Club Universidad de Guadalajara, Venados FC Yucatán, CF Correcaminos v. Federacion Mexicana de Futbol (FMF)

V. REQUESTS FOR RELIEF

42. The Appellants requests for relief in their Statement of Appeal were:

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1. To annul the Decision to an extent to be specified upon being provided the afore-referred evidentiary requests, particularly E.1 to E.6. 2. To award an amount of compensation to be determined along our appeal brief. 3. To determine any other relief the Panel may deem appropriate. 4. To fix a sum to be paid by the Respondents, in order to contribute to the payment of the Appellant’s legal fees and costs in the amount of CHF 20,000.00; and 5. To condemn the Respondents to the payment of the whole CAS administration costs and arbitrator fees.

43. In their Appeal Brief the Appellants submitted the following requests for relief:

1. To annul the Decision to an extent to be specified upon being provided the afore-referred evidentiary requests, particularly E.1 to E.6. 2. To award an amount of compensation to be determined along our second submission. 3. To determine any other relief the Panel may deem appropriate. 4. To fix a sum to be paid by the Respondents, in order to contribute to the payment of the Appellant’s legal fees and costs in the amount of CHF 40,000.00; and 5. To condemn the Respondents to the payment of the whole CAS administration costs and arbitrator fees.

44. As mentioned above (supra ¶ 35), the request for damages (3) was later explicitly dropped by the Appellants.

45. The First Respondent submitted the following requests for relief in their reply to the Appeal Brief:

1. To dismiss the appeal filed by the Appellants against the Decisions issued by the FMF Executive Committee and Extraordinary Assembly on 24 April 2020. 2. To fix a minimum sum of 30,000 CHF to be paid by the Appellants as a contribution to the Firs Respondent’s legal fees and costs. 3. To condemn the Appellants to pay the entire costs of the present appeal proceedings.

VI. JURISDICTION

46. No question of the jurisdiction of the CAS has been put forward by either party in these proceedings; neither the Appellants nor the First Respondent have disputed the jurisdiction of the CAS and, on the contrary, they have confirmed it when signing the Order of Procedure.

47. The Appellants rely on Article R47 of the CAS Code, Article 58 of the FIFA Statutes and Article 86 of the FMF Statutes, all of which are also expressly cited and acknowledged by the First Respondent, and which respectively establish:

Art R47 Appeal

An appeal against the decision of a federation, association or sports-related body may be filed with the CAS if the statutes or regulations of the said body so provide or if the parties have concluded a specific arbitration

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agreement and if the Appellant has exhausted the legal remedies available to him prior to the appeal, in accordance with the statutes or regulations of the said sports-related body.

58 Jurisdiction of CAS

Appeals against final decisions passed by FIFA’s legal bodies and against decisions passed by confederations, member associations or leagues shall be lodged with CAS within 21 days of notification of the decision in question.

86 Statutes of FMF

The Affiliate, according to the instructions from FIFA, may file an appeal before the TAS, based in Lausanne, Switzerland, as long as all the jurisdictional instances of the Federation have been exhausted. Said appeal must be filed within 21 calendar days after notification of the appealed decision.

48. The Panel thus finds that the CAS has jurisdiction to adjudicate and decide the present case, pursuant to the aforementioned rules of the CAS Code, the FIFA Statutes and the FMF Statutes.

VII. ADMISSIBILITY

49. Both the decision by the Executive Committee of the FMF and the decision by Extraordinary General Assembly of the FMF – irrespective of the matter of whether both decisions are under appeal or only the latter, an issue which will be attended infra ¶ 64 et seq. – were adopted on 24 April 2020.

50. Considering that Article R49 of the CAS Code, which refers to the time limit for the appeal, is applicable only in lieu of an express provision in the pertinent statutes, and that the FMF Statutes expressly establish a limit of 21 calendar days (art. 86), it follows that the appeal against the decision must have been filed within 21 calendar days of 24 April 2020.

51. The Statement of Appeal was filed by the Appellants on 15 May 2020, that is, within the statutory time limit set forth by the FMF Statutes of 21 days, a fact which is not disputed in any event by the First Respondent. Furthermore, the Statement of Appeal and the Appeal Brief complied with all the requirements of Articles R48 and R51 of the CAS Code.

52. Therefore, the Panel finds that the appeal is admissible.

53. Moreover, under Article R57 of the CAS Code, the Panel has full power to review the facts and the law; it may issue a new decision which replaces the decision challenged or annul the decision and refer the case back to the previous instance.

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VIII. APPLICABLE LAW

54. The Appellants submit that the law applicable to this dispute shall be the FMF Statutes and all FMF relevant regulations (including Liga MX International Regulations, Liga MX Competition Regulations, Ascenso MX Competition Regulations, and Affiliation, Name and Headquarters Regulation), wherever these are in line with the FIFA Statutes, rules and regulations, as these shall also apply and prevail over the FMF ones, as provided by the FMF Statutes.

55. Article R58 of the CAS Code provides as follows:

The Panel shall decide the dispute according to the applicable regulations and, subsidiarily, to the rules of law chosen by the parties or, in the absence of such a choice, according to the law of the country in which the federation, association or sports-related body which has issued the challenged decision is domiciled or according to the rules of law the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision.

56. It is incontrovertible that the “applicable regulations” here are the rules that compose the normative architecture of the FMF, starting with the FMF Statutes1 at the apex and all other legal regulations emanated in accordance to said rules. It also cannot be disputed that Mexican law is to be applied subsidiarily (“the law of the country in which the federation… is domiciled”), as is also expressly foreseen in Article 2 of the FMF Statutes2.

57. The Panel thus finds that in accordance to Article R58 of the CAS Code the provisions of the FMF Statutes and regulations are applicable, and subsidiarily, Mexican law, for adjudicating this case.

58. The Panel notes that the Appellants have also relied in their written submissions and oral allegations on Article 9 of the FIFA RGAS and other rules emanating from FIFA. Albeit there is no doubt that the FMF is affiliated to FIFA3, the precise status and applicability of the explicitly invoked rules to the merits of this case will be analyzed below (infra ¶ 96 et seq.).

IX. MERITS — A. Proem: the issues to be analyzed by the Panel

59. This appeal concerns the decision taken in Mexican professional football to suspend the promotion and relegation system in place in the Liga MX and Liga Ascenso MX for six seasons –from 2020 to 2026— and the elucidation of whether this decision was taken in accordance to the applicable formal and substantive legal grounds.

1 In their current version, as approved on 24 April 2015. 2 “In cases which are not foreseen in these Bylaws, the Civil Code for the State of Mexico shall be applied supplementarily”. 3 Article 9 FMF Statutes.

Club Universidad de Guadalajara, Venados FC Yucatán & CF Correcaminos v. award of 19 November 2020

60. The main issues raised before the Panel involve two legal fronts: (i) the correct interpretation, and potential application, of Article 9 FIFA RGAS to this case, and its pertinency to adjudicating this appeal; and (ii) the alleged infringement by the decision to suspend the promotion and relegation of FMF Statutes and internal regulations, and of Mexican law on associations and competition law. In consideration that the damages request mentioned by the Appellants in their Statement of Appeal and Appeal Brief was later expressly dropped, the sole issue to be addressed by the Panel is the (in)validity of the decision taken by the FMF.

61. Besides the purely legal discussion of the issues raised by the parties, there is a factual dissonance between them in one major relevant point: the Appellants have alleged in writing and orally that the suspension of the promotion/relegation system for six seasons was not discussed –and consequently, not voted upon— in the events leading to, and in particular in the 13 April 2020 meeting and the Liga Ascenso MX Assembly of 14 April 2020, whereas the First Respondent has contended that the issue was expressly discussed and voted on those occasions, pursuant to which the matter was submitted to the Executive Committee and eventually to the Extraordinary Assembly of the FMF for the adoption of the temporary suspension.

62. There are also two other issues that must be addressed by the Panel before any substantive consideration of the merits: (i) the matter of whether there is one decision under appeal –i.e., of the FMF Extraordinary Assembly of 24 April 2020— or two –i.e., the Executive Committee decision and the FMF Extraordinary Assembly decision, both taken on 24 April 2020— and (ii) the question of whether Liga MX and Liga Ascenso MX have legal standing to be parties to this procedure –as alleged by the Appellants and rejected by the First Respondent—. The issue concerning the factual disagreement mentioned in the previous paragraph may, for analytical purposes, also be (iii) discussed as a preliminary issue.

