Stanislav Toncev v. Football Association of Serbia (FAS)

III. FACTUAL BACKGROUND

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

A. Background Facts

8. On 25 January 2016, the Appellant was appointed President of FC Radnik.

9. On 24 November 2021, the Match took place.

B. The Proceedings before the FAS Disciplinary Committee

10. On 26 November 2021, Mr Aleksandar Pivic, the Competition Director of the Association Football Clubs of the Serbian Superleague and First League of Serbia (the “AFC Competition Director”), filed a complaint (the “Disciplinary Report”) with the FAS concerning alleged unsportsmanlike behaviour of the Appellant during the Match. The Disciplinary Report contained evidence collected and stated as follows:

“Pursuant to Article 127 [FAS Disciplinary Code] and pursuant to the Disciplinary report of the FA of Serbia Referee commission, on account of the committed violation of Article 54 [FAS Disciplinary Code], entering a restricted area, that is the referee’s change room at the halftime of the [Match], in the capacity of Competition Director, I file a complaint against [the Appellant].

On the day of 24.11.2021, at halftime of the [Match], [the Appellant] entered a restricted area and set foot in the referee’s change room”.

11. On 2 December 2021, the FAS Disciplinary Committee informed the Appellant that it had taken the following decision (the “Provisional Suspension”):

“1. Disciplinary proceedings are initiated against [the Appellant], president of FC Radnik from Surdulica, for violating Article 54 [FAS Disciplinary Code] made in the [Match].

2. [The Appellant] is ordered to file a written statement on the circumstances referred to in the Disciplinary Report, which circumstances are presented in the attachment to this Decision, to the

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[FAS Disciplinary Committee] no later than Tuesday, December 7, 2021 until 5 p.m. by email […], pursuant to Article 129 and 131 [FAS Disciplinary Code].

3. The measure of suspension is pronounced to [the Appellant] and the ban on performance of all duties in football in terms of Article 23 [FAS Disciplinary Code].

4. The suspension referred to in item 3 of this Decision shall last until the decision on sanction of this Committee is reached, for a maximum of 2 (two) months. Time spent under suspension will be included in the sanction, pursuant to Article 138 [FAS Disciplinary Code]”.

12. On 4 December 2021, the Secretary of the FAS Disciplinary Committee informed the Appellant as follows:

“I refer to the [Provisional Suspension] that was sent to you without the Disciplinary Report and the Additional reports of the other match officials by mistake”.

13. On 7 December 2021, the Appellant filed his first written defence with respect to the charge filed against him before the FAS Disciplinary Committee.

14. On 9 December 2021, following an “objection” filed by the Appellant to the Provisional Suspension on the basis of Article 139(1) FAS Disciplinary Code, the FAS Disciplinary Committee issued a decision, rejecting the Appellant’s objection. This decision contained the following operative part:

“[T]o REJECT the Objection of [the Appellant], represented by the attorney at law Petkovic Mico from Belgrade, lodged based on the decision of the [Provisional Suspension], as not permitted, according to Article 139 [FAS Disciplinary Code]”.

15. On 16 December 2021, a hearing was held before the FAS Disciplinary Committee.

16. On 23 December 2021, following an appeal filed by the Appellant against the FAS Disciplinary Committee decision dated 9 December 2021, the FAS Disciplinary Committee issued its decision, with the following operative part:

“[T]o REJECT the Appeal of [the Appellant], represented by the attorney at law Petkovic Mico from Belgrade lodged based on the decision of the [FAS Disciplinary Committee] as NOT PERMITTED, in accordance with Articles 139 and 145 of the [FAS Disciplinary Code]”.

17. On 24 December 2021, the FAS provided the Appellant with video and audio files recorded in the video assistant referee (“VAR”) room of the Match, accompanied by a transcript thereof.

18. On 24 and 27 December 2021 respectively, upon the request of the FAS Disciplinary Committee, Mr Dejan Trifkovic, the referee leading the Match (the “Main Referee”), Mr Banovic Bojan, the first assistant referee at the Match (the “First Assistant Referee”), Mr Slobodan Pavlovic, the second assistant referee at the Match (the “Second Assistant

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Referee”), and Mr Aleksandar Zivkovic, the fourth referee at the Match (the “Fourth Referee” – collectively the “Referees”), issued additional statements based on the VAR recordings and the transcript thereof, inter alia, addressing the authenticity thereof.

19. On 27 December 2021, the Appellant filed his second written defence with the FAS Disciplinary Committee, objecting, inter alia, to the admissibility of the VAR recordings and the transcript thereof.

20. On 30 December 2021, the FAS Disciplinary Committee provided the Appellant with additional statements from the Referees.

21. On 10 January 2022, the Appellant filed his third written defence with the FAS Disciplinary Committee, maintaining, inter alia, that pursuant to Article 130(2) FAS Disciplinary Code, the FAS Disciplinary Committee should have issued a decision within seven days of receipt of the Disciplinary Report, i.e. by 3 December 2021.

22. On 12 January 2022, the FAS provided the Appellant with a statement of Mr Boban Stamenkovic, the Security Commissioner of FC Radnik (the “Club’s Security Commissioner”), a statement of Mr Milos Mitrovic, the Match Delegate at the Match (the “Match Delegate”), and a statement of the AFC Competition Director.

23. On 13 January 2022, the FAS Disciplinary Committee issued its decision on the charge filed against the Appellant (the “First Instance Decision”), with the following operative part:

“1. [The Appellant] IS HEREBY PENALIZED by a ban on performance of duties for a period of 6 (six) months due to violation of Art. 54, and in connection with Art. 23 [FAS Disciplinary Code], committed in the [Match].

