European Wushu Kungfu Federation (EWUF) v. International Wushu Federation (IWUF)

V. JURISDICTION

53. Article R47 of the Code provides that:

“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”.

54. Article R47 of the Code imposes two requirements for the conferring of jurisdiction on CAS: (i) the statutes and/or regulations of IWUF must make provision for appeal to CAS; and (ii) EWUF must have exhausted the legal remedies available to it prior to the appeal.

55. The parties disagree as to which version of the IWUF Constitution applies to these proceedings. At the hearing, counsel for the Appellant submitted that 2017 Constitution is applicable because “at the precise moment of the application of the sanction”, the 2021 Constitution was not in force yet. Counsel for the Respondent argued that this issue is “academic” because both versions of the IWUF Constitution (2017 and 2021) do not foresee appeal to CAS against a provisional suspension.

56. The Sole Arbitrator notes that the Respondent has objected both to the jurisdiction of CAS to hear the appeal and also the admissibility of the appeal. IWUF’s objections are, in essence, threefold:

a. the decision under challenge in this appeal (i.e. the dismissal of the Appellant’s appeal against the imposition of the provisional sanction) is not, by its nature, a decision that is appealable to CAS under the terms of the IWUF Constitution and the Code of Ethics;

b. EWUF “lacks any genuine interest” in the appeal because of the “nominal nature” of the provisional suspension; and

c. EWUF has not exhausted legal remedies available to it prior to the appeal.

57. The first two of these objections (pertaining to the characterisation of the challenged decision and the standing of the Appellant) are properly understood as objections to the admissibility of the appeal. For the purposes of determining whether CAS has jurisdiction to decide this case, the Sole Arbitrator must determine whether the requirements of Article R47 are met (including whether EWUF has exhausted the legal remedies available to it prior to the appeal).

58. Both versions of the IWUF Constitution relied upon by the parties make provision for appeals to CAS against specified decisions of IWUF.

59. Articles 36.8 to 36.10 of the 2017 Constitution state that:

“36.8 The IWUF shall give written notice of a disciplinary action by registered mail and email to the party that is the subject of the action. If the alleged party does not agree with the result of the decision they have the right to appeal within twenty-one (21) days receiving notice of the decision. The President of the International Wushu Federation will then appoint a Jury of Appeal consisting of three (3) individuals including at least one member of the IWUF Executive Board and one lawyer. No member of the Ethics and Disciplinary Commission who made the recommendation concerning the disciplinary action shall be a member of the Jury of Appeal, and all Jury of Appeal members shall be free from all forms of conflict of interest. The Jury of Appeal shall have access to all relevant documents, minutes of meetings and notes that the Ethics and Disciplinary Commission used for their decision. The Jury of Appeal has the authority to conduct further investigation. Once a decision is made by the Jury of Appeal and confirmed by the Executive Board, the alleged party or parties shall be informed by registered mail and by email. If the alleged party intends to dispute the decision, they shall have the right to submit the case exclusively to Court of Arbitration of Sport (CAS) in Lausanne.

36.9 Any dispute arising from the decisions made by the IWUF shall be handled in accordance with the Code of Sports-related Arbitration and submitted exclusively to the Court of Arbitration for Sport in Lausanne, Switzerland.

36.10 In any case, any dispute between IWUF, an [National Federation], a Continental Federation, or an Associated Member, or any individual or entity affiliated with any [National Federation], Continental Federation or Associated Member which cannot be solved within IWUF shall be handled in accordance with the Code of Sports-related Arbitration and submitted exclusively to the Court of Arbitration for Sport in Lausanne, Switzerland”.

60. Articles 38.8 to 38.11 of the 2021 Constitution provide that:

“38.8 In matters that are not dealt by the IWUF Ethics Committee, the IWUF shall give written notice of a disciplinary action by registered mail and/or email to the party that is the subject of the action. If the alleged party does not agree with the result of the decision they have the right to appeal within twenty-one (21) days receiving notice of the decision. The President of the International Wushu Federation will then appoint a Jury of Appeal consisting of three (3) individuals including at least one member of the IWUF Executive Board and one lawyer. No member of the Disciplinary Commission who made the recommendation concerning the disciplinary action shall be a member of the Jury of Appeal, and all Jury of Appeal members shall be free from all forms of conflict of interest. The Jury of Appeal shall have access to all relevant documents, minutes of meetings and notes that the Disciplinary Commission used for their decision. The Jury of Appeal has the authority to conduct further investigation. Once a decision is made by the Jury of Appeal and confirmed by the Executive Board, the alleged party or parties shall be informed by registered mail and by email. If the alleged party intends to dispute the decision, they shall have the right to submit the case exclusively to Court of Arbitration for Sport (CAS) in Lausanne, Switzerland.

