Al Hilal Khartoum v. Confédération Africaine de Football (CAF)

V. JURISDICTION OF THE CAS

39. The question of whether or not the CAS has jurisdiction to hear the present dispute must be assessed on the basis of the lex arbitri. As Switzerland is the seat of the arbitration and not all Parties are domiciled in Switzerland, the provisions of the Swiss Private International Law Act (“PILA”) apply, pursuant to its Article 176 (1). In accordance with article 186 of PILA, the CAS has the power to decide upon its own jurisdiction (Kompetenz-Kompetenz).

40. Pursuant to Article R27 of the CAS Code: “These Procedural Rules apply whenever the parties have agreed to refer a sports-related dispute to CAS. Such reference may arise out of an arbitration clause contained in a contract or regulations or by reason of a later arbitration agreement (ordinary arbitration proceedings) 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). Such disputes may involve matters of principle relating to sport or matters of pecuniary or other interests relating to the practice or the development of sport and may include, more generally, any activity or matter related or connected to sport”.

41. Article R47 of the CAS Code provides as follows: “An appeal against the decision of a federation, association or sports-related body may be filed with CAS if the statutes or regulations of the said body so provide or if the parties have concluded a specific arbitration agreement and if the Appellant has exhausted the legal remedies available to it prior to the appeal, in accordance with the statutes or regulations of that body. An appeal may be filed with CAS against an award rendered by CAS acting as a first instance tribunal if such appeal has been expressly provided by the rules of the federation or sports-body concerned”.

42. The Appellants rely on Article 8 DR, which states as follows: “Decisions taken by the Appeal Board shall be final and binding on all the parties concerned. This provision is subject to appeals lodged with the Court of Arbitration for Sport (CAS) (art. 45 para. 4 of the Statutes)”.

43. The Appellants also rely on Article 48 of the CAF Statutes, which states as follows:

1. CAF authorizes appeals to the Court of Arbitration for Sport; an independent arbitration tribunal based in Lausanne (Switzerland) to resolve any disputes between CAF, national associations, members, leagues, clubs, players, officials, and licensed match agents and licensed players’ agents.

2. […]

3. Only CAS shall be empowered to adjudicate on appeals against any decisions or disciplinary sanctions taken in the last instance by any legal body of CAF or FIFA, a national association, league, or club. Any appeal must be filed with CAS within ten (10) days following the notification of the decision.

4. […].

44. The Panel notes that the Appealed Decision qualifies as a “decision of a federation” in the meaning of Article R47 of the CAS Code, and thus subject to appeal before the CAS. Moreover, the Panel notes that the jurisdiction of CAS is not disputed by the Parties and was further confirmed by the OoP duly signed by the Parties.

45. It follows that the CAS has jurisdiction to hear this dispute.

VI. ADMISSIBILITY

46. Article R49 of the CAS Code provides as follows:

“In the absence of a time limit set in the statutes or regulations of the federation, association or sports-related body concerned, or of a previous agreement, the time limit for appeal shall be twenty-one days from the receipt of the decision appealed against. After having consulted the parties, the Division President may refuse to entertain an appeal if it is manifestly late”.

47. Further to the above, Article 48 (3) of the CAF Statutes provides that any appeal to the CAS must be filed within ten (10) days of receipt of notification of the decision.

48. The grounds of the Appealed Decision were notified to the Appellant on 17 March 2020. The Statement of Appeal was filed on 26 March 2020 (i.e. within the 10-day deadline).

49. It follows, therefore, that this appeal is admissible.

VII. OTHER PROCEDURAL ISSUES

50. In the letter to the CAS Court Office dated 25 August 2020, Dr. Pedro Macieirinha submitted that the appeal lodged on 26 March 2020, was not only filed in the name of Al-Hilal, but also “for the benefit of the Official of the Club, Mr Hassan Mohamed”. At the outset of the hearing, however, Dr. Pedro Macieirinha, clarified that this – contrary to his previous letter – was not the case and that he did not have power of attorney from Mr. Hassan Mohamed to act in the latter’s name. The Respondent took note of this clarification and did not object to it. It follows from the above, that this Panel does not need to deal with the Appealed Decision insofar as it refers to Mr. Hassan Mohamed. No appeal has been lodged in the latter’s name and Mr. Hassan Mohamed is, therefore, not a party to these proceedings.