2. The penalty referred to in item 1 of this Decision shall become effective 24 hours following the entry into force of the [Provisional Suspension] dated 2nd December 2021, i.e. from 03rd December 2021 pursuant to Articles 138 and 148 [FAS Disciplinary Code]”.

24. On the same date, the grounds of the First Instance Decision were communicated to the Appellant, providing, inter alia, as follows:

➢ “The first instance disciplinary body considers these statements to be clear, convincing, logical and noncontradictory, especially having in mind that even the [Appellant] did not make any objections to the mentioned statements during the procedure.

➢ As for the written and oral statements of the [Appellant], they cannot be accepted because they are in contradiction with the statements of the [Referees] and are evidently aimed at conscious avoidance of disciplinary responsibility and obvious reduction of guilt.

➢ The statements of the [Match Delegate] and the [Club’s Security Commissioner], in the opinion of this Commission, are not relevant for decision-making, primarily because according to all

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the presented evidence it is indisputable that they were not in the [Referees’] dressing room at the time of the critical event.

➢ Based on the above statements, the Committee concluded in a clear, unambiguous and undoubted manner that the [Appellant] committed a violation of Art. 54 [FAS Disciplinary Code] which stipulates that whoever presents with unsportsmanlike conduct shall be penalized, and that unsportsmanlike conduct includes swearing, spitting, indecent gestures, objecting to and defying the referee’s decisions and orders as well as the decisions and orders of football organizations and functionaries who perform certain duties, including teasing of players of own and rival’s teams, functionaries and viewers verbally, with gestures and otherwise, as well as all the actions that may do harm to the reputation of the football sport.

➢ In the specific legal situation, the elements of the disciplinary offence of complaining about and defying the decisions of the [Referees] are clear in the form of addressing a person against whom a disciplinary report was filed in which he asks the referee what did he do.

➢ This position is reached by the first instance disciplinary body by correlating the quoted written statements of the [Referees] with the written statements of the [Referees] from 24th December 2021 and 27th December 2021 in which the [Referees] confirm the identity of the persons with whom they had a conversation in the [Referees’] dressing room during the break between the two half-times of the [Match], as well as the material component of the said conversation, which are stated in the audio transcript. The same or similar conclusion is drawn from the written statements of VAR and AVAR referees.

➢ This indicates a clear continuity and several minutes of unsportsmanlike conduct of the [Appellant] in the form of objections and defiance to [Referees’] decisions, which absolutely excludes even the smallest elements of affectivity in the reaction, given that objections and defiance do not apply to one, but rather to a series of allegedly controversial situations that occurred in the first part of the [Match].

➢ The committee appreciated the allegations from the written and oral statement of [the Appellant] and concluded that he did not change his attitude towards the committed acts of disciplinary violation, nor did he show elements of possible remorse for the committed offence. In addition to this, the constant statement that the [Appellant] was in the so-called balloon hall, that he toured the construction works being carried out in it, as well as the fact that the front door to the [Referees’] dressing room was open.

➢ The unanimous conclusion of the first instance disciplinary body is that there is an element of determination, persistence and ruthlessness in the actions of the [Appellant], and that the offence itself produced significant repercussions on the reputation of the [Match] and the integrity and authority of the entire competition.

➢ When determining the penalty for a disciplinary offense, all mitigating and aggravating circumstances that exist in a particular case were taken into account, especially the severity of the disciplinary offense and its consequences, the degree of responsibility of the [Appellant], the motives for misdemeanours and all other circumstances related to the [Appellant’s] personality.

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➢ In his oral statement made on December 16th 2021, the [Appellant], among other things, asserted that he was president of FK “Radnik” Surdulica for 9 years, and points out that during this time no disciplinary proceedings were initiated or conducted against him. The [FAS Disciplinary Committee] concludes that those assertions are evidently false, having in mind that a disciplinary report had been submitted against [the Appellant] for the breach under Article 54 [FAS Disciplinary Code] committed after the championship match of the 10th round of Super Liga Serbia in the 2019/20 season FK “Javor Matis” - FK “Radnik”, of September 30th 2019 in Ivanjica, when said person entered the pitch and addressed the referee by saying: “You should be ashamed of your refereeing”. Due to the preceding, the Disciplinary Committee of the FAS, on the session of October 10th 2019, adjudicated the adequate disciplinary sanction in the ruling number DK- 161/19-533. This fact was not considered by the disciplinary organ of the first degree when adjudicating disciplinary penalties at the matter at stake due to the fact that over a year had passed since the earlier and subsequent rulings, but does consider it relevant when assessing the personal credibility of the [Appellant] and the dignity of his oral statement.

➢ The credibility of the attached delegate report was determined from the written statement of the person who submitted the disciplinary report from 28th December 2021.

➢ When it comes to the personality of the [Appellant], the position of this Committee is that he performs high functions in the current football system of [the FAS] in capacity of a member of the Executive Board of the [AFC] and president of FC Radnik, a football club who has been improving its work and results on and off the pitch, from which reason the Commission assesses this circumstance as aggravating one.

➢ The first-instance disciplinary body took the position that all of the above obliges him to a significant extent to act with particular caution in dealing with referees and officials at the match, to carefully weigh his performances.

➢ Article 23 [FAS Disciplinary Code] stipulates that a person penalised to this type of penalty may not perform functions for which a disciplinary measure has been imposed in any body of the club, association, federation, match, etc., nor represent a club or organisation in any capacity throughout the entire duration of the penalty term. This penalty includes a ban on entering the locker room or access to the reserve players’ bench, as well as a ban on entering the club or association's premises.

➢ The Disciplinary Commission deems that the imposed penalty is proportional to the gravity of the committed offense disclosed in the wording of this Decision, that it will have an educational effect on the football worker and at the same time a preventive effect, both on the [Appellant] and other persons, so that all can refrain from committing such or similar offenses”.

