Al Masry Club v. Egyptian Football Association (EFA)

I. FACTS — A. The Parties

1. Al Masry SC (“Al Masry”, the “Club” or the “Appellant”) is an Egyptian Premier League football club, based in Port Said, affiliated to the Egyptian Football Association.

2. The Egyptian Football Association (the “Respondent” or the “EFA”) is the national governing body of football in Egypt and is affiliated to FIFA.

B. The Discussions between the Appellant and the EFA during the Interruption of the

2010/2011 Season

3. Because of the political events that were taking place in Egypt during the 2010/2011 season, the Egyptian Premier League (“the Premier League”) was interrupted in January 2011.

4. On 17 March 2011, a meeting took place between the representatives of the EFA and the Premier League clubs in order to discuss the possible resumption of the competition.

5. It was decided that the Premier League was to resume on 13 April 2011.

6. On 9 April 2011, another meeting took place between representatives of the clubs and members of the Port Said police forces. A “coordination report” was presented at this occasion to the clubs’ representatives, in order to define the responsibilities of the various parties.

7. The Ministry of Interior insisted that its role was to secure the people in charge of the controls at the entrance of the stadium, not to inspect the spectators. According to the Ministry of Interior, it was therefore the organizers’ responsibility to make sure that spectators did not enter into the stadium with weapons or inflammable material.

8. The clubs’ representatives opposed the content of the “coordination report”, arguing that they did not have the capability to assume their role with regard to the inspection of the spectators at the entrance of stadiums. They also indicated that it was impossible to organize football matches under the circumstances at that time.

9. By letter dated 9 April 2011, the Chairman of the Appellant’s Board of Directors, Mr Kamel Abu Ali, pointed out that Al Masry is not capable of inspecting spectators at the entrance of the stadium.

10. Notwithstanding the above, the Premier League resumed on 13 April 2011.

11. On 3 July 2011, Mr Mohsen Sheta, Al Masry’s Executive Director, reiterated once again that Al Masry is not capable of inspecting the spectators at the entrance of the stadium.

(operative part of 24 July 2012)

C. The Events of 1 February 2012

12. On 1 February 2012, Al Masry played against Al Ahly in the Premier League season 2011/2012.

13. According to the exhibits filed by the Appellant in support of its appeal brief, the match kickoff was delayed thirty minutes because Al Masry fans were on the pitch before the start of the match.

14. During half-time and after each of the second half goals for Al Masry, the latter’s supporters invaded the pitch.

15. Al Masry contends that, during the second half of the match, the Al Ahly supporters shouted verbal abuse to Al Masry supporters and broke the doors that separated supporters of both teams.

16. After the final whistle, thousands of Al Masry supporters invaded the pitch.

17. A large melee ensued during which 74 people were killed.

18. According to the witness statement of the Police Officer who was responsible for securing the area assigned to Al Ahly supporters, Mr Ashraf Salem, there were several security defaults in the organization of the match:

- the area surrounding the Port Said Stadium was not secured as in previous matches;

- the security officers at the gates failed to perform their tasks because of the shortage of security forces outside the Port Said Stadium (tickets collection and body search);

- the police forces were not deployed before the end of the match in order to prevent the supporters from invading the pitch; and

- the supervising security officers failed to execute the security plan.

19. Furthermore, Mr Ashraf Salem pointed out that the internal gates of the Port Said Stadium were opened to the inside, which constituted a violation of the “Egyptian Building Code”.

20. For his part, the Appellant’s second witness, Mr Mohamed Said Elsanbody, explained in his witness statement that the normal security plan for matches like that of 1 February 2012 consisted for the police forces to form four circles outside and inside the stadium. He added that the task of the police officers forming the first two circles is normally to ensure that spectators hold a ticket for the match. Mr Elsanbody nevertheless pointed out that, on 1 February 2012, the first and second circles were never formed. He also mentioned the fact that the fourth circle, which is supposed to be inside the spectator’s area, was composed by unprepared individuals.

(operative part of 24 July 2012)

21. The Panel considers that the above witness statements given by Messrs Ashraf Salem and Mohamed Said Elsanbody are reliable.

D. The Consequences of the Port Said Tragic Events

22. On 2 February 2012, the Egyptian Prime Minister, Mr Kamal Al Ganzouri, announced the dissolution of the EFA Board of Directors.