VIII. APPLICABLE LAW

51. Pursuant to Article R58 of the CAS Code, in an appeal arbitration procedure before the CAS: 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 that the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision.

52. In addition, Article 48 (2) of the CAF Statutes provides the following: 3. The Code of Sports-related Arbitration shall govern the arbitration proceedings. With regard to substance, CAS shall apply the various regulations of CAF and FIFA or, if applicable, of national associations, members, leagues and clubs, and, as a last resort, Swiss law.

53. The Panel is satisfied to primarily apply the various regulations of CAF and FIFA, and, subsidiarily, Swiss law.

IX. MERITS OF THE APPEAL

54. In the view of the Panel, the dispute pivots around the following questions:

- Did the Respondent breach the Appellant’s right to be heard, in particular Articles 51 d) and e) DC according to which the decision must contain “the legal reasons for the decision” and “the provisions on which the decision was based” and – in case the question is answered in the affirmative, what are the consequences thereof?

- Does the Appealed Decision violate any rules and regulations / statutory principles in relation to the determination of the sanction?

A. Did the Respondent breach the Appellant’s Right to be Heard?

55. The Appellant submits that the Respondent breached its right to be heard in numerous ways. The Appellant is of the view that the CAF judicial bodies did not observe the “contradictory principle”. The judicial bodies – according to the Appellant – should have “verified the parties’ version of the facts”. Furthermore, they should have allowed the Appellant to “submit written statements” and should have invited the Appellant to the hearing of the Appeal Body held on 13 February 2020.

56. In addition, the Appellant submits that the Appealed Decision violates Articles 51 d) and e) DC, which are based on the right to be heard. These provisions read as follows:

“The decision contains … the legal reasons for the decision … the provisions on which the decision was based”.

57. The Panel finds that – in fact – the CAF breached the Appellant’s right to be heard. The Appellant was not given a possibility to participate before the first instance, the CAF Disciplinary Board. It clearly follows from the decision of said instance that Al-Hilal was not given the opportunity to present its version of the facts. The decision states that

the CAF Disciplinary Board “[a]t its meeting held on 4 February 2020, … examined all the documents relevant to the above mentioned case including the reports of the match officials, as well as the protest of Al Ahly club and the video footage in question”.

58. Further evidence of this can be found in the Appealed Decision, in which it stated that the DC “does not in any way present an obligation for the secretariat to request a response from the concerned parties but merely indicates an option to do so whenever deemed necessary”.

59. The Panel finds that this is not in line with Article 28 DC, which clearly states that the “parties can defend themselves before any decision is passed”. In the case at hand, Al-Hilal neither had the possibility to submit written observations in the proceedings before the CAF Disciplinary Board nor was it invited to the meeting, following which the decision was taken. It is a firmly enshrined principle in CAS jurisprudence that a party against which a disciplinary measure is issued must have the possibility (orally or in writing) to defend itself against the charges forming the matter in dispute in the disciplinary proceedings. Such right includes the opportunity to file submissions and to present evidence in order to challenge the allegations brought forward against it.

60. This breach of the Appellant’s right to be heard was not cured before the next instance (the CAF Appeal Board). It is true that the Appellant was given the opportunity to file an appeal against the first-instance decision. However, the Appellant was not given the opportunity to challenge the evidence brought forward by the CAF, since it was not provided with it. It is not clear to the Panel whether the Appellant was invited to attend the hearing before the Appeal Board. However, no evidence was submitted by the Respondent that the Appellant was notified of the date of the hearing and/or that the Appellant was invited by the Respondent to attend the hearing before the Appeal Board.

