Klubi Sportiv Skenderbeu v. Union of European Football Associations (UEFA)

V. JURISDICTION

35. The jurisdiction of CAS, which is not disputed, derives from articles 62(1) of the UEFA Statutes (2016 edition) as it determines that “[a]ny decision taken by a UEFA organ may be disputed exclusively before the CAS in its capacity as an appeals arbitration body, to the exclusion of any ordinary court or any other court of arbitration” and Article R47 of the CAS Code.

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36. The jurisdiction of CAS is further confirmed by the Order of Procedure duly signed by the parties.

37. It follows that CAS has jurisdiction to decide on the present dispute.

VI. A DMISSIBILITY

38. The appeal was filed within the deadline of ten days set by Article 62(3) of the UEFA Statutes. The appeal complied with all other requirements of Article R48 of the CAS Code, including the payment of the CAS Court Office fee.

39. It follows that the appeal is admissible.

VII. A PPLICABLE LAW

40. The Club maintains that given the nature of the controversy arising from the UCLR 2016/2017, the law applicable to the merits are the UEFA regulations. The Club however refers to domestic Albanian law in its written submissions.

41. UEFA submits that the rules and regulations of UEFA applicable in this arbitration are principally the provisions of the UEFA Statutes and the UCLR 2016/2017. Further rules of UEFA, e.g. the UEFA Disciplinary Regulations, may also be applicable. Additionally, the present dispute is governed by Swiss law, pursuant to article 64 of the UEFA Statutes a nd Article R58 of the CAS Code.

42. Article R58 of the CAS Code provides the following:

“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”.

43. Article 64 of the UEFA Statutes stipulates the following:

“These Statutes shall be governed in all respects by Swiss law”.

44. The Panel observes that the parties agreed to the primary application of the various regulations of UEFA. The Panel is satisfied to accept the subsidiary application of Swiss law should the need arise to fill a possible gap in the various regulations of UEFA. Insofar as the Club relies on domestic Albanian law in respect of certain specific elements of the case, the Panel will consider whether it is appropriate to apply Albanian law in this respect within the legal analysis below, if necessary.

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VIII. MERITS — A. The Main Issues

45. In view of the above, the main issues to be resolved by the Panel are:

i. Are the present proceedings of disciplinary or administrative nature? ii. Was the UEFA Appeals Body competent to render a decision in respect of the Club? iii. What is the relevance and credibility of the evidence provided by means of the UEFA BFDS? iv. Was the Club directly or indirectly involved in match-fixing activities? a. Evidence derived from the BFDS b. UEFA’s own investigation on the Club c. The national and international perception on the Club d. Conclusion v. Is the Club eligible to participate in the UEFA Champions League in the 2016/2017 sporting season?

i. Are the present proceedings of disciplinary or administrative nature?

46. The Panel observes that both parties agree that the present arbitration is of an administrative nature.

47. The Panel notes that there is ample CAS jurisprudence confirming that UEFA conducts a two-stage process in respect of match-fixing (i.e. first a possible exclusion from participation in European competitions for one season and, subsequently, a possible disciplinary sanction which may involve a suspension from participating in European competitions for multiple seasons) and that the first stage is of an administrative nature (CAS 2013/A/3258, para. 127; CAS 2014/A/3625, para. 122 of abstract published on the CAS website; CAS 2014/A/3628, para. 102 of abstract published on the CAS website; CAS 2013/A/3256, para. 164 of abstract published on the CAS website; TAS 2011/A/2528).

48. While acknowledging that an administrative measure can still have certain punitive elements, the Panel finds that such hybrid nature does not take away that a distinction between an initial administrative measure, followed by a subsequent disciplinary procedure is perfectly feasible (CAS 2013/A/3256, para. 164 of abstract published on the CAS website).

49. Indeed, as held by another CAS panel, the administrative measure is “aimed not to sanction the club but to protect the values and objectives of UEFA’s competition, its reputation and integrity, not only to prevent a club which has violated such values from taking part in the competitions organized by UEFA (i.e. to protect the integrity of the competition), but to also dispel any shadow of doubt in the public about the

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integrity, the values and the fair play of its competitions (i.e. to protect the reputation of the competition)”. (CAS 2014/A/3625, para. 123 of abstract published on the CAS website)

50. As maintained by UEFA, one of the pertinent differences between the two stages of the process described above is that for the first stage it is already sufficient for UEFA to declare a club ineligible to participate in its competitions if it comes to the conclusion that the club has been directly and/or indirectly involved in any activity aimed at arranging or influencing the outcome of a match at national or international level, whereas for the second stage a concrete and specific breach of the regulations is required. This enshrines from the difference in wording between article 4.02 of the UCLR on the one hand, and article 4.03 of the UCLR jo. article 12 of the UEFA Disciplinary Regulations on the other.

51. The Panel feels comforted in the conclusion by the reasoning of another CAS panel:

“As it can be seen, the conduct that entails to the application of the administrative measure is broader and more generic than the one established for the disciplinary offence which, in line with its sanctioning character, is more restrictive and accurate. Indeed, to commit the match-fixing offence established by the UEFA DR the offender must meet several requirements that the conduct banned by the admission criterion does not require, mainly that:

- the offender (not necessarily the club but its players, officials, etc.) must have had an active role in the match-fixing activity (“who acts in a way” in order to “exert an influence”), contrary to the potential passive and indirect role envisaged in the administrative measure (to “have been directly and/or indirectly involved”). From a semantic perspective, it is clear that to act (take action, do something) is different than to be involved (to be implicated in or associated with something);

- the offender must perform this activity “with a view to gaining an undue advantage for himself or a third party”, which is not required in order to merely “be directly or indirectly involved” in a match -fixing activity” (CAS 2014/A/3625, para. 124 of abstract published on the CAS website).

52. Consequently, the Panel finds that the present proceedings are of administrative nature.

ii. Was the UEFA Appeals Body competent to render a decision in respect of the Club?

53. The Club argues that the UEFA Appeals Body was not competent to adjudicate the matter at hand. It argues that the UEFA Executive Committee or the UEFA CEDB were possibly competent, but not the UEFA Appeals Body.

