Federatia Romana de Box (FRB) v. Association Internationale de Boxe (AIBA)

Arbitration CAS 2011/A/2423 Federatia Romana de Box (FRB) v. International Boxing Federation (AIBA), award of 8 November 2011

Panel: Prof. Michael Geistlinger (Austria), President; Mr José Juan Pintò (Spain); Prof. Petros Mavroidis (Greece)

Boxing Suspension of a national federation No legal basis for the suspension of a national federation for the non-respect of the AIBA final decisions In abstracto denial of recognition of the results of elections of a member federation

1. There is only one case, where the AIBA Statutes 2008 allow for a suspension of a member of AIBA with the consequence of a temporary loss of its membership rights. It is the case of non-payment of its financial obligations in due time. According to these Statutes the power to impose such suspension is at the AIBA Congress and not at the AIBA Executive Committee. Therefore, the AIBA Executive Committee has no legal basis to suspend a national federation for failing to respect AIBA final decisions, in particular the decisions suspending the federation’s President and the decisions urging the federation to act under a proper – not suspended – leadership.

2. Article 13 E of the AIBA Statutes 2010 allows AIBA to deny recognition of the results of elections or the constitutional set-up of a member. The provision does not mention reasons, but an obvious reason could be, if the elections did not take place according to the basic principles enshrined in the AIBA Statutes or if the constitution of a member violates the AIBA Statutes.

The Federatia Romana de Box (FRB, the “Appellant”) is the Romanian national member federation of AIBA and an association incorporated according to the Romanian Physical Education and Sports Law no. 69/2000 of 28 April 2000, having its headquarters in Bucharest (Romania). The FRB is the governing body of Romanian boxing, dealing with all questions relating to professional and amateur boxing and exercising regulatory, supervisory and disciplinary functions over its clubs, regional associations, officials and athletes. Besides being a member of AIBA, the FRB is a member of the European Boxing Union (EBU) for professional boxing programs.

The International Boxing Federation (AIBA, the “Respondent”) is an association pursuant to Articles 60 et seq. of the Swiss Civil Code, having its seat in Lausanne, Switzerland, which object is, amongst others, to improve, promote, and spread worldwide the sport of boxing in all its forms, as well as to regulate boxing in all its aspects in accordance with the AIBA Statutes, the AIBA Bylaws, the AIBA

Technical and Competition Rules, the Code of Ethics and the Disciplinary Code and Procedural Rules.

On 6 February 2010, AIBA’s Appeal Commission reduced a sanction earlier imposed by the AIBA’s Disciplinary Commission to a period of 5 years on Mr Rudel Obreja, President of the FRB. This suspension started at the end of a previous suspension imposed on him with regard to an issue during the Olympic Games 2008 in Beijing that was finally determined by the CAS in its award of 25 September 2009 (CAS 2009/A/1795) with a 2 year period which ended on 22 August 2010.

The decision of 6 February 2010 answered to an appeal of the RBF and Mr Obreja, who according to number I.3.b) of the decision requested that AIBA’s Appeal Commission finds inter alia as follows: “I. The Romanian Boxing Federation is not guilty of any infraction to the AIBA Disciplinary Code neither to any other regulations adopted by the AIBA or by any other private or state organs. II. Mr. Rudel Obreja is not guilty of any infraction to the AIBA Disciplinary Code neither to any other regulations adopted by the AIBA or by any other private or state organs. III. The Romanian Boxing Federation is free of any sanction. IV. Mr. Rudel Obreja is free of any sanction. V. The suspension suffered by the Romanian Boxing federation is unjustified. […]”.

AIBA’s Appeal Commission decided on the above requests as follows: “3. b) Being responsible for the organization of the Romanian Cup 2009, the RBF and Mr. Rudel Obreja are responsible for the fact that at least one bout was disputed without head guards. Therefore, they have violated the Technical and Competition Rules (Rule 4.1 of the Rules for Competition Equipment) and the AIBA Regulations within the meaning of Art. 45 of the Disciplinary Code. 4. a) The above being established, it is also very clear that the RBF and Mr. Rudel Obreja produced knowingly forged, respectively falsified documents in the procedure with the Disciplinary Commission. Here, too, the Appeal Commission can simply refer to the decision of 20 January 2009, which is carefully and convincingly motivated. b) Having acted in this way, the RBF and Mr. Obreja are liable to sanctions pursuant to Art. 52 Disciplinary Code. 5. a) The Appellants’ allegations about Mr. Obreja’s prior suspension are compelling. The suspension in January 2009 “from all boxing-related activities governed by AIBA” is clear and unambiguous in prohibiting Mr. Obreja from acting as the president of a national federation during the time of the suspension. Like the Disciplinary Commission mentioned, it is not contested that the RBF is a member of AIBA. And it is true that an “error of law” can only be accepted as a defense in truly exceptional circumstances, which are not present in the situation here involving a president of a national federation and AIBA vice-president, who should possess superior knowledge of the rules and their meaning. b) Therefore, Mr. Obreja failed to comply with the DC’s decision of 13 January 2009 – his suspension – within the meaning of Art. 56 of the Disciplinary Code. c) The Appeal Commission believes that this violation of Art. 56 of the Disciplinary Code is of low importance, compared to the other offences (see 3. and 4. above), and shall have no material effect on the sanctions to be imposed. 6. a) The sanctions imposed on the RBF by the Disciplinary Commission are not drastic. The suspension of one month is almost over now. The RBF can very easily be allowed to organize again any competition under the aegis

of AIBA, as the production of a formal undertaking – required by the Disciplinary Commission – can be made within hours and without any inconvenience for the competitions to come. The fine of CHF 15’000 is not grossly excessive, in view of the offences for which the RBF has to be held responsible and of the fact that the fine is imposed on a national federation. b) The Appeal Commission finds that the sanctions imposed on Mr. Rudel Obreja by the Disciplinary Commission are excessive. Like the DC, it considers the disciplinary offences committed by the Appellant to be very important. It is absolutely unacceptable that organizers of amateur boxing competitions have bouts fought without protective head guards. This goes against a very basic rule in amateur boxing and may cause serious danger to the health of the boxers involved. This also jeopardizes the good image of amateur boxing. Producing forged or falsified documents in a disciplinary procedure to try to prove a point is not more acceptable. It shows a serious lack of integrity, which must not be tolerated in a national federation president and AIBA vice-president. As mentioned before, the violation of the Appellant’s suspension, even if it is not to be considered harmless, is something of another category and shall not weigh too much in the final result. …”.