63. The issues to be elucidated by the Panel may thus be analytically divided as follows:

I) Preliminary issues

i. Is this appeal related to both the Executive Committee of the FMF decision and the FMF Extraordinary Assembly of 24 April 2020 or is it limited only to the latter?

ii. Do Liga MX and Liga Ascenso MX have legal standing to be sued and be a party to these arbitral proceedings?

iii. Did the Liga Ascenso MX meeting of 13 April 2020 and the Assembly of 14 April 2020 discuss and vote the matter of suspension for six seasons of the promotion/relegation system?

II) Substantive issues

i. Does the decision violate Article 9 of the FIFA RGAS and what is the relation and pertinency of this rule to this case?

Club Universidad de Guadalajara, Venados FC Yucatán & CF Correcaminos v. award of 19 November 2020

ii. Does the decision violate the FMF Statutes and internal regulations? This issue may in itself be resolved considering the order of arguments put forward by the Appellant:

a. Is the decision inconsistent with the FMF Statutes?

b. Did the FMF Extraordinary Assembly act ultra vires?

c. Is the decision to suspend the promotion/relegation for six seasons arbitrary?

iii. Does the decision violate Mexican law?

B. Preliminary issues

i. Is this appeal related to both the Executive Committee of the FMF decision and the FMF Extraordinary General Assembly of 24 April 2020 or is it limited only to the latter?

64. Albeit this may appear at first glance a minor issue, it is one without which it is impossible to advance for correctly deciding this case.

65. It is clear from the facts of the case that two different organs of the FMF met on 24 April 2020, and that although partially juxtaposed, they did not arrive at two identical decisions. There can be no question that there are two different decisions, and that the FMF Extraordinary General Assembly voted on only one issue –the suspension of the promotion and relegation— which was expressly not considered nor voted by the Executive Committee of the FMF.

66. In their Statement of Appeal the Appellants declare that they appeal “the decision of the Executive Committee and the Extraordinary Assembly of the (FMF)… passed on the 24th of April 2020”, and refer thereafter to it as the “Decision” in singular. This position is maintained in the Appeal Brief. The First Respondent, in its second written submission, after considering the statements in the Appellants’ réplica, noted that the “present appeal relates only to the Decision issued by the FMF Extraordinary General Assembly… and not the Decision issued by the FMF Executive committee”, limiting the discussion to the temporary suspension of promotion and relegation of clubs from Liga MX and Liga Ascenso MX, excluding any discussion of the decision adopted by the Executive Committee of the FMF.

67. When the First Respondent submitted the Order of Procedure, it concomitantly eliminated from Section 2 “Mission” the phrase “of the Executive Committee of the FMF”; the Appellants, who had previously returned the Order signed with no comments, sent a new version alleging a “clerical mistake” and adding in writing the plural “S”, highlighting that the two decisions were under appeal.

68. Now: there can be no question that the Statement of Appeal limited itself to a “decision”, in singular, and thus, there is no “clerical mistake” in the Order of Procedure insofar as it referred to a single decision. In any event, if there is a clerical mistake to be found here, it must reside

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on the Appellants, a lapsus calami which they intended to correct in their second submission of the Order of Procedure. However, the truth of the matter is that the Appellants referred repeatedly to one decision in their previous presentations and only when submitting the Order of Procedure (for the second time) did they transmute to the plural “decision(s)”. Thus, for purposes of clarity, the Panel must determine precisely if there is one decision under appeal or two, and in the latter case, which is going to be adjudicated upon.

69. Reference to the minutes of both internal organs of the FMF is more than sufficient to clear the analytical path.

70. According to the minutes of the FMF Executive Committee meeting of 24 April 2020, when submitting matters to vote the Committee Chair explicitly noted that:

Pursuant to Article 35, paragraph 35.5 of the bylaws, all modifications to the automatic promotion and relegation system of the leagues or professional divisions have to be approved by at least 80% of the votes of the Extraordinary General Meeting, and therefore, the attendees are requested to vote on the rest of the proposal and reserve approval of the modifications to the promotion and relegation system to the Extraordinary General Meeting.

71. Moreover, when all the matters that were specifically approved by the Executive Committee are considered (see supra ¶ 17 for full citation), it is clear that the Executive Committee approved the closing of the 2019-2020 season and a series of measures regarding the operation of the next six seasons, particularly economic contributions to the teams of Ascenso MX, but it did not consider nor much less approve the suspension of the promotion/relegation systems. On the contrary, the motion approved expressly stated that all the resolutions approved were:

subject to the condition that the Extraordinary General Meeting authorizes the temporary suspension of the promotion and relegation system between LIGA MX and Ascenso MX or the New League.

72. This entails that although the decisions approved by the FMF Executive Committee were intimately linked to the suspension of the promotion/relegation system by the FMF Extraordinary General Assembly –which was a condition precedent to the validity of all of the other decisions— the FMF Executive Committee simply did not consider, nor vote, the suspension of the promotion/relegation system.

73. This particular matter, to reiterate, was only treated and discussed by the FMF General Extraordinary Assembly, as is also clear from the minutes of 24 April 2020: The motion to temporarily suspend, for 6 (six) seasons, the promotions and relegations in Liga MX and in socalled Ascenso MX League, is hereby approved. This approval shall in no way be understood as an amendment to FMF bylaws (…).

74. Immediately after the voting, the FMF Secretary General noted that “there was no further business to attend”, which confirms that the Extraordinary General Assembly did not consider any of the

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other matters that were approved by the Executive Committee (i.e., closing of the current tournament, economic compensation for Ascenso clubs, etc.). Thus, it is undoubted that there are two different and distinct decisions, and not one, as the Statement of Appeal indicates.

75. From a strictly logical point of view, if the decision by the FMF Extraordinary General Assembly is considered first by the Panel, whatever the decision arrived, it will have an intrinsic impact on the resolutions taken by the Executive Committee of the FMF: if the conclusion is that the decision must be annulled, then the resolutions approved by the Executive Committee will be of no effect, since they were subject to the approval by the Extraordinary General Assembly; whilst if the conclusion is that the decision of the Extraordinary General Assembly must be upheld, then there would be no impediment for the full force of the resolutions taken by the Executive Committee. On the other hand, it is also clear from the written and oral presentations made by the Appellants that the thrust of their legal and factual arguments as presented is addressed explicitly to the question of the suspension of the promotion/relegation system and its annulment. Consequently, even in the case that the decision of the Panel is to annul the Extraordinary General Assembly decision, then the need to refer to the decision taken by the Executive Committee of the FMF simply becomes moot, it loses its legal interest, since the effects of the latter were subject to the condition of the approval of the suspension by the Extraordinary General Assembly, i.e., subject to the validity of the decision of the Extraordinary General Assembly.

76. The Panel will thus proceed subsequently to focus exclusively on the 24 April 2020 FMF Extraordinary General Assembly decision (hereinafter: the “Decision”).

ii. Do Liga MX and Liga Ascenso MX have legal standing to be sued and be a party to these arbitral proceedings?

77. The Appellants included both Liga MX and Liga Ascenso MX – jointly – as respondents in their Statement of Appeal, and during the proceedings held steadfastly to this position. The First Respondent, from even before the formation of the Panel, held that Liga MX and Liga Ascenso MX are not, according to Mexican law, legal persons (“personas morales”), have no legal personality and are thus not capable of being sued as respondents in these proceedings.

78. There is no dispute on the one hand that the determination of whether Liga MX and Liga Ascenso MX have legal capacity is a matter to be resolved in accordance to Mexican law and in consideration to the FMF Statutes and regulations. On the other hand, it is clear that neither the Liga MX nor the Liga Ascenso MX issued either of the decisions mentioned in these proceedings, as they were adopted by the Executive Committee and General Extraordinary Assembly of the FMF. In fact, both Liga and Liga Ascenso MX are affiliates of the FMF (art. 10.1 FMF Statutes), and both Liga MX and Liga Ascenso participate in the General Assemblies of the FMF (Ordinary and Extraordinary, art. 21 et seq. FMF Statutes) as members. And both Liga MX and Ascenso MX also have one representative each in the Executive Committee (Article 39 FMF Statutes). Thus, Liga MX and Liga Ascenso MX are members of both organs

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that cannot be confused with the organ itself (i.e., with either the Assembly or the Executive Committee).