61. Furthermore, the Panel notes that the Appellant’s right to be heard was also breached with respect of Articles 51 d) and e) DC. The legal reasoning in the first instance decision of the CAF Disciplinary Board comprises only two lines. According thereto, the severe disciplinary measures against the Appellant are based on “… the CAF Statutes and regulations [and] … Articles 82, 83.1, 133 and 151 of CAF Disciplinary Code”. This does not amount to a “legal reasoning” within the meaning of the above provisions. It is neither clear from these two lines what provisions were applied to which of the two addressees of the decision (Al-Hilal and Mr. Hassan Mohammed) and why. Furthermore, none of the provisions cited justify the amount of the fine or the number of games to be played behind closed doors. Even considering a considerable workload of the judicial bodies of the CAF and that the yardstick applicable in proceedings before association tribunals differs from decisions by state courts; the Panel finds that the legal reasoning is insufficient in the case at hand. In the Panel’s view the legal reasoning must be such that the addressee understands why the judicial body has decided the way it has and not in a different manner. This threshold, however, is not met in the case at

hand.

62. The Appealed Decision does not cure these deficiencies. The latter does not even cite the provisions that the Appellant allegedly breached. Furthermore, the Appealed Decision explains the gravity of the sanction imposed on the Appellant by simply stating that the first instance decision “is in no way disproportionate as per articles 115-118 of the Disciplinary Code”. Considering that the proportionality of the (severe) sanction was one of the main elements of the Appellant’s appeal, such an empty phrase by the Appeals Board is simply insufficient to qualify as “legal reasoning”.

B. The Consequences of the Above Breaches for the Proceeding before CAS

63. Because CAS has full power to assess the facts and the law of the dispute and, thus, hears the case de novo (Article R57 (1) of the CAS Code) the question arises whether or not the violation of the Appellant’s procedural rights in the previous instances are cured in these adversarial proceedings before the CAS. It is standing CAS jurisprudence that procedural violations in previous instances “fade to the periphery” before the CAS. As the Panel in CAS 1998/A/208 (at para 5.3 seq.) rightly stated, “[t]he virtue of an appeal system which allows for a full rehearing before an appellate body is that issues of the fairness or otherwise of the hearing before the tribunal of first instance fade to the periphery … The Panel therefore finds it unnecessary to consider the charge made by the Appellants as to FINA’s violation of due process”.

64. The Appellant submits that this principle cannot apply in the case at hand, because when it filed the Statement of Appeal and the Appeal Brief it had not yet seen the evidence on which the CAF relied, in particular the referee reports. The same is true for the legal reasoning on which the Respondent’s Appealed Decision is based. All of this was – according to the Appellant – only known to it once the Respondent filed its answer (together with the respective exhibits). At that point in time, however, Article R56 of the CAS Code prevented the Appellant from addressing this new evidence and the charges submitted by the Respondent. Thus, the Appellant concludes that since it had no opportunity to rebut the submissions and evidence submitted by the CAF in the CAS proceedings, the (procedural) breaches that occurred before the previous instances could not be cured before the CAS.

65. The Panel cannot follow this reasoning. According to Article R44.3 of the CAS Code, which is also applicable in appeal proceedings, the Appellant could have requested “the Panel to order the other party to produce documents in its custody or under its control”. Furthermore, Article R56 of the CAS Code does not prevent the Appellant from filing a reply once the first exchange of documents is concluded. It is true that the CAS Code foresees, in principle, one exchange of submissions only in appeals arbitration procedures. However, there is an exception to the rule. According thereto a party may supplement its request or its arguments, produce new exhibits and specify further evidence if all parties agree or if the President of the panel so orders based on exceptional circumstances. RIGOZZI/HASLER (in ARROYO (ed.) Arbitration in Switzerland, 2nd ed. 2018, Art. 56 no. 6) rightly point out that “the need to safeguard the parties’ fundamental procedural rights must always constitute an ‘exceptional circumstance’ within the meaning of Art. R56 (1)”. Furthermore, the commentary states that additional submissions are generally allowed when the respondent’s answer contains defenses that need to be rebutted in writing. Furthermore,

a reply is also permitted, if the need to file rebuttal evidence or arguments only became apparent after receipt of the other party’s submissions. In all these instances, the party’s right to be heard commands that exceptions to Article R56 of the CAS Code be accepted. In the case at hand, the Appellant did not avail itself of these procedural rights.