On 9 February 2010, the FRB informed AIBA that, following the decision of suspension of Mr Rudel Obreja, the FRB Federal Bureau has decided to transfer all the powers of Mr Rudel Obreja relating to amateur boxing to its Vice President Mr Citea Vasile. The respective FRB decision no 1 of 29 January 2010 was made public by the FRB through its website.

In an email conversation which followed to this communication AIBA wanted to know whether this meant that Mr Obreja is no longer the President of the FRB and showed not satisfied by the signature of the Grant program form by Mr Citea on behalf of the FRB. AIBA asked for either the signature of the President or the Secretary General. The FRB changed the form and replaced the signature of Mr Citea by the signature of the Secretary General Niculae Constantinescu and answered the question by stating that “For all matters regarding amateur boxing, AIBA and EUBC Mr. Rudel Obreja no longer has any responsibility or competence. All responsibilities and competences regarding amateur boxing, AIBA and EUBC has been transferred to Mr Citea Vasile”. AIBA ended this conversation on 10 February 2010 by writing “… AIBA will only communicate with Interim President if there is one or Secretary General. No one else. …”.

In a further round of emails on 9 – 12 April 2010, AIBA asked what was Mr Citea’s official title within the FRB and stated as follows: “In any case, kindly note that we will not accept this person as official representative of your Federation unless this is endorsed by the Romanian Olympic and Sports Committee. Thus, we will request for a confirmation from National Olympic and Sports Committee. …”. When having received the FRB’s answer that Mr Citea was the Vice President of the FRB, AIBA replied to the FRB’s Secretary General on 12 April 2010 as follows: “… Thank you for your prompt answer. In any case, AIBA will only communicate with your Federation via yourself in your capacity of Secretary General and this until there is a new election or an Interim President…”.

On 30 July 2010 in the morning, the FRB’s Secretary General sent to AIBA some proposals for inclusion in the Agenda at the AIBA Congress scheduled for November 2010. On the same day in the early afternoon, Mr Obreja as “Elected AIBA Vicepresident” sent exactly the same proposals as “my Agenda Proposals for the AIBA Congress” to AIBA.

On 5 August 2010, AIBA sent the following email to the FRB:

“Dear Sir, We regret to inform you that AIBA will no longer communicate with your Federation until a new President is elected. Your Federation broke the agreement made with AIBA for you to act as the Interim President by allowing a suspended member from your Federation to send some communication being the same as yours. In addition, we would like to draw your attention to the fact that the Congress Election Committee would never accept any Congress form (registration, application or nomination) not signed by a National Federation President. AIBA does not accept for its National Member Federations to remain without a duly elected and recognized President (including National Federations with a suspended President). Therefore, AIBA is urging your Federation to hold an Extraordinary General Assembly to have elections”.

The Respondent submitted an undated and unsigned letter, which was said having been received by AIBA Chairman Ching-Kuo Wu from a group of Romanian coaches and referees between 5 and 20 August 2010. This letter included the following: “1. Although Mr. Rudel Obreja was eliminated for[ro]m all the official structures A.I.B.A and E.A.B.A. he named Mr. Vasile Citea (Vice-president of Romanian Box Federation) to manage Romanian amatory boxing sector, following that Mr. Rudel Obreja to man[a]ge the Romanian professional boxing sector. However, after 4 months Mr. Obreja and his stuff dismiss Mr. Vasile Citea from the function of chief of Romanian amatory boxing sector, follow that Mr. Rudel Obreja manage both sectors, professional and amatory for[ro]m Romania in a mode who conduct to fraud and dictatorship”.

This letter ended with the following paragraph: “To those that we mentioned earlier we try to find hope and help on our shoulder by sending an address to Romanian National Agency for Sport to take all the necessary action for eliminated Mr. Obreja and the mafia from the Romanian boxing and bring the normality in this field”.

On 20 August 2010, AIBA informed the FRB that it has sent the Congress package to all member federations participating at the Congress, but not to the FRB “due to the fact that it has no President eligible to sign the forms which are to be signed EXCLUSIVELY by the Federation’s President as per the Election Procedure adopted by the AIBA Executive Committee and endorsed by the Election Committee. Therefore, as long as a new President is not in place within your Federation, we will not send you any Congress package. …”.

On 23 August 2010, the FRB Secretary General reminded AIBA that Mr Citea was representing the FRB with relation to AIBA, that AIBA had agreed with the FRB’s request that all contact with the FRB from AIBA to be made with the Secretary General and that “all actions Mr. Rudel Obreja has been made has nothing to do with Romanian Boxing Federation, moreover he is not empowered to make any contact with AIBA or EUBC by any form, so that you should ignore any letter he has sent to you”.

On 11 September 2010, the FRB Federal Bureau adopted the decision no. 1168 which put the FRB Secretary General into power, being the only person in charge of amateur boxing and AIBA-related matters. The decision in writing was signed by Mr Rudel Obreja, “Presidentele Federatiei Romane de Box” who stayed also the second person next to the Secretary General to represent the FRB in bank matters.

On 27 October 2010, the FRB held elections for a President, whereby the FRB emphasizes in its Appeal Brief that this was done without any obligation vis-à-vis AIBA, but because after almost 4 years the mandate of Mr Obreja was coming to an end and considering new elections as “appropriate and advisable after the last communication with AIBA and in order to keep the best relationship between both institutions”.

AIBA’s Response to the Appeal Brief points at an undated and unsigned letter of a group of referees and coaches of the FRB which was received just prior to the AIBA 2010 Congress and which put in doubt the quality of these elections. AIBA was informed by this letter that Mr Citea had been suspended for a period of two and a half years “as a result of his opposition to the candidature of Mr. Rudel Obreja for any function within the Romanian Federation – especially the function of President of the Romanian Boxing Federation – taking in view that Mr. Obreja is under the AIBA’s sanction and therefore he has no right to apply for any function within the Romanian Boxing Federation, cause he would break the AIBA regulations”.

