IC to the AC was admissible on appeal to CAS. If it had not been admissible, then CAS would have been unable to make the AC Milan Award;

(b) CAS confirmed that UEFA supported the admissibility of AC Milan’s appeals. As the AC Milan Award itself states “Their admissibility is not disputed by the Respondent” (emphasis added); and

(c) though it would be admissible in any event, MCFC’s appeal of the Referral Decision appears identical to AC Milan’s appeal of a referral decision made by the IC to the AC.

➢ Therefore, UEFA’s central argument, that an appeal to CAS of a referral decision made by the IC to the AC is not admissible, is completely contradicted by the AC Milan Award and by its own behaviour.

➢ At the very least, the AC Milan Award – particularly when combined with the submission of UEFA in the prior case of [CAS 2018/A/5808 AC Milan v. UEFA] that the club should have appealed a referral decision from the IC to the AC, because it was a final decision – gives rise to an important issue of equal treatment between clubs that needs to be determined in the context of the entire facts of the Appeal.

The Decisions are Final and as such Appealable to CAS

➢ In the Bifurcation Request, UEFA claims that the Appeal is not admissible because “only the CFCB AC takes ‘final decisions’”, and that “any suggestion that the Investigatory Chamber could have rendered any type of final decision, which could be subject to an Appeal before CAS, is simply wrong”.

➢ Paragraphs 65 to 74 of the Appeal Brief explain why the IC is, in fact, fully capable of issuing final decisions. Furthermore, UEFA’s recently published 2019 edition of its Procedural Rules states at Article 34 – which is the Article that deals with appeals of a “final decision of the CFCB” – as follows:

“[…] the relevant reference date for the assessment of financial and economic data, facts and evidence submitted by the parties in proceedings before the CAS shall be no later than the date of the final decision of the CFCB investigatory or adjudicatory chamber, respectively.”

➢ Hence the arguments UEFA has made to support its assertion that the Appeal is inadmissible are completely contradicted by express wording in UEFA’s own Procedural Rules relating to appeals. Those rules confirm explicitly that the IC can render final decisions and, moreover, such final decisions are appealable to CAS.

➢ The fact that final decisions of the IC are appealable to CAS (as confirmed in the 2019 Procedural Rules) is entirely consistent with the fact that a final decision made by the IC is not capable of appeal to the AC. This is explained in paragraphs 70 to 71 of the Appeal Brief: the AC adjudicates allegations made by the IC, but there is no mechanism under the Procedural Rules for the AC to hear an appeal of a decision made by the IC. Given that there is no route of appeal of an IC decision within UEFA, it follows that a route of appeal must lie to CAS.

➢ Indeed, this was acknowledged by UEFA itself in [CAS 2018/A/5808 AC Milan v. UEFA], where it argued that “[s]uch decision [of the IC] […]

is final and binding. There are no internal appeal remedies against the Referral Decision. Consequently, the Appellant should have lodged its appeal against the Referral Decision.”

➢ Further, in the Bifurcation Request, UEFA claims that there is “no ‘Leaks Decision’”. This submission has to be rejected. Clearly, MCFC requested on several occasions (including prior to the Referral Decision being issued) that the IC suspend its Investigation and conduct an inquiry into the source of the Leaks. However, the IC did not do so. There is no other way of construing this than that the IC took a decision not to suspend its Investigation or to investigate the Leaks. UEFA cannot assert that the IC’s failure to take any action does not amount to a decision not to take any action.

MCFC is not Seeking to Bring the Same Requests Before the AC and CAS in Simultaneous Proceedings

➢ In the Bifurcation Request, UEFA seeks to characterise MCFC’s appeal in the present proceedings as an attempt to run parallel legal proceedings before the AC and CAS and to make “the exact same requests” in both proceedings. However, this completely misrepresents the steps that MCFC has taken, as is readily apparent from the submissions MCFC has made to both the AC and CAS.

➢ UEFA’s Bifurcation Request notes that UEFA nd MCFC have (at the AC’s request) recently made submissions to the AC on the procedural steps to be taken in the AC proceedings. However, the Bifurcation Request fails to explain that the position adopted by MCFC in that correspondence is that no substantive procedural steps should be taken in the AC proceedings precisely because the present CAS Appeal is pending and MCFC fully expects CAS to set aside the Referral Decision. Only if the Referral Decision is not set aside by CAS should the AC proceedings continue. […]” (emphasis in original)