23. Furthermore, in April 2012, Egypt’s Prosecutor-General referred 75 suspects to the criminal court. These people include 9 police officers, three officials and several supporters of the Appellant.

E. The Sanction imposed to the Appellant by the EFA

24. On 21 March 2012, the EFA rendered a decision according to which:

1- Al Ahly team player Hussam Ghaly has committed a misconduct act against the match referee.

2- The Technical coach of Al Ahly, Mr. Manuel Gozey committed also a misconduct act against the Match Referee.

3- Al Ahly Club supporters accompanying the team raised attacking banners and ignited fireworks and throwing them on playing area.

4- The Supporters of Al Masry Team attacked the Supporters of Al Ahly Club team, which resulted in falling some victims as casualties for such shocking incident and some had fallen injured and hurt.

5- Default by Al Masry Club with the hosted team and its supporters.

25. The EFA therefore decided to impose the following sanctions to both clubs:

1- To deprive Al Ahly Club from playing with its supporters for official four matches in any competition organized by the Egyptian Football Association for the repeated acts by its supporters to ignite fireworks and throw them in the playing area during the match and for raising banners carrying insulting phrases.

[…]

4- To ban playing at Port Said Governorate Stadium for three Georgian years, as from the effective date of the resolutions for the events occurred in the match.

5- As per Disciplinary Code, Article (12) and Article (28) of FIFA; article (25), paragraph (9) of Egyptian Football Association Competition Tournaments Regulations, to exclude (deprive) the First Team of Al Masry Club from participation in sports activities of the Egyptian Football Association for two sessions (2011/2012) and (2012/2013), without prejudice to the rights of Junior, Youth, and underage teams from participation in order to save sports primes, and Al Masry Club shall abide by the

(operative part of 24 July 2012)

contracts of its First Team Players… Al Masry Club is entitled to participate in the activities of the Association as from the start of National Competition Tournaments (First Section) Sports session (2013/2014), after fulfilling the penalty.

F. The Decision of the EFA Appeal Committee

26. On 1 April 2012, Al Masry filed an appeal against the EFA decision before the EFA Appeal Committee.

27. On 24 April 2012, the Appeal Committee of the EFA rendered its decision (the “Decision”), holding the following, inter alia (English translation provided by the Appellant):

FIFTH: The Committee undoubtedly proved based on the reports of the match referee and superintendents and watching the official match video recording and CD attached to Al- Ahly grievance as well as the report prepared by the fact-finding committee formed by the People’s Assembly, that Al-Masry club committed the following violations:

1) Allowing entry of fans with solid objects, white arms, laser lights and banners with abusive expressions;

2) Failing to provide easy open and close gates for the entry & exit of fans for any emergency situations;

3) Al-Masry fans massively shouted throughout the whole match with threatening words for Al-Ahly fans to be effect that they shall never return back home as they will die and be buried inside Port Said;

4) Al-Masry fans threw missiles, fireworks and flammable materials into the playground and toward refereeing team and Al-Ahly team players and its coaching team;

5) Bottles and solid objects were thrown towards the assistant referee and Al Ahly coaching team;

6) Laser lights were pointed towards Al-Ahly goalkeeper during the match;

7) Fans descended into the playground during the two halves interval trying to assault Al-Ahly fans as well as descending to the playground after each goal scored by their team;

8) Al-Masry fans spread over the playground upon the final whistle from all stands in mass numbers attacking some of Al-Ahly team players and its coaching team and then ascended to Al-Ahly fans stands accompanied with solid objects and aforesaid arms and committed violent attacks towards Al-Ahly fans causing such tragic events

(operative part of 24 July 2012)

never witnessed throughout the whole works leaving behind (72) dead people and hundreds of injuries;