On 20 November 2010, an article was published by Mr Alexandru Enciu on the internet reporting on the FRB elections. It was stated there that the elections took place in an extraordinary meeting two months after all members of the Federal Bureau had resigned except Mr Obreja, who, thus, became the only candidate for President. He received 65 from 85 votes, 10 votes having been declared void. Strong opposition had been shown by Ms Viorica Osan who had complained against Mr Obreja at AIBA for the Romanian Cup in 2009 which had led to the suspension of Mr Obreja. Before the elections for the Vice-president, when Ms Osan started to speak, she was reported as having been insulted by many trainers.

On 30 November 2010, the FRB Secretary General informed the AIBA President that the “Federal Bureau of Romanian Boxing Federation, decided on November 26th, 2010, that until Mr. Rudel Obreja situation will be clarified all his powers, related with the amateur boxing, are transferred to Mr. Constantinescu Niculae the Secretary General of RFB. Following this decision Mr. Constantinescu Niculae will be the official representative of RBF in all boxing related activity with AIBA and EUBC, starting with November, 26, 2010. …”.

On 2 December 2010 AIBA Executive Director wrote the following email to FRB Secretary General: “Dear Mr Niculae, It is with many regrets that AIBA received your letter its contents completely differ to what was anticipated. Before the 2010 AIBA Congress, AIBA was informed that your Federation would have a new election for its President on October, 27. It now appears to me that this election did not take place as foreseen. As you are well aware, AIBA urged your National Federation to settle down under a proper leadership as soon as possible since your Federation has been operating without proper leadership for too long now. Therefore, I would like to urge your Federation to have an election for a new President immediately as your President has been suspended by AIBA for many years and can no longer occupy this position, no matter what. In this respect, I would like to propose for this election to take place within the next two months from today. However, if this election does not take place, the AIBA Executive Committee Bureau will review this current situation and make a decision to assist the boxing family in Romania to receive a better support for a proper leadership in the future.

I will now wait to hear from you on this proposal as soon as possible. It goes without saying that neither AIBA nor EUBC will accept for you to be the representative of the Federation just because of the situation which was caused by your suspended President. Yours truly Ho Kim. Executive Director”.

Obviously no election took place during the following two months.

On 8 February 2011, the FRB Secretary General requested the AIBA Disciplinary Commission to lift the suspension of Mr Obreja and sanction Mr Citea instead, who was alleged having been “the person who is really guilty of all violations of the AIBA Technical and Competition rules and Ethics Code”.

On 14 February 2011, the Chairman of the AIBA Disciplinary Commission answered as follows: “Dear Sir, After examining the situation, I arrive at the conclusion, that the AIBA Disciplinary Commission (DC) doesn’t have to reopen the case that was already decided based on the same facts. The information you’re giving to us don’t lead to Mr Obreja’s innocence. He’s been sanctioned, and that was right. As what regards Mr Citea, the DC had decided, after consulting with AIBA HQ, to drop the case, namely because Mr Citea was willing to work with AIBA in good faith in the future. There’s no reason Mr Citea should be disciplinarily prosecuted now. Therefore, the AIBA DC will not reopen this case. …”.

On 8 March 2011, the AIBA Executive Committee Bureau unanimously decided and informed FRB on the day after as follows: “- To put the case of the Romanian Boxing Federation for review by the AIBA Disciplinary Commission as AIBA was informed that this Federation would conduct an election for Presidency on October, 27, 2010 in order to elect a new President to replace the suspended President, Mr Rudel Obreja which election did not happen. AIBA sent this Federation a letter on December 2, 2010 giving it 2 (two) additional months to organize an election but it never took place (see attached letter). Mr Obreja is still the President of this Federation despite this current long suspension (see extract from the Federation’s website). - To provisionally fully suspend the Romanian Boxing Federation, meaning that no boxers, coaches or any officials are authorized to take part in any AIBA approved or controlled events and/or meetings and that this Federation is not authorized to host any continental or international boxing events until an election for Presidency takes place (AIBA will control the election process) and a decision by the AIBA Disciplinary Commission is made. This suspension is effective immediately”.

On 24 March 2011, the FRB sent a letter to the AIBA Disciplinary Commission and argued inter alia that the FRB had held a General Assembly meeting on 27 October 2010, where Mr Obreja was elected President of the FRB for a 4-year mandate. Therefore, the FRB did not see a reason for AIBA to request the election of a new President. The elections took place according to the FRB Statutes and they were legal and democratic elections. The FRB held being in compliance with the AIBA Statutes,

in particular its Article 8, having also a professional boxing program along with the amateur program. AIBA was limited to regulating the amateur boxing activity. There was no rule in the AIBA Statutes stating that a member can be represented only by its President. The obligation to respect the prohibition on maintaining sports relationships with members who have been expelled or suspended by AIBA was related only to AIBA family activity in the FRB’s reading. Mr Obreja was allowed by the FRB to remain President, “but only with responsibility for professional boxing matters”. All FRB decisions were made by the FRB Federal Bureau and not by the President. He was allowed to vote only in professional boxing matters. He was not allowed to communicate with AIBA and EUBC. The email sent by Mr Obreja to AIBA concerning the Congress 2010 Agenda was not authorized by the FRB. The FRB argued “that the provisional suspension affecting not only officials but athletes was not imposed considering the principle of proportionality and caused collateral damage, violating principles of law and rights of athletes. No presumption of innocence was accorded and before the investigation the RBF was suspended for a violation we yet don’t know if committed”.

With regard to the argument that the FRB had violated Articles 6 (1) and 13 (A) and (B) of the AIBA Statutes, the FRB argued in the above letter that there was no respective detailed motivation. There was no AIBA decision imposing to FRB elections within two months according to article 50 (1) AIBA Statutes. Such a decision needed to be taken by either the Congress, or the Executive Committee or the EC Bureau. The power and duty of the Executive Director was just to implement such decisions. AIBA did not show how the FRB violated AIBA’s interests or caused any harm. There was no ratification by the Executive Committee of the decision of the EC Bureau shown to the FRB, such ratification being required by the AIBA Statutes. The FRB requested a hearing and for being allowed to be represented by its President before the Disciplinary Commission. It “did not attempt in any way to undermine the authority of AIBA and complied to all AIBA decisions either from the Executive Committee or any other Commission. RBF would like to ask the AIBA Disciplinary Commission to lift the provisionally sanction imposed by the AIBA Disciplinary Committee Bureau as we strongly believe we have not committed any violation and we have not caused any prejudice to any AIBA’s Family Member”.

