Kevin Sammut v. Union of European Football Associations (UEFA)

II. LEGAL DISCUSSION — A. JURISDICTION OF THE CAS

71. As the CAS is an arbitral tribunal with seat in Switzerland and as the Appellant does not have his domicile or habitual residence in Switzerland, pursuant to Art. 176 of the Swiss Private International Law Act (“PILA”), Chapter 12 of this Act (Art. 176 to 194 PILA) applies to the present arbitration (CAS 2005/A/983 & 984 marg. no. 61; CAS 2006/A/1180 marg. no. 7.1).

72. According to Art. 186 PILA, the arbitral tribunal shall rule on its own jurisdiction.

73. Art. R27 of the Code provides the following: “These Procedural Rules apply whenever the parties have agreed to refer a sports related dispute to the CAS. Such disputes may arise out of an arbitration clause […] or may involve an appeal against a decision rendered by a federation, association or sports-related body where the statutes or regulations of such bodies, or a specific agreement provide for an appeal to CAS (appeal arbitration proceedings). […]”.

74. In the case under scrutiny, Art. 62 of the UEFA Statutes provides that all decisions rendered by a UEFA organ can be appealed to CAS. In addition, none of the parties raised any objection regarding the jurisdiction of the CAS to decide on the prayers for relief submitted to it. On the contrary, the parties confirmed CAS jurisdiction by signing the Order of Procedure.

75. In conclusion, the Panel finds that it has jurisdiction to rule upon the present dispute.

B. ADMISSIBILITY OF THE APPEAL

76. The appeal was filed within the time-limit set by Art. 62 of the UEFA Statutes and it fully complies with the requirements of Art. R47 and R48 of the Code.

77. The appeal is therefore admissible.

C. APPLICABLE LAW

78. According to Art. R58 of the Code, “The Panel shall decide the dispute according to the applicable regulations and, subsidiarily, to the rules of law chosen by the parties or, in the absence of such a choice, according to the law of the country in which the federation, association or sports-related body which has issued the challenged decision is domiciled or according to the rules of law the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision”.

79. In the case at hand, the parties agree that the rules and regulations of UEFA are applicable, in particular the UEFA Disciplinary Regulations (DR), 2006 Edition (the facts under scrutiny having taken place in 2007).

80. Match-fixing, if proven, violates Art. 5 DR, in particular lit. a and j (and possibly also lit. d) (see CAS 2009/A/1920, par. 78). This article provides:

“Article 5 Principles of conduct

1 Member associations, clubs, as well as their players, officials and members, shall conduct themselves according to the principles of loyalty, integrity and sportsmanship.

2 For example, a breach of these principles is committed by anyone:

a) who engages in or attempts to engage in active or passive bribery and/or corruption;

…

d) whose conduct brings the sport of football, and UEFA in particular, into disrepute;

…

j) who commits any other act likely to exert an improper influence on the progress and/or the result of a match”.

81. According to Art. 11 lit. a) DR:

“Disciplinary measures provided for in Articles 14 and 15 of the present regulations may be taken against member associations or clubs if a team, player, official or member is in breach of Article 5 of the present regulations”.

82. Finally, Art. 15 DR reads as follows:

“The following disciplinary measures may be imposed against individuals in accordance with Article 54 of the UEFA Statutes:

a) warning,

b) reprimand,

c) fine,

d) suspension for a specified number of matches or for a specified or unspecified period,

e) suspension from carrying out a function for a specified number of matches or for a specified or unspecified period,

f) ban on exercising any football-related activity,

g) withdrawal of a title or award”.

83. In addition, Swiss law applies in a subsidiary manner, given that the seat of UEFA is in Switzerland.

84. Accordingly, the Panel shall apply the rules and regulations of UEFA (especially Art. 5 DR) and Swiss law.

D. MERITS OF THE CASE

85. According to Art. R57 of the Code, “the Panel has full power to review the facts and the law”. Accordingly, and as confirmed in the jurisprudence of the CAS (CAS 2009/A/1920, par. 88 and cases cited), this provision entails the possibility for the Panel to hear the case de novo and to decide on all relevant issues in an independent manner, including the assessment of evidence.

86. Accordingly, even if a violation of the principle of due process or of the right to be heard occurred in the prior proceedings before the CDB or the Appeals Body of UEFA, it is cured in the appeal proceedings before CAS. Therefore, all submissions of the Appellant with

respect to the conduct of the proceedings by the UEFA internal jurisdictional bodies must be rejected, because any prior violation of procedural rights is remedied in the proceedings before CAS. In particular, the parties both confirmed at the hearing before CAS that they had no objections regarding the way in which the present proceedings were conducted. While Mr Sammut might indeed have had some difficulties in having all witnesses heard in the previous instances, he had ample occasion to do so before CAS and even benefited from assistance from the Panel and the Respondent in bringing witnesses before CAS.

87. In conclusion, the Panel shall not deal further with Mr Sammut’s allegations regarding the way the proceedings were conducted before UEFA.

88. Therefore and given the parties’ submissions, the Panel shall first decide on the applicable standard of proof (a), before examining whether the evidence on file demonstrates a violation by Mr Sammut (b) and deciding on the sanction to be imposed, if any (c).

a) The applicable standard of proof

89. At the outset, the Panel notes that both parties agree that the standard of proof in this case is that of “comfortable satisfaction”.