54. UEFA maintains that the Appealed Decision was in full compliance with the applicable competition rules, explicitly accepted and agreed by the Club.

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55. The Panel observes that the following regulatory framework is relevant in this respect:

Article 50(3) of the UEFA Statutes (2016 edition):

“The admission to a UEFA competition of a Member Association or club directly or indirectly involved in any activity aimed at arranging or influencing the outcome of a match at national or international level can be refused with immediate effect, without prejudice to any possible disciplinary measures ”.

Article 34(3) of the UEFA Statutes:

“The Appeals Body shall have jurisdiction to hear appeals against decisions of the [UEFA CEDB] pursuant to the Disciplinary Regulations in force from time to time. These regulations may provide that a case be referred directly to the Appeals Body in urgent circumstances, in particular regarding the admission to, or exclusion from, UEFA competitions”.

Article 23(3) of the UEFA Disciplinary Regulations (edition 2014):

“The [UEFA CEDB] has jurisdiction to rule on jurisdictional issues and all other matters which fall within its competence under UEFA’s Statutes and regulations. In particularly urgent cases (especially those relating to admission to, or exclusion from, UEFA competitions), the chairman may refer the case directly to the Appeals Body for a decision”.

Article 24(4) of the UEFA Disciplinary Regulations:

“The Appeals Body has jurisdiction to hear appeals against decisions by the [UEFA CEDB] and to rule on particularly urgent cases referred to it directly by the chairman of the [UEFA CEDB]”.

Article 4.02 of the UCLR (2015-2018 Cycle, 2016/17 season):

“If, on the basis of all the factual circumstances and information available to UEFA, UEFA concludes to its comfortable satisfaction that a club has been directly and/or indirectly invol ved, since the entry into force of Article 50(3) of the UEFA Statutes, i.e. 27 April 2007, in any activity aimed at arranging or influencing the outcome of a match at national or international level, UEFA will declare such club ineligible to participate in the competition. […]”.

Article 4.07 of the UCLR:

“If there is any doubt as to whether a club fulfils other admission criteria than those defined in Paragraph 4.01(c) and Paragraph 4.01(d), the UEFA General Secretary refers the case to the [UEFA CEDB], which decides without delay upon the admission in accordance with the UEFA Disciplinary Regulations. […]”.

56. Preliminarily, the Panel notes that when UEFA rules make merely reference to “UEFA” do not necessarily imply that the power to act is attributed (as the Appellant would have it) to the Executive Committee; rather, it is a generic reference to the whole organization, whereby other rules identify the internal body which is empowered to act in a given case (it must indeed

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be underlined that from a legal viewpoint all UEFA bodies, even disciplinary ones, act on behalf of UEFA). This said, the Panel finds that UEFA handled the matter at hand in accordance with its rules and regulations. First, in accordance with article 4.07 of the UCLR, the UEFA General Secretary referred the matter to the UEFA CEDB. Subsequently, in accordance with article 23(3) of the UEFA Disciplinary Regulations, the chairman of the UEFA CEDB referred the matter directly to the UEFA Appeals Body.

57. The Panel finds that the chairman of the UEFA CEDB was entitled to do so in view of the urgency of the matter. The Panel observes that the Club sent its Admission Form to UEFA on 11 May 2016, thereby triggering the admission process. Since the draw for the relevant qualification stage of the UEFA Champions League was set to take place on 8 July 2016, there was a specific urgency for the matter to be resolved. The Panel feels comforted in this conclusion by the fact that article 23(3) of the UEFA Disciplinary Regulations refers specifically to issues relating to “admission to, or exclusion from, UEFA competitions” as being examples of particularly urgent cases, which is reiterated in article 34(3) of the UEFA Statutes and article 24(4) of the UEFA Disciplinary Regulations.

58. Insofar as the Club argues that the UEFA CEDB (and thus the UEFA Appeals Body) was only competent to assess whether the Club complied with the requirements set out in article 4.01(c) and (d) of the UCLR and not in respect of article 4.02, the Panel considers this argument to be misplaced. Article 4.07 of the UCLR clearly provides that if there is “any doubt as to whether a club fulfils other admission criteria than those defined in Paragraph 4.01(c) and Paragraph 4.01(d), the UEFA General Secretary refers the case to the [UEFA CEDB]” (emphasis added by the Panel).

59. Insofar as the Club argues that it lost access to one internal UEFA instance because the chairman of the UEFA CEDB referred the matter directly to the UEFA Appeals Body, the Panel notes that the Club effectively lost one instance. Importantly however, as set out above, this possibility is foreseen in the applicable regulatory framework, to which the Club agreed by signing the Admission Form.

60. The Panel does not see any particular problem with the fact that UEFA did not provide for an internal appeal in the matter at hand, as the important factor is that the Club is provided with the possibility to lodge an external appeal with CAS, which has the capacity to rule on the matter in dispute de novo in accordance with Article R57 of the CAS Code.

61. The Panel feels comforted in this conclusion by the fact that the Swiss Federal Tribunal recently ruled that “the requirement of a second instance or a second degree of jurisdiction does not […] fall within procedural public policy” (SFT 4A_90/2014, 3.3.2; ASA Bulletin, 1/2015, p. 80). Although the latter decision was rendered in the context of a contractual dispute, the Panel notes that the Club in the matter at hand is provided with a second instance before CAS and finds that the Club is certainly not entitled to a triple-tiered court structure.

62. Consequently, the Panel finds that the UEFA Appeals Body was competent to render a decision in respect of the Club.

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iii. Was the Club directly or indirectly involved in match-fixing activities?

63. Turning now to the actual merits of the matter at hand, the Panel observes that the crucial provision on the basis of which the UEFA Appeals Body decided that the Club is not eligible to participate in the UEFA Champions League competition 2016/2017 is article 4.0 2 of the UCLR:

“If, on the basis of all the factual circumstances and information available to UEFA, UEFA concludes to its comfortable satisfaction that a club has been directly and/or indirectly involved, since the entry into force of Article 50(3) of the UEFA Statutes, i.e. 27 April 2007, in any activity aimed at arranging or influencing the outcome of a match at national or international level, UEFA will declare such club ineligible to participate in the competition. […]”.