38.9 In matters that are dealt by the IWUF Ethics Committee, a final decision of the IWUF Executive Board imposing a sanction or a measure can be appealed to the Court of Arbitration for Sport (CAS) in Lausanne, Switzerland, pursuant to the Code of Sport-Related Arbitration. The time limit for such an appeal is twenty-one (21) days after communication of the decision to the individual or organization appealing.

38.10 Any dispute arising from the final decisions made by the IWUF shall be handled in accordance with the Code of Sports-related Arbitration and submitted exclusively to the Court of Arbitration for Sport in Lausanne, Switzerland.

38.11 In any case, any dispute between IWUF, an [National Federation], a Continental Federation or an Associated Member, or any individual or entity affiliated with any NF, Continental Federation or Associated Member, which cannot be solved within IWUF shall be handled in accordance with the Code of Sports-related Arbitration and submitted exclusively to the Court of Arbitration for Sport in Lausanne, Switzerland”.

61. Further, Article J.3 of the Code of Ethics, which is headed “Sanctions”, states that:

“The IWUF Ethics Committee recommends to the IWUF President and the IWUF Executive Board which measures or sanctions shall be imposed in a given case. The possible sanctions are in particular those provided under the IWUF Constitution (incl. warnings, fines, penalties, suspensions or the removal of athletes, coaches, managers, judges, office bearers, etc.) or any other appropriate measures, in particular those provided by the implementing provisions of the IWUF Code of Ethics.

Sanctions may include provisional measures, like e.g. a provisional suspension as well as measures against National (Territorial) Federations, Continental federations, associated members or any other group that may have violated the present Ethics Code.

A final decision of the IWUF Executive Board imposing a sanction or a measure can be appealed to the Court for Arbitration for Sport (CAS), Lausanne, Switzerland, pursuant to the Code of Sport-Related Arbitration. The time limit for such an appeal is twenty-one (21) days after communication of the decision to the individual or organisation appealing”.

62. The Sole Arbitrator notes that Article 38.9 of the 2021 Constitution and the third paragraph of Article J.3 of the Code of Ethics specify that only a “final decision” of the IWUF Executive Board may be appealed to CAS. The question of whether the decision challenged in this case is a “final decision” within the meaning of Article 38.9 of the 2021 Constitution and the third paragraph of Article J.3 of the Code of Ethics is addressed in the section below, on admissibility.

63. The Sole Arbitrator will now consider whether the requirements of Article R47 are met. First, both versions of the IWUF Constitution (Article 36.8 of the 2017 version, and Article 38.9 of the 2021 version) confer jurisdiction on CAS to hear appeals relating to the imposition of a sanction by the IWUF Executive Board. Likewise, Article J.3 of the Code of Ethics – which came into force before the decision of the IWUF Executive Board to impose the provisional suspension – confers jurisdiction on CAS to hear appeals against a “final decision of the IWUF Executive Board imposing a sanction or a measure”. Further, the Sole Arbitrator accepts the

Appellant’s submission that there is no further appeal mechanism within IWUF to challenge the provisional suspension.

64. It follows that both requirements of Article R47 of the Code are met: (i) the IWUF Constitution (both the 2017 and 2021 versions) and Code of Ethics provide for an appeal against a decision of the IWUF Executive Board imposing a sanction; and (ii) EWUF has exhausted the legal remedies available to it prior to the appeal in accordance with the IWUF Constitution and Code of Ethics. Therefore, the Sole Arbitrator concludes that the CAS has jurisdiction to hear this appeal.

VI. ADMISSIBILITY

65. In addition to the question of CAS’ jurisdiction, the Sole Arbitrator must determine if the appeal is admissible (i.e. whether the appealed decision is one which falls within the range of decisions which may be appealed to CAS pursuant to IWUF Constitution and the Code Ethics, and whether EWUF has standing to bring the appeal).

66. As noted in paragraph 54 above, the parties disagree on which version of the IWUF Constitution applies to the present dispute.

67. The 2017 Constitution was in force: (i) when the complaint was made; (ii) when the IWUF Executive Board first imposed the provisional suspension; and (iii) when EWUF appealed against the provisional suspension to the Jury of Appeal. The 2021 Constitution entered into force on 14 July 2021, following which: (i) the Jury of Appeal dismissed EWUF’s appeal against the provisional suspension; and (ii) EWUF filed the present appeal to CAS.