Whereas Article (98/B) of the Competitions Regulations stipulates: “hosting team organizing the match, whether on its own playground or any other playground, is to be held responsible for the behavior of its players, coaching, administrative & medicinal team and fans, with regard to their direct or indirect misconducts in violation to the public order”; meanwhile, Article (67) of the FIFA Disciplinary Code concerning fans behavior stipulates: “Club is to be held responsible for its fans misbehavior regardless committed intentionally or neglectfully, which included showing violence towards individuals or properties, releasing gases, launching fireworks, raisin political slogans in any manner, pronouncing insults or abusive words, or entrance to the playground, which the Committee opines to apply the provisions of Article (20) of the aforesaid Grievances Committee Regulations, and shall further pass its resolution this regard in compliance with the event fatality and situation gravity for the Egyptian community and as a protective means against occurrence; thus, it hereby decides as per the provisions of Article (25/9) of the Competition Regulations and Article (28) of the International Disciplinary Code to ban the premier team of Al-Masry club form participating on any of the EFA events for one year (2012/2013) without prejudice to prejudice to the rights of the youth, underage and buds teams from participating into the competitions while instructing Al-Masry club to comply with its premier team players’ contracts as enacted by the true law provisions rendering Al-Masry premier team to downgrade to the secondary league teams while being entitled to participate therein as of season 2013/2014 upon satisfying such penalties as per the provisions of Article (25/12) of the Competitions Regulations and Paragraph (9) of well as Articles (12/1) and (29) of the international Disciplinary Code in addition to further banning it from playing its match with its fans attending, whether those held on its own playground or opposing team’s playground for only one season (2013/2014) as per the provisions of Article (25/4) of Competitions Regulations and Paragraph (2) of Clause (THIRD) of Article (43) of the EFA Articles of Association as well as Article (12/B) and (24) of the international Disciplinary Code.

SIXTH: The Committee deems as fit to apply the provisions of Paragraph (4) of Clause (THIRD) of Article (43) and Articles (12/D) and (26) of the International Disciplinary Code so as to ban holding any game matches on Port Said Stadium for four calendar years due to the tragic incidents provided that such banning shall be effective as of today’s date based on the fact that such penalty is site-related but not sport-activity-related.

SEVENTH: The Committee deems as fit to apply the provisions of Article (126) of EFA Competitions Regulations and Article (12/C) of the International Disciplinary Code to the effect that precautionary procedures should be taken by holding the next four live matches between Al-Ahly and Al-Masry teams without fans on neutral playground located too far away by (200) kilometers from Cairo and Port Said governorates.

(operative part of 24 July 2012)

28. In summary, the Appellant was:

(1) banned from participating in any EFA events for the season 2012/2013;

(2) relegated to the second Egyptian league for the season 2013/2014 with fans excluded from attending any games at home or outside;

(3) banned from holding any games at the Port Said Stadium for four calendar years; and

(4) obliged to play the next four matches against Al Ahly on a neutral stadium, distant at least 200 kilometers from Cairo and Port Said.

G. Proceedings before the Court of Arbitration for Sport

29. On 17 May 2012, the Appellant filed a statement of appeal with the CAS pursuant to Article R47 of the Code of Sports-related Arbitration (the “Code”), against the Respondent with respect to the Decision.

30. Together with its statement of appeal, the Appellant filed an application for a stay of the Decision. The Appellant requested an Order on provisional measures before 31 May 2012, before the beginning of the training period prior to the start of the 2012/2013 season which was scheduled on 24 July 2012 with the Egyptian Cup.

31. The Appellant’s application was based on the alleged irreparable harm that it would suffer should the Decision not be stayed. The Appellant also invoked that its chances of success could not be discounted and that the Respondent would not suffer any obvious harm as a result of the stay of the Decision.

32. On 22 May 2012, when initiating the procedure, the CAS Court Office, pursuant to Article R37 of the Code, granted a deadline until 29 May 2012 to the Respondent to provide its position on the Appellant’s application for a stay. Furthermore, the CAS Court Office informed the parties that pursuant to Article R51 of the Code, the Appellant was invited to file, within ten days following the expiry of the time limit for the appeal, a brief stating the facts and legal arguments giving rise to the appeal, together with all exhibits upon which it intended to rely.

33. By letter dated 23 May 2012 to the CAS Court Office, the Appellant requested a 15-day extension to file its appeal brief.

34. On 24 May 2012, the CAS Court Office invited the Respondent to indicate, by 28 May 2012, whether it agreed with the Appellant’s request. The CAS Court Office informed the parties that the Respondent’s silence would be considered as an agreement.