On 25 March 2011 the AIBA Disciplinary Commission ruled that: “1. The RBF is suspended from any activity at AIBA, Continental and other international levels, for a period of 2 (two) years, starting today. This suspension does not apply to coaches, athletes and referees & judges. 2. In addition, the RBF is sanctioned with a fine of CHF 5’000.

3. The costs of the procedure shall be borne by the RBF (CHF 2’500.-).

4. The present decision will be communicated to the parties and to AIBA”.

The AIBA Disciplinary Commission based this decision on the finding of the facts that “the RBF never elected a new president, Mr Obreja apparently continuing to conduct the business, even if some RBF officials were presented as the persons running the office. AIBA requested the RBF to elect a new president to replace the suspended one. The RBF announced that it would do so on 27 October 2010, but it didn’t happen. On 2 December 2010, AIBA sent a letter to the RBF Secretary General, ordering the National Federation to elect a new president within two months. No election took place. AIBA alleges that Mr Obreja is still the president of the RBF. […] On the RBF website, Mr Obreja appears as the president of the RBF, without any precision as to a possible split between the running of professional and amateur boxing”.

The AIBA Disciplinary Commission did not grant a hearing, “because the entire file had been submitted to the RBF, which had enough time to prepare and file a written submission. The parties do not have a right to be heard orally (see Art. 25 and 51 of the AIBA Procedural Rules). In this case, the DC considers that a hearing was not necessary or even useful”.

The AIBA Disciplinary Commission based its decision on the following reasons: “7.a) For the DC, it is quite evident that the RBF continues to consider the suspended Rudel Obreja as its president and that Mr Obreja continues to run the RBF as a whole. The DC does not believe that there would be any separation between the professional and amateur business within the RBF (see the RBF website, for an example; the RBF’s denials about proposals made by Mr Obreja, on behalf of the RBF, for the AIBA Congress are not credible). b) Therefore, the DC considers that the RBF has seriously breached Art. 3 and 46 of the AIBA Disciplinary Code (the Code) in failing to respect AIBA final decisions, in particular the decisions suspending Mr Obreja and the decisions urging it to settle down under a proper – not suspended – leadership. The RBF has also had a “behaviour which harms the image of boxing, AIBA, its Confederations or Members”, according to Art. 4 of the Code (acting through a person who is suspended harms the image of boxing; see also Art. 47 of the Code). Therefore, sanctions must be imposed (Art. 5 of the Code). c) Suspending the RBF as a whole would prevent many boxers and coaches to compete at international level and referees & judges to participate in international events, despite the fact that they had nothing to do with their president’s wrongdoings. That would be disproportionate. Therefore, the DC finds that the sanction must only affect the RBF officials. […]”.

On 28 March 2011, the FRB sent a declaration of appeal asking for dismissal of the AIBA Disciplinary Commission’s decision of 25 March 2011. By letter dated 29 March 2011, AIBA set to FRB a deadline of 5 April 2011 for receiving the FRB’s Submission in Appeal.

On 4 April 2011, the FRB submitted its Submission in Appeal which contained the following conclusions: “The present Submission in Appeal has demonstrated the Executive Committee of AIBA the reality of the following facts based on evidence: - FRB has always respected all AIBA governing bodies and judicial authorities’ decisions and it will continue doing it. - FRB has never been sanctioned by any judicial authority or governing body of AIBA to conduct elections. - Mr. Rudel Obreja (President of FRB) has no competences or powers in all matters related to amateur boxing, AIBA and EUCB. - FRB has not breached article 3, 4, 46 or any article of the AIBA Disciplinary Code, and consequently no sanction is to be imposed”.

Besides the arguments already submitted by its letter dated 24 March 2011 (see paras 2.22 and 2.23 above), the FRB held in its Submission of Appeal that the decision of 6 February 2010 of AIBA’s Appeal Committee had been issued based on the old version of the AIBA Statutes. The suspension, thus, could affect only matters falling in the scope of AIBA, “meaning related to amateur boxing programs”.

Due to Article 22.3 of the AIBA Statutes 2010, the FRB Secretary General was allowed under AIBA law to represent the FRB in its relations with AIBA and amateur boxing. Neither the decision of 6 February 2010, nor the email of Ms Patricia Steulet of 12 April 2010, nor her email dated 5 August 2010 had established or could establish an obligation for the FRB to hold elections. When the elections were held on 27 October 2010, because of the FRB being an independent organization governed by Romanian law and affiliated also to other international boxing organizations, “nothing impeded Mr. Rudel Obreja to present his candidature in the elections to be held”. The communications of a group of trainers and coaches have no value as means of evidence, because they were not signed and did not show any names, there were no respective complaints or procedures started against the quality of the elections of 27 October 2010. The letter of AIBA’s Executive Director of 2 December 2010 had no legal basis in any decision of a competent AIBA body, went beyond the competences of the AIBA Executive Director and, therefore, contained an unjustified demand. The “FRB had fulfilled all obligations arising for[ro]m the suspension of Mr. Rudel Obreja, by formally (1) depriving the President of powers and (2) appointing the Secretary General as the sole person empowered for AIBA related matters in the FRB”. The decision of the AIBA Executive Committee Bureau of 8 March 2011 did not fulfil the requirements of Article 17 of the AIBA Statutes, because there were no facts established justifying such decision.

With regard to the procedure applied by the AIBA’s Disciplinary Commission for its decision of 25 March 2011 the FRB argued in its Submission in Appeal a denial of basic procedural rights. The FRB was prevented from having a proper defence, because it was not granted its right to be heard according to Article 25 of the Procedural Rules of AIBA. Also Article 42 of this set of rules was violated. The FRB could not present witnesses as evidence.

On 6 April 2011, AIBA organized a circular vote based on Articles 38-M and 38.3 of the AIBA Statutes within the members of the AIBA Executive Committee asking them to answer immediately or at the latest by 19 April 2011, whether they agree “to uphold (thus to confirm my agreement with) the decisions of the AIBA Disciplinary Commission” or whether they do not agree so. Since an absolute majority of the AIBA Executive Committee voted in favour already within five days, the decision was considered of having passed.

On 12 April 2011, the FRB submitted to AIBA in connection with its appeal the translation of resolution no. 1 of the FRB Federal Bureau of 29 January 2010, a respective press release of the same day and of resolution no. 1168 of the same body of 11 September 2010.