68. By contrast, the Code of Ethics entered into force on 28 October 2020, before the IWUF Executive Board imposed the provisional suspension. Article L of the Code of Ethics, headed “Entering into Force” provides that:

“The present Ethics Code shall enter into force as per October 28, 2020 and has priority towards the old rules contained in the IWUF Constitution. IWUF shall amend the IWUF Constitution in due course to remove any inconsistencies and bring the Constitution in line with the present Ethics Code.

A person can be sanctioned under the present Ethics Code only if he/she has committed an act that at the time of its taking place was prohibited (principle of prohibition of retroactivity). This however does not apply on procedural nor on organizational rules. Any pending or future investigation or procedure shall be carried out under the new procedural rules of this Ethics Code, independently on when the act under investigation has been committed”.

69. Pursuant to Article L, the Code of Ethics “has priority” over the “old rules” contained in the 2017 Constitution. Article L further states that in relation to a “pending or future investigation or procedure”, the “new procedural rules” in the Code of Ethics are applicable. It follows that for the purposes of this appeal, insofar as there may be inconsistencies, Article J.3 of the Code of Ethics takes precedence of Articles 36.8 to 36.10 of the 2017 Constitution.

70. Article J.3 of the Code of Ethics (quoted in paragraph 60 above) states inter alia that:

a. “Sanctions include provisional measures, like e.g. a provisional suspension”; and

b. only a “final decision” of the IWUF Executive Board imposing a sanction or measure can be appealed to CAS, and must be filed no more than 21 days after the communication of the decision to the impugned organisation.

71. As expressly stated in Article J.3, the provisional suspension is a “sanction” within the meaning of the Code of Ethics, notwithstanding its provisional nature.

72. The Sole Arbitrator will now consider the Respondent’s two objections relating the admissibility of this appeal. First, IWUF argues that the decision to impose the provisional suspension is not a “final decision” within the meaning of Article J.3 of the Code of Ethics (and within the meaning of Article 38.9 of the 2021 Constitution) because the suspension is, by its nature, provisional. The Sole Arbitrator does not agree. IWUF fails to distinguish between the challenged decision and the sanction which was imposed by that decision. Whereas the sanction is provisional in nature, the decision imposing it is “final” in the sense that there is no legal mechanism by which EWUF can challenge that decision. The Sole Arbitrator is not persuaded by IWUF’s argument that the challenged decision is not a “final decision” because it can be revoked or changed at any time. Only IWUF could do so. And assuming that the IWUF would not do so, the provisional suspension could remain “provisional” for ever, without any possibility of judicial review. As noted in paragraph 63 above, there is no further appeal mechanism available to the Appellant within IWUF beyond the Jury of Appeal. For these reasons, the Sole Arbitrator concludes that the Appeal Jury Decision is a “final decision” within the meaning of the Code of Ethics (and correspondingly within the meaning of Article 38.9 of the 2021 Constitution), and that as such it may be appealed to CAS.

73. Second, IWUF argues that the provisional sanction is “nominal” in nature, as a consequence of which EWUF lacks “any genuine interest” in this appeal. The Sole Arbitrator does not accept this submission. The challenged decision is directly addressed to the Appellant and has had the effect of suspending EWUF’s recognition as a Continental Federation. It is difficult to see how EWUF “does not suffer any disadvantage” as a result, not least because EWUF is for a period of time estopped from organising and managing wushu activities in Europe pursuant to the IWUF Constitution. The Sole Arbitrator therefore concludes that EWUF has sufficient interest in the challenged decision to bring this appeal and unquestionably has standing to do so.

74. For completeness, the Sole Arbitrator does not accept IWUF’s contention that decisions of the Swiss Federal Tribunal confirm that the provisional suspension is not appealable. The jurisprudence mentioned by the Respondent (ATF 4A_582/2009) concerns the admissibility of an appeal at the SFT against an order for provisional measures which had been erroneously titled “preliminary award” and was clearly not a final decision. As set out in the section immediately below, for the purposes of this appeal, the rules and regulations of IWUF are to be applied in priority, rather than those of Swiss law. Those rules and regulations provide for appeal to CAS against a final decision of the IWUF Executive Board imposing a sanction.

Article J.3 of the Code of Ethics expressly defines a “sanction” as including a “provisional suspension”.

75. Finally, the Sole Arbitrator notes that the Appellant’s Statement of Appeal was filed on 29 October 2021 (i.e. within 13 days of notification of the Appeal Jury Decision) in compliance with the requirements of Article J.3 of the Code of Ethics and Article R47 of the Code. The Appeal Brief was filed on 26 November 2021 in compliance with Article R51 of the Code.