79. In this sense, it is not clear why Liga MX and Liga Ascenso MX, neither of which adopted – in the technical sense of the word – any of the two decisions discussed should be sued in this case. If the scope of the arbitration before the CAS is the validity of a decision, then the person that is sued should be the person that issued the decision. In this case, and irrespective of whether the decision analyzed is the one issued by the Executive Committee or the Extraordinary General Assembly, the legal person who issued the decision is one and the same: the FMF. To this it must be added that both Liga MX and Liga Ascenso MX, independently of whether they do or do not have their own legal capacity, intervened in both the Executive Committee and the General Assembly as voting members pursuant to the FMF Statutes provisions, and their particular vote or position cannot be confused with the decision of the organ itself. This is of course a basic legal principle. Apagogically, the reasoning of the Appellant should lead, in purity, to the conclusion that all the voting members of the FMF’s Assembly and Executive Committee could be sued, something that cannot withstand superficial scrutiny.

80. Furthermore, if the reasoning of the Appellants is conceded merely ad arguendo, and Liga MX and Liga Ascenso MX are considered as having independent legal personality, separate and distinct from the FMF, it is clear that then they would be strictu sensu a third party – rectius, and technically, they would be two distinct legal entities, two parties, and not one as the Appellants argue – given that the decision itself was taken by the FMF (via its Extraordinary General Assembly). Thus, if the reasoning of the Appellants is to be taken at face value, then not only should there be two more parties and not one, but the arbitral clause which would permit both Liga and MX Ascenso to appear before the CAS in this particular case would be found wanting4.

81. The Appellants have justified their decision to sue the Liga MX and Liga Ascenso MX stating inter alia that if the Panel annuls the decision, thereby reinstating the principle of promotion in Mexican football, “both LMX and AMX will be directly affected”. But surely this is a confusion. The fact that Liga MX and Liga Ascenso MX will be affected by the decision cannot per se be a criterion to consider that they have standing to be sued; many other organs of the FMF and all clubs belonging to both leagues will also be affected by the decision, and yet this does not entail that they should have standing to be sued.

82. On the other hand, the fact that Liga MX and Liga Ascenso MX have autonomy with regards to their administration and internal regime, their own constitutive bodies and their own committees, as the Appellants adduce in their réplica submission, is not a conclusive argument for granting them legal personality; the same can be said with regards to the fact that they are affiliates that form part of the General Assembly of the FMF. In this sense, Articles 25, 26 and 27 of the Mexican Federal Civil Code establish the basic framework for considering a legal entity

4 The rule invoked for jurisdiction of the CAS in this case, article 86 of the FMF Statutes, applies only to a decision issued

by the Federation itself, and cannot be extended in principle to Liga MX and Liga Ascenso MX, even if the argument that they are distinct legal persons is conceded.

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as a “legal person” strictu sensu, and these are simply not met by either Liga MX or Liga Ascenso MX.

83. However, it can be granted that the issue is not one without its own obscurities, and that Liga MX and Liga Ascenso have a peculiar or sui generis status, since they are considered as “affiliates” of the FMF by its Statutes, something which is further made confusing by the fact that Article 12 of the FMF Statutes defines “direct affiliates” as “private legal entities, constituted in accordance with Mexican law” but limits this definition to “clubs” and “state associations” (art. 12.1.1) whereas “derivative affiliates” are necessarily natural persons. Therefore, in this state of affairs, Liga MX and Liga Ascenso MX are “affiliates” but of a very particular kind, since they are not either “direct” or “derivative” affiliates. The Panel acknowledges that this situation is conceptually fuzzy, so to speak, but at the end of the day does not consider this to be a sufficient reason to disregard the relevant provisions of Mexican law.

84. Thus, although the Panel is inclined to hold that (i) Liga MX and Liga Ascenso MX are not according to Mexican law legal persons (“personas morales”) and consequently may not be sued independently; and that, as mentioned above (ii) neither Liga MX nor Liga Ascenso adopted the decisions that are discussed in these proceedings, but were members of those organs and only intervened to cast their vote and position, and the appeal must be against the association that adopted the decision (in this case, the FMF); and that (iii) in any event if the argument that Liga MX and Liga Ascenso have legal personality distinctly from FMF is conceded ad arguendo, it follows that they would be not one but two different legal persons and their position in these proceedings would be at best as third parties, it does not consider necessary adjudicating this issue in this case. For: given that it cannot be disputed that the question of the standing to be sued in the CAS is one related to the merits5, and need not be resolved first in relation to the other substantive questions at stake.

85. Therefore, in consideration of the judgment arrived by the Panel with regards to the validity of the Decision itself, this issue may be regarded in the last analysis as moot for this particular case.

iii. Did the Liga Ascenso meeting of 13 April 2020 and the 14 April 2020 Assembly discuss and vote the matter of suspension for six seasons of the promotion/relegation system?

86. The Appellants have contended that the Liga Ascenso MX meeting of 13 April 2020 was convened to discuss the issue of the termination of the 2019-2020 season due to the COVID- 19 pandemic, and the consequent financial matters including the payment by the Liga MX of funds to Liga Ascenso clubs for addressing this situation, but not the suspension of the promotion and relegation system for six seasons. The Appellants also submitted that Mr Bonilla was not empowered to request the suspension of the promotion/relegation system before the Liga MX assembly. This position was also defended in the hearing, where the party

5 This according to both CAS jurisprudence (e.g. CAS 2010/A/2056 or CAS 2011/A/2474) and holdings of the Swiss

Federal Tribunal (e.g. ATF 126 III 59 or ATF 125 IIII 82 11); for complete references see MAVROMATI/REEB, The Code of the Court of Arbitration for Sport, Wolters Kluwer, 2015, p. 411, n. 32.

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representative of one of the appealing clubs – Mr Castellanos – stated that he was present in the meeting and that the matter was not discussed nor approved.

87. The evidence produced and incorporated to these arbitral proceedings however clearly indicates otherwise.

88. Thus, the Minutes to the Ascenso MX club meeting of 28 January 2020 – not questioned or impugned by the Appellants – already has a discussion of the formation of a new development league by Ascenso clubs, and expressly mentions the formation of a “self-sustaining” league, and a “project to 2026, without promotions and relegations”. When the Chairperson of Liga MX/Ascenso MX read the conclusions and asked the agreement for authorization to submit to Liga MX to obtain the proposed resources, the representatives of the Clubs expressed their agreement “unanimously”. All three appealing clubs were present in this meeting, including Mr Castellanos representing his club.

89. Reference must also be made to the 7 February 2020 meeting of Ascenso MX clubs and its Minutes, which were also not impugned by the Appellants, and which had the participation of all three appealing clubs. In this meeting, the “motion to restructure ASCENSO MX Division for the 2020-2021 Season” was discussed and voted upon. Once again, the project included a “selfsustaining League” and clear reference was made that “this proposal is a project to 2026, without promotions and relegations, a period in which the Division is expected to be self-sustaining, without jeopardizing the existence of the institutions or their financial stability”. The meeting ended with a vote on the proposal of the Management of Liga MX/Ascenso MX to submit the restructuring for the approval of the Liga MX clubs meeting, which was “approved unanimously”. Mr Castellanos was also present in this meeting representing his club.

90. This means that in at least two of the meetings leading to the 13 April 2020 meeting the matter of the suspension of the promotion and relegation for six seasons was one which all Ascenso MX Clubs, including the Appellants, had full knowledge and even voted favorably upon.