90. Neither the DR, nor Swiss law contains an express provision regarding the standard of proof to be applied in cases of alleged match-fixing.

91. According to established case law of CAS in disciplinary cases:

“Taking into account the nature of the conduct in question and the paramount importance of fighting corruption of any kind in sport and also considering the nature and restricted powers of the investigation authorities of the governing bodies of sport as compared to national formal interrogation authorities, the Panel is of the opinion that cases of match fixing should be dealt in line with the CAS constant jurisprudence on disciplinary doping cases. Therefore, the UEFA must establish the relevant facts ‘to the comfortable satisfaction of the Court having in mind the seriousness of allegation which is made’ (CAS 2005/A/908)” (CAS 2009/A/1920, par. 85).

92. “This standard is higher than the civil standard of ‘balance of probability’ but lower than the criminal standard of ‘proof beyond a reasonable doubt’”, as set out by CAS case law (CAS 2011/A/2426, par. 88).

93. Another CAS panel also noted in a case of alleged match-fixing:

“In the particular case, when assessing the evidence, the Panel has well in mind that corruption is, by nature, concealed as the parties involved will seek to use evasive means to ensure that they leave no trail of their wrongdoing” (CAS 2010/A/2172, par. 54).

94. The Panel shall accordingly apply the “comfortable satisfaction” standard when assessing the evidence, bearing in mind the particular nature of the conduct under scrutiny.

95. Finally, both parties agree that UEFA bears the burden of proof, i.e. that it is for the Respondent to prove that Mr Sammut indeed committed a violation of Art. 5 DR.

b) The evaluation of the evidence

96. In the case at hand, the Panel is comfortably satisfied that the Match was fixed with the assistance of Mr Sapina and Mr Cvrtak. Indeed, Mr Cvrtak’s presence in Oslo on 2 June 2007, duly established through documentary evidence (cf. infra), could have had no other purpose than abetting the manipulation of the Match. Furthermore, the fact that both Mr Sapina and Mr Cvrtak spontaneously admitted having fixed the Match, even though the German criminal proceedings did not specifically relate to this case, can only be explained if they indeed told the truth.

97. During their interviews with the MFA, the players and other members of the national team present in Malta denied that the Match was fixed.

98. In particular, Mr Sammut explained to the MFA on 1 December 2011 and 9 February 2012 that he was not involved in any manipulation regarding the Match and that he did not hear anything suspicious from other players, that would have indicated that the Match was fixed.

99. During the hearing before CAS, Mr Sammut did not make any statement on a possible fixing of the Match, but strongly denied that he was involved in any manipulation, stating that he did not know Mr Sapina or Mr Cvrtak before seeing their pictures in the Maltese newspapers and that he did not know “Almir”. Mr Sammut also added that he did not have any contact with these persons.

100. On the other hand, Mr Dhont, the UEFA Inspector, explained in his report of 30 April 2012, that the betting on the Match clearly showed a tendency favouring the outcome of 0-4. This tendency is another indication that the result of 0-4 was the desired outcome of the Match to be reached by manipulation.

101. Ultimately, the Panel has to weigh the evidence pro and contra a manipulation of the Match. On the one hand, the players of the Maltese team, including Mr Sammut, denied that the Match was fixed. Their motivation for such denial is obvious if the Match was in fact fixed: any admission would put – at a minimum – their career as football players at risk. On the other hand, Mr Sapina and Mr Cvrtak had no such motivation: the Panel is unable to find any reason why they would “invent” a (fairly complicated) story before the following background:

It has been established beyond reasonable doubt that Mr Cvrtak travelled to Oslo on 2 June 2007 and that he checked into the hotel in which the Maltese team stayed (both of these issues have been confirmed by a letter of the Football Association of Norway to UEFA dated 13 August 2012). Why would someone who has probably seen hundreds of football matches and who admits having been involved in the manipulation of more than 50 games, travel to Oslo to watch on TV in his hotel room a qualifier between Norway and Malta? The only reasonable explanation under the circumstances is that Mr Cvrtak was in fact involved in the fix of the

Match and that the reason for his trip was exactly what he and Mr Sapina testified, i.e. to verify through a meeting with (a) Maltese player(s) whether the fix was in place.

102. The Panel is thus comfortably satisfied that the Match was in fact fixed.

This conclusion is corroborated by the anonymous letter and the statement by an undisclosed person, both confirming the fix (see par. 18 above) as well as the suspicious betting pattern (par. 100 above) and Mr Haber’s testimony before the MFA (no. 157 below).

103. This first conclusion being reached, the Panel must decide whether the evidence at hand answers the following questions:

i. Did a meeting between Mr Cvrtak and a player of the Maltese team take place on 2 June 2007?

ii. And, in the affirmative, was the player who entered Mr Cvrtak’s room Mr Sammut?

i) Did a meeting between Mr Cvrtak and a player of the Maltese team take place on 2 June 2007?