76. For these reasons, the Sole Arbitrator concludes that the present appeal is admissible and that EWUF has standing to bring these proceedings against IWUF.

VII. APPLICABLE LAW

77. Article R28 of the Code provides that:

“The seat of CAS and of each Arbitration Panel (“Panel”) is Lausanne, Switzerland. However, should circumstances so warrant, and after consultation with all parties, the President of the Panel may decide to hold a hearing in another place and may issue the appropriate directions related to such hearing”.

78. Article R58 of the Code states that:

“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”.

79. The Sole Arbitrator notes that pursuant to Article 1.1 of the IWUF Constitution (both the 2017 and 2021 versions), IWUF is constituted in accordance with Article 60 et seq of the Swiss Civil Code.

80. In its Answer, the Respondent contends that “[t]he present dispute is governed by the rules and regulations of the IWUF, and subsidiarily, Swiss law”. The Appellant has not disagreed with this contention.

81. On this basis, the Sole Arbitrator is satisfied that the law applicable to this dispute is the rules and regulations of the IWUF, and subsidiarily, Swiss law.

VIII. MERITS

82. The Appellant challenges the Appeal Jury Decision, which dismissed EWUF’s appeal against the decision of the IWUF Executive Board dated 15 April 2021 to impose the provisional measures set out in paragraph 18 above. These measures include the provisional suspension and seek to impose a requirement on EWUF to “provide any information which the IWUF Ethics Committee considers may be relevant to investigate the complaints”. The decision of the IWUF Executive Board dated 15 April 2021 also states that a “final decision on the

recognition of EWUF as [a] Continental Federation within the meaning of Art. 4.1 of the IWUF Constitution” shall be taken by the IWUF Executive upon completion of the investigation by the Ethics Committee.

83. At the hearing, the Sole Arbitrator sought to establish what steps had been taken by IWUF following the Appeal Jury Decision. As there was no evidence before the Sole Arbitrator on any such steps, at the close of the hearing the parties were invited to file further written submissions pursuant to Article R44.3 of the Code. The Respondent was invited to submit: (i) a concise account of all the steps taken by IWUF since the imposition of the Appellant’s provisional suspension to reach a final decision together with any supporting documents; and (ii) any minutes, notes and/or voting records of any meetings of the IWUF Executive Board during the period 12 to 16 April 2021 which led to the provisional suspension being imposed. The Appellant was given permission to file written observations on the documents submitted by the Respondent.

A. Post hearing briefs

84. In accordance with the Sole Arbitrator’s request following the hearing on 18 March 2021, the parties duly filed further written submissions on 4 April 2022 (the Respondent) and 19 April 2022 (the Appellant).

(i) IWUF’s further written submissions

85. IWUF’s further written submissions set out the following timeline of events:

a. Following the imposition of the provisional suspension, the IWUF Ethics Committee “continued to investigate the hundreds of documents submitted to it in the complaint file”. These further steps to reach a “final decision” have been focused on: “(i) completing the analysis and investigation into the case file and (ii) to offer the accused parties the opportunity to be heard”.

b. The IWUF submitted that “numerous meetings” were held, including “34 Zoom-meetings”. However, there is no evidence before the Sole Arbitrator as to the timing, purpose, content or outcome of those meetings.

c. IWUF further submitted that the parties were involved in “ongoing court proceeding[s] in Belgium in order to obtain further information on allegations, where Respondent is currently preparing an appeal against the first instance decision”. Again, there is no evidence before the Sole Arbitrator relating to the Belgian court proceedings.

d. On 19 October 2021 – three days after the IWUF Executive Board confirmed the Appeal Jury Decision – Mr Missingham (Chairman of the Ethics Committee) wrote to Mr Smith and Mr Grindeanu (respectively the President and Vice President of EWUF) stating that “I have determined that a prima facie case has been established, against you, for various breaches of the IWUF Code of Ethics”. Mr Missingham added that “[y]ou will receive further information in the course of the coming weeks; further you will be granted the possibility to submit your views and arguments at a hearing”.

e. The following day, on 20 October 2021, Mr Missingham wrote in similar terms to Mr Paulo Araujo, a member of the EWUF Executive Board. Mr Araujo did not respond to Mr Missingham’s letter, resulting in a further letter dated 2 November 2021 by which Mr Araujo was requested to confirm within four days whether he would attend a hearing. Mr Araujo was warned that “if you choose not to attend it will be assumed that you are waiving your right to be heard and that you accept the IWUF Ethics Committee to decide the case on the basis of the evidence available”.