66. The Appellant submits that even if it may have had the above rights to obtain the information required or to file its objections to the answer of the Respondent, it was under no obligation to do so and that, therefore, the procedural violations were not cured in the proceedings before the CAS. The Panel finds that this is a misconception of the obligations of parties in CAS proceedings that are governed by the adversarial system. According thereto it is for the parties to submit the relevant facts and present the evidence to the panel. If a party wishes to react to a submission of the other party, it has the obligation to do so (and file a request according to Article R56 of the CAS Code) and thereby to safeguard its procedural rights. The Panel is guided in that respect by the jurisprudence of the Swiss Federal Tribunal (SFT 4D_27/2014, consid. 4.2.1) that has found as follows:

“Gemäss Art. 29 Abs. 2 BV haben die Parteien Anspruch auf rechtliches Gehör. … Die Garantie umfasst auch das Recht, von den beim Gericht eingereichten Stellungnahmen Kenntnis zu erhalten und sich dazu äussern zu können (sog. Replikrecht). Die Wahrnehmung des Replikrechts setzt voraus, dass die fragliche Eingabe der Partei vor Erlass des Urteils zugestellt wird, damit sie sich darüber schlüssig werden kann, ob sie sich dazu äussern will oder nicht … Es obliegt dem Gericht, in jedem Einzelfall den Parteien ein effektives Replikrecht zu gewähren. Es kann dem Betroffenen hierfür eine Frist setzen … . Indes genügt grundsätzlich, dass den Parteien die Eingaben zur Information … zugestellt werden, wenn von ihnen, namentlich von anwaltlich Vertretenen oder Rechtskundigen, erwartet werden kann, dass sie unaufgefordert Stellung nehmen … Das Gericht hat bei der letztgenannten Vorgehensweise mit der Entscheidfällung so lange zuzuwarten, bis es annehmen darf, der Adressat habe auf eine weitere Eingabe verzichtet …”.

Free translation: According to Art. 29 (2) of the Swiss Constitution the parties have a right to be heard. … This guarantee also covers the right, to obtain the submissions filed with the court by the other party and the right to comment thereupon (the so-called right to reply). In order to be able to make use of this right to reply, the submissions in question must be notified to the other party before the court issues its final decision, in order for that party to make up its mind whether or not it wishes to comment or not. … It is the court’s duty to ensure that the parties are granted an effective right to reply. The court may set a deadline to the respective party …. However, it also suffices, in principle, to forward the submission for information purposes only, if one may reasonably expect the other party, in particular if represented by legal counsel, to comment on the submissions unsolicited. In the latter case, the court must wait with the issuing of the final decision until it may assume that the addressee has waived its right to comment ….

67. This case law is also in line with the jurisprudence of the European Court of Human Rights. In the matter Joos v. Switzerland 15.11.2012, application no- 43245/07, para. 27 et seq.), the Court found as follows:

“The Court reiterates that the concept of a fair hearing implies the right to adversarial proceedings,

according to which the parties must have the opportunity not only to have made known any evidence needed for their claims to succeed, but also to have knowledge of, and comment on, all evidence adduced or observations filed, with a view to influencing the court’s decision … Under … [the practice before Swiss courts], if submissions were served on the adverse party “for information”, that party had the option either to request leave to submit comments or to submit such comments straight away. Conversely, if the adverse party did not react without undue delay after having taken notice of the new submissions, the tribunal could assume that he or she had waived the right to comment.

