CAS 2020/A/7549

Singapore Karate-do Federation v. World Karate Federation (WKF)

9 novembre 2021Inglese78 min

Singapore Karate-do Federation v. World Karate Federation (WKF)

Arbitration CAS 2020/A/7549 Singapore Karate-do Federation (SKF) v. World Karate Federation (WKF), award of 9 November 2021

Panel: Mr James Drake QC (United Kingdom), President; Mr Michele Bernasconi (Switzerland); Mr José María Alonso Puig (Spain)

Karate Disaffiliation of a national federation and affiliation of another one Consequences of not naming a party as respondent Autonomy of the federation and duty of deference in the assessment of the interpretation adopted by the federation Monitoring power and duties of an international federation

1. It is a matter for an appellant to decide whom to sue and, absent exceptional circumstances, a CAS panel should not issue an arbitral award affecting the rights of a third party if such party was not given a full and fair opportunity to be heard and to defend its rights.

2. As the governing body of a sport, an international federation is free to make decisions in relation to matters of membership save that any such decision must be lawful in that it must be in accordance with the international federation’s rules and regulations, and it must not be arbitrary in a way that could leave its members’ rights undefended or unjustifiably harmed. That discretion is subject only to review by a CAS panel in the event that the exercise of the discretion is unlawful in some way, for example because it entails arbitrariness, a misuse of discretionary power, leads to discrimination or breaches any mandatory legal principle or if the decision entails a violation of the federation’s own statutes and rules. In other words, the CAS panel must exercise a degree of restraint in its assessment of the interpretation adopted by the federation of the facts and the application of its own statutes and regulations to the facts.

3. In principle, an international federation is entitled to examine and to form a view about the quality and character of amendments introduced by one of its national member association and to ensure that they conform with the international federation’s own statutes. Such a monitoring power is not uncommon in international sport and, when used properly, ensures that a certain sport is governed, internationally, in a harmonised manner. However, if an amendment of a constitution of a national member association is of such a nature to be used as a ground for a disaffiliation of such member, then it is fair to request the international federation to act reasonably quickly, in the interests of the sport in the respective country.

I. PARTIES

1. Singapore Karate-do Federation (“SKF” or the “Appellant”) is the national governing body in Singapore for the sport of karate and has its seat in Singapore.

2. World Karate Federation (“WKF” or the “Respondent”) is the international governing body for the sport of karate, recognised as such by the International Olympic Committee. It has its seat and headquarters in Madrid, Spain. For present purposes, it is noted that WKF has issued in particular (a) the WKF Statutes approved by WKF in November 2018 (the “WKF Statutes”) and (b) the WKF Disciplinary and Ethics Code (the “WKF Code”).

3. The parties shall be referred herein collectively as the “Parties”.

II. SUMMARY OF THE CASE

3* . By letter dated 3 June 2020, the Executive Committee of WKF (the “WKFEC”) informed SKF that it had decided to withdraw the recognition of the SKF as a member of WKF, with immediate effect. The withdrawal of recognition was said to be on a provisional basis pending the submission to and ratification by the WKF World Congress. This will be referred to in this Award as the “Decision to Disaffiliate SKF”.

4. At or about the same time, the WKFEC recognised the Karate Union of Singapore (“KUS”) as a member of WKF on a provisional basis subject to ratification by the WKF World Congress. This will be referred to in this Award as the “Decision to Affiliate KUS”.

5. SKF appealed these decisions to WKF’s Disciplinary and Legal Commission Tribunal (the “DLCT”) which, in a decision dated 30 October 2020 (the “Appealed Decision”), dismissed the appeal.

6. SKF therefore brings this appeal to CAS against the Appealed Decision.

III. FACTUAL BACKGROUND

7. Set out below is a summary of the relevant facts and allegations based on the Parties’ written submissions, pleadings and evidence adduced in these proceedings. While the Panel has considered all the facts, allegations, arguments, and evidence submitted by the Parties, reference is made in this Award only to the submissions and evidence necessary to explain the reasoning and decision.

8. SKF has been for some time, until recent events, the national federation of Singapore recognised by and affiliated to WKF. It is not known when such recognition and affiliation first took place, but the origins of this dispute appear to date back to 2013.

* [Repeat numbering in original award].

9. In late 2013, WKF opened a ‘case file’ in respect of SKF after the conclusion of the 27th Southeast Asian Games (“SEA Games”) held in Myanmar, to which games Singapore did not send any karate athlete and during which games it was announced that karate would be removed from the list of participating sports for the 28th SEA Games to be held in Singapore.

10. In 2014, WKF formed a ‘commission’ to investigate these matters (the “First Commission”). According to a later report (dated 29 March 2020) by a later commission (called the “Special Commission”), the First Commission reported that SKF “did not meet the minimum requirement set by the NOC of Singapore” (“SNOC”) which “resulted in the removal of karate from the 28th SEA Games”. The main reason given by the SNOC was said to be “that the Singapore karate fraternity were in quandary and not united, the local governance for the sport is unable to organise the event and failed to comply with the requirements of the Singapore National Sport Council”.