On 13 April 2011, Ms Michelle Riondel, AIBA Legal Director, notified to the lawyer representing FRB in the appeal’s procedure, as follows: “Dear Sir, Appeal to the AIBA Executive Committee on behalf of the Romanian Boxing Federation It is regretted to inform you that the AIBA Executive Committee, by way of an email vote sent on April, 6 2011, has decided to reject your client’s appeal against the decision of the AIBA Disciplinary Commission dated March, 25 2011. In accordance with article 38.3 of the AIBA Statutes, this decision was passed by an absolute majority of the EC members on April, 11 2011. However, members of the AIBA EC Bureau did not participate in the mail vote.

Therefore, please be informed that your client’s suspension from any activity at AIBA, continental and other international levels for a period of two years (with the exception of boxers, coaches and R&J’s) has been re- instated with immediate effect. I should be grateful if your client could immediately arrange for payment of the fine and costs of the procedure CHF 7,500.- to be paid within 14 days. Kindly acknowledge receipt of this letter. Yours sincerely, Michelle Riondel AIBA Legal Director”.

On 18 April 2011, the FRB sent a fax to AIBA requesting the grounds for the decision notified on 13 April 2011 and referred to article 53 of the Organization and Procedural Rules of the Judicial Authorities of AIBA. On 20 April 2011, the AIBA Legal Director answered as follows: “… My letter dated April 13, 2011 is official notification of the AIBA EC Decision with regard to your client’s appeal. Article 53 of the Organization and Procedural Rules to which you refer, does not apply to decisions made on appeal. As you know, the AIBA EC Decision, was made by way of an email vote”.

In accordance with Articles R47 and R48 of the Code, on 2 May 2011, the FRB filed its statement of appeal with a request for a stay, together with 4 exhibits.

In accordance with Article R51 of the Code, on 13 May 2011 the FRB filed its appeal brief, together with 24 exhibits.

On 19 May 2011, the AIBA filed its position on the Appellant's request for a stay.

On 25 May 2011, the Deputy President of the CAS Appeals Arbitration Division issued an order dismissing the requested stay.

In accordance with Article R55 of the Code, on 7 June 2011, the AIBA filed its answer, together with 24 exhibits.

On 10 June 2011, the FRB filed a translation of its exhibit 1 and a full version of its exhibit 7.

A hearing took place in Lausanne at the CAS headquarters on 21 September 2011. The parties presented their submissions, arguments and prayers for relief, and answered the questions of the Panel. At the end of the hearing, the parties declared having no objections as to the composition of the Panel, as to the translation of the statements of the witnesses from Romanian into English and the questions of the party representatives and the Panel from English into Romanian, and as to performance of the hearing.

After the hearing, the Panel by letter dated 21 September 2011 asked the parties to explain, “what is according to them, the relationship between Articles 5, 46, and 47 of the AIBA Disciplinary Code as well as between

all three of them and Article 17 of the AIBA Statutes 2010 and Article 16 of the AIBA Statutes 2008, considering their date of entry into force”. The parties answered to this question by letters on 28 September 2011.

LAW

CAS Jurisdiction, admissibility and applicable law

1. The jurisdiction of the CAS in the present case is based on Article 63.1 of the Statutes of AIBA and Article 70 of the Organization and Procedural Rules of the Judicial Bodies of AIBA.

2. Article 63.1 AIBA Statutes 2010 as in force at the time relevant for these proceedings, that means prior to the amendments adopted by the AIBA Extraordinary Congress in Baku on 24 September 2011, read as follows: “AIBA recognizes the Court of Arbitration for Sport (CAS); with headquarters in Lausanne, Switzerland, as the authority to resolve appeals against decisions made by the Executive Committee of AIBA”.

3. The jurisdiction of CAS is also given based on Article 70 Organization and Procedural Rules of the Judicial Authorities of AIBA in the version of 29 January 2010 which read as follows “1. Once all the internal channels have been exhausted, the decisions of the judicial authorities of AIBA are subject to an appeal to the Court of Arbitration for Sport (CAS), the headquarters of which are based in Lausanne (Switzerland), except for the cases dealing with: - the breaching of sporting rules, - suspension of less than or equal to three months and fines less than or equal to CHF 5000.-, except in doping cases; - decisions against which an appeal to an ordinary court of the country is mandatory in the country in which AIBA, its Confederations or Members are seated. 2. The provisions of the CAS Code of Sports-Related Arbitration shall apply to the appeal proceedings. The CAS shall primarily apply the AIBA Statutes, Bylaws and regulations and subsidiary Swiss law. …”.

4. As regards the admissibility, the Panel hereby notes that according to Article 63.4 of the AIBA Statutes as in effect at the relevant date “[a]ppeals shall be lodged with CAS within 30 days of notification of the written decision in question. The appeal shall not have an injunctive effect. The appropriate AIBA body or CAS may order the appeal to have injunctive effect”. There are no concerns or issues with regard to the admissibility.

5. The jurisdiction of CAS, admissibility and applicable law are confirmed by the signature of the Order of Procedure by both parties.

Merits

6. Evaluating the facts and order of emails, of other communication between the parties and events as described by the parties before the background of the applicable rules of AIBA at the respective time, the Panel holds that two phases need to be differentiated: Phase 1: Prior to the Adoption of the AIBA Statutes 2010 Phase 2: After the Adoption of the AIBA Statutes 2010.

A. Phase 1:

7. On 1 November 2010 AIBA adopted new Statutes (AIBA Statutes 2010). Before that moment the Statutes adopted by the Extraordinary Congress on 22 October 2007, which entered into force on 19 February 2008, were to be applied (AIBA Statutes 2008).

8. Article 16 of the AIBA Statutes 2008 ruled on “suspension” as follows: “1. A suspended Member shall automatically lose its membership rights during the suspension period. 2. Other Members cannot entertain sporting contact with a suspended Member. 3. A Member shall be suspended if it is not up to date in paying its dues before an Ordinary Congress convenes, any suspension will be lifted when dues are paid”.

9. Article 16 AIBA Statutes 2008 obviously lays down only one legitimate reason for suspending a member of AIBA. This is the non-payment of a member’s dues in time.

10. With regard to the body authorized to impose a suspension, the AIBA Statutes 2008 confers to the Congress the power to admit, suspend or exclude Members (Article 22 lit j) and to the Executive Committee the power to “suspend from office a member of the Executive Committee, of other bodies or of a permanent Commission; remove a member of a jurisdictional body or of a permanent Commission” (Article 37 para 1 lit m).