The Court accepts that the practice adopted by the Federal Tribunal is calculated to save time and expedite the proceedings. As its case-law bears out, the Court attaches great importance to that objective, which does not, however, justify disregarding such a fundamental principle as the right to adversarial proceedings. In fact, Article 6 § 1 is intended above all to secure the interests of the parties and those of the proper administration of justice (see Nideröst-Huber, cited above, § 30). Consequently, it falls within the responsibility of the domestic courts to ensure that the standards set by Article 6 § 1, and, in particular, the protection of the equality of arms, are respected in each individual case. This implies the obligation to interpret the provisions on the admissibility of a further exchange of comments (see paragraph 12, above) in a way which does not curtail the adverse party’s right to comment on any new submissions.

The Court further considers that the applicant, in his capacity as a lawyer, could have been expected to be aware of the Federal Tribunal’s relevant case-law and to act accordingly. The Court considers that the new practice might raise problems with regard to legal certainty. It observes, in particular, that the Federal Tribunal, when serving new submissions on the adverse party “for information”, does not appear to indicate to that party when it will give its decision on the case. Consequently, the adverse party may encounter difficulties in assessing how much time is left for examining the new submissions and preparing comments. However, in the specific circumstances of the instant case, the Court is satisfied that this procedural disadvantage was sufficiently counterbalanced by the option to request leave to submit comments. In this respect, the Court notes that the comments of the Federal Department of Interior that had been served on the applicant contained not more than two pages and that the Federal Tribunal gave its judgment more than three weeks after serving this document on the applicant. The Court consider that the applicant should have been in a position to examine whether the content of the documents necessitated further comments, in which case he could have requested leave to submit such comments”.

68. In the case at hand, the Appellant was made aware of the provision in Article R56 of the CAS Code in the CAS Court Office letter dated 22 May 2020. The Panel also finds that the proceedings before the CAS are adversarial in nature and granted the Appellant all possibilities – unlike in the previous instances – to become knowledgeable of and comment upon the arguments and evidence relied upon by the Respondent as well as to counter such submissions by submitting its own arguments and evidence. Given the specific circumstances and absent any indication to the contrary the Panel could reasonably assume that the Appellant did not wish to comment in writing on the evidence and arguments submitted by the Respondent and consequently, finds that the procedural flaws of the previous instances are cured before the CAS.

C. Does the Appealed Decision violate any rules and regulations / statutory principles in

relation to the determination of the sanction?

1. The Facts of the Case

69. The Panel notes that the Appealed Decision relies on the facts recorded in the various match officials’ reports (mentioned supra). The Panel also notes Article 32 DC, which states as follows:

“(1) Facts contained in match officials’ reports are presumed to be accurate. (2) Proof of the inaccuracy of the contents of these reports may be provided. (3) If there is any discrepancy in the reports from the various match officials and there are no means of resolving the different versions of the facts, the referee’s report is considered authoritative regarding incidents that occurred on the field of play, the match commissioner’s report is considered authoritative regarding incidents that took place outside the field of play”.

70. The Appellant submits that it was deprived from rebutting the accuracy of the reports, because it had only seen them once the Respondent filed its answer. Furthermore, the Appellant submits that the reports are not detailed enough in order for it to be able to contest the facts recorded therein and to rebut them. The Appellant states that – e.g. – the reports do not state why the use of lasers lights was deemed “excessive” and at what minute of the game the use of the laser lights occurred. The reports further do not specify – according to the Appellant – who the victims of the use of the lasers lights were (players, referee and/or fans of the other team). In addition, the reports do not specify how many water bottles were thrown at what minute of the match and where in the stadium the invasion of the pitch by Al-Hilal’s supporters was stopped.