64. The Panel observes that it was not disputed by the parties that the burden of proof lies with UEFA and that the standard of proof is one of comfortable satisfaction. This standard was in fact agreed upon between the parties by means of the signing of the Admission Form. The standard of comfortable satisfaction has been consistently upheld in CAS jurisprudence regarding match-fixing cases and has been defined as being greater than a mere balance of probability but less than proof beyond a reasonable doubt (CAS 2014/A/3625, para. 131-132 of abstract published on the CAS website, with further references to CAS 2009/A/1920, CAS clearly established that to reach this comfortable satisfaction, the Panel should have in mind “the seriousness of the allegation which is made” (CAS 2014/A/3625, para. 132 of abstract published on the CAS website, with further reference to CAS 2005/A/908, CAS 2009/A/1902).

65. To comply with this burden and standard of proof, UEFA relies on three limbs of evidence in order to justify the Appealed Decision: a) Evidence based on the BFDS; b) UEFA’s own investigation; and c) the national and international perception of the Club.

a) Evidence derived from the BFDS

66. UEFA maintains that there are more than 50 objective, yet suspicious, betting reports in respect of the Club deriving from the BFDS. According to UEFA, more than 99% of all football clubs are never mentioned in any betting report, whereas the Club is named more than any other club in Europe.

67. UEFA also argues that some of the actions that have occurred on the pitch are also clear proof for severe manipulation, with a strong disrespect for the football community and for the core principles of sport. There is video footage to support these conclusions.

68. According to UEFA, the tendency for all these games is always the same, as they were all manipulation attempts to obtain criminal betting profits on a stunning global scale. This scale has been so alarming that bookmakers over the whole world have taken off the Club’s games from their betting lists and that some even refuse to offer bets on their football games.

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69. The Club disputes the conclusions in the BFDS reports relied upon by UEFA and it argues that it has never been criminally prosecuted and that this would be impossible if it would indeed have been involved in match-fixing activities in over 50 matches. The Club submits that the BFDS reports indicate themselves that the system cannot guarantee the accuracy of the sources of information.

70. The Club further submits that the BFDS alone does not constitute sufficient evidence to prove match-fixing, that the BFDS is not able to attribute specific responsibilities regarding the involvement in match-fixing but that the BFDS reports in respect of escalated matches are simply neutral alarms, which require to be supported by other, different and external elements pointing in the same direction.

71. The Club explains the anomalies evidenced by the BFDS reports by stating that its players may have been involved in match-fixing without the Club’s involvement and that the Club can therefore not be held responsible.

72. Finally, the Club relies on domestic Albanian legislation in submitting that gambling companies can only award a maximum profit per bettor of about EUR 3,5 00 and that Albanians are prohibited from accessing international betting websites.

73. In its argumentation, UEFA relies heavily on four matches of the Club that took place in UEFA’s European competitions:

• Crusaders FC v. the Club (UEFA Champions League, 21 June 2015)

• NK Dinamo Zagreb v. the Club (UEFA Champions League, 25 August 2015)

• Sporting Clube de Portugal v. the Club (UEFA Europa League, 22 October 2015)

• The Club v. FC Lokomotiv Moskva (UEFA Europa League, 10 December 2015)

74. The Panel will therefore particularly focus on these four matches and observes that the following conclusions are drawn by the BFDS in respect of these four matches:

Crusaders FC v. the Club (UEFA Champions League, 21 July 2015):

“The match ended in a 3:2 victory for Crusaders FC.

There was suspicious live betting evident throughout the final period of the match with the scoreline at 1:2, despite the opening 78 minutes of the game trading in a completely regular manner. During this closing period, there was suspicious betting seen for at least one further goal being scored, despite there clearly being significant time constraints on the creation of goal scoring opportunities. This confidence in a late fourth goal to be scored can simply not be justified by any degree of match action, and the behaviour of the odds in the market indicates that heavy betting was taking place for this outcome. It is wholly irregular for bettors to remain so resolutely confident in a late goal being scored, irrespective of the diminishing time in the game, and to witness live betting markets become distorted in this manner is of serious concern from a integrity standpoint. Given the large betting limits available in Asian markets for a fixture of this calibre, it is clear that large amounts were being bet for at least one late goal to be scored in an organised manner.

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To reiterate, these betting patterns fundamentally contradict normal betting logic, and have to be treated as reflecting prior knowledge of a late fourth goal materialising.

It is important to analyse why suspicious betting was only evident in the final period of the game with the scoreline at 1:2. Given that [the Club] held a commanding 6:2 aggregate lead in the tie at this stage, this presented the opportunity for them to manipulate the closing portion of the match for corrupt betting purposes. Simply put, they could attempt such a scheme without putting their qualification to the next round at any significant risk, and could generate large betting profits even from just this last section of the game, given the highly liquid betting markets available.

In terms of match action, there are some key incidents to document. Firstly, in the 11 th minute, [the Club’s] Renato Arapi was dismissed following an off the ball incident. He was alleged to ha ve kicked out at opponent Billy Joe Burns following a foul, and was duly sent off. Although [the Club] recovered from this, and held a 1:2 lead heading into the closing 10 minutes of the game, their defending in this final period was a serious concern, with erratic decision making and a lack of effort displayed during the final minutes by several [Club] players. Of specific interest was the poor performance of Bajram Jashanica, Kristi Vangjely and Esquerdinha during this period. They displayed questionable positional awareness and effort for both the defending of a cross which resulted in Crusaders FC’s second goal, and also for a crossed ball just prior to this which resulted in Crusaders FC hitting the post. This collective defensive effort can only be viewed with serious concern given the betting patterns witnessed during this stage of the match.

Following the match, Crusaders FC goalkeeper Sean O’Neill took to the social media platform Twitter to voice suspicions about the game, suggesting that he believed some kind of ‘betting scam’ took place in the last ten minutes of the match. He communicated that he had ‘never seen football like it’, suggesting that [the Club’s] players deliberately underperformed in the final period of the game. Allegations of this nature are clearly very rare from a footballer who has actually taken part in a game, and whilst they are just a personal opinion, they are important to highlight given the speculation that has surrounded the integrity of this match.