11. In January 2015, WKF formed another commission (the “Second Commission”) to investigate the matter further and in 2016 a yet further commission was formed to do the same (the “Third Commission”). It is reported in the report by the Special Commission (see below) that these two commissions returned the same findings, viz: (i) SKF had been the largest karate organisation in Singapore prior to 2008 but from 2020 onwards “SKF has become a minority karate organisation in Singapore”; (ii) between 2011 and 2016 SKF had amended its constitution (and enacted by-laws) which had not been approved by WKF; and (iii) since 2011, SKF “has been controlled and manipulated by individual register paper clubs which have no karate activities at all”.

12. In December 2018, SKF amended its constitution. SKF did not seek the prior approval of WKF in relation to such amendments but forwarded the amended constitution to WKF under cover of letters dated 8 and 20 February 2019 informing WKF of the amendments, advising that the amended constitution took effect as from 18 December 2018, and providing a copy.

13. The 30th SEA Games took place in the Philippines from 30 November to 11 December 2019. SKF did not send any athletes to the games.

14. At or about the close of the 30th SEA Games, on 9 December 2019, the South East Asia Karate Federation (“SEAKF”) wrote to WKF saying that SKF had not been “an active member National Federation” and detailing SKF athlete participation as the SEA Games and the SEAKF Championships as follows: 27th SEA Games, 0 athletes; 28th SEA Games, “karate was removed due to incompetency of SKF”; 29th SEA Games, 4 athletes; 30th SEA Games, 0 athletes; 2014 SEAKF Championship, 3 athletes; 2015 SEAKF Championship, 0 athletes; 2016 SEAKF Championship, 1 athlete; 2017 SEAKF Championship, 0 athletes; 2018 SEAKF Championship, 0 athletes; 2019 SEAKF Championship, 2 athletes. The letter further advised that the SEAKF had passed the following resolutions: (a) “to support the actions to be taken by the WKF to assist the unification process of the Singapore karate fraternities” and (b) “to support and synchronise with the WKF the necessary action that may be considered by the WKF including disaffiliation and affiliation of new or reformed National Federation”.

15. In response, WKF formed a “Special Commission” comprised of Mr Toshihisa Nagura (WKF General Secretary), Mr John Che (Asian Karate Federation (“AKF”) General Secretary) and

Mr Vincent Chen (AKF CEO). Mr Nagura was appointed the chairman. The stated objectives of the Special Commission were as follows: (1) “to review the development of SKF in relation to the findings of the previous commissions”; (2) “to further investigate on SKF”; and (3) to recommend to WKF any action to be taken.

16. On 31 December 2019, WKF informed SKF of the formation of the Special Commission “to review the progress of SKF since our first investigation of SKF”. WKF requested SKF to complete Forms A and B relating to SKF and its activities (within seven days) and to provide a “comprehensive plan” to improve the current situation and “to unite all karate fraternities in Singapore and to provide everyone with equal access to events, courses and seminars”.

17. SKF replied to that letter on 15 January 2020. SKF noted that the concerns of the earlier commissions had been addressed at a meeting in August 2016 and called for various pieces of information including the terms of reference for the Special Commission and the records and information of the Second Commission and the Third Commission. This material was asked for on an urgent basis so that SKF could “understand the exact nature of the case it has to meet”. SKF reiterated its request for information in a letter dated 10 February 2020, in which (inter alia) it complained that Mr Chen (member of the Special Commission) had invited KUS – at that time not affiliated with WKF – to compete in a WKF event, the 2017 Malaysian Open, in circumstances where SKF was not invited.

18. The Special Commission prepared a report dated 29 March 2020, which it duly delivered to WKF shortly thereafter. Summarised, the Special Commission reported as follows:

a. The Second and Third Commissions returned the following three findings:

i. SKF had been the largest karate organisation in Singapore prior to 2008 but from 2010 onwards, “SKF has become a minority karate organisation in Singapore”.

ii. Between 2011 and 2016 SKF had amended its constitution (and enacted by-laws) which had not been approved by WKF.

iii. Since 2011, SKF “has been controlled and manipulated by individual register paper clubs which have no karate activities at all”.

b. Upon investigation, the Special Commission found that SKF “has achieved no improvement and remained a minor karate organisation in Singapore”. Three new karate organisations were registered but seven clubs remained dormant “with no dojo or any karate activity”.

c. “SKF remain an exclusive organisation for privileged individuals only. The 7 clubs … remained as legal organisations in Singapore without any activity, and are for political manipulation of [SKF] only”.

d. The Special Commission concluded that the findings of the earlier commissions remained true.

e. SKF amended its constitution in December 2019 but did not seek any prior approval from WKF which is in violation of WKF Statutes Article 5.8: “The new constitution … has

removed the excessive application fees of $S2,500” but “any organisation intended to join SKF will have to satisfy a series of difficult conditions. These conditions are much more difficult to be met than applying for membership to WKF and AKF, for example, an intended organisation must submit a 4-year plan”.