91. The Minutes to the 13 April 2020 meeting of clubs of Ascenso MX division note that representatives of the three Appellants were present, including Mr Castellanos, and that the meeting had as “only” subject the “restructure of Ascenso MX Division and the Management’s proposal”. These Minutes, it must be added, were also not formally impugned by the Appellants in this procedure or in its prelude. The proposal included the payment of 240 million pesos for “6 seasons” by Liga MX to Ascenso MX clubs, which can only make sense with the suspension of the promotion and relegation. The subsequent discussion, which included participation by representatives of all of the Appellants, makes it clear that what was discussed was not only the termination of the 2019-2020 season and payment of contingency funds for this season due to the pandemic, but also, the “future” of the Division. The representative of the Third Appellant, for example, expressly made reference to the system of the “USA” where there is no promotion, whilst the representative for the Second Appellant expressly mentioned the “new format of the League” and mentioned that “we want to find a way to LIGA MX”, while the representative of the First Appellant, i.e., Mr Castellanos, repeatedly requested not to rush the decision (e.g., “can you

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buy time for us to analyze and build the proposal?”, “for a day nothing happens”, etc.), whilst also asking for example if the aid was “lined to the Development League proposal”. All three Appellants, it must be also mentioned, voted against the proposal presented by management, but lost. That they were aware of the consequences of the proposal and decision is clear from the discussion after the vote, in which Mr Castellanos insisted on the “obligation to reach a consensus”, while the representative of the Third Appellant expressly stated that “what they are doing is erasing Liga de Ascenso all at once”, and the “stakes are high” and “you are accepting everything”, and the representative for the Second Appellant said that “we do not know the way to get to LIGA MX”.

92. It is also important to note that the Minutes to the Liga Ascenso MX ordinary clubs meeting of 14 April 2020 – also not impugned formally by the Appellants –, which has been notarized by a Notario Público of Mexico, states that the “sole item” in the agenda was to vote on the “solution proposed in the meeting held on April 13, 2020”. The Chairperson stated clearly that the objective was to “rescue all of the Clubs in this Division and to create a proper league in the future, preferably before the proposed 6 seasons”, something which makes sense only in the context of the suspension for six years of the promotion/relegation. Moreover, the stated purpose of the motion was to “ratify the vote taken in the meeting of April 13, 2020”; i.e., the vote was explicitly linked without reservations to the discussion of the previous day. And item 5 of the proposal explicitly mentioned the “elimination of promotions and relegations during the next six Seasons”. All three Appellants were present in this meeting via their representatives, which included Mr Castellanos, and there is no mention whatsoever of any objection to the proposal to suspend the promotion and relegation system. If indeed this issue was not discussed in the previous meeting, it seems natural that such an important matter would have been objected to by Mr Castellanos, or any of the other Appellants. However, no such mention is found in the Minutes, nor any explanation for this contradiction is found in the written submissions of the Appellants. The Third Appellant even intervened before the vote but did not mention any objection to the voting on the suspension of the promotion and relegation for six seasons. And Mr Castellanos spoke after the vote and did not voice any objection to the motion or the matters voted upon, including the question of the suspension of the promotion and relegation system.

93. In light of the evidence validly produced, and the conduct of the Parties leading up to and including this arbitral proceeding, it seems clear that discussion of the changes to the Liga Ascenso MX included not only financial support but also the suspension of the promotion and relegation system for six seasons, and the Appellants were aware of this at least since January 2020. The meetings preceding the 13 April 2020 meeting were not contested, formally impugned, or controverted by the Appellants and they make unequivocal reference to this. The meeting of 14 April 2020 included explicitly a vote on the matter of the suspension, and also mentioned that it was a ratification of issues discussed at the meeting of 13 April 2020, and no objection whatsoever was made by the Appellants, including Mr Castellanos who spoke according to the Minutes but made no objection. Surely, such a crucial and important matter could not have passed without comment.

94. Finally, it must be stated that the Appellants have failed to produce any evidence whatsoever contradicting the unequivocal and concordant written evidence on file. Mere allegations of

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course do not suffice as evidence. The words by Mr Castellanos in the hearing were offered as a statement by a party, not as formal evidence and, in any case, are contradicted by all the written evidence produced and his own conduct in the meetings according to this evidence. Mexican law follows the universal legal principle of onus probandi incumbit actori (see Article 81 of Mexican Federal Code of Civil Procedure, also received by Swiss law), and also establishes detailed rules to be followed when a party impugns a private or public document (Article 202 et seq. of the Mexican Federal Code of Civil Procedure), none of which was invoked, even purportedly, by the Appellants.

95. The Panel must arrive to its conclusion with the evidence that has been validly produced by the parties, and in this case, the evidence is manifest and concordant that the meetings leading to the 14 April 2020 meeting, including the 13 April 2020 meeting whose decisions the 14 April 2020 meeting expressly ratified, included full discussion and knowledge of the issue of the suspension of the promotion and relegation for six seasons. The fact that the Appellants voted against it, or find it an unjust or rushed decision is, of course, absolutely another matter.

C. Substantive issues

i. Does the appealed decision violate Article 9 of the FIFA RGAS and what is the relation and pertinency of this rule to this case?

96. The Appeal Brief has basically two substantive legal arguments for requesting the setting aside of the Decision. The first one regards the circumstances related to the Decision from the internal rules of the Mexican federation, but in purity it limits itself to a long and repetitive citation of different Articles of the FMF Statutes and internal regulations, without any legal argumentation or chain of reasoning; it is only in the second written submission that this argument is unpacked by the Appellants, and thus it will be analyzed in detail below (infra ¶ 121 et seq.).

97. The second argument deployed is that the Decision violates the principle of promotion and integrity, as set forth in the FIFA RGAS and the FMF Statutes and internal regulations, including the Liga MX and Liga Ascenso MX competition regulations. Given that the latter internal regulations will also be considered in detail below (infra ¶ 121 et seq.), this section will limit itself to an analysis of the argument relating to Article 9 FIFA RGAS, its interpretation, and its relevancy to this case.

98. The Appellants consider that the promotion and relegation principle is one of the milestones of organized football, and it was guaranteed by FIFA following the commonly known “Granada case” with the adoption of “clear and unequivocal provisions”, citing specifically Article 9 of FIFA RGAS. The Appellants also mention remarks made by the former President and Secretary General of FIFA – particularly, the letter by Mr Valcke sent to the Football Federation of Australia (hereinafter “FFA”) in which he stated that the promotion principle is “of fundamental importance to FIFA and is a mandatory principle binding on all FIFA Member Associations” – and expressly invoke the CAS award issued in the cases CAS 2017/O/5264, 5265 & 5266

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(hereinafter the “Miami FC & Kingston Stockade case”) as “rightfully confirm(ing)” that the principle of promotion “is mandatory for those Member Associations (i.e. such as the FMF), which had implemented it before the publication of the [FIFA] RGAS”. The Appellants specifically quote paragraphs 2366 and 244 of this award to the effect that the CAS has made clear that Article 9 FIFA RGAS would not have effect in closed competitions, while it shall be mandatory for federations and indirectly leagues and clubs already implementing it.

99. This Panel however (a) disagrees with the interpretation of the holding of the Miami FC & Kingston Stockade case furthered by the Appellants, on the one hand, and on the other, (b) finds that even granting ad arguendo that the interpretation is correct, this would not per se lead to the nullity of the decision under appeal and is thus totally ineffectual.

a. The correct interpretation of the holding of the Panel in the Miami FC & Kingston Stockade case

100. The CAS Panel in the Miami FC & Kingston Stockade case carried out an exceptionally thorough and detailed analysis of the legislative and factual history of Article 9 FIFA RGAS, its immediate antecedents and its subsequent travails, and this Panel will not repeat that discussion here. In its place, it will limit itself to the interpretation of this case given by the Appellants.

101. The Panel in the Miami FC & Kingston Stockade case, faced with the challenge regarding the closed nature (i.e. non-existence of a promotion principle) in the United States professional football association, concluded that: Neither Article 9 RGAS nor any other provision incorporated in the rules and regulations of FIFA, CONCACAF and/or [U.S. Soccer Federation] requires that the principle of promotion and relegation be implemented in professional soccer in the United States.