C. The Proceedings before the FAS Appeals Committee

25. On 14 January 2022, the Appellant filed an appeal against the First Instance Decision with the FAS Appeals Committee.

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26. On 14 February 2022, the FAS Appeal Committee rendered its decision (the “Appealed Decision”), with the following operative part:

“The appeal of [the Appellant], filed against the [First Instance Decision], is hereby DISMISSED, and the [First Instance Decision] is therefore confirmed in its entirety”.

27. On 18 February 2022, the Appealed Decision, with grounds, was communicated to the Appellant, providing, inter alia, as follows:

➢ “Considering the timely filed and duly taxed appeal of [the Appellant] against the [First Instance Decision], which was filed through the attorney Mića Petković, a lawyer from Belgrade, the FAS Appeals Committee found that it was ungrounded.

➢ The [Appellant] appealed the decision for all reasons, proposing that the [First Instance Decision] be revoked and returned to the first-instance body for a new procedure. He pointed out a significant violation of the disciplinary procedure provisions, which was reflected in the illegal conduct during the decision on suspension i.e. rejecting the appellant's objections. It is further stated that the actions of the [Appellant] were incorrectly and incompletely determined, as well as that the decision on the disciplinary sanction was inappropriate and that the accepted practice of the first instance body from previous proceedings was deviated from.

➢ Considering the allegations of the appellant from the case file, the Appeals Committee considers that the first instance body acted correctly when, in accordance with the facts of the disciplinary proceedings, it issued an appellate decision penalizing [the Appellant], by preventing him from performing his duties in football for 6 (six) months due to the violation of Article 54 and in connection with Art. 23 [FAS Disciplinary Code], by unequivocally establishing that the [Appellant] committed the disciplinary offense specified in paragraph 1 of this explanation. This is due to the fact that the [Appellant] entered the [Referees’] dressing room without authorization at the half-time of the [Match] and objected to and defied the decisions of the [Referees] in the [Match], thus committing the act from Article 54 [FAS Disciplinary Code].

➢ When determining the penalty, the Disciplinary Committee correctly took the position that the conduct and attitude of the [Appellant], given the functions he performs, had to be at a much higher level, and that this fact is an aggravating circumstance due to which the sentence was adequate.

➢ Regarding the appellate allegations indicating the illegality of the [Provisional Suspension], it was concluded that they are irrelevant, bearing in mind that pursuant to Article 139 of the FAS Disciplinary Code, the disciplinary body responsible for reviewing the suspension decision made the said decision and that no appeal can be filed against such a decision.

➢ The Appeals Committee took the position that the first instance body correctly applied the FAS Disciplinary Code in everything, as well as that the appeal decision was explained in detail, and based on the said it decided to dismiss the appeal of [the Appellant] confirming in its entirety the first instance decision”.

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IV. THE PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT

28. On 28 February 2022, the Appellant filed a Statement of Appeal with CAS, challenging the Appealed Decision, in accordance with Articles R47 and R48 of the 2021 edition of the CAS Code of Sports-related Arbitration (the “CAS Code”). In this submission, the Appellant nominated Mr Ulrich Haas, Professor in Zurich, Switzerland, and Attorney-at-Law in Hamburg, Germany, as arbitrator. Furthermore, the Appellant applied for a stay of execution of the Appealed Decision with regard to the disciplinary sanction imposed on him in accordance with Article R37 CAS Code.

29. On 14 March 2022, the FAS nominated Mr Patrick Lafranchi, Attorney-at-Law in Bern, Switzerland, as arbitrator.

30. On 21 March 2022, the FAS filed its response to the Appellant’s application for a stay of execution of the Appealed Decision, requesting for it to be dismissed.

31. On 1 April 2022, the Appellant filed his Appeal Brief in accordance with Article R51 CAS Code.

32. On 8 April 2022, the President of the CAS Appeals Arbitration Division issued an order on the Appellant’s application for a stay of execution of the Appealed Decision. The operative part of the order provides as follows:

“1. The application for a stay of the [Appealed Decision], filed by [the Appellant] is rejected.

2. The costs deriving from the present Order will be determined in the final award or in any other final disposition of this arbitration”.

33. On 23 May 2022, the CAS Court Office informed the Parties that the Deputy President of the CAS Appeals Arbitration Division, pursuant to Article R54 CAS Code, had decided that the Panel appointed to decide the case was constituted as follows:

President: Mr Hendrik Willem Kesler, Attorney-at-Law, Enschede, the Netherlands; Arbitrators: Mr Ulrich Haas, Professor and Attorney-at-Law, Hamburg, Germany; Mr Patrick Lafranchi, Attorney-at-Law, Bern, Switzerland.

34. On 27 May 2022, the Appellant provided the CAS Court Office with four decisions rendered by the FAS Disciplinary Committee in 2021 in which persons were also sanctioned for violating Article 54 FAS Disciplinary Code and requested such decisions to be admitted on file.

35. On 6 June 2022, the FAS objected to the admissibility of the decisions provided by the Appellant on 27 May 2022.

36. On 8 June 2022, the CAS Court Office, on behalf of the Panel, informed the Parties as follows:

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“- The decisions of the Football Association of Serbia filed by the Appellant on 27 May 2022 are admitted into the case file. The reasons of this decisions will be communicated in the final award.

- The Respondent will be allowed to comment on such decisions during the hearing”.

37. On 9 June 2022, the CAS Court Office informed the Parties that, for the sake of procedural and costs efficiency and considering that the proceedings in CAS 2022/A/8694 Novica Toncev v. Football Association of Serbia and CAS 2022/A/8695 Stanislav Toncev v. Football Association of Serbia involve similar issues, the Panel had decided to deal with both proceedings in one single hearing.