Finally, the immensely suspicious history of [the Club] must also be taken into account when analysing this match. They have featured in an extraordinary number of suspicious matches throughout their history, including multiple escalated games during the qualifying phase of this competition in past seasons. To see [the Club] once again involved in a suspicious match in European competition can only increase integrity concerns.

Suspicious live betting for a late fourth goal scored Very poor defensive performance of [the Club] in the closing stages of the match Extremely suspicious history of [the Club]

In summary, there is credible evidence to support the conclusion that this match was manipulated for betting purposes. The suspicious betting patterns observed exceed the acceptable threshold, and the BFDS are satisfied that corrupt betting profits were generated on this match”.

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NK Dinamo Zagreb v. the Club (UEFA Champions League, 25 August 2015):

“The match ended in a 4:1 victory for NK Dinamo Zagreb.

There was highly suspicious live betting which developed abruptly midway through the second half. With the score at 3:1 – and NK Dynamo Zagreb playing with a numerical disadvantage – bettors suddenly became supremely confident that [the Club] would lose the remainder of the match. Whilst NK Dinamo Zagreb were the better team during this period of the game, no amount of match action can possibly justify the severe betting patterns that emerged, and it is clearly evident that it was not primarily driven by events taking place on the field of play. There was additional betting of an even more suspicious nature at 3:1 for at least five goals to be scored, with odds again forced down to extreme levels. This betting was so severe and so illogical that it is clear bettors were aware of at least one more goal being scored in the match. Indeed, bettors were attempting to extract the maximum possible profits from all live betting markets, as they frequently do in matches which are manipulated for betting purposes.

Furthermore, following NK Dynamo Zagreb’s fourth goal (4:1), severe betting ensued for [the Club] to concede another unanswered goal. It is particularly worrying to see strong live betting for [the Club] to concede late goal(s) in the game, as there were severe time constraints on goal scoring opportunities being created. Clearly, such betting patterns have to be treated with the utmost concern, and it is clear that extraordinary amounts were being bet in order for markets to react in the way they did.

The timing of the suspicious betting is potentially very informative about the nature of the manipulation. Indeed, suspicious betting developed soon after [the Club] trailed 3:1, at which point their chances of progressing from their tie were very slim. This suggest that [the Club] were ready to exploit the match for corrupt betting purposes when the opportunity presented itself, indicating a premeditated and carefully planned scheme. Whilst only one of these goals actually materialised, meaning the desired outcome was only partially successful, considerable corrupt betting profits would still have been generated across multiple markets as a result.

In terms of match action, it must be noted that [the Club’s] performance levels dropped noticeably at 3:1. Whilst this may partially understandable as the tie was effectively over, they did have a man advantage at this point so should still have been competitive. Furthermore, the goal that [the Club] conceded in the 80 th minute must be highlighted. Renato Arapi of [the Club] was very slow to react to a through ball that set up this goal and then failed to chase the onrushing forward, which allowed ample time and space for the goal scoring chance to develop. Goalkeeper Orges Shehi could also have handled the situation better, choosing to stay rooted to his line for the one on one rather than coming out to close down the angle, which arguably most goalkeepers would have done. Unquestionably, these match incidents have to be documented considering the thoroughly suspicious betting witnessed.

Finally, the extremely suspicious history of [the Club] must also be taken into account when analysing this match. They have featured in an extraordinary number of suspicious matches throughout their history, including in the second qualifying round of the UEFA Champions League against Crusaders FC on 21/07/2015. That match featured strikingly similar suspicious live betting patterns indicating [the Club] deliberately conceded a late goal. Once again, the suspected manipulation was executed when the tie was no longer competitive, on that occasion once [the Club] held a commanding aggregate lead. To see

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[the Club] once again involved in match displaying similar suspicious betting highlights the highly coordinated and sophisticated nature of their corrupt betting practices.

Extremely suspicious live betting for [the Club] to lose the match by at least three and four goals Equally suspicious live betting for at least five and six goals to be scored Very poor defending from [the Club] which led to the final goal Very suspicious history of [the Club], including previous escalations in European competition

In summary, there is overwhelming evidence that this match was manipulated for betting purposes in a precise and premeditated manner, with corrupt betting profits generated as result”.

Sporting Clube de Portugal v. the Club (UEFA Europa League, 22 October 2015):

“The match ended in a 5:1 victory for Sporting Clube de Portugal.

Late in the match with the score at 4:0, highly suspicious live betting emerged for at least six goals to be scored. These wholly suspicious odds movements developed abruptly, indicating that the final 20 minutes of the match were specifically targeted for the purpose of generating corrupt betting profits. Indeed, there were no signs of irregular betting occurring in any live markets prior to this point. [The Club] duly conceded a fifth goal in the 77 th minute, just five minutes after these suspicious betting patterns materialised. When betting markets reopened with the score at 5:0, there was a further wave of highly suspicious betting for a late sixth goal to be scored, and also additional suspicious betting for [the Club] to lose by a minimum six-goal margin. Namely, the bettors who were heavily active in the marketplace strongly anticipated both a late goal, and [the Club] being the team to concede said goal. Even with just five minutes of normal time remaining, there was an unrelenting betting confidence on display, and this can only be treated as reflecting prior knowledge of the match result, given the severe time constraints on these outcomes materialising. The betting was in fact so unusual that it led to one prominent Asian bookmaker removing live markets before the end of the game. A decision by an Asian bookmaker to cease live trading prematurely is very concerning, as it demonstrates that they likely held their own concerns regarding the nature of the betting being executed in the closing period of the match.

The highly suspicious betting for at least six goals to be scored ultimately proved successful courtesy of Sporting Clube de Portugal’s fifth goals, and [the Club’s] very late consolation goal. However, when all live betting patterns are viewed in conjunction, it is abundantly clear that bettors expected [the Club] to be the team to concede the late sixth goal as well. Although this did not occur, it does not make the betting patterns observed any less concerning. Indeed, there is substantial betting evidence that this match was a manipulation attempt by [the Club], and corrupt profits were clearly generated for the live market relating to a minimum of six goals being scored, albeit not maximised as a whole, as [the Club’s] losing margin was ultimately only four clear goals.