104. The Judgment of the UEFA Appeals Body does not dwell on the details of the meeting on 2 June 2007. It only holds that “some discrepancies have emerged, particularly in relation to whether Kevin Sammut and Marijo Cvrtak met in the player’s hotel room or that of the witness”.

105. According to UEFA, the meeting indeed took place in Mr Cvrtak’s room. This conclusion has been reached primarily on the basis of Mr Cvrtak’s testimony which can be summarized as follows: First, Mr Cvrtak contacted Mr Sapina and told him his room number. Then, the player arrived shortly afterwards in Mr Cvrtak’s room. He was dressed in a red tracksuit, was short and stocky, with light coloured hair. Mr Cvrtak and the player briefly discussed the manipulation of the Match and Mr Cvrtak then called Mr Sapina, who was to confirm the agreement with the player in English. They agreed that Malta was to lose the Match with a score of 0-4. This being done, the player left the room.

106. As to Mr Sammut, he explains that he never entered Mr Cvrtak’s room and that he does not know of any other player having done so. Indeed, Mr Sammut testified that he never met Mr Cvrtak before the proceedings started against him.

107. In order to decide whether it is comfortably satisfied that Mr Cvrtak met a player on 2 June 2007 for the purpose of confirming the fix of the Match, the Panel shall assess the evidence at hand.

• Mr Cvrtak’s presence in Oslo on 2 June 2007

108. As explained earlier (par. 101 above) Mr Cvrtak was indeed present in a particular hotel in Oslo from 2 June to 3 June 2007. This was the hotel where the Maltese contingent stayed.

109. There is therefore no doubt that Mr Cvrtak was in Oslo on the day of the Match.

• Mr Cvrtak’s declarations before the police and before UEFA

110. During his interrogation by the German police on 2 September 2010, Mr Cvrtak explained that the purpose of this travel to Oslo was to determine whether the Match was indeed fixed, as Mr Sapina had been told by a third person. Mr Cvrtak stated that after his arrival in the hotel in Oslo, a Maltese player came to his room. Mr Cvrtak told the player that Malta was to lose 0-5, but the player denied. Mr Cvrtak then called Mr Sapina in order for him to arrange the matter with the player in English. After the conversation, the player left the room. Mr Cvrtak added that he did not discuss any financial matters with the player, nor did he hand over any money.

111. When questioned by the MFA and UEFA on 27 March 2012, Mr Cvrtak in substance repeated his statement before the police on 2 September 2010, adding that his arrival in Oslo was on the day of the Match, around midday and that, upon his arrival in the hotel, he called Mr Sapina to give him his room number. He explained that it was obvious that the man coming into his room was a Maltese football player. Mr Cvrtak also added that, upon being told that Malta was to lose 0-5, the player told him that the agreement had been 0-4. For the rest, Mr Cvrtak’s declaration was identical to his statement before the police.

112. Mr Cvrtak also issued a written statement in the present proceedings (dated April 2013) confirming the above.

• Mr Cvrtak’s declarations before CAS

113. During the hearing, Mr Cvrtak confirmed his written statement.

114. In answer to questions from the Panel, Mr Cvrtak explained that Mr Sapina had not told him the names of the player or players he was supposed to meet in Oslo, only the fact that he / they were Maltese.

115. Mr Cvrtak recognised at the hearing that he did not remember exactly the conversation during which he gave Mr Sapina his room number, as they had spoken several times on the telephone during that day. Mr Cvrtak however confirmed that he did not contact directly the player himself, before the player came to his room. When asked by the Panel, Mr Cvrtak confirmed that the player immediately entered the room from the corridor. Finally, he also admitted that he did not remember much about the hotel itself or the number of floors it had, although he could recall the layout of the room.

• Mr Sapina’s declarations before the police

116. Mr Sapina was interrogated by the German police on 26 August 2010. He explained that upon being informed by “Almir” that four Maltese players were willing to fix the Match, he asked

Mr Cvrtak to travel to Oslo and ascertain that this arrangement was indeed in place, before betting on the Match. Mr Sapina added that the meeting between Mr Cvrtak and the player in Oslo took place on the day of the Match, in the hotel room of the player. Only one player met with Mr Cvrtak. Mr Sapina explained that Mr Cvrtak called him after the meeting and told him that everything had been arranged. Mr Sapina also stated that all the financial aspects (betting, bribe) were handled by “Almir”.

• Mr Sapina’s declarations before CAS

117. During the hearing, Mr Sapina explained that his relationship with “Almir” during the years 2006 and 2007 consisted of exchanging tips for bets or betting together and that they had only rigged one game together, i.e. the Match. Mr Sapina added that he did not give any money to Mr Cvrtak before he travelled to Oslo, but paid for the travel costs. Mr Sapina stated that he spoke several times with Mr Cvrtak on the day of the Match, before the Match actually started.

118. Upon being interrogated by the Panel, Mr Sapina explained that he won € 35’000 as a result of betting on the Match, after having “invested” €100’000. He and “Almir” both betted this amount and won €340’000, from which €70’000 were paid by “Almir” to the players as a bribe. He himself did not front any money and did also not retrieve his winnings, but left the amount with “Almir”, to be added to their “current account” relationship.