102. This conclusion was arrived after a careful analysis of the “historical/purposive interpretation” of Article 9 FIFA RGAS, whereupon it emerged inter alia that:

• in all discussions leading to the adoption of this rule in the internal organs of FIFA the concrete causal factor was the so-called “Granada case”, which, it must be said, did not deal with a factual situation similar either to the one under discussion in the Miami FC & Kingston Stockade case, or to this current case, but with a situation in which a club ascended two divisions by acquiring another club; and that,

• during discussions in the inside of the FIFA Executive Committee the cases of the United States and Australia – which historically had closed leagues, a factual antecedent that was held in high consideration by the Panel in that case – were expressly considered and that from the different minutes, e.g., of 29 October 2007 and 15 December 2007, it emerged that the members involved in those discussions did not consider that historically closed leagues would be covered by the new regulation.

6 This is a clerical mistake; the correct citation is to paragraph 239.

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103. Although it is incontrovertible that the Panel in the Miami FC & Kingston Stockade case found that Article 9 FIFA RGAS did not require that the principle of promotion and relegation be applied in professional soccer in the United States given these historical antecedents and the wording of the rule, and that it did apply to other associations, however, it also seems quite clear to this Panel that the Panel in the Miami FC & Kingston Stockade case did not hold that Article 9 is of a mandatory nature – i.e., it did not reach the conclusion that it was mandatory albeit not applicable in the United States –, on the one hand, nor did it hold that in the case that it were to be understood as a mandatory rule then it would cover any and all factual situations, unqualifiedly or tout court, including the mere suspension – in contradistinction to perpetual suppression – of promotion and relegation. One holding does not entail, neither logically nor axiologically, the other.

104. Indeed, when the Panel considered the letter by Mr Valcke to the FFA it explicitly stated that it was the only evidence supporting the Claimants’ interpretation of Article 9 FIFA RGAS as a “mandatory” provision, but rejected that this interpretation could take precedence “over the entire legislative process that preceded the implementation of Article 9 RGAS”, and noted that, moreover, despite Mr Valcke’s suggestion – later qualified as “an attempt to exercise certain (undue) pressure on the FFA” – FIFA never undertook any action against the FFA once it was clear it would not implement the promotion and relegation system. The conduct of FIFA, in other words, cannot be interpreted as confirming the hypothesis that it is a mandatory rule; in reality, it leads to the contrary conclusion, at least if the specific Australian case is taken as indication.

105. It may be argued that this Panel is misreading the award of the Miami FC & Kingston Stockade case, since it specifically contains a reference to the mandatory nature of Article 9 FIFA RGAS in paragraph 236, cited as an “unequivocal” statement by the Appellants. However, it is clear that once this paragraph is situated in its context, and in the systematic reading of the award as a whole, it cannot lead to the interpretation that the Panel held the rule to be “mandatory”. Indeed, the phrase included in paragraph 239 does mention that the principle “was only mandatory for those member associations that had already implemented the principle”, but this statement is made following the quote made by Mr Chuck Blazer in the 29 October 2007 FIFA Executive Meeting, as an indicative of the “historical intention” of the FIFA legislator, and not as an express hermeneutical exegesis and holding made by the Panel of Article 9 FIFA RGAS’ real meaning. The context is key for understanding this statement, which is not a holding in itself but an interpretation of words expressed in a FIFA Executive Committee discussion which led to the adoption of the rule; moreover, this contextual interpretation of this statement is confirmed when read with the rest of the award, where not only no further indication that the Panel interpreted the rule as “mandatory” can be found, but in fact, the Panel noted that given the FIFA gave no further warning or sanctions to the FFA after it failed to implement and promotion/relegation, this can only be interpreted as that up to this moment at least FIFA did not consider the rule to be mandatory.

106. True, paragraph 244 of the Miami FC & Kingston Stockade case, also quoted by the Appellants, states that the Panel held that Article 9 FIFA RGAS was “only intended to apply to member associations

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that had already traditionally and consistently implemented the principle of promotion and relegation”. However, this does not entail that the Panel held the rule to be “mandatory”, since a rule may apply to a subject and yet not be mandatory (e.g., it may be indicative, dispositive, etc.), and moreover, even if it is thus interpreted it does not imply that it must be applied to this particular case where a temporary suspension as opposed to permanent elimination was decided. It is one thing to say that Article 9 FIFA RGAS is mandatory and quite another to determine how this rule is to be interpreted, applied and qualified in practice7. In fact, paragraph 2 of Article 9 FIFA RGAS explicitly provides for other criteria other than purely sporting grounds. And, in fact, not even the system in place in the FMF before the Decision was taken – and which, to the knowledge of this Panel, was never objected by the Appellant clubs – was based on purely sporting grounds, since article 23 of the Liga MX Regulations established that to be champion was a necessary, but not sufficient, condition for promotion, since the club had to comply with other requirements such as infrastructure, capacity, and economic stability, etc., very distant from the purely sportive.

107. Finally, a key argument of the Panel in the Miami FC & Kingston Stockade case that cannot be downplayed was that “the United States has a different tradition of sport and is not accustomed to promotion and relegation in sports in general”, and thus, the “sudden implementation” of a promotion principle would put the multiple and significant investments made by MLS clubs in risk, causing a cascade of lawsuits, emphasizing that this kind of “sudden change of course of action” would be “contrary to the principle of estoppel”, recognized by Swiss law. This is why that Panel emphasized that in any event FIFA could be “more precise in drafting its rules”; if it considers that the principle must necessarily be implemented, unqualifiedly or tout court, then it must expressly use this language, which, it is clear, is not to be found in the current drafting of Article 9 FIFA RGAS.

108. In other words, the Panel in the Miami FC & Kingston Stockade case, as was made clear in the hearing by the arbitrator sitting in both cases, simply had a completely different factual background and thus different legal issue to decide, and any holding found in the award cannot be, without further development and elucidation, applied or transported automatically to other cases with different circumstances.

109. Thus, once read in its context and entirety, it seems clear that the Miami FC & Stockade case:

• Does not hold that Article 9 FIFA RGAS is of a “mandatory” nature, but only that it is not applicable – at least not without due warning, discussion and consideration – to the particular cases of the United States and Australia;

• Even if it is read in this sense, its immediate historical context clearly indicates that it was intended to specifically block “Granada”-like situations, with which the current case has no relation whatsoever; thus, even in this reading, the holding of the Miami

7 For example, the following questions only begin to indicate the plethora of possible issues: Is promotion an “annual

right”? Or is promotion every two seasons enough? Or every three seasons – as the coefficient system in place before the Decision in the FMF seems to imply? And so on.

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FC & Kingston Stockade case must in any event be distinguished from this case, and further argument is needed; and

• Even if it is read as mandatory, moreover, there is an important logical and legal gap between holding the rule to be mandatory and affirming that only sporting merit suffices (a reading that is expressly contradicted by the text of the Article itself – paragraph 2 –, and by the system of promotion/relegation in force in the FMF before the Decision; supra ¶ 106); or affirming that an association cannot temporarily suspend the rules of promotion and relegation; or that any qualification, modification or suspension of the promotion principle automatically leads to a violation of the rule; thus, in this reading, the holding of the Miami FC & Kingston Stockade case must in any event be distinguished from this case, and further argument is needed.

110. In sum: the Panel in the Miami FC & Kingston Stockade case did not hold that the rule was mandatory nor that it was applicable tout court to any and all cases, including one of a temporary suspension such as the current case; a fortiori, it did not consider nor rule on the conditions to be met for considering the rule to be violated (i.e. is the sporting merit requirement unconditional, or may it be subject to exceptions, or merely suspended? etc.) nor much less on the purported effects of a violation of the rule. Mere mention of the Miami FC & Kingston Stockade case without profound further elaboration and argument is insufficient for deciding this case.

111. However, this negative conclusion does not of course solve the whole matter of the relation of the rule of Article 9 FIFA RGAS for this particular appeal.

b. The nature and (im)pertinency of Article 9 FIFA RGAS for deciding this case

112. At this point a key underlying point must be directly confronted: the fact that even if Article 9 FIFA RGAS were to be interpreted differently, that is, as mandatory and applicable without qualification or tout court – e.g., without consideration of whether there is a total elimination, or a temporary suspension, and the like – this would not eo ipso lead to the annulment of the decision of the FMF Extraordinary General Assembly.