In terms of the match action, earlier match incidents must also be documented. Firstly, Hamdi Salihi of [the Club] received a second yellow card for deliberate handball in only the 24 th minute of the match. His decision to handle the ball from his own sides attacking corner can only be regarded as highly unusual. Secondly, [the Club] conceded two penalties at the end of the first half, which led to Sporting Clube de Portugal leading 2:0 at half-time. Bajram Jashanica was penalised for tripping a Sporting Clube de

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Portugal forward for the first penalty, whilst minutes later, referee Clayton Pisani deemed that Kristi Vangjeli fouled the same player just inside the penalty area and awarded another penalty. Whilst all these incidents clearly harmed [the Club’s] chances in the match, it should be noted that the highly suspicious betting patterns did not emerge until long after these incidents took place. However, it is notable that the tempo of the match slowed in the final period of the game, with neither side showing a significant attacking threat. This demonstrates that the aforementioned highly suspicious betting patterns were not driven by events unfolding on the field of play itself, raising integrity concerns even further.

Finally, the escalation history of [the Club] must also be taken into account when analysing this match, as they are one of the most suspicious teams in the history of the BFDS. Of particular concern is that two of their UEFA Champions League qualification matches from this season against NK Dinamo Zagreb on 25/08/2015 and Crusaders FC on 21/07/2015 were also escalated. These matches featured strikingly similar betting patterns for [the Club] to concede late unanswered goals, and to witness this repeated pattern of betting strongly indicates that this is a specific method of manipulation which [the Club] are employing in European Competition.

Extremely suspicious live betting for at least six goals to be scored Additional suspicious live betting for [the Club] to lose by at least six goals Very suspicious history of [the Club]

To conclude, there is substantial evidence to support the conclusion that this match was targeted for betting related manipulation. It strongly bears the hallmarks of other highly suspicious matches, and although the suspicious betting only produced mixed results, this match was clearly targeted for the purpose of generating corrupt betting profits”.

The Club v. FC Lokomotiv Moskva (UEFA Europa League, 10 December 2015):

“The match ended in a 0:3 victory for FC Lokomotiv Moskva.

Extremely suspicious live betting was observed for at least two and three goals to be scored in the match. This wholly suspicious betting emerged early in the second half, with odds for at least three goals to be scored decreasing steadily, in spite of the elapsing time for the required goals to be scored. Indeed, as the match entered the final 20 minutes (at 0:1), the one-sided betting for a further two goals to be scored was still occurring on a deeply suspicious scale, indicating that heavy amounts were being bet during this period. Even with less than five minutes of normal time remaining, bettors remained convinced that at least one further goal would be scored, with the bettors active in the marketplace displaying no regard for the extreme time constraints on the creation of goal scoring chances at this late stage of play.

There was also highly suspicious betting recorded for [the Club] to lose the match by at least two goals. This concerning betting did not develop until the final 10 minutes of the contest (at 0:1), as bettors suddenly and inexplicably displayed a suspicious level of confidence in [the Club] losing the match by at least two goals. Odds decreased against all expectations, reaching low and unrealistic levels with just minutes remaining in regulation time. This period of betting is rendered even more suspicious with a review of the match action and statistics, which reveal that the contest was far from one sided, with [the Club] actually recording a very similar number of dangerous attacks to FC Lokomotiv Moskva during the final

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15 minutes. When examining all the live markets as a whole, it appears clear that bettors were primarily anticipating at least three goals to be scored in this match and were also expecting [the Club] to concede the late goals to render all the betting successful. Given the high profile nature of the UEFA Europa League and the associated high betting limits, it is abundantly clear that vast sums of money must have been traded on these outcomes to force odds to behave in such an illogical and suspicious manner.

In terms of the match action, the strange nature of the final two goals must be documented. The second goal of the game was scored as a result of miscommunication between [Club] goalkeeper Orges Shehi and defender Bajram Jashanica. A long, hopeful ball was not dealt with by Bajram Jashanica, who inexplicably hesitated, allowing the opposition striker to beat both himself and Orges Shehi to the ball for a simple finish into an unguarded net. Similarly, the third and final goals of the game was also characterised by some highly questionable defending from [the Club]. Not one the defenders attempted to mark an opposition player or close down the man with the ball, allowing FC Lokomotiv Moskva to find an unmarked striker in the box who then proceeded to shoot into the goal under absolutely no pressure. A review of the match action shows there was an obvious drop in performance and focus from [Club] players in the later stages of the match, with players making little to no effect to close down and disrupt opposition players. Considered alongside the highly suspicious betting patterns discussed, the notable match incidents have to be viewed critically.

Finally, the vast escalation history of [the Club] must also be taken into account when analysing this match. Of particular concern is that two of their UEFA Champions League qualification matches from this season against NK Dinamo Zagreb on 25/08/2015 and Crusaders FC on 21/07/2015 were also escalated, as well as their recent UEFA Europa League fixture against Sporting Clube de Portugal on 22/10/2015. These matches featured strikingly similar betting patterns for [the Club] to concede late unanswered goals, and to witness this repeated pattern of betting strongly indicate s that this is a specific method of manipulation which [the Club] are employing in European competitions.

Extremely suspicious live betting for at least three and two goals to be scored Further highly suspicious live betting for [the Club] to lose by at least two goals Extremely questionable defensive performance of [the Club], in particular Bajram Jashanica Highly suspicious history of [the Club]

In summary, there is overwhelming evidence that this match was manipulated for betting purposes in a precise, orchestrated manner, with corrupt betting profits generated as a result”.

75. The Panel observes that UEFA basically relies on these BFDS reports without adding much information in its written submissions that is not already taken into account in the BFDS reports. The conclusions in the BFDS reports regarding specific on-field actions of players are corroborated with video footage.