f. IWUF submits that on 10 November 2021 there was “an attempt to hold a hearing” at which Mr Smith “completely refused to provide any information, and simply repeated the position that the EWUF Ethics Committee would not be competent to conduct this investigation”.

g. On 18 November 2021, Mr Missingham wrote to the EWUF Executive Board, referring to the Second Interim Report and setting a “final deadline” of 30 November 2021 for the provision of information including inter alia (i) bank statements for all EWUF bank accounts for the period 2016-2020; (ii) information pertaining to an IWUF Solidarity Fund Grant of $50,000 USD paid to EWUF on 22 December 2016; and (iii) reports on the conduct of the European Wushu Championships from 2011 to 2019.

h. On 30 November 2021, Mr Smith responded to Mr Missingham’s letter dated 18 November 2021, refusing to provide the requested information on the basis that it relates to “facts that occurred” before the Code of Ethics entered into force. Mr Smith further stated that: “we remain available to collaborate with the IWUF Ethics Committee to provide any necessary information/data related to facts that have occurred after October 28 2020”.

i. On 8 December 2021, Mr Missingham wrote to Mr Smith, Mr Grindeanu and another member of the EWUF Executive Board (Mr Henk Verschuur), acknowledging receipt of Mr Smith’s letter dated 30 November 2021 and stating that: “it makes no sense to call for a further hearing, nor to submit further questions to you, since we note that you categorically refuse to cooperate, answer the questions put to you and/or to provide us with the requested information and documents”. Mr Missingham went on to state that: “[w]e will therefore now close this investigation and prepare a final report. Such report will be provided to you for final comments, before it will be submitted to the IWUF President and the IWUF Executive Board, together with a possible recommendation which measures or sanctions shall be imposed”.

j. The Respondent filed an undated and partially redacted ‘Third Interim Report’ (which IWUF submits is dated 11 January 2022). The Third Interim Report notes that members of the EWUF Executive Board “have been given, variously, the opportunity to attend hearings and to answer questions”. It is also noted that the EWUF Executive Board “has showed its position as they ‘will not collaborate’ in what they described as an ‘illegal investigation’”. The Third Interim Report states that the IWUF Ethics Committee “will move towards the tabling of its ‘Final Report’ on this matter”, which is anticipated “within the first half of 2022”. The Sole Arbitrator notes that, save for the reference to the preparation of a “Final Report”, the redacted version of the Third Interim Report does not describe any further significant investigative steps taken by the Ethics Committee.

k. On 10 March 2022, Mr Missingham wrote again to inter alia Mr Grindeanu and Mr Araujo, providing “a last opportunity to inform the IWUF Ethics Committee (i) if you want to be heard, (ii) if you have any statements to make to, or information to share with the IWUF Ethics Committee and (iii) if you have any evidence that could support your position and/or EWUF's position”.

l. On 30 March 2022, Mr Verschuur wrote to the IWUF Secretariat expressing concern about “proper procedure” being “ignored” and he added that: “I have been invited to be heard not understanding the relevancy”. Mr Verschuur also expressed his willingness to “submit my view and arguments in a hearing”.

m. Finally, the IWUF submitted that: “the Ethics Committee is in the final stages of closing its investigation and is expected to submit its final report to the IWUF Executive Board shortly”.

86. In addition to providing the above timeline of events, IWUF also submitted evidence of the eight votes of the “non-conflicted’ Executive Board members in favour of the proposal of the Ethics Committee in Second Interim Report to provisionally suspend recognition of EWUF. The Respondent submitted that pursuant to Article 23.13 of the 2021 Constitution, meetings of the IWUF Executive Board may be held by teleconference, video conference or by any other means of communication. As a result of the Covid-19 pandemic, the IWUF President exercised his discretion to hold the Executive Board meeting on 12 April 2021 by email.

(ii) EWUF’s written observations

87. In its written observations filed on 20 April 2022, EWUF submits that “IWUF persists in its failure to state when, in what terms, and by whom, the complaint, or complaints were made that gave rise to the disciplinary proceedings”. In relation to the complaint, EWUF notes that IWUF “now claims, for the first time, that there are hundreds of documents”.

88. EWUF argues that following assurances made by IWUF on 29 March and 19 October 2021, no “detailed information” or “further information” was provided to EWUF about the complaint.

89. EWUF further argues that it was not “unwilling to collaborate” and relies on: (i) correspondence from Mr Araujo seeking to arrange a hearing date; (ii) the letter of Mr Smith dated 30 November 2021, referred to in paragraph 84(h) above; and (iii) email correspondence dated 31 March 2021 addressed to the IWUF Secretariat purportedly attaching “EWUF financial documents and audit reports” and stating that minutes of all EWUF congresses since 2011 are publicly available on the internet. It should be noted that the Sole Arbitrator was not provided with the documents attached to the email dated 31 March 2021.