119. Mr Sapina also explained that he spoke with “Almir” on the telephone after having received confirmation from Mr Cvrtak that the arrangement was in place, i.e. after Mr Cvrtak had met the player.

120. Mr Sapina explained that Mr Cvrtak was supposed to meet four players initially and that he did not know why he finally only met one player. Mr Sapina also stated that he did not know the players’ names and accordingly could not give this information to Mr Cvrtak, but that this information was not relevant. Mr Cvrtak was to receive instructions from Mr Sapina and would know in time whom to meet and where.

121. Regarding the place of the meeting, Mr Sapina said that, not having been there, he did not know in which room the meeting took place and that this was not important for him. He also did not remember how often and when precisely he spoke to whom on that particular day. He remembered however that he spoke once with the player, who was handed the telephone by Mr Cvrtak during the meeting. Mr Sapina added that it was not him who gave to the player the information regarding Mr Cvrtak’s room number, but could not remember whether this information came from “Almir” and how the player was informed about Mr Cvrtak’s room number.

• Mr Sammut’s testimony before the MFA and before UEFA

122. Mr Sammut was interrogated by the MFA on 1 December 2011 and on 9 February 2012. He stated that he was not involved in any match fixing activities and that he did not know Mr Cvrtak or Mr Sapina, that he never met them or talked to either of them over the phone.

When being told by the MFA representatives that Mr Cvrtak’s allegation was that the meeting took place in Mr Sammut’s room, Mr Sammut explained that this was untrue and that, sharing his room with his teammate Mr Justin Haber, such a meeting would have been impossible.

123. UEFA heard Mr Sammut on 11 April 2012. He denied being involved in any match fixing. He explained that he never met Messrs Cvrtak and Sapina. He did not receive any phone calls related to match fixing in Oslo and did not make any “strange” encounter, in particular not in an elevator.

• Mr Sammut’s testimony before CAS

124. At the hearing before CAS, Mr Sammut explained that he never met Mr Cvrtak before the proceedings started. He stated that Mr Cvrtak might have been present in Oslo at the same hotel as the Maltese team, but Mr Sammut did not know anything about Mr Cvrtak’s presence, as he did not meet Mr Cvrtak in Oslo.

125. Mr Sammut added that he never spoke with Mr Cvrtak, Mr Sapina or “Almir” over the phone.

• The Panel’s assessment

126. The Panel is comfortably satisfied that – as Mr Cvrtak testified – a meeting took place between him and a player of the Maltese team in the afternoon of 2 June 2007 in Mr Cvrtak’s hotel room in Oslo (the question whether this player was Mr Sammut will be discussed further below).

Admittedly, Mr Sammut testified that he never met Mr Cvrtak until proceedings started against him and, consequently, that he was not in Mr Cvrtak’s hotel room on the said day. Therefore, he was also unable to tell whether the said meeting took place at all and, if it did, who the player was who came to see Mr Cvrtak.

127. The Panel thus has to weigh Mr Cvrtak’s and Mr Sapina’s testimony that the meeting in Mr Cvrtak’s hotel room took place against an “I do not know"-statement by Mr Sammut.

128. The Panel is comfortably satisfied that a meeting took place between Mr Cvrtak and a player of the Maltese team on 2 June 2007 in Mr Cvrtak’s hotel room. It reaches this conclusion not only because of the foregoing testimony, but also on the basis of the proven circumstances of Mr Cvrtak’s presence in Oslo on the day of the Match and the Panel’s reflections on the motivation for Mr Sammut’s statement on the one hand and Mr Cvrtak’s and Mr Sapina’s on the other. While Mr Sammut has a clear reason to deny any involvement in the fix of the Match, there is no plausible explanation why Mr Cvrtak would falsely invent a conspirative meeting with a Maltese player. If that meeting did not take place, does it make any sense at all for Mr Cvrtak to travel to Oslo and watch on TV in hotel room a football match between Norway and Malta? Admittedly, there are some discrepancies in the statements by the various persons involved (e.g. did the meeting take place in the player’s or Mr Cvrtak’s room) and a number of “suspicious” elements such as the identity and residence of the mysterious “Almir”,

but on balance, considering the obvious conspirative nature of corruption cases (see par. 93 above), these uncertain elements do not put into question the Panel’s comfortable satisfaction that a meeting between Mr Cvrtak and a Maltese player took place on 2 June 2007, in Mr Cvrtak’s hotel room in Oslo.

ii) Was the player who entered Mr Cvrtak’s room Mr Sammut?

129. The UEFA Appeals Body reviewed the manner in which Mr Cvrtak identified Mr Sammut during his interrogation by the German police and later during his interview with UEFA, as well as at the hearing before the CDB and before the Appeals Body itself. In conclusion, the Judgment held that the identification of Mr Sammut by Mr Cvrtak was reliable and consistent and that Mr Cvrtak did not have any reason to suggest Mr Sammut as being the player involved, had it not been the case.