38. On 14 June 2022, the CAS Court Office informed the Parties that Mr Dennis Koolaard, Attorney-at-Law in Arnhem, the Netherlands, had been appointed as Ad hoc Clerk.

39. On 18 June 2022, the FAS filed its Answer in accordance with Article R55 CAS Code.

40. On 6 and 8 July 2022 respectively, the Appellant and the FAS returned duly signed copies of the Order of Procedure that had been provided to them on 6 July 2022.

41. On 8 July 2022, the CAS Court Office informed the Parties that one of the members of the Panel would only be able to attend the hearing scheduled for 13 July 2022 by video-conference.

42. On 11 July 2022, the CAS Court Office provided the Parties with a tentative hearing schedule, inviting them to provide their comments thereto.

43. On the same date, 11 July 2022, both Parties submitted comments to the tentative hearing schedule. In particular, the Appellant requested that he and his father be permitted to testify and that the Match Delegate was not available to testify due to personal reasons. The FAS objected to hearing evidence from Mr Ninoslav Spasic, Referee Observer at the Match, Dušan Mrakić, FAS Executive Committee Member, the Appellant and his father.

44. On 12 July 2022, the CAS Court Office provided the Parties with an updated tentative hearing schedule and informed them that any outstanding issues would be dealt with at the outset of the hearing.

45. On 13 July 2022, a joint hearing was held at the CAS Court Office in Lausanne, Switzerland, in the matters CAS 2022/A/8694 Novica Toncev v. Football Association of Serbia and CAS 2022/A/8695 Stanislav Toncev v. Football Association of Serbia. At the outset of the hearing, both Parties confirmed that they had no objection to the constitution and composition of the Panel.

46. In addition to the members of the Panel, Mr Antonio de Quesada, CAS Head of Arbitration, and Mr Dennis Koolaard, Ad hoc Clerk, the following persons attended the hearing:

a) For the Appellant:

1) Mr Stanislav Toncev, the Appellant;

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2) Mr Novica Toncev, the Appellant’s father and appellant in CAS 2022/A/8694; 3) Mr Mico Petkovic, Counsel; 4) Ms Ivana Boskovic, Counsel (by video-conference); 5) Mr Milosh Petrik, Interpreter.

b) For the FAS:

1) Mr Zoran Damjanovic, Counsel; 2) Dr Marco del Fabro, Counsel; 3) Mr Ksenija Z. Damjanovic, Counsel; 4) Ms Tatjana Otkovic, Interpreter.

47. The following persons were heard, in order of appearance:

1) Mr Novica Toncev, the Appellant’s father, appellant in CAS 2022/A/8694 and witness in CAS 2022/A/8695; 2) Mr Stanislav Toncev, the Appellant; 3) Mr Dušan Mrakić, FAS Executive Committee Member, witness called by the Appellant; 4) Mr Boban Stamenkovic, the Club’s Security Commissioner, witness called by the Appellant; 5) Mr Aleksandar Zivkovic, Fourth Referee, witness called by the SFA (by videoconference); 6) Mr Dejan Trifkovic, Main Referee, witness called by the SFA (by videoconference); 7) Mr Bojan Banovic, First Assistant Referee, witness called by the SFA (by videoconference).

48. At the outset of the hearing, and further to the FAS’ objection in this respect, the Panel informed the Parties that it had decided that Mr Ninoslav Spasic, Referee Observer at the Match and witness called by the Appellant, would not be heard, because he had not been called as a witness in the Appeal Brief, nor did the Appellant file a witness statement or a summary of his expected testimony.

49. The Panel also informed the Parties, further to the FAS’ objection in this respect, that it had decided that Mr Mrakić would be heard as a witness, because the Appellant had provided a witness statement of Mr Mrakić with its Appeal Brief.

50. The Panel also informed the Parties that, further to the Appellants’ request and the objection of the FAS, the Appellant and his father would be heard, as they are parties in the procedures CAS 2022/A/8694 Novica Toncev v. Football Association of Serbia and CAS 2022/A/8695 Stanislav Toncev v. Football Association of Serbia.

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51. All witnesses were invited by the President of the Panel to tell the truth subject to the sanctions of perjury under Swiss law. The Appellant and the FAS had full opportunity to examine and cross-examine the witnesses.

52. The Appellant and the FAS were given full opportunity to present their cases, submit their arguments and answer the questions posed by the members of the Panel.

53. Before the hearing was concluded, the Appellant and the FAS expressly stated that they had no objection to the procedure adopted by the Panel and that their right to be heard had been respected.

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

V. SUBMISSIONS OF THE PARTIES AND REQUESTS FOR RELIEF — A. The Appellant

55. The Appellant’s submissions, in essence, may be summarised as follows:

Right to a fair and public hearing

➢ Pursuant to Article 6 of the European Convention on Human Rights (the “ECHR”), in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Article 6(1) ECHR has also been found to be applicable in relation to disciplinary sanctions in the field of sport. In its judgment in Ali Riza and Others, the European Court of Human Rights (the “ECtHR”) noted structural deficiencies in the Arbitration Committee of the Turkish Football Federation (the “TFF Arbitration Committee”) and the lack of adequate safeguards to protect the members of the Committee from outside pressure. It concluded that the TFF Arbitration Committee lacked independence and impartiality and considered this to be a violation of Article 6(1) ECHR.

➢ For the same reasons, the FAS Disciplinary Committee and the FAS Appeals Committee also lack independence and impartiality in the disciplinary matter at stake, mostly from an organisational perspective.

➢ Taking into account that the FAS has been running its operations without President since Mr Kokeza resigned on 22 March 2021, it is clear that these circumstances could have been misused not only to disqualify other potential candidates from

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running for President of the FAS, but also to present and promote another candidate as the most suitable one.