113. In effect, if there is a sanction to be deduced by Article 9 FIFA RGAS –an important issue that has not been discussed in this case and which merits profound analysis— this sanction must be handed down in any case by FIFA. As Article 14 of the FIFA Statutes states:

1. Member associations have the following obligations: a) to comply fully with the Statutes, regulations, directives and decisions of FIFA bodies at any time

(…)

2. Violation of the above-mentioned obligations by any member association may lead to sanctions provided for in these Statutes (emphasis added).

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114. It seems clear from this provisions that member associations –in this case, the FMF— have the obligation to comply with rules emanating from FIFA, including “regulations” such as the FIFA RGAS. It is also clear that violations of these rules may lead to sanctions provided by the statutes, i.e., sanctions to be imposed by FIFA itself. This entails that even if Article 9 FIFA RGAS is interpreted as mandatory and unqualifiedly applicable – both prima facie controvertible propositions – it follows that the obligated party is the member association and it is up to FIFA to sanction this conduct. Moreover, it is not a minor issue that the text of Article 14 of the FIFA Statutes uses the word “may”, which means that the sanction even in the most serious cases is not even mandatory, but merely facultative. And it is also not a minor issue that the pertinent sanctions are to be “provided in the Statutes”, and a superficial reading of the FIFA Statutes finds no specific sanction of annulment for a decision such as this one.

115. To this it must be added that section 4 of Article 9 FIFA RGAS expressly states that:

Each member association is responsible for deciding national issues, which may not be delegated to the leagues. Each confederation is responsible for deciding issues involving more than one association concerning its own territory. FIFA is responsible for deciding international issues involving more than one confederation.

116. While the wording of this text is not entirely clear, it seems to imply that only in cases where more than one confederation is involved would FIFA have any competence in applying Article 9 FIFA RGAS, and that in national cases the last word is reserved for the association itself. If this reading prevails, of course, the highest authority of the Mexican federation itself would be in charge of applying the rule. The implications of this interpretation for this case are obvious. However, even if this interpretation is rejected, and it is accepted that FIFA has competence in all cases, then, once again: only FIFA could impose a sanction, which would be in any event facultative, and would have to determine the sanction which, at least on the face of the text of the FIFA Statutes, is not the nullity of the decision.

117. All of this, of course, is not a minor matter for this case. On the contrary. It fatally leads to the disregard of any and all of the arguments invoking Article 9 FIFA RGAS considering the facts of this particular appeal. Moreover, it must be noted that the Appellants could have requested FIFA to participate in these proceeding to said effect, or at least to have an official position of the Federation on this issue, and have failed to do so.

118. Thus, the Panel finds that in the last analysis it is not necessary to produce its own interpretation of the nature of the rule contained in Article 9 FIFA RGAS, or of the extent to which it must be applied – i.e., absolutely or unqualifiedly – questions that remain to this date open. This rule is simply not directly applicable to this case. The only possibility of application of the rule and principle is indirectly, in other words, insofar the principle is crystallized or developed in the statutes and regulations of the FMF, an issue which will be considered by the Panel subsequently.

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119. The same conclusion must apply, even before considering the substance of the argument itself put forward by the Appellants in their réplica submission, to the claim that the Decision also infringes Article 19 of the FIFA Statutes that establishes the principle of separation of powers and checks and balances in the associations. And, in any case, this argument is also totally ineffectual, given that the Executive Committee and the Extraordinary General Assembly of the FMF, as already has been explained in extenso above (supra ¶ 64 et seq.) decided totally different matters; in other words, one issue was competence of the Extraordinary General Assembly and all the other issues were competence of the Executive Committee.

120. All these considerations do not imply, as mentioned above, that the suspension of the promotion and relegation system adopted by the FMF Extraordinary General Assembly does not violate its own statutes or regulations, as was further argued by the Appellants. To these arguments we must now turn, respecting the order of considerations proposed by the Appellants.

ii. Does the appealed decision violate the FMF Statutes and internal regulations?

a. Is the decision inconsistent with the FMF Statutes?

121. The Appellants contend that the Decision violates the FMF Statutes directly; in the discussion in their submissions they indicate that the Decision directly flouts Articles 12bis(I)(h) and 12bis(II)(i) of the FMF Statutes. According to the Appellants, if the decision was to suspend the promotion principle, the Extraordinary General Assembly of the FMF should have amended Articles 12bis(I)(h) and 12bis(II)(i) by establishing that the rights and obligations provided therein were also suspended.

122. These articles establish that:

Article 12bis

The rights of direct Affiliates are: (…) h) in the case of Ascenso MX, Second Professional Division and Third Professional Division, to be automatically promoted to the next highest Division in the number and manner determined in the Competition Regulations of the relevant Divisions.

(…) The obligations of the direct Affiliates are:

(…) (i) In the case of Liga MX, Ascenso MX and Second and Third Professional Division Clubs, they will be automatically relegated to the next lower Division in the terms determined in the Competition Regulations of each Division.

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123. The interpretation submitted by the Appellants, it must be said, has prima facie some force, since the first part of each section seems to grant an unlimited right/obligation for promotion/relegation in each case.

124. However, this interpretation must concede in the first place that this right/obligation, even in the own terms of this article, is not absolute, since it is immediately qualified with the phrase “in the terms determined in the Competition Regulations of each Division”. This means that there is no absolute or unqualified right/obligation to promotion/relegation in the FMF Statutes, given that the invoked article expressly contains a rule referring its development and elaboration to the Competition Regulations of each Division, which are the legal instruments that in practice implement and qualify this right/obligation. Moreover, nothing in this article entails that the promotion/relegation is an “annual right/obligation”, so to speak. The referral to the Competitions Regulations for the mode of developing this right/obligation gives considerable regulatory room, and it is not unreasonable to suppose that the regulations allow for promotion/relegation after a short tournament, for example, or after two tournaments; and, in fact, not even the system in practice before the Decision was adopted established an “annual right/obligation”, given that the coefficient system accumulated three tournaments.

125. Even more importantly, not only is the right/obligation not absolute, but facts show that internally it has not been considered in Mexican football historically as inextricable linked to purely sportive considerations. As has been seen above (supra ¶ 106), the system in effect just before the suspension for promotion to Liga MX was not based purely on sporting merit, since Article 23 of the Liga MX Competition Regulations qualified the right and subjected it to non-sporting requirements, such as capacity, infrastructure, financial stability, etc. In other words, the historical understanding of the promotion idea in Mexican football itself was not absolute and was in fact qualified by the Competitions Regulations such as the one in force at the time of the appeal to conditions other than purely sportive.

126. This literal and isolated interpretation of Article 12bis, taken on its own terms, is however confirmed absolutely when a systemic hermeneutic of the FMF Statutes is undertaken, since it is complemented by another key statutory provision: Article 35.5 of the FMF Statutes. Leaving aside for a moment the discussion of whether this article only allows for modification but not the suspension of the promotion and relegation idea – an argument that will be addressed below (infra ¶ 129 et seq.) – Article 35.5. establishes that the General Assembly has the formal power to decide:

any modification to the automatic promotion and relegation system in the Professional Leagues or Divisions and its corresponding competition.

127. It is clear that if the Assembly (in this case, the Extraordinary Assembly) is formally and expressly empowered by the FMF Statutes to discuss and decide on the “modification” of “the automatic promotion and relegation system”, then it simply would make no sense whatsoever to modify Article 12bis every time there is a modification in the system. In other words, in the systematic context of the whole of the FMF Statutes, the right/obligation for promotion/relegation is not

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only not absolute, since it is qualified by Article 12bis itself, but also is not absolute for it can be modified by the General Assembly itself. And if the General Assembly has the power to modify the promotion/relegation system, insofar as it is a modification, then it would be utterly illogical to require a modification of Article 12bis every time the General Assembly decides on a modification. The systematic interpretation in this case forbids the apagogic interpretation of both norms.

128. Of course, if the conclusion to the question of whether a suspension of 6 seasons is not a mere modification but a de facto suppression – as further contended by the Appellants – then this conclusion would wither away; rectius, it would not be sustainable. Thus, this further argument of the Appellants must be analyzed immediately to determine if this interpretation is to be confirmed.

b. Did the FMF Extraordinary Assembly act ultra vires?