76. Commencing with its analysis, the Panel finds the fact that the Club, its officials or its players have not been criminally tried does not prove at all that the Club has not been involved in match-fixing. This is also by no means a precondition for UEFA to declare the Club ineligible to participate in its European competitions. Indeed, as happened in other situations, the

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information deriving from the BFDS may well be the basis for a future criminal investigation in respect of the activities of the Club, its officials or its players.

77. As to the Club’s arguments in respect of the domestic Albanian legislation, the Panel finds that such arguments must be dismissed. First of all, the BFDS is based on information from gambling companies in Europe and Asia and is therefore in no way limited to the domestic Albanian gambling market. Bets on domestic Albanian matches can also be placed abroad. Furthermore, it is in no way contended by UEFA that only inhabitants of Albania were betting on the Club’s matches. Indeed, the alleged match-fixing activities related to the Club may well have been initiated from abroad, with the result that the profits were also generated abroad. This however in no way exculpates the Club and its players from possible involvement in match-fixing activities. The Panel therefore does not deem the application of Albanian legislation relevant to the dispute at stake.

78. The Panel finds that the other arguments advanced by the Club relate to the general reliability and credibility of the BFDS, which will be examined below.

79. The Panel observes that the analytical information derived from the BFDS is valuable evidence that, particularly if corroborated by further evidence, can be used in order to conclude that a club was directly or indirectly involved in match-fixing.

80. In respect of the weight to be attributed to the information provided by the BFDS, the Panel deems it necessary to examine the BFDS in further detail.

81. UEFA explains the BFDS as follows:

“The role of the BFDS is to highlight irregular betting movements, both pre-match and in-game (live), in the core betting markets by monitoring major European and Asian bookmakers. The core betting markets are: the Asian handicap (AHC); Totals (number of goals in a match) and 1X2 (home win, draw, away win). The monitoring of the betting markets cover all UEFA competition matches (approximately 2’000 per season) and matches of the top two divisions and cup competition of UEFA’s member associations (approximately 30’000 matches per season).

The monitoring uses sophisticated algorithms and mathematical models to compare calculated odds with actual bookmakers’ odds to determine whether the odds in a specific minute or time period are irregular. Calculated odds are a mathematical representation of the true probability of an occurrence without the external effect of money and opinion. In effect they show what should be happening to the od ds instead of what is actually happening.

If a match displays irregular betting patterns the match is ‘escalated’ and a report generated. These reports include detailed information from the monitored betting operators together with match specific information, for example, the current form of the teams involved, on-field action, player data, and information regarding the match officials as well as motivational factors (promotion/relegation needs or potential qualification for a UEFA competition the following season). The reports contain a textual analysis and conclusion of

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the observations made by the specialists as well as graphical representations of movements of the betting market”.

82. The Panel notes the similarities between the procedures followed in respect of the BFDS and the athlete blood passport (the “ABP”) in doping matters. Both rely initially on analytical data which is subsequently interpreted by experts/analysts before conclusions are drawn as to whether a violation is presumed to be committed or not.

83. The Panel is mindful of the warnings expressed in legal literature that a pitfall to be avoided in respect of ABP cases is the fallacy that if the probability of observing values that assume a normal or pathological condition is low, then the probability of doping is automatically high (VIRET, Evidence in Anti-Doping at the Intersection of Science and Law, 2016, p. 763, with further references to Dr. Schumacher and Prof. d’Onofrio 2012, p. 981; Sottas 2010, p. 121) and that it has been submitted in this context that “if the ADO is not able to produce a “doping scenario” with a minimum degree of credibility (“density”), the abnormality is simply unexplained, the burden of proof enters into play and the ADO’s case must be dismissed since there is no evidence pleading in favour of the hypothesis of “doping” any more than for another cause” (VIRET M., Evidence in Anti-Doping at the Intersection of Science and Law, 2016, p. 774).

84. This view has indeed been endorsed in CAS jurisprudence and the Panel finds that a CAS panel summarised it nicely by stating that “abnormal values are (for the purposes of the ABP) a necessary but not a sufficient proof of a doping violation” (CAS 2010/A/2235, para. 86). Although such panel continued by emphasising that it is not necessary to establish a reason for blood manipulation, the panel noted the coincidence of the levels with the athlete’s racing schedule and stated the following:

“As Dr Sottas convincingly explained, in the same way as the weight of DNA evidence said to inculpate a criminal is enhanced if the person whose sample is matched was in the vicinity of the crime, so the inference to be drawn from abnormal blood values is enhanced where the ascertainment of such values occurs at a time when the Athlete in question could benefit from blood manipulation” (CAS

85. The Panel finds that this is similar in respect of the analytical information derived from the BFDS. The BFDS analyses whether the analytical information regarding betting on football matches can be explained by “normal” circumstances. The conclusion that the statistical information cannot be explained by “normal” circumstances does not necessarily entail that it must hence be concluded that the results are to be explained by match-fixing. The reporting of an “escalated” match deriving from the BFDS is by no means conclusive evidence that such match was indeed fixed, but remains subject to review.

86. In order to come to the conclusion that a match is fixed the Panel finds that the analytical information needs to be supported by other, different and external elements pointing in the same direction, i.e. a differentiation must be made between the so-called quantitative information and a qualitative analysis of the quantitative information.

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87. In analysing the BFDS reports, the Panel notes that the final conclusions drawn are not only based on analytical data and the absence of any “normal” explanation, but indeed take into account several external factors corroborating the theory that the abnormal betting behaviour was likely to be explained by match-fixing: suspicious actions of players that took place on the field of play, suspicions raised by an opponent after the match, the emergence of a betting pattern in respect of the Club whereby it would concede late goals when the tie was no longer competitive and the fact that the Hong Kong Jockey Club, a prominent Asian bookmaker, removed the Club from live markets before the end of a game (as confirmed by Mr Bolingbroke during his testimony).

88. The Panel observes that whereas the ABP provides for a detailed regulatory framework by means of the Athlete Biological Passport Operating Guidelines & Compilation of Required Elements (the “ABP Operating Guidelines”), no such regulatory framework exists for the BFDS.