35. On 28 May 2012, the EFA sent a correspondence to the CAS Court Office explaining the procedure before the EFA and stating that the Appellant, on 3 May 2012, appealed against

(operative part of 24 July 2012)

the Decision before the EFA Appeal Committee pursuant to Article 21 of the “appeal regulation”.

36. The EFA did not send any further submission with respect to the Appellant’s application for provisional measures.

37. On 29 May 2012, the CAS Court Office sent a letter to the parties inviting the Appellant to provide its position with respect to the internal appeal filed on 3 May 2012. Furthermore, the CAS Court Office took note of the absence of any objection with regard to the extension requested by the Appellant.

38. On 30 May 2012, the Appellant informed the CAS Court Office that the Decision was final and binding to all parties and could not be appealed inside the EFA pursuant to Article 42 (3) of the EFA Statutes. Furthermore, the Appellant indicated that Article 21 of the EFA Statutes was not applicable in the present matter.

39. On the same day, the CAS Court Office informed the parties that the deadline for filing the appeal brief was extended until 13 June 2012.

40. By facsimile dated 31 May 2012, the Appellant communicated a letter dated 30 May 2012 received from the EFA regarding the CAS jurisdiction. In such letter, the EFA pointed out the following:

Therefore, the Egyptian Football Association hereby assures that appealing before Grievance (Appeal) Committee against resolutions rendered by the Association or its committees is the last instance of litigation in the Egyptian Football Association, and appealing its decision in further stages is to be made before the Court of Arbitration for Sport.

41. By Order dated 31 May 2012, the Deputy President of the Appeals Arbitration Division of the CAS, ruling in camera, decided that the application for provisional and conservatory measures filed by the Appellant was to be rejected, because the later could not be considered as suffering any irreparable harm should the Decision not be stayed.

42. By facsimile dated 11 June 2012, the Appellant requested an additional 10-day extension for filing its appeal brief explaining that such extension was necessary for the collection of evidence.

43. On 12 June 2012, the CAS Court Office noted the Appellant’s request and invited the Respondent to indicate whether it agreed with it by 15 June 2012.

44. On 18 June 2012, the CAS Court Office informed the parties that in the absence of any answer from the Respondent, the Appellant’s request for an extension to file its appeal brief was extended until 25 June 2012.

45. On 25 June 2012, the Appellant filed its appeal brief, requesting that a hearing take place during the third week of July, i.e. before the start of the 2012/2013 season.

(operative part of 24 July 2012)

46. On 26 June 2012, the parties were informed by the CAS Court Office that, pursuant to Article R55 of the Code, the Respondent was to submit its answer within twenty days of receipt of the said letter. The parties were also informed that the Panel established to decide the case was composed of:

President: Mr Olivier Carrard, attorney-at-law in Geneva, Switzerland

Arbitrators: Mr José Juan Pintó, attorney-at-law in Barcelona, Spain

Dr Mohamed Abdel Raouf, Director of the Cairo Regional Centre for International Commercial Arbitration in Cairo, Egypt

47. On 9 July 2012, the CAS Court Office informed the parties that the Panel had decided to hold the hearing on 20 July 2012 at the CAS headquarters and asked the parties to confirm by 13 July 2012 that they would attend the hearing.

48. The Respondent failed to file any answer within the abovementioned deadline even though it has been duly notified by the CAS Court Office with all submissions and supporting documents submitted by the Appellant in the present proceedings.

49. On 13 July 2012, the CAS Court Office requested the Appellant to provide to the CAS a copy, in English, of provisions referred to in its appeal brief, as well as of any other provision which it deemed applicable to the dispute, by 17 July 2012.

50. On 16 July 2012, the Appellant submitted new evidence to the CAS Court Office.

51. On the same day, the CAS Court Office acknowledged receipt of the Appellant’s letter and invited the Respondent to indicate by 18 July 2012 whether it had any objection on the admissibility of the new evidence submitted by the Appellant.

52. By letter dated 19 July 2012, the CAS Court Office informed the parties that it did not receive the Respondent’s answer by facsimile within the deadline prescribed pursuant to Article R55 of the Code and following the instructions sent on 13 July 2012. Moreover, it noted that the Respondent failed to object to the admissibility of the new evidence submitted by the Appellant on 16 July 2012. Finally, an Order of Procedure was enclosed with the CAS Court Office’s letter. The parties were requested to sign it and return it to the CAS Court Office before the hearing that was to take place on 20 July 2012.