129. In effect: the Appellants argue that the FMF Extraordinary General Assembly of 24 April 2020 acted ultra vires, since it was empowered by the Statutes – specifically, by Article 35.5 – only to “modify” but not to “suppress” the promotion/relegation system. Thus, by suspending promotion for six seasons, the Extraordinary General Assembly acted beyond the powers conferred by the FMF Statutes and the Decision must be annulled. To this it must be added that if this is the correct interpretation of the rules to the concrete facts of this case, the Decision also violates Article 12bis of the FMF Statutes, for the aforementioned reasons.

130. The Appellants submit that the verbs “modify” and “suspend/suppress” “constitute two completely different actions and by no means can they be understood as synonyms”. They go on to cite the definitions of the Dictionary of the Real Academia de la Lengua Española to “modificar” and “suspender/suprimir”.

131. When the Decision itself is read, there can be no discussion that the FMF Extraordinary General Assembly decided to “temporarily suspend” the right/obligation to promotion/relegation. Leaving aside for the moment the allegation of the Appellants that the Decision is also a de facto suppression – an issue that will be considered below – it seems quite clear that if the Decision is considered a “suspension”, even on the terms offered by the Appellants themselves, it can be subsumed under the concept of “modification”.

132. Indeed. In any plausible reading, at least three of the five different meanings of “modificar” quoted by the Appellants can apply to the Decision without unduly stretching the meaning of the pertinent words, videre licet:

• Definition 1: Transform or change something by amending some of its characteristics;

• Definition 2: To give a new way of existence to the material substance;

• Definition 4: To limit, determine or restrict something to a certain state in which it is singular and distinct from other things.

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133. Suspending temporarily the promotion/relegation system is to “transform or change something (i.e. the current system) by amending some of its characteristics”, but also to “give a new way of existence to the material substance (i.e. the current system)” and it also “limits, determines or restricts something (i.e. the current system)”. None of these interpretations, it is repeated, is arbitrary or manifestly unsound – quite the contrary.

134. Thus, even on the Appellants own terms the linguistic interpretation does not lead to the conclusion that to “modify” cannot encompass to “suspend”. This, it must be added, is in line with the clear meaning of both terms in ordinary usage: if there is something in place that is temporarily suspended it cannot be doubted in ordinary language that it has suffered a “modification”8. But perhaps the main confirmation of this (eminently reasonable) reading of the terms is the fact that the Appellants add the word “suppression” to their analysis. Undoubtedly, the “suppression” (or “elimination”9) of something cannot be considered – at least without unduly stretching the meaning of the words – as a mere “modification”. It follows that if the Decision can be interpreted as a “suppression” of promotion and relegation, then the interpretation of the Appellants must be upheld.

135. To repeat: from the wording of the Minutes to the Extraordinary General Assembly it is clear that the Decision adopted was to “temporarily suspend, for 6 (six) seasons, the promotions and relegations in Liga MX” (sic). There is no question that, literally, there is no suppression of promotion and relegation, but only a temporary suspension.

136. This may explain why the Appellants devise and introduce the argument of a “de facto” suppression:

Considering the “suspension for six years” of the promotion as ruled by the Appealed Decision, particularly but not limited to the duration of the “suspension”, its real consequences will make it a de facto hidden suppression of it by the Respondent, as it will not be feasible in six years to eventually reinstate it if it ever had been the purpose of the Respondent – quod non.

137. At this point, the Panel must refer to the express and unequivocal statements of the FMF in its written and oral submissions that there is no surreptitious or hidden intent to permanently eliminate promotion and relegation via a mere language game; the words of a federation affirmed in arbitral proceedings before the CAS no doubt are binding in this sense and must be taken at face value:

8 It may be added that when the matter is considered from the English language point of view, the word “modification” is

exceptionally broad in this language (see e.g. the definition in https://www.merriam-webster.com/dictionary/ modification, inter alia) and would also quite easily encompass the 6-year suspension of the principle of promotion. 9 The Panel wishes to highlight at this point that the Appellants use the word “suppression” in their written presentations;

however, given the context and intended meaning, the more pertinent or precise word in English would be “elimination”, as included above parenthetically. In what follows, the word used by the Appellants will be retained but with this caveat in consideration.

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In any case, and for the sake of completeness, the First Respondent wishes to be sufficiently clear by underlying that, under no circumstances the FMF is maneuvering under the shadows to cancel promotion and relegation in Mexican football, as the Appellants attempt the Panel to believe by misleading information published on the press, which even they qualify as “rumors”. Such assertion is not only false and unfounded, but completely rejected by the Respondent (emphasis in the original).

138. And also:

Indeed, this Party cannot stress this enough: the relegation and promotion in Ascenso MX and Liga MX HAS NOT BEEN ELIMINATED, but it has only been temporarily suspended in order to rework the whole division and find a way to ensure the economic viability of Ascenso MX’s clubs (emphasis in the original).

139. To reiterate, these expressions, which it must be said confirm the literal meaning of the Decision taken by the FMF Extraordinary General Assembly, should and must be taken as the official position of the FMF with regards to this matter. In other words, the Federation is officially declaring in arbitral proceedings before the CAS that it is not using this mechanism as a way to implement a suppression in practice, that is, to eliminate the promotion/relegation system for good in Mexican football, but by using other – simulated – means. Of course, if this were the case, it would be for the relevant organisms (e.g., FIFA) to eventually intervene and analyze this type of conduct. But this Panel can only take these statements as the faithful and true position of the FMF, and thus confirm the literal meaning of the Decision, that it is not a permanent suppression or termination of the promotion/delegation but only a temporary suspension which responds to specific reasons – i.e., the antecedent economic problems and the COVID- 19 pandemic.

140. Thus, if the Decision cannot be interpreted as a “suppression” but only as a “temporary suspension”, the Panel finds that the proceeding of the Extraordinary General Assembly of the FMF is not unreasonable, in the sense that it understood that it was not necessary to modify the FMF Statutes to implement such limited Decision, pursuant to a systemic and harmonious interpretation of Articles 12bis and 35.5. of the FMF Statutes.

c. Is the decision to suspend the promotion/relegation for six seasons arbitrary?

141. The Appellants also contend that the Decision is “arbitrary”, and invoke the holding of the case CAS 2005/A/944 for the definition of when a decision is to be considered as “arbitrary”:

[when it] constitutes a very serious breach of a statutory provision or of a clear and undisputable legal principle, or when it seriously offends the sense of justice and equity.

142. This Panel finds no reason to depart from this conception of “arbitrariness”, which is in line with other CAS jurisprudence and was in fact accepted by both parties given that they analyzed it and centered their arguments around it.

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143. With regards to a very serious breach of a statutory provision, as has been established above with particular reference to Articles 12bis(I)(h) and (II)(i) and 35 of the FMF Statutes, no such serious breach in the lines argued by the Appellants has been found by the Panel.

144. The Appellants also argue that the Decision infringed their rights as members of the FMF, since pursuant to Article 12bis(I)(a) of the FIFA the direct affiliates have rights to “have representation in the General Assembly of LA FEDERACIÓN”, and they had no say whatsoever in the appointment of the representative of Ascenso MX, Mr Victor Guevara, who is according to the Appellants an employee of Liga MX (holding the position Director of Operations), and was not designated per Article 39, that establishes that Ascenso MX will be represented by the Secretary General of the aforementioned Division appointed by the President of Liga MX.

145. However, this argument is not sustainable. Firstly, 12bis(I)(a) invoked by the Appellants establishes a right for “direct Affiliates”, and the notion of direct Affiliates is defined by Article 12.1.1. of the FMF Statutes and includes “professional clubs” and “public associations of the amateur sectors”. Thus, neither Liga MX nor Liga Ascenso MX are considered as “direct Affiliates” in the FMF Statutes, due to their sui generis status already discussed above (supra ¶ 83). Secondly, and more importantly, Article 39 of the FMF Statutes refers exclusively to the designation of the representative of Liga Ascenso MX before the Executive Committee of the FMF, and not before the Extraordinary General Assembly, whose Decision is under examination. Thirdly, even if this article is ad arguendo hypothetically applied, the representative is appointed by the President of the Liga MX, and no reference whatsoever is made to consultation to other parties, which is the prejudice alleged by the Appellants. Fourthly, the matter of whether or not the representative was validly appointed is a matter that should be impugned by the Appellants internally in the FMF, and not before this Panel. Fifthly, even if there is a violation of a representation rule, the “arbitrariness” asserted here surely is not applicable to this violation, since the relevant arbitrariness standard refers to basic principles of equity and justice of the adopted decision, and not to a manner of election of a representative; and even if the Liga Ascenso MX representative had voted against the motion, it would still have passed the minimum statutory requirements10. And finally, in any event, the matter was not discussed in the Appeal Brief by the Appellants and as such cannot be introduced at the stage of second written submissions as is well known CAS practice and jurisprudence11.