11. Further to that, the AIBA Statutes 2008 include Chapter 8 on Disciplinary Measures which read as follows: “Article 67 Disciplinary measures

1. The disciplinary measures which may be applied to an individual or National Federation are the following: a) warning; b) reprimand; c) fine; d) return of awards; e) disqualification or suspension of a boxer; f) temporary or permanent suspension from certain activities (referee, judge and official; etc.);

g) ban from taking part in any boxing related activity; h) exclusion from AIBA;

2. All disciplinary measures may be cumulative.

3. A Disciplinary Code will be drafted separately.

Article 68 Limitation period The AIBA Disciplinary Code will set a limitation period for prosecuting offenses and executing disciplinary measures”.

12. On 9 February 2010, at the moment, when the FRB for the first time informed AIBA on how it implemented the decision of the AIBA Appeals Commission of 6 February 2010 on upholding in principle but reducing in duration the suspension of the FRB’s President Mr Rudel Obreja and upholding the FRB’s suspension, the AIBA Disciplinary Code of 29 January 2010 was AIBA’s applicable disciplinary law. The parties did not disclose to the Panel whether there was any amendment of this Code during 2010 and 2011. The Panel, thus, takes as given that the version of the AIBA Disciplinary Code as referred to by the Parties in their submissions in writing and at the hearing as well as in answering to the questions of the Panel thereafter was the one set in force on 29 January 2010.

13. This AIBA Disciplinary Code contains a Chapter 1 “General Provisions on the Disciplinary Sanctions” Part I “Principle of Conduct, Punishable Acts and Various Sanctions” and there Article 5 “Disciplinary sanctions” which reads as follows: “Article 5 Disciplinary sanctions

1. The disciplinary sanctions are the following: - Warning; - Reprimand; - Fines from CHF 500.- to CHF 100’000.-; - Cancellations of the result of a bout; - Deprivation of a title/Return of an award; - Disqualification of a boxer or expulsion of that boxer’s seconds during a competition; - Suspension of a boxer from a current competition, future competition(s) or for a predetermined time period; - Exclusion of a Member From a competition; - Suspension or exclusion from the exercise of certain activities (referee, judge, official, second, etc.); - Ban from any boxing activity; - Ban from competition grounds; - Suspension of a competition location.

2. The sanctions may be cumulated”.

14. Article 12 of this AIBA Disciplinary Code deals with suspension of a boxer and obviously is of no legal relevance for the present case. Articles 13 – 17 AIBA Disciplinary Code are quoted, however, in order to analyse whether they provide for a legal basis different from Article 16 AIBA Statutes 2008. These provisions read as follows: “Article 13 Exclusion of a Member from a competition Exclusion is the deprivation of the Rights of a Member to participate in a current and/or future competition.

Article 14 Expulsion or suspension from the exercise of certain activities A person may be prohibited temporarily (suspension) or definitely (exclusion) from the exercise of a certain activity (referee, judge, official, second, etc.) related to boxing.

Article 15 Ban on taking part in any boxing activity A person may be temporarily or definitely banned from taking part in any boxing related activity.

Article 16 Ban from competition grounds

1. A person may be prohibited from entering one or several competition grounds.

2. The disciplinary authority shall communicate such a ban to the Member organizing the competition which is under the obligation to take all necessary measured to enforce the sanction, or shall personally be penalized.

Article 17 Suspension of a tournament in a particular competition venue The suspension of a tournament in a particular competition venue deprives the Member organizing the competition the right to organize competitions and to let its boxers compete in this respective competition venue”.

15. The AIBA Disciplinary Code includes also a Chapter 4 “Special Provisions” Part II “Infringement of Other Rules of Conduct”. Articles 46 and 47 read as follows: “Article 46 Failure to respect decisions Anyone who fails to respect enforceable decisions of a body or Commission of AIBA, its Confederations or Members, will be fined with CHF 3’000.-, after having been given a warning to respect the decision in a last delay, and may also be suspended, excluded from a competition or banned from any boxing activity for 3 months to 6 months.

Article 47 Disparagement of AIBA’s reputation and interests Subject to specific provisions of the Code or of the Statutes, any action affecting the reputation or interests of AIBA, its Confederations or Members, will be sanctioned with. a) If the action is committed by a Confederation or a Member - a fine of CHF 1’000.- to 10’000.-, or suspension of 6 months to 2 years; b) If the action is committed by a person - a fine of CHF 500.- to 10’000.-;

- or a suspension of 6 months to 2 years; - or a temporary or definitive ban from any boxing activity”.

16. It is obvious that the wording, instruments, logics and systematics of the provisions enumerated above do not fit together. The parties in their answers in writing dated 28 September 2011 did not enter the legal debate requested by the Panel with regard to how to understand the relationship between these provisions in detail at the time when they were in force. The parties agreed, however, on the “hierarchical structure” with the AIBA Statutes at its top (FRB) / “precedence of AIBA Statutes over all other AIBA regulations and codes” (AIBA).

17. Considering this concurrent view of the parties, the Panel does not see a necessity to clarify the relationship between the provisions enumerated above in detail. The Panel recognizes only one case, where the AIBA Statutes 2008 allowed for a suspension of a member of AIBA with the consequence of a temporary loss of its membership rights. It was the case of non-payment of its financial obligations in due time, ruled by Article 16 AIBA Statutes 2008. The Panel also saw that according to these Statutes the power to impose such suspension was at the AIBA Congress and not at the AIBA Executive Committee.

18. The Panel, thus, holds, that the AIBA Executive Committee had no legal basis to suspend the FRB for “failing to respect AIBA final decisions, in particular the decisions suspending Mr Rudel Obreja and the decisions urging the RBF to act under a proper – not suspended – leadership” throughout the period of Phase 1.

19. Apart from this legal construction the Panel finds, that during phase 1, it was not clear from the AIBA communication with the FRB, what really were the legal consequences of the suspension of its President by AIBA for the FRB. The period could be described as AIBA reaction following to FRB action, thereby constantly increasing political pressure. The AIBA Appeals Commission held in its decision of 6 February 2010 that the “suspension in January 2009 “from all boxing-related activities governed by AIBA” is clear and unambiguous in prohibiting Mr. Obreja from acting as the president of a national federation during the time of the suspension”. When the FRB informed AIBA that, following the decision of suspension of Mr Rudel Obreja, the FRB Federal Bureau had decided to transfer all the powers of Mr Rudel Obreja relating to amateur boxing to its Vice President Mr Citea Vasile, AIBA obviously recognized that the above wording was not so clear and unambiguous and raised the question whether the FRB decision meant that Mr Obreja was no longer the President of the FRB. The FRB avoided a clear answer, thereby prolonging the unclear status quo. AIBA’s email of 10 February 2010, as well as the round of emails in April 2010 left room for interpretation and action likewise.