71. The Panel is not prepared to follow the argument of the Appellant. As previously mentioned, the proceedings before the CAS are adversarial in nature and it was the Appellant’s choice not to adduce evidence (other than the witness testimony of Dr Hassam Ali Eissa). Furthermore, the allegations contained in the reports are specific enough for the Appellant to be able to contest them and provide evidence for its position in support. The Panel finds that neither the testimony of Dr. Hassam Ali Eissa nor the submissions of the Appellant were substantiated enough to cast doubt on the accuracy of the reports. Since the reports do not contradict each other, the Panel finds that the Appellant failed to provide proof that the contents of the reports is wrong or otherwise inaccurate. Consequently, when examining the legality of the sanctions, the Panel will start from the assumption that the facts as recorded in the reports are truthful and correct.

2. The rules violated by the Appellant

72. As previously noted, the decisions of the CAF Disciplinary Board or the Appeals Board do not sufficiently explain which violations the Appellant committed. It was only with the help of counsels of Respondent that the Panel was able to – at least partially – find its way through the complex rules in the DC.

73. The starting point of the Appellant’s wrongdoings is to be found in Article 83(1) and (2) DC. The provision reads as follows:

“(1) National associations, clubs and officials are responsible for ensuring that the game is not brought into disrepute in any way whatsoever by the conduct of their players, officials, members, supporters an any other persons exercising a function at a match at the request of the association or club.

(2) The host association or club is responsible for order and security both inside and around the stadium before, during and after the match. It is liable for incidents of any kind, and can be rendered subject to disciplinary measures”.

74. It is beyond question that the incidents recorded in the match officials’ report and attributable to the fans and officials of the Appellant are such to bring the sport of football in disrepute. Article 83(2) DC further clarifies that such behaviour attributable to the Appellant may be subject to disciplinary sanctions.

75. Counsels for Respondent further submitted that the Appellant breached Article 151 DC. The provision reads as follows:

“(1) National associations that organise matches shall a) Assess the degree of risk posed by matches and notify the CAF bodies of those that are especially high risk; b) Comply with and implement existing safety rules … and take every safety precaution demanded by the circumstances before, during and after the match and if incidents occur; c) Ensure safety of players and officials of the visiting team during their stay; d) Keep local authorities informed and collaborate with them actively and effectively; e) Ensure that law and order are maintained in the stadia and immediate surroundings and that matches are organised properly. (2) National associations are held responsible for the behaviour of their supporters (especially with regard to throwing missiles and invading the pitch) and auxiliary staff”.

76. It is neither clear from submissions of counsels of Respondent (nor from the various decisions of the judicial bodies of the CAF in this matter), which precise paragraph of the provision has been breached by the Appellant. Furthermore, the Panel notes that the provision is directed to “national associations” only and not to clubs. The Respondent explained that the provision needs to be applied by analogy also to clubs and that the obligations in Article 151 only substantiate and further concretise the general obligation and duty of care enshrined in Article 83 (1) and (2) DC. Whether this is correct is difficult to follow, since the other decisions of the CAF Disciplinary Board submitted by the Respondent as exhibits 13-17 sometimes, but not always refer to Article 151 DC in the context of violations of a club’s supporters. Furthermore, it is not clear what consequences follow from a breach of Article 151 DC. Respondent submits that the consequences of such breach are dealt with in Article 153 DC, which provides for the possibility of a fine in para 1 and – in case of more serious

infringements (para 2) – also for other kinds of sanctions. The crux is, however, that Article 153 (2) DC specifically refers to infringements set out in Article 150 (1) DC and not to violations of Article 151 DC that are in question here. Respondent invited the Panel to read the reference in Article 153 (2) DC – contrary to its wording – to also cover Article 151. The Panel finds that since, according to the Respondent, Article 151 DC only serves to firm up the obligations already contained in Articles 83 (1) and (2) DC and in view of the obvious deficiencies of the rules, it will solely rely on Article 83 (1) and (2) DC and refrain from following any double (or triple) analogy of the rules as skilfully pleaded by the Respondent.