➢ Since Mr Novica Toncev, the Appellant’s father, confirmed his determination of running for the presidency of the FAS, the FAS Vice President decided to weaken Mr Novica Toncev’s position and the support he had among the members of the FAS Executive Committee by dismissing three members of that body that had not been under the FAS Vice President’s control and to appoint new “reliable” members. This process was completed by means of the present disciplinary proceedings and the Provisional Suspension imposed on the Appellant and his father, which was in violation of Article 129(1) FAS Disciplinary Code.

➢ In light of the FAS’s statutory provisions, it is obvious that during the disciplinary proceedings there were inadequate safeguards to protect the members of the judicial bodies from outside pressure, notably from the FAS Executive Committee. The special requirements (in terms of qualifications, experience, special skills or knowledge) to be a member of these bodies were not prescribed, the members of the judicial bodies have not been bound by any rules of professional conduct, neither had to swear an oath or make a solemn declaration before taking up their duties. Moreover, they were not protected from civil liability actions, the FAS’s rules had no fixed term for members’ term of office, the members of the judicial bodies did not have to disclose circumstances affecting their independence and impartiality and there was no specific procedure to deal with challenges to a member on those grounds.

➢ In sum, the Appellant has legitimate reason to doubt that the judicial bodies’ members would approach his case with the necessary independence and impartiality. There had therefore been a violation of Article 6(1) ECHR.

➢ Furthermore, pursuant to Article 70(2) FAS Statutes, the FAS Disciplinary Committee is composed of a minimum of 5 members. The members of the FAS Disciplinary Committee that passed the First Instance Decision were appointed by the FAS Emergency Committee at a meeting held on 23 September 2020, by means of which only four members were appointed and a fifth member was to be appointed in due course. However, this never happened.

➢ Consequently, the FAS Disciplinary Committee that issued the First Instance Decision was composed of only 4 members, i.e. a number smaller than the number provided for by the FAS Statutes.

Right to a fair trial and right to be heard

➢ The requirement of fairness applies to proceedings in their entirety. The proceedings are examined as a whole in order to determine whether they were conducted in accordance with the requirements of a fair hearing.

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➢ It should be noted that not only did the FAS Disciplinary Committee pass the Provisional Suspension prior to providing the Appellant with the possibility to express his position about the allegations raised in the Disciplinary Report, but also it was asserted, contrary to Article 139(1) FAS Disciplinary Code, that said ruling could not be appealed.

➢ Furthermore, following the dismissal of the Appellant’s objection against the Provisional Suspension, and upon being informed that such decision could be appealed with the FAS Appeal Committee, the Appellant filed an appeal, which was dismissed by the same judicial body, i.e. the FAS Disciplinary Committee.

➢ The concept of a fair trial comprises the fundamental right to adversarial proceeding and implies that each party must be afforded a reasonable opportunity to present his case including his evidence. It should be taken into account that, contrary to Article 131(2) FAS Disciplinary Code, the FAS was not represented by a disciplinary inspector, in the absence of which it was not clear which side carried the burden of proof to establish the alleged violation.

➢ It should be noted that the Appellant’s alleged breach of the rules was not reported by the match officials. To the contrary, the Match Delegate assessed the organization of the Match as “good” and the overall organization as “very good”. The Referees were invited by the FAS Referee Committee to submit their additional reports and the Disciplinary Report was filed based on the Referee Committee report that has never been provided to the Appellant.

➢ The FAS Disciplinary Committee failed to assess the charges on time in order to see if a prima facie case/substantial ground existed to believe that the Appellant had committed the offence as charged. On the one hand, by rendering its Provisional Suspension, the FAS Disciplinary Committee communicated that it assessed the charges against the Appellant immediately upon receipt of the Disciplinary Report and found that a substantial ground existed to believe that the Appellant had committed the offence as charged (by entering a restricted area). On the other hand, the Appellant was disciplinary sanctioned not for entering a restricted area, but for complaining about and defying the decisions of the Referees.

➢ The members of the FAS Disciplinary Committee were passive during the hearing of 16 December 2021, as evident from the fact that they had not asked any question to the Appellant in order to fully and correctly clarify the facts of the matter.

➢ The FAS Disciplinary Committee and the FAS Appeals Committee failed to provide the Appellant with understandable reasons for its decisions. In support of this conclusion, it is enough to compare the Appellant’s arguments from his appeal and the grounds of the Appealed Decision. Among many of them, the Appellant was arguing in his appeal that the FAS Disciplinary Committee, in its acting in the disciplinary proceedings against the Appellant, did not follow its previous ruling

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without a valid reason for departing from it. By such acting, the principle of legal certainty was grossly violated.

➢ Contrary to Article 37(1) FAS Disciplinary Code, the FAS Disciplinary Committee failed to take into account all extenuating circumstances relevant to the disciplinary proceedings, especially his earlier conduct.

➢ Pursuant to Article 129(1) FAS Disciplinary Code, after ascertaining competence, the FAS Disciplinary Committee shall hear the person accused of a disciplinary offence so as to decide whether to engage in disciplinary proceedings and shall rule in that respect. In the sense of the above-mentioned provision, the FAS Disciplinary Committee, upon receipt of the Disciplinary Report, was supposed to ascertain its competence, then to hear the Appellant in order to decide whether to engage in the disciplinary proceedings and was supposed to rule in that respect.

➢ Instead of acting in accordance with that prescribed procedure, the FAS Disciplinary Committee ruled in that respect without hearing the Appellant.

Administration of evidence

➢ The admissibility of evidence and the way it should be assessed are primarily matters for regulation by applicable law. The same applies to the probative value of evidence and the burden of proof. However, individuals must be afforded effective judicial safeguards. The FAS Disciplinary Committee took evidence ex officio. The Appellant does not object to the right of this judicial body to form its opinion based on its free assessment of the evidence taken.