90. Finally, in relation to the hearing on 10 November 2021, referred to in paragraph 84(f) above, the EWUF submits that the Ethics Committee “failed to provide any information regarding the purpose and scope” of the hearing. Mr Smith “reiterated the need for access to the complete and appropriate information, in order to be able to exercise his right of defence fully and effectively”. EWUF submits that the hearing was therefore suspended pending further information from IWUF, which was never provided.

(iii) Further unsolicited written submissions

91. On 25 May 2022, the Appellant made further unsolicited written submissions by email alleging inter alia that IWUF has taken steps with “the intention to expel the EWUF from IWUF membership in view to replace it with EUWUF, created by two members of the IWUF Committees”. The CAS Court Office invited the Respondent to submit its observations on the Appellant’s unsolicited submissions. By letter dated 3 June 2022, the Respondent objected to the admission of EWUF’s unsolicited submissions on grounds of relevance and on the basis that there were no exceptional circumstances within the meaning of Article R56 of the Code.

92. The Sole Arbitrator has reviewed the Appellant’s unsolicited submissions of 25 May 2022 and agrees with the Respondent that these are not relevant to the issues that fall to be determined, and that in any event, the Appellant has not advanced any exceptional circumstances within the meaning of Article R56 of the Code, such as to allow them to be admitted.

93. By letter of the CAS Court Office dated 8 June 2022, the Sole Arbitrator advised the parties that they should make no further written submissions.

B. Decision on the merits

94. At the outset, the Sole Arbitrator emphasises that his task is limited to determining the Appellant’s challenge against the Appeal Jury Decision. The investigation into EWUF by the Ethics Committee is ongoing. The Sole Arbitrator has not been provided with any evidence to prove (or disprove) the allegations described in paragraph 6 above. As such, the Sole Arbitrator expresses no view on the merits of the complaint and the underlying allegations.

95. As is often the case in proceedings of this nature, the hearing provided an opportunity for the central issues in dispute to be clarified. Counsel for EWUF built upon his written submissions on matters of procedural fairness, arguing inter alia that: “[i]t all began with an investigation ordered by the Respondent’s Ethics Committee on the basis of complaints made by persons who are unknown to the Appellant because it has never had access to the Respondent’s case papers”. Counsel for the Appellant submitted that EWUF had never seen the “original complaint”. Counsel for the Appellant further submitted that EWUF only received the Second Interim Report on 12 April 2021, three days before the provisional suspension was voted upon by the IWUF Executive Board and that it was only at this point that EWUF “discovered which rules it had supposedly contravened”.

96. Upon questioning by the Sole Arbitrator, counsel for IWUF sought clarification from his client as to whether the document titled “[c]omplaints against European Wushu Kungfu Federation” filed as exhibit R-6 to IWUF’s Answer Brief was the “original complaint” received by IWUF on 10 July 2020. In response, Mr Missingham stated:

“This document is a point-by-point précis of the original complaint (…) this was to the best of my recollection authored by Patrick Van Campenhout and (…) another person (…) whose name escapes me but he was a member of the Belgian Federation (…) but there was a larger document submitted and it was reduced to this for, basically, ease of communication, the original complaint was, I think, something like 40 odd pages”.

97. In answer to the Sole Arbitrator’s question whether it would be possible for the “original complaint” to be provided, counsel for IWUF – after being given an opportunity to take instructions during a coffee break – submitted that:

“IWUF has been sharing a lot of information on the investigation, however, at the same time, because these are very serious allegations which have been put forward there is also the need to protect the confidentiality and also the security of witnesses. This is why certain information has not been disclosed. However, we submit that this is in line with the CAS jurisprudence that in exceptional (…) for exception reasons, for example if the security of witnesses are at danger, it is of course possible to redact or not to disclose certain information”.

98. No evidence has been adduced by IWUF to support any “exceptional reasons” justifying nondisclosure of the original complaint to EWUF. There is no evidence before the Sole Arbitrator on the “need to protect confidentiality” or to protect “the security of witnesses”. These are mere assertions by counsel, unsupported by any evidence. To the extent that there may be concerns about confidentiality or the security of potential witnesses, IWUF should, at least, have considered the possibility of providing a copy of the original complaint, with certain information redacted. Contrary to the opinion of the IWUF, it is indeed for CAS, i.e. the Sole Arbitrator, to determine whether evidence is to be considered as confidential and, if so, whether it should be added to the record of the case in a redacted form.