20. Also the AIBA email of 5 August 2010, taken literally, does not stand against the fact, that FRB elections, which actually were held on 27 October 2010, could lead to a re-election of Mr Obreja as President with exclusion from amateur boxing matters and AIBA relations. It is another question whether the FRB showed good faith in acting as it did.

B. Phase 2:

21. It is only the AIBA email dated 2 December 2010, which found a clear language. The Panel wishes to quote from this email in particular the following paragraphs: “As you are well aware, AIBA urged your National Federation to settle down under a proper leadership as soon as possible since your Federation has been operating without proper leadership for too long now. Therefore, I would like to urge your Federation to have an election for a new President immediately as your President has been suspended by AIBA for many years and can no longer occupy this position, no matter what. In this respect, I would like to propose for this election to take place within the next two months from today. However, if this election does not take place, the AIBA Executive Committee Bureau will review this current situation and make a decision to assist the boxing family in Romania to receive a better support for a proper leadership in the future”.

22. This email, which was written by the AIBA Executive Director, imposes new elections within the FRB and forbids the FRB to accept a candidacy of Mr Obreja for being elected as President of the FRB. The email also sets a deadline for these elections to be held and announces action of the AIBA Executive Committee Bureau, if the deadline will be missed.

23. AIBA argues in its Answer to the Appeal Brief and supported this view during the hearing that there was no new decision necessary to justify this email of the AIBA Executive Director. AIBA held that the obligation of the FRB to hold new elections follows from Article 13 E of the AIBA Statutes 2010 and followed from Article 13 AIBA Statutes 2008 for phase 1.

24. Article 13 of the AIBA Statutes 2008 read as follows: “Article 13 Exclusion of all external interferences with the Member bodies Each Member must have Statutes that prohibit all interference external in their election and appointment processes. Any elected or appointed official of a Member who is not selected in compliance with par. 1 above shall not be recognized by AIBA. Decisions passed by bodies of a Member that have not been elected or appointed in compliance with par. 1 shall not be recognized by AIBA”.

25. Referring back to phase 1 in this given context the Panel holds that Article 13 Statutes 2008 had a totally different meaning from that assigned to it by AIBA. Article 13 AIBA Statutes 2008 intended to protect the sport of amateur boxing from interventions from outside, in particular, from a government or even National Olympic Committee or political party. There was never any discussion before the Panel and there are no elements in the facts that the candidacy of Mr Obreja for President of the FRB was based on interference from outside the FRB. The recognition of the results of such elections by AIBA could have been refused only in case such interference was given.

26. The situation under Article 13 E of the AIBA Statutes 2010 is substantially different. This provision reads as follows:

“Article 13 Obligations of the National Federations and Provisional Members National Federations and Provisional Members have the following obligations: … (E) to submit the results of any election of officers of the National Federation and the organizational structure of the National Federation to AIBA for final approval and recognition; …”.

27. Article 13 E of the AIBA Statutes 2010, indeed, allows AIBA to deny recognition of the results of elections or the constitutional set-up of a member. The provision does not mention reasons, but an obvious reason could be, if the elections did not take place according to the basic principles enshrined in the AIBA Statutes or if the constitution of a member violates the AIBA Statutes.

28. The Panel does not feel obliged to analyse whether such reasons were given in the case at hand. The Panel rather holds that AIBA is wrong in assuming that based on this provision no decision of the competent AIBA body in order to serve as legal basis for the email of the AIBA Executive Director of 2 December 2010 was necessary. The AIBA Statutes introduced a new legal basis in abstracto and this new basis needed to be applied on an individual case by decision of the relevant body.

29. This goes even more, because also the second provision of the Statutes relevant in the present context was fundamentally changed in the AIBA Statutes 2010. With regard to suspension of a member the former Article 16 was replaced by a new Article 17 which reads as follows: “Article 17 Suspension 17.1 A National Federation may be suspended in accordance with the Code of Ethics, the Disciplinary Code or the Procedural Rules by the Executive Committee, the EC Bureau or the Disciplinary Commission, if need be with immediate effect. The membership rights of a suspended National Federation shall automatically lapse during the suspension period, unless the Executive Committee, the EC Bureau or the Disciplinary Commission, as the case may be, determines otherwise. All decisions to suspend a National Federation will be reviewed by the Disciplinary Commission in the first instance in accordance with the Disciplinary Code and the Procedural Rules. Appeals from decisions of the Disciplinary Commission will be heard by the Executive Committee or the EC Bureau, at the discretion of the President and depending on the urgency of the appeal. 17.2 Other National Federations must not entertain sporting contact or any AIBA business relations with a suspended National Federation, Any National Federation which violates this article 17.2 will be subject to a sanction in accordance with the Disciplinary Code. 17.3 Any National federation not up to date with all Annual Fees due six (6) months before the Congress will automatically lose its rights in accordance with article 12.1 except for the right to participate in AIBA Approved Events in accordance with article 12.1(E) (or article 12.2(A) in the case of a Provisional Member). After the Congress, rights will be granted back to the National federation, but only upon payment of all Annual Fees due.

17.4 Any National Federation not participating in any of the AIBA Approved Events listed in article 56.3 of these Statutes, during the period between two Ordinary Congresses up until one month before the new Congress, shall have no right to propose candidates, apply for positions and take part in the Congress, thus voting in the elections generally. 17.5 A National Federation shall be suspended if the National Federation is no longer performing as the governing body of the sport of boxing in its country as determined in the discretion of AIBA”.

30. This article extends the reasons, for which a suspension can be imposed, establishes a direct link between the article in the Statutes and the Disciplinary Code as well as procedural rules and details the legal implications of a suspension. It is to be applied for facts that have been occurred after its entrance into force and has no retroactive effect on facts that occurred before its entrance into force.