53. This Order of Procedure was returned signed by the Appellant on 19 July 2012. The Respondent failed to sign and return the Order of Procedure.

(operative part of 24 July 2012)

H. The Parties’ Submissions

i) Appellant’s Submissions and Requests for Relief

54. In summary, the Appellant’s submissions in support of its appeal are threefold:

a. Firstly, the Appellant alleges that it cannot be held liable for the incidents that took place on 1 February 2012, given the very particular circumstances surrounding this tragic event. In substance, the Appellant contends that:

- the Egyptian Ministry of Interior failed to provide proper protection for the people in charge of the security, which allowed many non-ticket holders to enter into the stadium;

- the Egyptian Ministry of Interior failed to call off the match after the barrier preventing the Al Ahly fans from entering into the pitch was damaged;

- the Egyptian Ministry of Interior failed to prevent the Al Ahly fans from entering into the pitch;

- the instructions received from the Ministry of Interior were not accepted by the Appellant;

- it was forced by the EFA to resume the Premier League on 13 April 2011, notwithstanding the fact that the EFA had been warned by the Appellant, before the commencement of the 2011-2012 season, that it had not the capability to secure the games;

- it was EFA’s ultimate decision to hold the Appellant’s games in a stadium that was unfit to host football games;

- the Municipality of Port Said was responsible for the “poor constitution and construction” of the Port Said Stadium;

- the police officers were not in sufficient number and that the tactics used by them on 1 February 2012 were not adequate; and

- the Al Ahly fans instigated the violence that ensued on 1 February 2012.

b. Secondly, the Appellant argues that the circumstances which existed at the time of the incidents made it impossible for it to maintain security at the Port Said Stadium on 1 February 2012. The Appellant therefore rejects any liability with regard to the incidents relying on the principle of force majeure.

(operative part of 24 July 2012)

c. Thirdly, the Appellant contends that the EFA Appeal Committee erred by holding that relegation in the Egyptian second division was a requirement because of the ban inflicted to the Appellant.

55. Based on the above, the Appellant requested the following reliefs:

1. To accept this appeal against the decision of the EFA dated 24 April 2012. 2. To adopt an award annulling the said decision and adopt a new one declaring that the Appellant hasn’t committed any negligence or violation and should receive no sanction. 3. In the alternative, to adopt an award annulling the said decision and adopt a new one declaring that the Appellant has committed a minor negligence or violation and should receive only a reprimand or warning. 4. In the alternative, to adopt an award annulling the said decision and adopt a new one declaring that the Appellant has committed a minor negligence or violation and should receive a fine not exceeding 200,000 Egyptian Pounds. 5. In the alternative, to adopt an award annulling the said decision and adopt a new one declaring that the Appellant has committed a minor negligence or violation and should receive a sanction which obliges it to play a maximum of 6 matches on neutral territory. 6. In the alternative, to adopt an award annulling the said decision and adopt a new one declaring that the Appellant has committed a minor negligence or violation and should receive a sanction which obliges it to play a maximum of 6 matches on neutral territory without spectators. 7. In the alternative, to adopt an award annulling the said decision and adopt a new one declaring that the Appellant has committed a minor negligence or violation and should receive a sanction which obliges it to play all the homes matches of the 2012/2013 season on neutral territory. 8. In the alternative, to adopt an award annulling the said decision and adopt a new one declaring that the Appellant has committed a minor negligence or violation and should receive a sanction which obliges it to play all the homes matches of the 2012/2013 on neutral territory without spectators. 9. In the alternative, to adopt an award annulling the said decision and adopt a new one declaring that the Appellant has committed a minor negligence or violation and should receive a deduction of a maximum of 6 points for the 2012/2013 season. 10. In the alternative, to adopt an ward annulling the said decision and adopt a new one declaring that the Appellant has committed a minor negligence or violation and should receive an expulsion from participating on any of the EFA’s activities for the 2011/2012 season and participate again in the super league starting

from the next season. 11. In the alternative, to adopt an award annulling the said decision and adopt a new one declaring that the Appellant has committed a minor negligence or violation and should receive an expulsion from participating on any of the EFA’s activities for the 2011/2012 season and 2012/2013 and participate again in the super league starting from season 2013/2014. 12. To fix a sum of 25,000 CHF to be paid by the Respondent to the Appellant to aid the Appellant in the payment of its defence fees and costs.