146. The Appellants also contend that the Decision is arbitrary since it does not pursue a legitimate objective, and “there is no explanation whatsoever as to how the suspension of the Promotion Principle would lead to a financially healthier decision”, which is the main reason invoked by the First Respondent, and moreover the suspension will have precisely the “opposite effect” widening the gap between Liga MX and Ascenso MX. The Appellants also argue that the sole reason for the decision is

10 According to article 21 of the FMF Statutes, Ascenso MX has 5% of the total votes in any General Assembly, which is

way short of the more than 20% required (voting against) the decision which was adopted (80% established in article 35.5.). 11 Full references in MAVROMATI/REEB, The Code of the Court of Arbitration for Sport, Wolters Kluwer, 2015, pp. 327 and

497.

Club Universidad de Guadalajara, Venados FC Yucatán & CF Correcaminos v. award of 19 November 2020

to “protect LMX clubs and to facilitate an agreement with the MLS in order to create a closed league among LMX and MLS clubs”.

147. As can be easily inferred, the Appellants’ argument presupposes and involves a strong value judgment with regards to the substantive grounds of the decision adopted by the FMF to suspend promotion/relegation for six seasons. There is no question that the Decision itself was validly taken from the procedural standpoint: the decision was adopted by the pertinent organ, the FMF Extraordinary General Assembly12, and with the requirements of summoning, quorum and statutory majorities respected13, and invoking the relevant provisions of the FMF Statutes14. What the Appellants are asking the Panel is to second-guess, or better, to directly judge in place of the Extraordinary General Assembly of the FMF and consider whether the substantive grounds and objectives of the highest authority of Mexican football, i.e., the General Assembly of FMF, are legitimate or not. This, however, exceeds the powers of the CAS as it would involve an undue intervention in the internal affairs of a federation and a de facto directing of the future of Mexican football. It is up to the legitimate organs and actors of Mexican football to decide this matter, not to the CAS; however grievous the Decision may seem to the particular interests of the Appellants, it was taken pursuant to the procedures and organs that the FMF and in line with the provisions of the FMF Statutes. There is no question that a judgment on the legitimacy of the objectives of the measure, or of the consideration of who the real beneficiaries of the suspension are, is clearly outside the scope of review of this Panel. The Appellants in any case have the appropriate internal federative mechanisms and channels (e.g., a campaign to reform the system, new assembly, etc.), or eventually before the applicable organs of FIFA who, it must be reiterated, the Appellants failed to summon or cite in these proceedings.

148. In this sense, the many CAS precedents mentioned by the First Respondent – e.g., CAS and CAS 2014/A/3523 – do in fact confirm the soundness of the idea expressed above; that is, that the power of a Panel such as this one does not extend to an evaluation of the merits or the substantive value of a decision, and that deference and respect to the autonomy of sporting federations, which is also undoubtedly a principle of Mexican law regarding civil associations15, is of paramount importance in sports law.

149. Deference to the autonomy and freedom of the association and the decisions its main bodies freely adopt should thus be considered a basic principle of sports law.

150. However, it is also true that this principle of deference and respect to the autonomy of the associations is not absolute – as no legal principle in fact is – and has indeed been qualified by the CAS panels in the cases cited above. As the Panel in CAS 2018/A/5888, to mention one example, held, this principle may yield when there are “exceptional circumstances”, such as

12 See Articles 20 and 26 of the FMF Statutes. 13 See Article 28 (summon), Articles 21 and 30 (composition and quorum), Article 35 (minimum vote necessary for the

decision) of the FMF Statutes. 14 The Decision was taken invoking Article 35.5 of the FMF Statutes, as explained above. 15 See for example Articles 28 and 2674 of the Mexican Federal Civil Code.

Club Universidad de Guadalajara, Venados FC Yucatán & CF Correcaminos v. award of 19 November 2020

“arbitrariness”, a “misuse of its discretionary power”, or “discrimination” or “breaches any relevant mandatory legal principle”.

151. There is no doubt in the opinion of this Panel that the bar for determining these “exceptional circumstances” must be set very high, lest it converts itself into a Trojan horse that subverts the principle itself. The arbitrariness, discrimination or breach must be blatant and manifest, and offend a basic sense of justice.

152. The Decision adopted by the supreme body of Mexican football to suspend the promotion/relegation for six seasons may be considered a drastic or extreme measure, but it is no less true that the explanation given by the FMF before the Panel, regarding the background circumstances of the Decision – i.e., that it was due to precedent financial difficulties that were further aggrieved by the COVID-19 pandemic and the insistence and highlighting that the measures are of a temporary measure and not taken as a subterfuge to eliminate sine die the system and thus flout its own statutory provisions – does not seem manifestly or blatantly unreasonable, and moreover, it was discussed and adopted by all relevant organs and channels of the federation, including the Liga Ascenso MX Assembly – where the Appellants opposed it but lost – and the FMF Extraordinary General Assembly, where it was adopted (and this is not a minor point) unanimously by all sectors and members of the federation. To this it must be added that and that the Appellants have not adduced further convincing reasons16 to overcome the high bar of seriousness and gravity that must be met for substantively annulling a decision freely and validly adopted by the supreme authority of an association17.

153. It is needless to add that the preceding remarks do not entail a position of this Panel with regards to the suspension of the promotion/relegation principle itself, or of its relevance or fundamentality as a principle of sports law; the value, relevance and place of this principle, as has already been hinted above, is a matter that has to be determined in any event by the different associations and in the last analysis by FIFA itself (see also supra ¶ 114 et seq.).

iii. Does the decision violate Mexican law as alleged by the Appellants?

154. Finally, the Appellants maintained (without further elaboration) in their Appeal Brief that the Decision also violates “Mexican law on associations and Mexican competition law”, citing Articles 1 to 4 of the Constitution of Mexico, Articles 43, 36, 50, 51, 52 and 53 of the General Law of Physical Culture and Article 789218 of the Mexican Federal Civil Code.

16 To use the harsher words of the Panel of the case quoted by the Appellants themselves (CAS 2016/A/4722) the mere

criticisms against the merits of the decision simply “are irrelevant” (paragraph 114). 17 Besides the provision of FMF’s own Statutes, article 2674 of the Mexican Federal Civil Code expressly confirms the

rule that the “supreme power of an association resides in the general assembly”. 18 The Mexican Federal Civil Code has only 3074 articles, and thus it is impossible to note which article was (according to

the Appellants) violated.

Club Universidad de Guadalajara, Venados FC Yucatán & CF Correcaminos v. award of 19 November 2020

155. However, the mere citation of articles cannot amount to legal argument; in any case, the Appellants had to expound a reasoned explanation of those articles and why they were purportedly violated by the Decision – and yet, no such argument is to be found. In fact, no further mention of these articles was made in the second submission nor emphasis displayed in the oral hearing. As such, the appeal on these grounds simply cannot be sustained.

156. Moreover, even the superficial and cursory consideration of the mentioned legal norms is sufficient to discard this line of reasoning19, and perhaps helps to explain why it was abandoned by the Appellants themselves.

X. CONCLUSION

157. Based on the foregoing, and taking into consideration all the legal arguments and evidence produced by the parties in these proceedings, the Panel concludes that:

The Decision adopted by the 24 April 2020 FMF Extraordinary General Assembly to “temporarily suspend” the promotion and relegation system in Liga MX and Liga Ascenso MX due to the financial and economic considerations, including the COVID-19 pandemic, must be upheld.

158. All other further motions or prayers for relief are dismissed.