130. According to UEFA, the identity of the player as Mr Sammut was beyond doubt, given the testimonies of Mr Sapina and Mr Cvrtak. In particular, UEFA stresses that Mr Cvrtak’s description of the player as being “short and chubby” with “slightly longer fair hair” is not inaccurate when seen from Mr Cvrtak’s perspective, who is 1,90 m tall with very dark hair. UEFA adds that additional evidence points to Mr Sammut, i.e. his poor performance during the Match, the anonymous letter received by the MFA in May 2011, as well as the unnamed persons who allegedly told Mr Vassallo that Mr Sammut was involved in the fixing of the Match (see par. 18 above).

131. According to Mr Sammut, he never met Mr Cvrtak in Oslo or elsewhere and the first time he heard of Mr Cvrtak was during the proceedings. The Appellant strongly denies having been involved in any match-fixing activities.

• Identification procedure before the German police

132. During his interrogation on 2 September 2010, Mr Cvrtak was shown pictures of some Maltese players. These pictures were not a complete set of the entire Maltese squad, as the translation of the interrogation report mentions: “At this point, Mr Cvrtak is shown photos of the Maltese footballers who have been identified so far. At this stage Mr Cvrtak cannot positively identify any of them”. The pictures are not included in the report.

133. When asked at the hearing before CAS about the reason why he was unable to identify Mr Sammut on 2 September 2010 at the police, Mr Cvrtak explained that the pictures presented were of a very bad quality and that he could not have identified anyone on those photographs.

134. On 20 October 2011, Mr Cvrtak was again heard by the German police regarding the Match and was shown a photo folder of 18 photos. He stated: “I looked at the photos and am 99% sure that the person on the photo with the number 1 is the person who I met and negotiated with in the hotel room. I still know that the player played for the club Marsaxlokk”. The pictures are included in the police report of 20 October 2011 and Mr Sammut’s picture is marked with the number 1.

• Identification procedure before UEFA

135. During his interview with the MFA and UEFA on 27 March 2012, Mr Cvrtak said that when he had been shown photos in Bochum by the police (he did not specify which interview he was referring to), it was “very late”. He added that there was a similarity between Kevin Sammut and another player “who looked very similar”.

136. When interrogated by the MFA and UEFA on 27 March 2012, Mr Cvrtak was asked whether he remembered the positions the players involved in fixing the Match played in the game. He indicated that the player (the man who came to his room) played in the position number 10 and was a “playmaker”. He described the player as short and stocky (about 1.75 m tall), with fair, quite long hair. Mr Cvrtak added that he was not 100% sure, but thought that he player was substituted and did not play the whole match. Later during the interview, Mr Cvrtak was shown several photographs of Maltese players (20 pictures). He recognised the player who came to his room on 4 pictures (one of which was a group picture). He was later told that the man on these 4 pictures, whom he recognised as the player, was Mr Sammut. Mr Cvrtak signed these 4 pictures, which are included in the transcript of the 27 March 2012 interview. These 4 pictures indeed show Mr Sammut.

137. During the hearing before the CDB on 17 August 2012, the chairman asked the three players (Messrs Sammut, Wellman and Scicluna) to stand up and then asked Mr Cvrtak to designate the man whom he met in his room in Oslo. Mr Cvrtak then pointed to Mr Sammut without hesitation.

138. As stated by the Appellant at the hearing before CAS, during the hearing before the CDB, his name was written in front of him on a board, so that it was not difficult to identify him. UEFA did not deny this fact.

• Mr Cvrtak’s declarations regarding two subsequent meetings with Mr Sammut

139. According to Mr Cvrtak, two further meetings between him and Mr Sammut took place by chance.

140. First, according to Mr Cvrtak he met Mr Sammut together with other Maltese players in the elevator of the hotel, shortly after the meeting in his hotel room on 2 June 2007. The players came down from their floor and when Mr Cvrtak stepped into the elevator at his floor, the players were already inside.

141. Mr Cvrtak first described this event during his interrogation by the German police on 2 September 2010 and said that he met Mr Sammut with two other players in the lift. During his second interrogation by the police (20 October 2011), he repeated this statement and identified Messrs Michael Mifsud and Kenneth Scicluna as the two other players. He added that he was certain that one of the players in the elevator wore glasses.

142. During his interview with the MFA and UEFA, on 27 March 2012, Mr Cvrtak said that Mr Sammut was with three other players in the elevator and that Mr Sammut told the others “this is our man”, referring to Mr Cvrtak. Mr Cvrtak explained that his room was on the second floor and that the four players were already in the elevator going down when he stepped in. They all went down to the ground floor and exchanged a few words, hinting humorously to the fixing of the Match. Mr Cvrtak also added that one of the players in the elevator had glasses, dark skin and curly hair and was thinner and a bit taller than Mr Sammut. He explained that he could not remember any details regarding the other players who were also in the elevator, but all of them seemed aware of the arrangement to fix the Match.

143. In his written testimony, Mr Cvrtak repeated that he met Mr Sammut with approximately two or three other players in the elevator, they had a brief good-humoured exchange and that Mr Sammut presented him to the others with the words “that’s our man”. Mr Cvrtak added that he could not remember clearly the other players, except for the one who wore glasses and that they all seemed to have shorter hair than Mr Sammut.