➢ The Appellant was provided with the VAR recordings and the transcript thereof on 24 December 2021. Three days later, the Appellant filed a written submission to the FAS Disciplinary Committee by means of which he objected to the authenticity of the evidence and proposed to treat it as inadmissible. The FAS failed to prove the authenticity of the evidence even though the Appellant had disputed it during the proceedings.

➢ With regard to the statement of the FAS Disciplinary Committee that “[a]s for the written and oral statements of the [Appellant], they cannot be accepted because they are in contradiction with the statements of the [Referees] and are evidently aimed at conscious avoidance of disciplinary responsibility and obvious reduction of guilt. The statements of the [Match Delegate] and the [Club’s Security Commissioner], in the opinion of this Committee, are not relevant for decisionmaking, primarily because according to all the presented evidence it is indisputable that they were not in the [Referees’] locker room at the time of the critical event”, such an assessment does not satisfy basic requirements of a fair trial. The FAS Disciplinary Committee was supposed to assess not only every evidence individually, but also to compare each of it with the others.

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Standard and burden of proof

➢ Swiss law considers disciplinary proceedings to be civil proceedings. As such, as a general rule, the standard of proof shall be that of beyond reasonable doubt. However, Swiss law offers several means to ease the difficulty of proving certain facts, either by imposing a duty to collaborate on the other party, against whom the facts have to be proved, or by shifting the burden of proof, or lowering the standard of proof.

➢ With regards to this issue, the Panel should determine the admissible evidence and, for each fact, which party had the burden of proof.

Proportionality of the sanction

➢ The principle of proportionality requires the Panel to assess whether a sanction is appropriate to the violation committed in the case at stake. Excessive sanctions are prohibited. When assessing whether a sanction is excessive, the Panel must review the type and scope of the proved rule violation, the individual circumstances of the case, and the overall effect of the sanction on the Appellant as an offender.

➢ Taking into account that the Appellant was charged for entering into a restricted area, all Referees stressed in their additional reports that they had not received any insults or threats from the Appellant, nor the Appellant exhibited any rude or uncomfortable behaviour towards them, it is clear that, even if found guilty of a disciplinary offence, the purpose of the sanction could have been reached with the most lenient sanction (a reprimand).

➢ In light of Article 23 FAS Disciplinary Code and the fact that the Appellant was a legal representative of FC Radnik, it is clear that the disciplinary measure imposed is extremely harsh and excessive, because not only has the Appellant been disallowed to represent the club, but he is also not allowed to access the club’s offices.

➢ It remained unclear from the First Instance Decision and the Appealed Decision why the disciplinary bodies of the FAS were convinced that the purpose of the disciplinary measure could have been reached only by a ban, not by reprimand or by a fine. In addition, it remained unclear why this purpose could have not been reached by a shorter ban.

➢ These disciplinary sanctions failed to prevent third parties from criticizing referees and the FAS Referee Committee. In this regard, the Appellant refers to an incident that took place on 6 March 2022, when FC Partizan defeated FC Spartak in the 26 th round of the Super League of Serbia, resulting in a public statement being issued by FC Red Star by means of which the referee’s integrity was publicly attacked.

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Conduct of the Appellant during the Match

➢ At the Match, the Appellant invited his father to be his guest. Just before the end of the first half, the Appellant proposed his father to go to the balloon hall at half time and after the Match to examine the condition thereof in terms of construction work, which his father accepted. At half time, on the way back from the balloon hall to the box, as they passed the Referees’ locker room, the Appellant heard that the Referees were talking about the controversial situation from the 23 rd minute, which led him to enter the locker room and join the conversation on that topic. The Appellant’s father followed the Appellant.

➢ The conversation with the Referees was conducted within the limits of decency, so that neither the Appellant, nor his father, during the conversation had cursed their interlocutors, nor did they show them indecent gestures, objected their decisions, provoked them with movements and gestures, nor had they in any other way taken any action, which could damage the reputation of football sport.

➢ The Appellant did not dispute the fact that at half time of the Match, by chance, he found himself in the locker room of the Referees and that a discussion had been held on that occasion with the Referees in a polite and friendly manner. However, the Appellant disputed the commission of any act of unsportsmanlike conduct towards the Referees.

➢ The term “restricted area” has not been defined by the FAS’s bylaws and, therefore, entering a restricted area cannot be treated like a violation of the FAS Disciplinary Code.

56. On this basis, the Appellant submits the following prayers for relief in his Appeal Brief:

“1) to uphold the Appeal and to set aside the Appealed Decision in its unity with the decision of the Disciplinary Committee of the Respondent issued on 13 January2022;

2) primarily, to dismiss all the Respondent's charges against the Appellant and to rule that no sanctions are imposed on the Appellant;

3) in the alternative, to reduce the sanction on the Appellant;

4) to rule that the Respondent shall pay a sum determined by CAS to the Appellant as a contribution of its legal fees and other expenses incurred in connection with the proceedings”.

B. The Respondent

57. The FAS’s submissions, in essence, may be summarised as follows:

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➢ The Appellant does not deny that he engaged in the conduct (discussion with the Referees in the Referees’ dressing room at half time of the Match) which resulted in the imposition of the sanction. He rather deems that such conduct does not represent a disciplinary offence which falls within the scope of the FAS Disciplinary Code.

Right to a fair and public hearing

➢ The Appellant failed to raise many of the claims set out in the Appeal Brief before the FAS Appeals Committee when he had the opportunity to do so. Consequently, the Appellant failed to exhaust all internal remedies before submitting the present appeal before CAS which should lead to a dismissal of the relevant allegations. In this regard, reference is made to CAS jurisprudence.