89. An important difference between the ABP and the BFDS is that the ABP uses a specificity of 99% (with some international governing bodies even using a specificity of 99.9%), whereas different levels of specificity are used for the BFDS, depending on the level of the competition of which the match forms part. As appears from the expert report of Prof. Forrest and Prof. McHale, which the Appellant did not counter by an expert report of its own, when setting thresholds, the BFDS distinguishes between three different tiers of competition. Level 1 competitions attract very high betting volumes and thresholds are set relatively low because even a small change in odds may reflect a large amount of additional wagering on a particular outcome, which merits examination. Lower status of a league in the BFDS signifies lower betting interest and hence more apparently random volatility in odds and a need to be more conservative when setting thresholds. To illustrate from the 1X2 market, the adjusted netwin change statistic calculated by the BFDS has to reach 20%/30%/50% for green/yellow/red alerts to be created where the match is from a Level 1 competition whereas the thresholds are set at 25%/55%/85% for Level 2 matches and at 33%/67%/100% for Level 3 matches (expert report, p. 34).

90. It appears from the expert report of Prof. Forrest and Prof. McHale that the specificity used for the BFDS is indeed rather low: “[t]he first stage screen is constructed to exhibit high sensitivity (but consequently low specificity). This makes it likely that few cases in the population are missed. Cases testing positive at this stage are then subject to a second-stage screen designed with the emphasis on specificity. The intention is to eliminate a high proportion of the false positives generated b y the first-stage screen. The combined results from the two screens should then satisfy both desirable criteria, sensitivity and specificity”.

91. The Panel observes that [roughly 1/3 of all matches analysed by the BFDS between 1 August 2013 and 31 July 2014 triggered] a certain suspicion for match-fixing. The Panel understands that the ratio behind this low specificity is that these […] matches should normally include all fixed matches, but that, since the net is cast wide, it necessarily also includes a subs tantial number of matches that are not fixed (so-called false positives). The subsequent stages of the BFDS are then used to filter the correct positives from the false positives.

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92. Accordingly, the Panel finds that this corroborates the conclusion that, if a specific match has triggered a yellow or red flag in the BFDS, this is by no means evidence that the match was indeed fixed. Such conclusion would only be warranted after a thorough analysis in the subsequent stage of the BFDS. The Panel therefore finds that the quantitative information derived from the BFDS is not definitive in the assessment of whether a specific match has been fixed, although noting Mr Mase’s statement that the analytical data in respect of the four matches of the Club in UEFA’s European competitions discussed above are extreme in comparison with other matches flagged for abnormal betting odds.

93. The qualitative assessment of the analysts involved in the BFDS is therefore also needed.

94. The Panel observes that Prof. Forrest and Prof. McHale – whose expert evidence, as said, was not rebutted by differing expert evidence – concluded the following in respect of the analysis made by the analysts of the BFDS:

“In section 5, we examined Stage 2 of the [BFDS] where analysts decide whether the matches with betting anomalies drawn to their attention by Stage 1 are truly likely to have been manipulated. First, analysts filter out cases (a large majority) where they perceive a ready, legitimate explanation for apparent anomalies. Those still then regarded as potentially suspicious are referred on for more detailed scrutiny, which involves group decision-taking on whether to report a match as likely to have been manipulated. Prior to this final scrutiny, all sports and betting data are checked and further relevant information obtained. In reviewing processes in these parts of the [BFDS], we were satisfied that the procedures for reaching a decision are rigorously set out and followed. We determined that the qualifications and collective experience of the team of analysts equip them to make reliable assessments of the evidence. They were informed by data which had been subject to appropriate checks according to systematic procedures and by appropriate additional information obtained from correspondents on the ground. We noted that only a very small proportion of matches flagged as potentially suspicious by the algorithms in Stage 1 were finally classified as likely manipulated by the analysts’ team in Stage 2. This we judged to reflect a cautious attitude where sensitivity was implicitly sacrificed in favour of specificity: only matches where a compelling case could be made were in the end reported as suspicious to the relevant sports organisation”.

95. Indeed, only [approx. 1/50 of the] matches that triggered a yellow or red alert for irregular betting patterns by means of the BFDS analytical monitoring between 1 August 2013 and 31 July 2014 were reported as escalated after the qualitative analysis of the BFDS analysts.

96. Although the Panel reckons that, in general, the BFDS system could be improved through an ad hoc UEFA regulation (for example, setting a minimum number of analysts that need to agree in order to flag a match for abnormal betting behaviour, anonymising the name of the club at least during the first stages of the analysis, including some former players and/or coaches in the pool of analysts), with regard to the case at hand the Panel adheres to the unrebutted findings of Prof. Forrest and Prof. McHale and finds that the conclusion reached by the BFDS in respect of the Club are fully justified as will be set out in more detail below.

97. The Panel particularly considers the emergence of a betting pattern, which remained essentially unchallenged by the Club, to be convincing evidence that the Club is at least indirectly

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involved in match-fixing activities. This betting pattern consists of the fact that it was observed in four different matches of the Club in either the UEFA Champions League or the UEFA Europa League in the first half of the 2015/2016 sporting season, that the actual bookmakers’ odds started to divert considerably from the calculated odds at the end of the match when the tie was no longer competitive (i.e. when it was clear that the Club would lose the tie on the basis of the aggregate score or that it would win the tie).

98. The adjusted netwin change reached levels of 294% for live totals odds (Crusaders v. the Club), 479% for live Asian handicap odds (NK Dinamo Zagreb v. the Club), 237% for live Asian handicap odds (Sporting Clube de Portugal v. the Club) and 144% for live Asian handicap odds (the Club v. FC Lokomotiv Moskva), whereas a 50% adjusted netwin change would already have been sufficient to trigger a red alert in the BFDS. Corroborated by the statement of Mr Mace that the analytical data in respect of the four matches of the Club in UEFA’s European competitions are extreme in comparison with other matches flagged for abnormal betting odds, the Panel finds that the analytical information derived from the BFDS is an important element to take into account in concluding that the Club was at least indirectly involved in match-fixing activities.

99. The Panel also considers it important that a prominent Asian bookmaker removed live markets before the end of the game between Sporting Clube de Portugal and the Club.