3. The types of sanctions imposed

77. Article 83 (2) DC does not limit the kinds of disciplinary measures that may be imposed on a club in case an infringement is established. Thus, any of the disciplinary measures found in Article 88 DC may be imposed, in principle, on a club. The list of possible disciplinary measures in Article 88 DC covers fines (Article 88 (1) lit. c DC) and playing matches behind closed doors (Article 88 (3) lit. b DC). Furthermore, Article 107 (1) DC provides that the sanctions “may be combined”. Furthermore, Article 108 DC provides that sanctions may also be suspended. Thus, the types of sanctions imposed on Al-Hilal do not – prima facie – infringe the applicable rules.

4. The circumstances that need to be taken into account

78. With respect to the scope and the duration of the sanction to be imposed, Article 115 (1) DC provides that such decision is within the discretion of the legal body pronouncing the sanction. Furthermore, para 4 of said provision foresees that “when deciding the sanction, the legal body will take account of all of the circumstances of the case, in particular the age of the person sanctioned and his record”. In addition, Article 116 DC provides that one important factor to be considered when determining the scope of the sanction is whether the club is a repeated offender. A further aspect that affects the scope and the duration of the sanction is whether the victim of the infringement is a match official (Article 117 DC).

79. In the case at hand Al-Hilal is a repeated offender and has been sanctioned in the past (four times) since 2019 for similar incidents. This follows from the disciplinary decisions of the adjudicatory bodies of the CAF that were filed by the Respondent together with its answer. Furthermore, it follows from the match reports (the contents and accuracy of which was not rebutted by the Appellant, see supra) that some of the incidents that occurred during the Match and that are attributable to Al-Hilal according to Article 83 (2) DC were directed against match officials. The reports state in that respect that there was a pitch invasion of two of the Appellant’s fans, who headed directly towards the referee to aggress him and that an official of the Appellant insulted and aggressed the referees.

80. The Appellant submits that there are further (in particular mitigating) facts that the Appeal Board should have considered.

- In his testimony, Dr. Hassam Ali Essa put great emphasis on the fact that the CAF

could have easily avoided the incidents by not appointing the Moroccan referee Radwan Gaid to the Match. The latter belongs – according to the Appellant – “to the same geopolitical region” as the club Al-Ahli. According to Dr. Hassam Ali Essa this constitutes an “apparent imbalance of the principle of justice and fairness in respect of the match”. Furthermore, the referee had “caused the defeat of Al-Hilal … in the last Copy of the Confederation Championship, as he effected three penalty-chicks (sic!) against Al-Hilal and turned a blind eye to a crystal clear penalty-chick in favour of Al-Hilal”. Dr. Hassan Ali Essa continued to say that the appointment of the referee was only one element in a pattern of behaviour of the CAF designed to unjustly and systematically target Al-Hilal. This discrimination of Al-Hilal has led – according to Dr. Hassam Ali Essa – to a “state of extreme congestion, suspicion, and bitterness in the Sudanese sport street towards the eccentric referee and CAF”.

- Dr. Hassam Ali Essa testified that Al-Hilal cannot be held liable for the incidents during the Match, since the “Al-Hilal Club Administration did handover the stadium to the security forces on 2.00 pm, dated of the match” and that, therefore, “the club should not be responsible for any fireworks, lazir works or throwing of mineral water bottles”.

- Finally, Dr. Hassam Ali Essa stated that the political and economic situation of Sudan and of Al-Hilal in particular are difficult. Dr. Hassam Ali Essa explained that sporting events are considered by some fans as a valve to express their general and overall frustration of their living conditions.