➢ In the Appellant’s appeal against the First Instance Decision, there was not a single word regarding the alleged lack of safeguards, independence, impartiality or a lack of a tribunal established by law. Consequently, all these complaints should be rejected. Also, the Appellant did not seek an exemption of any member of the FAS Disciplinary Committee or the FAS Appeals Committee, nor did he challenge the jurisdiction, expertise or impartiality of the FAS bodies.

➢ The Appellant’s allegations regarding a lack of independence and impartiality of the members of the FAS disciplinary bodies are ungrounded and based on the subjective attitude of the Appellant towards the organisational structures of the FAS. The FAS Statutes explicitly regulate the general requirements and conditions for membership of any body of the FAS, in particular the requirements for membership of judicial bodies. UEFA and FIFA take a similar approach when electing members for their disciplinary bodies.

➢ Furthermore, the members are appointed for a term of four years in accordance with Article 39(7) FAS Statutes, and members are bound to the Statutes, regulations, directives and decisions of the FAS, UEFA and FIFA as well as the FAS Code of Ethics, based on Article 40 FAS Statutes.

➢ The First Instance Decision was taken by four members in line with Article 70 FAS Statutes, which provides that the FAS Disciplinary Committee “shall reach decisions in the presence of at least 3 (three) of its members”.

➢ Insofar as the Appellant raised certain procedural complaints in his appeal against the First Instance Decision, such accusations are addressed separately.

Right to a fair trial

➢ Contrary to the allegations of the Appellant, there was no significant lack of due process before the FAS disciplinary bodies, but even if there was, these failings do

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not influence the validity of the Appealed Decision. With reference to CAS jurisprudence it is maintained that the de novo character of appeals arbitration proceedings cures any procedural violations that may have been committed in the previous instances.

➢ The Provisional Suspension did not violate the Appellant’s right to a fair trial, since it was not a verdict but a provisional measure that can be imposed during the disciplinary procedure. Concerning the submitted and rejected legal remedies against the Provisional Suspension, the Appellant did not suffer any damage by following the erroneous instruction on legal remedy.

➢ Regarding the lack of involvement of an Ethics and Disciplinary Inspector, the Appellant did not raise any objection before the FAS Appeals Committee, or state in his Appeal Brief what procedural defect it would be or in what way it could affect the legality of the Appealed Decision. Furthermore, based on Article 69 FAS Statutes, the scope of work of the Ethics and Disciplinary Inspector is the investigation phase or initiation of disciplinary proceedings. Therefore, his participation was not necessary in the case at hand, as the proceedings were initiated by the AFC Competition Director in accordance with Article 127 FAS Disciplinary Code.

➢ The Appellant was given a reasonable opportunity to present his defence before the FAS Disciplinary Committee. Given the prima facie gravity of the Appellant’s misbehaviour, the FAS Disciplinary Committee decided to impose the Provisional Suspension on the Appellant. The Provisional Suspension was imposed not only due to what was done, but also who had done it.

➢ The alleged “passive conduct” of the members of the FAS Disciplinary Committee is irrelevant to the correctness of the Appealed Decision, because the Appellant was given a reasonable opportunity to present his case.

➢ The Appealed Decision, in conjunction with the First Instance Decision, is to be deemed with “understandable reasons” as the bodies have established in a clear and unambiguous way that the Appellant committed an act of unsporting behaviour regulated by Article 54 FAS Disciplinary Code. As the Appealed Decision confirmed the First Instance Decision in its entirety, there was no need to repeat the whole same reasoning.

➢ After it found itself competent to hear the case against the Appellant, the FAS Disciplinary Committee complied with its duty to invite and hear the Appellant in its decision of 2 December 2021 by requesting his written statement. No one was punished without prior hearing. The wording of Article 129 FAS Disciplinary Code is clumsy, as a requirement to invite and hear the accused party before the opening of disciplinary proceedings is contrary to the rules and regulations in general.

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Interpreting Article 129 FAS Disciplinary Code literally would be wrong and would amount to excessive formalism.

➢ The proceedings before the FAS Disciplinary Committee were carried out in accordance with Articles 127-130 FAS Disciplinary Code. As such, it duly established its competence and complied with its duty to hear the Appellant.

Administration of evidence

➢ In accordance with Articles 132 and 133 FAS Disciplinary Code, the FAS Disciplinary Committee has conducted an assessment of each piece of evidence individually and of all evidence together, and on account of which evidence it deemed it consistently and credibly established that the Appellant committed the disciplinary offence foreseen by Article 54 FAS Disciplinary Code.

➢ As the Appellant did not challenge the contents of the additional reports of the Referees, these were presumed to be accurate. What is more, in his written statement dated 7 December 2021, the Appellant confirmed that he entered the Referees’ dressing room with his father at half time of the Match and that they had a discussion with the Referees.

➢ The VAR recordings and the transcript thereof are valid forms of evidence in accordance with Article 132 FAS Disciplinary Code. The transcript was made in order to fully and accurately establish the facts. As to the disputed authenticity of the VAR recordings, the Appellant failed to produce an independent expert report supporting his position.

➢ All four Referees and the VAR referee confirmed the accuracy of the Referee Statements on the VAR recordings and the transcript thereof. Based on crucial evidence (additional referees’ reports, audio and video recordings from the VAR room with partial transcript and statements of all four referees and the VAR referee), the FAS Disciplinary Committee concluded from a factual point of view that the Appellant contested, protested and defied the Referees’ decisions, i.e. committed the disciplinary offence of unsportsmanlike conduct foreseen by Article 54 FAS Disciplinary Code.

➢ The Appellant holds that no one reported him in an official report for committing a disciplinary offence. The FAS Disciplinary Committee took into account the Match Delegate Report and Report of the Club’s Security Officer ex officio, and requested additional statements from the aforementioned persons. However, other evidence overrode the relevance thereof as they were not present in the Referees’ dressing rooms at half time of the Match and as the additional report of the Match Delegate is contradictory and lacks credibility.