144. During the hearing before CAS, Mr Cvrtak repeated the same statement.

145. According to Mr Cvrtak, the second accidental meeting between him and Mr Sammut happened in Malta.

146. During his interrogation by the German police, Mr Cvrtak did not mention that he met Mr Sammut in Malta.

147. In his interview with the MFA and UEFA, Mr Cvrtak stated that he met by chance Mr Sammut a few months after the Match, at a roundabout in Valletta next to the sea. This place was near the office building of a company he had a business relationship with, related to betting. During the interview, Mr Cvrtak made a drawing of the location (which is included in the transcript). Mr Cvrtak explained that there were several tall buildings and a restaurant, as well as a casino in the area. Mr Sammut told him that he was living or working in the buildings next to the restaurant, but Mr Cvrtak could not recall precisely anymore. He also vaguely remembered that Mr Sammut might have complained to somebody, stating that he thought Mr Cvrtak was following him to Malta.

148. In his written testimony, Mr Cvrtak explained that he travelled to Malta on business in September 2007 and was near the offices of the company he had business with, when he saw Mr Sammut near a roundabout. Mr Cvrtak approached him and they recognised each other and had a short conversation. It was possible that Mr Cvrtak may have given Mr Sammut his telephone number and suggested a further meeting, but it did not take place. He stated that Mr Sammut was wearing a white shirt and black trousers.

149. During the hearing before CAS, Dr Samuel Gauci of the Maltese Lotteries and Gaming Authority was heard. He stated that the Authority did not have any records on Mr Cvrtak’s betting activity in Malta and that he was not a registered licence holder nor affiliated. However, the Authority had found traces in their files of a betting shop that Mr Cvrtak’s wife had in Germany (Neumünster).

150. Also at the CAS hearing, Mr Cvrtak explained that the passport he used in 2007 contained a stamp of his trip to Malta, through which he had been able to identify the date of his trip as September 2007.

151. Furthermore, at the CAS hearing, the name of the place at which Mr Cvrtak supposedly met Mr Sammut was referred to by both parties as St Julian’s.

152. In addition, the UEFA file contains an email from a company (Tipico Co. Ltd.), based at St Julian’s in Malta, explaining that Mr Cvrtak visited their company, at an uncertain date (but possibly after 2007).

153. Finally, Mr Sammut’s bank statements from May to December 2007 show several withdrawals of cash at ATMs in St Julian’s.

• Mr Sapina’s declarations regarding the identity of the player who met Mr Cvrtak in the hotel room.

154. During his interrogation by the German police on 26 August 2010, Mr Sapina explained that he did not know the names of the players who were involved in fixing the Match. “Almir” had told him that there were 3 defence players and one midfielder. He stated that the player with the number 10 and the captain were those involved, although these two might have been the same person. Mr Sapina added that he did not know which player met with Mr Cvrtak.

155. At the CAS hearing, Mr Sapina stated that he did not know the player’s telephone number and that he did not arrange himself the meeting between Mr Cvrtak and the player. It had been arranged through “Almir”. When questioned by the Panel, Mr Sapina could not give any additional information regarding the identity of the player.

• Justin Haber’s declarations before UEFA and his witness statement

156. Mr Haber was a member of the Maltese contingent and Mr Sammut’s roommate in Oslo on 2 June 2007.

157. Mr Haber was interrogated by the MFA on 23 December 2011. His statement was summarised as follows: “He told us he knows the names of the players who could have been involved and was surprised that we did not”, Then, Mr Haber added that he “would not divulge names as they are his team mates”. On 27 February 2012, when interrogated for the second time by the MFA, Mr Haber stated that he could not state any names without evidence, which he did not possess. Mr Haber stated that in his view, Maltese football was in general corrupt.

158. Interrogated by UEFA on 11 April 2012, Mr Haber stated that Mr Sammut never told him anything about possible match fixing. He also explained that in the afternoons before matches he usually sleeps, so that he could not tell what Mr Sammut did during that time on 2 June 2007. He added that he could not imagine Mr Sammut fixing a game.

159. Finally, in a written statement dated 22 September 2012, Mr Haber explained that he did not notice any unusual behaviour by Mr Sammut on 2 June 2007, that Mr Sammut did not receive any phone calls or visitors on that afternoon and that Mr Sammut did not leave the room. He did not see Mr Sammut with any unknown persons in the hotel and did not notice him having large sums of money. Finally, according to Mr Haber, Mr Sammut never discussed any match fixing.

160. Although called as a witness and scheduled to be heard by CAS, Mr Haber did not appear.

• Mr Sammut’s declarations before CAS

161. During the hearing, Mr Sammut again repeated that he never met Mr Cvrtak and did not go to Mr Cvrtak’s room in the hotel in Oslo. He strongly denied ever having spoken to Mr Cvrtak, Mr Sapina or “Almir” and affirmed that he was not involved in any match-fixing activities.

162. Regarding the meeting in the hotel elevator, Mr Sammut was not asked any specific questions at the hearing given his statement that he never met Mr. Cvrtak before proceedings started against him.

163. Finally, regarding the alleged accidental meeting in Malta, Mr Sammut explained that he did not live or work near St Julian’s in 2007. However, the ATM withdrawals could be explained by the fact that St Julian’s is well-known for its nightlife. At the time, he often went out with friends in that area during the weekends and withdrew money on those occasions.