(operative part of 24 July 2012)

13. To condemn the Respondent to the payment of the whole CAS administration costs and the Arbitrators fees.

ii) Respondent’s Submissions and Requests for Relief

56. The Respondent has not filed any answer and only filed in the course of the present proceedings its letter of 28 May 2012.

57. Pursuant to R55 of the Code, the Panel is nevertheless entitled to proceed with arbitration and deliver an award.

I. The Hearing of 20 July 2012

58. A hearing was held on 20 July 2012 at the CAS headquarters in Lausanne.

59. In addition to the Panel, Mr Pierre Ducret, ad hoc Clerk, and Mr William Sternheimer, Counsel to the CAS, the following people attended the hearing:

For the Appellant:

1. Mr Juan de Dios Crespo Pérez, Counsel

2. Mr Adam Whyte, Counsel

3. Mr Nassr Assem, Counsel

4. Mr Mohamed El Ghoraiby, Club Representative

60. The witnesses designated by the Appellant were heard and answered questions from the Panel via teleconference. Their oral testimony can be summarized as follows:

- Mr Mohamed Salem

Mr Mohamed Salem, Police Officer at the Port Said Directorate, confirmed the accuracy of the content of his witness statement dated 25 June 2012. Mr Salem further explained that he was one of the persons in charge of the security at the Port Said Stadium. He pointed out that the security at the Port Said Stadium was not properly organized on 1 February 2012. Mr Salem also explained that the security supervisor, who belongs to the Ministry of Interior, ordered the officials to close some exit gates in order to prevent the supporters of each team from attacking each other. Finally, Mr Salem stated that he had been under investigation by the Egyptian authorities.

(operative part of 24 July 2012)

- Mr Mohamed Said Elsanbody

Mr Mohamed Said Elsanbody, a retired Police Officer, confirmed the accuracy of the content of his witness statement dated 20 June 2012. Mr Elsanbody affirmed that the Ministry of Interior was the only authority in charge of the security of football matches.

61. The Respondent did not attend the hearing.

62. At the hearing, the Appellant filed a new exhibit with regard to the “system and conditions of the league first division’s competition 2011/2012 season”. This new exhibit was accepted by the Panel.

63. The Appellant also informed the Panel of its decision to amend its prayers for relief. Accordingly, the Appellant renounced to the following prayers for relief:

3. In the alternative, to adopt an award annulling the said decision and adopt a new one declaring that the Appellant has committed a minor negligence or violation and should receive only a reprimand or warning.

7. In the alternative, to adopt an award annulling the said decision and adopt a new one declaring that the Appellant has committed a minor negligence or violation and should receive a sanction which obliges it to play all the homes matches of the 2012/2014 season on neutral territory.

8. In the alternative, to adopt an award annulling the said decision and adopt a new one declaring that the Appellant has committed a minor negligence or violation and should receive a sanction which obliges it to play all the homes matches of the 2012/2013 on neutral territory without spectators.

9. In the alternative, to adopt an award annulling the said decision and adopt a new one declaring that the Appellant has committed a minor negligence or violation and should receive a deduction of a maximum of 6 points for the 2012/2013 season.

10. In the alternative, to adopt an ward annulling the said decision and adopt a new one declaring that the Appellant has committed a minor negligence or violation and should receive an expulsion from participating on any of the EFA’s activities for the 2011/2012 season and participate again in the super league starting from the next season.

11. In the alternative, to adopt an award annulling the said decision and adopt a new one declaring that the Appellant has committed a minor negligence or violation and should receive an expulsion from participating on any of the EFA’s activities for the 2011/2012 season and 2012/2013 and participate again in the super league starting from season 2013/2014.

64. The Appellant also informed the Panel that its prayer for relief # 4 was amended as follows (amendment in bold):

(operative part of 24 July 2012)

4. In the alternative, to adopt an award annulling the said decision and adopt a new one declaring that the Appellant has committed a minor negligence or violation and should receive a fine not exceeding 200,000 Egyptian Pounds and obliging it to play one match without spectators.