81. In the view of the Panel, the above facts do not constitute mitigating factors when determining the scope and extent of the sanction. The responsibility for the incidents at the Match cannot be shifted to the CAF simply by stating that the CAF should have appointed a different referee. The appointment of a referee from the same geopolitical region as Al-Hilal’s opponent can by no means serve as an excuse for the violence displayed by the fans of Al- Hilal. Justifying the fans’ behaviour in such a way displays little understanding of a club’s obligations. Furthermore, the Panel notes that apart from trying to shift the blame for the incidents that occurred, Al-Hilal did not show any remorse for what had happened. There is no proof whatsoever on file for any systematic discrimination of Al-Hilal or other kind of provocation by the CAF. The Panel further points to the provision in Article 83 (2) DC according to which clubs are liable “for incidents of any kind” based on the conduct of their supporters. This is a strict liability provision. Thus, whether or not Al-Hilal handed over the stadium to security forces is immaterial with respect of the question whether Al-Hilal is liable for the conduct of its supporters. The Panel also finds that violence at football games cannot be justified with the difficult political and economic situation in Sudan. However, what the Panel accepts and retains is that a fine in the magnitude of USD 100,000 hits a club from Sudan much harder than a club located in a country enjoying more favourable political and economic conditions.

5. The proportionality of the sanction

82. Irrespective of whether the DC refers to the principle of proportionality, it is firmly enshrined in CAS jurisprudence that sanctions must comply with such principle. According thereto the

severity of the sanction must relate to the gravity of the wrongdoing displayed. The Respondent submits that this Panel, because of the autonomy of associations, only submits the proportionality of a sanction to a limited review. This autonomy of association – according to the Respondent – grants the sports bodies “a considerable freedom and wide margin of discretion in the context of the determination of disciplinary measures”. Whether this is true in such absolute terms can be left unanswered here. In any event a Panel is only prepared to accept such discretion (and any immunity from review that comes along with it) if the sports body in question provides sufficient justification for its conclusions. An association cannot claim immunity from judicial review and not disclose its (legal) reasoning. In such case, autonomy turns into arbitrariness, which the Panel will not accept. Thus, considering that the CAF failed to submit any valid legal reasoning as to the proportionality of the sanction in the Appealed Decision, the Panel will apply a stricter legal yardstick as it may have otherwise done in case the CAF would have provided a transparent and coherent explanation.

83. The Panel observes that leaving aside the fine, the sanction in the case at hand constitutes a significant step up compared to previous cases involving Al-Hilal. While in all other cases Al- Hilal was sanctioned with a fine (between USD 10,000 and USD 45,000), the CAF this time – in addition to the higher fine – imposed on Al-Hilal the sanction to play the next four home CAF interclub matches without spectators. No explanation was provided why – in addition to the fine – a sanction to play 4 matches behind closed doors was considered appropriate and proportionate.

84. Absent any explanations provided by the CAF in the Appealed Decision, the Panel finds that there is a certain logic to impose the sanction to play behind closed doors. Al-Hilal’s fans have displayed violent behaviour over the past years and Al-Hilal has been sanctioned 4 times for its fans’ behaviour over a short period (since 2017). The Panel also notes that the fines were not effective in that they did not help to bring about a change of the fans’ violent behaviour. Since the incidents on the occasion of the Match are a sad culmination of a string of wrongdoings, the Panel accepts that the CAF resorted to other types of sanctions in order to provoke behavioural change within Al-Hilal’s fan community. Consequently, the Panel finds that it is proportionate to sanction Al-Hilal with playing matches behind closed doors. This is all truer considering that the incidents on the day of the Match were somewhat graver than in the past, leading to an interruption of the Match and menacing the well-being and security of a match official.

85. In order to convey the clear message that such fans’ behaviours can no longer be tolerated, the Panel unanimously finds that a sanction consisting of 3 matches to be played behind closed doors in combination with a fine of USD 60,000 is, in principle, necessary, adequate and proportionate. However, the Panel also finds that the fans and Al-Hilal should be given the opportunity to reduce the burden of the sanction in case they accept their wrongdoings and commit to learn their lesson from these incidents. The Panel therefore finds that part of the sanction should be suspended within the meaning of Article 108 DC. Thus, the Panel finds that one match behind closed doors and USD 30,000 of the fine shall be suspended on the condition that Al-Hilal is not found guilty of a similar offence for a probationary period of one year as from the date of this award.