• The Panel’s assessment

164. Having determined that a meeting took place between Mr Cvrtak and a Maltese player in Mr Cvrtak’s hotel room for purposes of confirming the fix of the Match, the final crucial question remains whether that player was Mr Sammut.

With respect to this question the Panel is again faced with a scenario where either the Appellant or Mr Cvrtak as a witness did not tell the truth. The Panel’s determination will thus depend on whether it finds one or the other testimony credible to an extent that UEFA can be seen as having discharged its burden of proof to the Panel’s comfortable satisfaction.

165. At the outset of its assessment the Panel wants to stress that Mr Cvrtak’s criminal record and a possible corruption history in Maltese football do not represent as such an argument pointing in one or the other direction.

On the other hand, the motivation to make false statements plays an important role in determining the credibility of witness/party testimony. In Mr Sammut’s case, the majority of the Panel considers that motivation as obvious: if his presence in Mr Cvrtak’s room is not proven, he will escape sanctioning by UEFA. With respect to Mr Cvrtak, this question is more difficult to answer. It has been suggested by the Appellant that Mr Cvrtak made up the story described by him, in order to earn at least moral points in criminal proceedings pending against

him before German courts. The majority of the Panel is unconvinced of this line of reasoning: Mr Cvrtak has admitted to have been involved in no less than 50 cases of manipulation of football matches. No reasonable person would believe that admitting yet another fix of a game would in any way impress judicial authorities in Germany. Moreover, the legal advisors for Mr Cvrtak will certainly have told Mr Cvrtak that it is unrealistic to believe that any benefit will arise from admitting one further manipulation not yet targeted by the authorities.

166. In order for the Panel to give credence to Mr Sammut’s denial of having been the one who came to visit Mr Cvrtak in his hotel room, one of two scenarios must reflect the truth:

– Mr Cvrtak deliberately falsely accused Mr Sammut of having been the one who came to see him in his room, or

– Mr Cvrtak erred in recognising Mr Sammut on three occasions, in his hotel room, in the elevator and in Malta.

The majority of the Panel is unconvinced of the former theory: Why would Mr Cvrtak falsely accuse someone whom he never met before?

In respect of the latter theory, the majority of the Panel is of the view that it would be too much of an accident for Mr Cvrtak to mistakenly recognise Mr Sammut on three different occasions (see 134 and 136 above) and confirm his identity before various authorities.

167. The process for the identification may not have been perfect and may not have been in line with the way English police authorities would conduct an identification (no. 65 above). Indeed, the Appellant argued that these principles should have been respected. His expert witness, Dr Comodini Cachia also explained that the flaws in the identification process should invalidate the whole proceedings. But the fact remains that a witness, the credibility of whom the majority of the Panel has no reason to put in question in the circumstances of this case, has identified Mr Sammut as having been the one who came to his hotel room to confirm the manipulation of the forthcoming Match. In particular, the majority of the Panel wishes to stress that it does not know whether, when first interrogated by the German police on 2 September 2010, Mr Cvrtak was indeed shown a picture of Mr Sammut. Indeed, the pictures shown at that date are not included in the police report. However, when shown a picture of Mr Sammut among 18 photos of Maltese players during his interrogation of 20 October 2011 by the Bochum police, Mr Cvrtak clearly recognised Mr Sammut.

168. The Appellant also argued that his innocence results from the fact that the Maltese police investigations did not lead to charges being brought against him. The Appellant produced a written statement signed by the Inspector in charge of the case, Mr Ian Joseph Abdilla. However, in the opinion of the majority of the Panel, the absence of criminal proceedings in Malta is not sufficient to counterbalance the evidence at hand regarding Mr Sammut’s involvement.

169. The Appellant also added that he could not have met Mr Cvrtak in this latter’s room, as during match days, the team manager (Mr Ivan Vella at the time) made sure that all the players were

in their rooms and only allowed them to go out as a group. In the opinion of the majority of the Panel, this fact does not modify its assessment, because it is virtually impossible for a team manager to control all the players of the squad at all times.

170. Finally, the Appellant explained that he did not play the whole Match, but was substituted after the first half and that he therefore could not influence the outcome of the Match. However, the question the Panel has to decide is not whether Mr Sammut’s conduct on the field caused the outcome of the Match. The Panel has rather to decide whether Mr Sammut was involved in fixing the Match, i.e. the arrangements which led to several players manipulating its result. In that regard, the majority of the Panel further notes that Mr Sammut’s mistake during the first half indeed strongly contributed to the first Norwegian goal.

171. While the intentional character of such mistake cannot be considered as established, the majority of the Panel is however comfortably satisfied that Mr Sammut went to Mr Cvrtak’s hotel room in Oslo on 2 June 2007 to confirm that arrangements have been made for Malta to lose the Match by 0-4 and therefore breached Art. 5 §2 lit. a) DR (“engage in or attempts to engage in active or passive bribery and/or corruption”).

172. The majority of the Panel is thus comfortably satisfied that UEFA succeeded in discharging its burden of proof that Mr Sammut was involved in the fix of the Match and infringed Art. 5§2 lit. a) DR.

b) The sanction

173. Having reached the (majority) conclusion that Mr Sammut was indeed involved in fixing the Match, the Panel now has to decide on the sanction to be imposed.