99. Counsel for IWUF acknowledges that the allegations made against EWUF are “very serious”. In the view of the Sole Arbitrator, this does not justify non-disclosure of the original complaint, at least in a redacted form. To the contrary, the more serious an allegation, the more important it is for the subject of the complaint to be provided with details of the case against them.

100. In this regard, it is a matter of some concern that there is a distinct lack of clarity as to the precise scope and nature of the complaint. Whereas at the hearing Mr Missingham described the original complaint as “40 odd pages”, the IWUF’s further written submissions dated 4 April 2022 refer to “hundreds of documents submitted to it in the complaint file, as summarized in Exhibit R-6”.

101. Counsel for the Respondent submitted at the hearing that whereas EWUF had not been provided with the original complaint, “plenty” of documentation was shared with EWUF, including the Second Interim Report. The Second Interim Report does indeed set out a concise summary of the “investigation discovery” in relation to some of the allegations made against EWUF. However, this report (which is dated 10 April 2021) does not appear to have been provided to EWUF until around 12 April 2021, just three days before the provisional suspension was imposed by the IWUF Executive Board, leaving very little time for EWUF to respond to the allegations.

102. On 29 October 2021, three days after the IWUF Executive Board confirmed the Appeal Jury Decision, Mr Missingham undertook to provide EWUF with “further information in the course of the coming weeks”. It does not appear that any such further information was provided. As recently as 30 March 2022, a member of the EWUF Executive Board (Mr Verschuur) has expressed concerns about “proper procedure” being “ignored” and being invited to attend a hearing without “understanding the relevancy”.

103. The Sole Arbitrator acknowledges that the IWUF Constitution and the Code of Ethics do not contain detailed rules on the precise procedure to be adopted in the course of an ethics/disciplinary investigation. Article J.3 of the Code of Ethics requires the Chairman of the Ethics Committee to inform any person or entity against whom a prima facie case has been found to exist “about the procedure” and to arrange for an investigation to be carried out. Thereafter, the Ethics Committee may hold a hearing, or invite the IWUF Executive Board to make a decision on the papers. Whereas Article J.3 is somewhat skeletal in describing these steps, the principle of procedural fairness, inherent in the conduct of disciplinary/ethics investigations and proceedings conducted by international sports federations, requires that a person or entity accused of wrongdoing must be made aware of the details of the case against them, at least to the extent required to answer to each of the allegations.

104. In the case CAS 2017/A/5086 – an authority relied upon by EWUF – the appellant argued that FIFA had violated his “due process rights” by “failing to provide him with the full investigation files” at the time of the FIFA adjudicatory proceedings. In that case, the panel found that the CAS proceedings had rectified any arguable procedural violation because the appeal was heard de novo without affording any deference to the appealed decision. Significantly, the appellant in CAS 2017/A/5086 was ultimately provided with the relevant files and had the opportunity to “comment on all the additional produced documents”. As such, the panel was satisfied that any procedural violation that might have occurred had been “cured”. The same cannot be said in this case. In particular, IWUF has failed to provide the original complaint, or any evidence in support of its assertion that the original complaint cannot be disclosed to EWUF, even in redacted form. Beyond the two-page bullet point summary described in paragraph 6 above, EWUF was not provided with a copy of the Second Interim Report (which provides a more detailed description of the allegations) until just three days before the provisional suspension was imposed. Thereafter, it does not appear that there has been any further meaningful disclosure to EWUF. For these reasons, the Sole Arbitrator concludes that the requirements of procedural fairness have not been adhered to in such a manner as to ensure compliance with the requirements of the Code of Ethics, the IWUF Constitution and the requirements of natural justice.

105. There are two further factors which reinforce the Sole Arbitrator’s conclusion that the provisional suspension does not accord with the requirements of the Code of Ethics and the IWUF Constitution.

106. First, the investigation of the Ethics Committee does not appear to have been carried out with any real sense of promptitude. At the hearing, counsel for IWUF argued that delays in the investigation were a result of the Appellant’s “attitude”. The Sole Arbitrator recognises that the allegations against EWUF may be complex and multifaceted, and that EWUF and members of its Executive Board have not been forthcoming in responding to requests for information. Nevertheless, by 8 December 2021, Mr Missingham acknowledged Mr Smith’s repeated refusal to provide information and stated that IWUF would “close this investigation and prepare a final report”. At the hearing, counsel for IWUF submitted that the case is “almost closed” and that a final decision could be expected “shortly within … a few months, maybe even weeks”. In its further written submissions dated 4 April 2022, IWUF stated that: “the Ethics Committee is in the final stages of closing its investigation and is expected to submit its final report to the IWUF Executive Board shortly”. The

Sole Arbitrator notes that as of the date of this Award, the CAS Court Office has not been notified of any final report being submitted to the IWUF Executive Board, nor does it appear that the investigation has been completed.