100. In addition, the timing of the debatable performance of some players in the four matches discussed above exactly coincides with the observed – unchallenged – exceptional betting patterns.

101. The qualitative conclusions reached in the BFDS reports are further corroborated by the convincing explanations of Mr Mace, who explained the BFDS in general as well as why the specific analytical data in respect of the Club was so suspicious for match-fixing.

102. The Panel took note of the study of the BFDS carried out by Prof. Forrest, his explanation of the BFDS and his review of the system during the hearing. Prof. Forrest concluded in his report that “[o]ur overall conclusion from the study is that matches reported as suspicious by the [BFDS] are very likely to have indeed been manipulated”. On the basis of such unrebutted expert testimony of Prof. Forrest and his report (written together with Prof. McHale) as well as the explanations of Mr Mace, and despite the above Panel’s remark that there is still some room for improvement, the Panel is satisfied that the BFDS is a reliable means of evidence to prove indirect involvement in match-fixing.

103. The Panel observes once more that the Club merely contested the reliability of the BFDS in a very generic way, in particular without relying on expert evidence of its own, and that it did not contest the individual BFDS reports observing exceptional betting patterns in respect of matches of the Club. The only alternative scenario put forward by the Club to explain the observed exceptional betting patterns has been that the players might have fixed the match without the Club’s knowledge, which is an explanation that does not exculpate the Club.

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104. Indeed, the Panel finds that the Club’s argument (that the consequence of the pl ayers’ improper conduct should not fall on the Club) must be dismissed. Based on the wording of article 4.02 of the UCLR, no direct culpability of the Club is required in order for it to be declared ineligible to participate (CAS 2014/A/3628, para. 136 of abstract published on the CAS website). The Panel considers that under such UEFA rule the behaviour of one or more players causes the “indirect involvement” of a club. Therefore, the Club was at the very least indirectly involved in match-fixing activities and the Panel considers that UEFA has proven its case to the Panel’s comfortable satisfaction.

105. Finally, in respect of the Club’s argument that the BFDS is not able to attribute specific responsibilities regarding the involvement in match-fixing, the Panel finds that this argument must be dismissed. As recalled supra, the administrative measure to declare a club ineligible to participate in UEFA’s European competitions because of indirect involvement in matchfixing must be distinguished from possible disciplinary sanctions inflicted because of matchfixing:

“the offender (not necessarily the club but its players, officials, etc.) must have had an active role in the match-fixing activity (“who acts in a way” in order to “exert an influence”), contrary to the potential passive and indirect role envisaged in the administrative measure (to “have been directly and/or indirectly involved”). From a semantic perspective, it is clear that to act (take action, do something) is different than to be involved (to be implicated in or associated with something);

the offender must perform this activity “with a view to gaining an undue advantage for himself or a third party”, which is not required in order to merely “be directly or indirectly involved” in a match -fixing activity” (CAS 2014/A/3625, para. 124 of abstract published on the CAS website).

106. On the basis of all the above, the Panel has no doubt that the Club was at least indirectly involved in match-fixing activities. Even if no direct involvement is proven, the Club was clearly indirectly implicated in match-fixing activities.

107. The Panel refrains from entering into more detail in respect of more specific accusations expressed by UEFA in respect of the Club and/or specific persons within the structure of the Club. The Panel considers this approach to be justified because any such specific findings may only prejudice the outcome of any possible future disciplinary proceedings and/or criminal proceedings against the Club or persons related to it, whereas the Panel does not consider such more detailed analysis necessary to conclude that the Club was, at least indirectly, involved in match-fixing activities. In view thereof, the Panel refrains from considering the second (UEFA’s own investigation on the Club) and third (the national and international perception on the Club) limb of evidence submitted by UEFA. The Panel however acknowledges that the third limb of evidence contains arguments that are already taken into account in the BFDS reports (e.g. the statement of the goalkeeper of Crusaders FC on Twitter after the match against the Club).

108. Consequently, the Panel concludes to its comfortable satisfaction that the Club was at least indirectly involved in match-fixing activities.

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iv. Is the Club eligible to participate in the UEFA Champions League in the 2016/2017 sporting season?

109. Having concluded that the Club has been at least indirectly involved in activity aimed at arranging or influencing the outcome of a match at national or international level, the remaining question to be answered by the Panel is what consequences this should have.

110. In this respect, the Panel observes that article 4.02 of the UCLR determines the following:

“If, on the basis of all the factual circumstances and information available to UEFA, UEFA concludes to its comfortable satisfaction that a club has been directly and/or indirectly involved, since the entry into force of Article 50(3) of the UEFA Statutes, i.e. 27 April 2007, in any activity aimed at arranging or influencing the outcome of a match at national or international level, UEFA will declare such club ineligible to participate in the competition. Such ineligibility is effective only for one football season. […]”.

111. The Panel notes that this provision does not provide the decision-making bodies with any latitude as to the consequences of failing to comply with this admission criteria; the Club will be declared ineligible to participate in the competition and this ineligibility is effective only for one football season.

112. In any event, the Panel does not consider UEFA’s measure to declare the Club ineligible to participate in any European competition organised by UEFA for one sporting season to be disproportionate, illegal, or otherwise contrary to public policy.

113. Indeed, reiterating what has been stated above, the administrative measure is “aimed not to sanction the club but to protect the values and objectives of UEFA’s competition, its reputation and integrity, not only to prevent a club which has violated such values from taking part in the competitions organized by UEFA (i.e. to protect the integrity of the competition), but to also dispel any shadow of doubt in the public about the integrity, the values and the fair play of its competitions (i.e. to protect the reputation of the competition)” (CAS 2014/A/3625, para. 123 of abstract published on the CAS website).

114. The Panel finds that UEFA legitimately proceeded to declare the Club ineligible in order to protect the reputation of its competitions, a type of measure agreed upon by the Club by signing the Admission Form.

B. Conclusion

115. Based on the foregoing, and after having taken into due consideration both the regulations applicable and all the evidence produced and all arguments submitted, the Panel holds that the Club is not eligible to participate in the UEFA Champions League in the 2016/2017 sporting season.

116. Any other and further prayers or requests for relief are dismissed.

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