174. The Judgment of the Appeals Body holds that, having violated Art. 5 DR, Mr Sammut should be punished according to Art. 17 §1 DR, which provides: “the disciplinary body will determine the type and extent of the disciplinary measures to be imposed, according to the objective and subjective elements, taking account of both aggravating and mitigating circumstances” and Art. 15 DR, which contains a list of possible sanctions, ranging from a warning to the withdrawal of a title or award and containing also a “ban on exercising any football-related activity” (lit. f). Based on these provisions, the Appeals Body held that the offence committed by Mr Sammut was serious and that no mitigating circumstances existed. Match-fixing is, according to the Appeals Body, an activity which endangers the very essence of football. Therefore, in line with UEFA’s policy of “zero tolerance” against this type of offence and with UEFA’s case law in the matter, the Appeals Body concluded that a life-time ban from all football-related activities must be imposed on Mr Sammut.

175. The Appellant claims that the penalty inflicted upon him by the Appeals Body is excessive, if compared with similar cases in national and international football. Mr Sammut stresses that the sanction was so severe only because he came from a “relatively small” football jurisdiction. The Appellant also refers to judgments delivered in Italy and Finland (cited below, at par. 176) involving repeated corruption in numerous games in which the punishment involved was

much less than the penalty imposed on the Appellant. Finally, Mr Sammut points out that, if he was to be found guilty of match-fixing by the Panel, the fact should be taken into account that the case concerned only one game. In addition, the Panel should consider that UEFA had selected one match among the approximately 500 which Mr Cvrtak admitted having fixed, in order to use Mr Sammut as a “sacrificial lamb”.

176. According to UEFA, the sanction is proportionate and in line with the CAS case law, in comparison with other cases of similar seriousness, as well as with recent national decisions including decisions in Malta. UEFA also submits that the Panel should defer to the evaluation of the UEFA judicial bodies, who are in a better position to determine the appropriateness of the sanction for the Appellant.

177. Comparison with disciplinary measures imposed by national associations leads to a mixed result: in several cases, persons involved in match-fixing activities were banned for a limited period of time (e.g. decision by the Finland Football Federation versus Godfrey Chibanga et al. reported in the media on 30 April 2012; decision of the Commissione Disciplinare Nazionale of the Italian Football Federation, of 10 August 2012). Some decisions produced by the Appellant do not uphold the existence of the offence and can therefore not be compared to the case of Mr Sammut (judgment by the Corte di Giustizia Federale of the Italian Football Federation, of 21 August 2012 in the same matter). In other cases, the offenders were banned for life-time (e.g decisions of the Korean Football Association and of the Croatian Football Federation reported in the media on 16 Aril 2013; decisions of the Korean Football Association, Lebanese Football Association and Italian Football Association reported in the media on 27 February 2013; Guatemala Football Association, reported in the media on 24 October 2012). The latter cases relate to direct involvement in match-fixing, to the failure to report match-fixing activities or to illegal betting.

178. The case-law of CAS shows a clear line:

• In the case CAS 2009/A/1920 (par. 114 and 115), the Panel upheld a life-time ban imposed on the President of a club who manipulated a match;

• In the case CAS 2011/A/2426 (par. 164), the Panel upheld a ban for a period of three years as well as a fine of CHF 10’000, stating that it was a relatively mild sanction given the seriousness of the offence committed (bribery of a FIFA official over FIFA World Cup votes);

• In the case CAS 2010/A/2172 (par. 75-84), the Panel considered that a referee who had not reported an attempted match-fixing committed an offence serious enough to justify a life-time ban.

179. Before this jurisdictional background it is worth recapitulating what has been proven in the eyes of the (majority of the) Panel: Mr Sammut went to Mr Cvrtak’s hotel room in Oslo on 2 June 2007 to confirm that arrangements have been made for Malta to lose the Match by 0-4. These proven facts are sufficient to establish an infringement of Art. 5 §2 lit. a) DR (“engage in

or attempts to engage in active or passive bribery and/or corruption”): at a minimum Mr Sammut was an accomplice in the (proven) manipulation of the Match. What has not been established/proven in these proceedings is the extent of Mr Sammut’s involvement in the implementation of the fix. In the Panel’s view Mr Sammut’s “error” on the pitch which led to Norway’s first goal does not by itself prove his intention to allow this goal. At least in theory, Mr Sammut could have simply been a messenger between the unknown players who actually conspired to implement the fix and the persons who were willing to provide the money for it.

180. Under these circumstances, the Panel finds that despite the seriousness of a match-fixing offense and the Appellant’s involvement, in this case a life-time ban is disproportionate given the (proven) role played by Mr Sammut in the fix. His career as a football player has ended as a result of the episode which gave rise to these proceedings and the Panel finds that a ten year ban from any football-related activity is commensurate to Mr Sammut’s infraction of the rules.

181. Accordingly, the Panel partially sets aside the decision of the Appeals Body as far as it concerns Mr Sammut, imposes a ten-year ban on Mr Sammut from any football-related activities, such ban to be given worldwide effect by FIFA, and thus confirms the CDB’s decision of 17 August 2012.