107. At the hearing, counsel for the Respondent accepted – in principle – that if a provisional measure were to persist for a period of, for example, four years, it would be difficult to say that it is ‘provisional’. In this case, the provisional suspension has been in place for more than fifteen months, and more than eight months has elapsed since Mr Missingham informed Mr Smith that in light of EWUF’s failure to provide documents, the Ethics Committee would “close this investigation and prepare a final report”. In these circumstances, the Sole Arbitrator concludes that the Ethics Committee has not conducted its investigation with sufficient speed or efficiency, resulting in the provisional suspension being imposed for too long, ceasing to be truly of a “provisional” nature within the meaning of Article J.3 of the Code of Ethics.

108. Second, the Sole Arbitrator is concerned by IWUF’s submission that the provisional suspension is “more of a ‘formal warning’ for non-compliance with the applicable procedural obligations to comply with an investigation and to cooperate” and that it was imposed in the hope of “convinc[ing] EWUF, or at least some of its representatives, to cooperate with IWUF and assist in the investigations”. As noted in paragraph 105 above, the Sole Arbitrator is not convinced that EWUF and the members of its Executive Board (Mr Smith in particular) have cooperated with the investigation of the Ethics Committee. To the extent that EWUF has expressed willingness to cooperate, this appears to be only on its own terms. However, under the IWUF Constitution (in particular Articles 31 and 38 of the 2021 edition and Article 36 of the 2017 edition) and Article J.3 of the Code of Ethics, sanctions may be imposed only on those who violate the Code of Ethics. There is no provision allowing for provisional suspension to be used as a mechanism for encouraging or coercing cooperation, in the absence of a violation of the Code of Ethics, or to convince a person or entity to provide information/documents. To the extent that the provisional suspension has been imposed for that purpose, it does not appear to accord with the terms of the IWUF Constitution (Articles 31 and 38 of the 2021 edition and Article 36 of the 2017 edition) and Article J.3 of the Code of Ethics.

109. Relatedly, it is noted the decision of the IWUF Executive Board dated 15 April 2021 also seeks to impose an obligation on EWUF to “provide any information which the IWUF Ethics Committee considers may be relevant to investigate the complaints”. There does not appear to be any legal basis in the IWUF Constitution or in the Code of Ethics for a provisional measure of this nature. Ultimately, it is a matter of the EWUF to decide whether and what extent it will cooperate with the investigation carried out by the Ethics Committee (with the inherent risk that adverse inferences may well be drawn if there is a refusal to cooperate or a failure to adduce evidence). It may well be that in certain circumstances a failure to cooperate could, of itself, give rise to a violation of the Code of Ethics, but the record before the Sole Arbitrator does not indicate this to be a case made by the IWUF.

110. Against this background, including the findings of fact based on the evidence before him, the Sole Arbitrator concludes that the Appeal Jury Decision should be annulled, on the basis that the provisional measures imposed by the Executive Board on 15 April 2021 do not comply with the requirements of Article J.3 of the Code of Ethics and the IWUF Constitution (in particular

Articles 31 and 38 of the 2021 edition and Article 36 of the 2017 edition). In sum, the Decision adopting provisional measures did not follow a procedure that gave the EWUF a full opportunity to know the complaint made against it, and appears to have been adopted (in part at least) for the improper purpose of encouraging or coercing further cooperation. As a result, the provisional measures imposed by the Executive Board on 15 April 2021 (including the provisional suspension of EWUF as a Continental Federation of IWUF) is hereby rescinded.

111. For the avoidance of doubt, the Sole Arbitrator reiterates that he expresses no view on the merits of the allegations made against EWUF in the complaint. The Sole Arbitrator’s task in this case is strictly limited to determining whether the Appeal Jury Decision, upholding the provisional measures imposed by the Executive Board on 15 April 2021, has been made in accordance with the rules and regulations of the IWUF (and subsidiarily, Swiss law). The Sole Arbitrator’s ruling which annuls the Appeal Jury Decision is wholly without prejudice to the ongoing investigation by the Ethics Committee and the powers of the IWUF Executive Board under the IWUF Constitution and Code of Ethics to impose sanctions on EWUF in light of that investigation (should it decide to do so).