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Standard and burden of proof

➢ In the absence of any standard of proof being set out in the applicable regulations, the FAS refers to the standard of comfortable satisfaction, the general standard of proof applicable in disciplinary proceedings. The standard of proof of comfortable satisfaction has been consistently upheld in CAS jurisprudence regarding disciplinary cases and is defined as being greater than a mere balance of probabilities, but less than proof beyond a reasonable doubt, whereby the Panel should keep in mind the “seriousness of the allegation which is made”.

➢ With regard to the burden of proof, it essentially requires a determination of which party bears the risk if a certain fact cannot be proven. According to Article 134 FAS Disciplinary Code, facts contained in official reports have the presumption of accuracy. Accordingly, the Appellant bears the burden of proof in establishing the non-occurrence of the unlawful events in the Referees’ dressing room described by the Referees in their additional reports. Article 36 FIFA Disciplinary Code and Article 45 UEFA Disciplinary Regulations follow the same approach. The Appellant admitted that he was in the Referees’ dressing room at half time of the Match and that he and his father discussed the Referees’ decisions with the Referees.

➢ The presumption of accuracy also applies to VAR recordings and the transcript thereof and the Referee Statements related thereto. The Appellant also took part in direct discussions with the First Assistant Referee regarding the Referees’ decisions on the field. The accuracy of the additional Referees’ reports, supported by audio and video recordings from the VAR room, were later confirmed by a partial transcript of the conversation.

➢ The Appellant’s allegation that he was found guilty of an offence which was not stated in the Disciplinary Report of the AFC Competition Director is wrong and irrelevant. Pursuant to Article 132 FAS Disciplinary Code, disciplinary bodies are entitled to establish facts, make decisions and pronounce sanctions. It is not bound by the qualification of the offence contained in the Disciplinary Report.

➢ The disciplinary offence “unsporting behaviour” has been set forth by Article 54(2) FAS Disciplinary Code. Based on this definition, “only” verbal protesting and a lack of insults and/or physical attack cannot serve as a ground for exculpation of the Appellant.

➢ Criticism of match officials is a common basis for unsportsmanlike behaviour charges, and in this case the Appellant criticized match officials off the field of play over a period of a few minutes, questioned their integrity and implied bias. This is prohibited because it goes against sporting values, such as respect and discipline, but also because it has the potential to undermine the integrity of sport.

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➢ The following specific circumstances are relevant in this respect. The Match was played by FC Radnik, of which the Appellant is the President. Player no. 9 that was dismissed (received a red card) during the first half of the Match was a player of FC Radnik. The Appellant and his father entered the Referees’ dressing room during half time. This does not leave any room for interpretation that the Appellant consciously entered the dressing room with the intention to protest against the Referees’ decision to dismiss player no. 9. With that, the Appellant seriously endangered fair play, proper behaviour of sports professionals and the integrity of the Match, i.e. the competition.

Proportionality of the sanction

➢ The Appellant, besides Article 54 FAS Disciplinary Code, also violated Articles 2(1)(g) and 8(1) and (3) FIFA Statutes.

➢ Being in sport for more than 9 years, the Appellant had to be aware of his conduct towards the Referees. With the power and influence of the Appellant’s sporting function, the Appellant exercised undue pressure on the Referees and endangered their integrity, which is illegal and quite reprehensible.

➢ The proportionality of the sanction must be interpreted from the view of the offence committed and not from the view of jurisprudence. As to the balancing of interests in the matter at hand, the interests of the FAS prevail over those of the Appellant. The Appellant was banned from carrying out a function for 6 months. As Article 54 FAS Disciplinary Code foresees a ban from carrying out a function from 3 to 12 months, the Appellant was or had to be aware of the magnitude of the eventual sanction for unsporting behaviour.

➢ The sanction imposed is legal and proportionate and should have an educational and preventive effect. It shall serve to instruct that such conduct is not and will not be tolerated in football.

➢ Specific circumstances taken into account by the FAS Disciplinary Committee are, inter alia, the following: i) the continuity of the unsportsmanlike conduct lasting several minutes; ii) that there was an element of determination, persistence and ruthlessness in the actions of the Appellant; iii) that the offence produced significant repercussions on the reputation of the Match and the integrity of the entire competition; iv) the Appellant’s high position in football warrants a particular responsibility not to act in an unsportsmanlike way; v) a previous sanction imposed on the Appellant for unsportsmanlike conduct.

➢ With regard to the jurisprudence of the FAS Disciplinary Committee relied upon by the Appellant, the functions of and the conduct of the perpetrators in such cases are not identical, but 3 of the 4 perpetrators were still sanctioned with a ban of 3 -6 months. As the Appellant is a high-profile official, he has to be particularly of

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irreproachable behaviour. Furthermore, the acts of unsporting behaviour by the Appellant must be deemed as a more severe form of unsporting behaviour based on the overall circumstances of this case.

➢ To rebut the Appellant’s allegation on the imposition of lenient measures in similar cases, reference is made to a case in which a perpetrator was sanctioned with a ban on carrying out a function for 10 months for an offence under Article 54 FAS Disciplinary Code.

➢ As the Appellant admitted that the sanction of six months lies within the discretion of the FAS AC, there is no reason for setting aside or amending the imposed sanction.

58. On this basis, the FAS submits the following prayers for relief in its Answer:

“1. To dismiss the Appellant’s appeal against the decision of the Appeals Body of the Football Association of Serbia of 18 February 2022, ref.no. 24 – 199/1 and to confirm the appealed decision in its entirety;

2. To order the Appellant to bear all costs of the present procedure ;

3. To order the Appellant to pay significant contribution to the legal fees and expenses of the Respondent in relation to the present procedure upon determination of CAS panel ”.