31. The Panel, thus, finds that the email of the AIBA Executive Director of 2 December 2010 lacks any legal ground and cannot be considered as AIBA decision based on Article 13 E AIBA Statutes 2010. According to Article 50.1 AIBA Statutes 2010, the AIBA Executive Director “organizes and manages the general administration of AIBA” and according to Article 50.2 first line he is responsible for “implementing decisions made by the Congress and Executive Committee and the EC Bureau in compliance with the President’s directives”. AIBA confessed that there was no other decision of any AIBA body in this context than the decisions under the old AIBA Statutes, which were replaced by the AIBA Statutes adopted on 1 November 2010. Therefore, there was no decision based on Article 13 E AIBA Statutes 2010.

32. This legal error committed by AIBA has, however, also legal effects for the decisions of the AIBA Executive Committee Bureau of 8 March 2011 and of the AIBA Disciplinary Commission of 25 March 2011 which due to a general reference as to its contents and reasons by the AIBA Executive Committee notified on 13 April 2011 also extends to the latter decision.

33. By reasoning “To put the case of the Romanian Boxing Federation for review by the AIBA Disciplinary Commission as AIBA was informed that this Federation would conduct an election for Presidency on October, 27, 2010 in order to elect a new President to replace the suspended President, Mr Rudel Obreja which election did not happen. AIBA sent this Federation a letter on December 2, 2010 giving it 2 (two) additional months to organize an election but it never took place (see attached letter). Mr Obreja is still the President of this Federation despite this current long suspension (see extract from the Federation’s website) the AIBA Executive Committee Bureau based its findings and request to the AIBA Disciplinary Commission, irrespective of whether established as such or not, on facts that occurred or not before the adoption of Article 17 AIBA Statutes 2010 and based the decision on an email which had no legal ground under the AIBA Statutes 2010.

34. The Panel, thus, finds to be bound to declare that the decision of the AIBA Executive Committee Bureau of 8 March 2011 has no legal basis in the AIBA Statutes 2010 or, because of the Statutes overruling effect (see para 16 above), in the AIBA Disciplinary Code.

35. Since the AIBA Disciplinary Commission by finding as facts for its decision of 25 March 2011 “the RBF never elected a new president, Mr Obreja apparently continuing to conduct the business, even if some

RBF officials were presented as the persons running the office. AIBA requested the RBF to elect a new president to replace the suspended one. The RBF announced that it would do so on 27 October 2010, but it didn’t happen. On 2 December 2010, AIBA sent a letter to the RBF Secretary General, ordering the National Federation to elect a new president within two months. No election took place. AIBA alleges that Mr Obreja is still the president of the RBF. …” committed the same legal error, and the AIBA Executive Committee in its decision notified on 13 April 2011 on the appeal of the FRB by general reference to the AIBA Disciplinary Commission’s decision absorbed this error, the Panel holds that the decision of the AIBA Executive Committee notified on 13 April 2011 and the decision of the AIBA Disciplinary Commission of 25 March 2011, as far as referred to by the above decision of the AIBA Executive Committee, are to be set aside.

36. Considering the above, the Panel also did not see any violation of other provisions alleged by AIBA, in particular Article 6 (1) AIBA Statutes 2010 (obligation of National Federations to comply with the AIBA Statutes, By-Laws and Rules), which, as AIBA pointed out during the hearing, is implemented by Articles 3 (first and fourth lines), 4 (1) (last line), 39 (1) (b), 46 and 47 of the AIBA Disciplinary Code. The AIBA Disciplinary Committee in its decision dated 25 March 2011 considered it “quite evident” “that the RBF continues to consider the suspended Rudel Obreja as its president and that Mr Obreja continues to run the RBF as a whole”. As far as the facts are concerned, the AIBA Disciplinary Committee stated “Mr Obreja apparently continuing to conduct the business”. AIBA in its submissions in writing and by providing of three witnesses at the hearing tried to give evidence to the Panel’s comfortable satisfaction that Mr Obreja continues to run the RBF. None of the witnesses, however, could mention even one event, without referring to hear-say, that a decision of the FRB, in fact, had been made by Mr Obreja and not by the FRB’s Federal Bureau or some of its members, including the Secretary General and/or Vice-President Citea, as long as not suspended. Even for the assumption that the FRB’s website did not separate between professional and amateur boxing was not shown any evidence. The fact that Mr Obreja referring to his function as Vice-President of AIBA sent an email to AIBA concerning the agenda for the AIBA Congress 2010 which was identical with an email sent by the Secretary General on behalf of the FRB does not prove, that Mr Obreja was the driving force within the FRB. It even cannot be taken as granted, that the FRB was aware of the fact that Mr Obreja sent such email. The FRB later asked AIBA to ignore this email of Mr Obreja. Also the fact that on 11 February 2011 Mr Obreja was shown on the forms for participation in the 2011 AIBA Women’s Junior/Youth World Boxing Championships in Turkey in the compartment “Name of President” does not prove whether Mr Obreja continued to run FRB’s business. AIBA did not indicate the circumstances how and by whom the form was filled and whether there was an alternative for Mr Obreja to be included on the forms. AIBA did also not communicate whether Mr Obreja was allowed at all to take part at this event, even not as a private person.

37. With regard to the lack of hearing and other substantial defects of the procedure before the AIBA bodies alleged by the FRB, the Panel would like to refer to CAS jurisprudence in line with the jurisprudence of the Swiss Federal Tribunal put forward by AIBA (see para 4.14 above) and holds that these defects, if committed or not, have been cured by the proceedings before CAS. The parties expressly have declared at the end of the hearing that they felt satisfied by the procedure before CAS and the way how the hearing has been held.

38. Given the results of the proceedings, the Panel does not find to be bound to enter any other legal argument raised by the parties or to answer other prayers of relief as to the merits of the case.

The Court of Arbitration for Sport rules:

1. The appeal filed by the FRB on 2 May 2011 against the decision of the AIBA Executive Committee notified on 13 April 2011 is upheld.

2. The decision of the AIBA Executive Committee Bureau of 8 March 2011 is declared having no legal basis in the AIBA Statutes 2010 or AIBA Disciplinary Code.

3. The decision of the AIBA Executive Committee notified on 13 April 2011 and the decision of the AIBA Disciplinary Commission of 25 March 2011, as far as referred to by the above decision of the AIBA Executive Committee, are set aside.

4. (…).

5. (…).

6. All other or further prayers for relief are dismissed.