f. SKF has been organising an annual national karate championship which (a) is for one day only and (b) is only open to SKF members. Some 100 athletes participate, and many events are left without an athlete. SKF currently organises no other activity to promote the sport of karate in Singapore.

g. There are 35 registered karate organisations in Singapore, of which 10 are affiliated to SKF – i.e., representing 28.6% of the total karate fraternities in Singapore. Moreover, of the 10 SKF affiliated clubs, seven are inactive and three are active, with the result that SKF members represent less than 10% of the karate fraternities in Singapore.

h. SKF is not an active karate organisation as depicted in the following table:

2019 2018 2017 2016 2015 2014 2013

World 1 0 1 Championships Senior

World 0 1 7 1 Championships Junior

Asian 1 0 0 1 5 0 Championships Senior

Asian 1 0 0 Championships Junior

Asian Games 0 0

Southeast Asian 0 2 No 0 Games karate

i. Because it is not an active karate organisation, should Singapore ever host a multi-sport event it is unlikely that karate will be included in the programme (as with the 2015 SEA Games).

j. SKF has “never participated” in WKF Series A events or the Premier League, and SKF has not at any time in the last seven years sent a participant to referee seminars or coaching accreditation.

k. “SKF has not been cooperative with WKF and AKF since the enquiry on SKF started in 2013”. SKF was asked to provide information in relation to the investigation, yet did not comply. Instead, the Special Commission was “challenged by SKF, requesting the [Special] Commission to prove its mandate”.

l. The Special Commission reported the following conclusions:

i. SKF was in violation of Article 5.8 of the WKF Statutes.

ii. SKF “is performing below par in promoting karate in Singapore”.

iii. SKF “is a minor karate organisation in Singapore” and yet is “discouraging new membership”. The future for the development of the sport in Singapore was looking “pessimistic”.

iv. SKF had been “non-cooperative and confrontational”.

m. The Special Commission recommended to WKF that it should disaffiliate SKF.

19. Acting on that recommendation, by letter dated 3 June 2020, the WKFEC informed SKF that it had decided to withdraw the recognition of SKF as a member of WKF. The withdrawal of recognition was said to be on a provisional basis, pending the submission to and ratification by the WKF World Congress. This is the Decision to Disaffiliate SKF.

20. The letter to SKF was in the following terms:

“This letter is to inform you that, further to the investigations and inquiry led by the commissioned members to review the status of the Singapore Karate-do Federation, the WKF Executive Committee has decided to provisionally withdraw the recognition of the Singapore Karate-do Federation (SKF), of which you are the President, as of 3rd June with immediate effect in accordance with the WKF Statutes …

Article 9.1 WKF Statutes

National Federations and individual persons affiliated to the WKF shall undertake to comply with the WKF Statutes, Norms, Rules, Regulations and standards, as well as with all provisions issued by the Executive Committee.

Article 5.6 WKF Statutes

The right of provisional affiliation or disaffiliation or of the suspension of National Federations or Associations rests with the Executive Committee of the WKF, while the Congress shall decide on the permanent affiliation or disaffiliation of a National Federation or of an Association.

Article 5.14 WKF Statutes

The WKF Executive Committee may take any appropriate decisions for the protection of the sport of Karate and of the image and reputation of WKF in the country of an NF, including the provisional suspension of or provisional disaffiliation of such NF in case of termination by the latter of its affiliation or if the constitution, law or other regulations in force in the country concerned, or any act by any governmental or other body causes the activity of the NF or the making or expression of its will to be hampered.

Article 5.16

Ultimately, the Executive Committee and the Congress may, respectively, at their entire discretion, reconsider the affiliation and disaffiliate, provisionally or permanently, a National Federation, in particular in case of changes in the National Federation’s Statutes without WKF’s approval, in case of violation of these Statutes or of the law, or for any other cause affecting the democracy of the sporting processes or the image and reputation of WKF or of the sport of Karate.

The grounds for provisional disaffiliation resulting of the Commission’s findings are as follows:

i. SKF remains a minor karate Organisation in Singapore.

ii. The amended Constitution does not make SKF more democratic nor a more open Organisation. SKF remains as an exclusive organisation for a privileged few.

iii. SKF remains an Organisation with majority of its members with no Karate activities.

iv. SKF latest amendment of its Constitution in December 2018 did not seek any prior approval from WKF, as requested by WKF’s Statutes in Art 5.8.

v. There are altogether 35 registered karate organisations in Singapore of which 10 are member organisations of SKF, and of the 10 members only 3 of them are active. SKF is therefore a minor Karate organisation representing less than 10% of the total Karate fraternity in the country.

vi. In the period 2013-19, SKF participation in World Championships, Asian Championships and regional events is less than satisfactory,

vii. SKF has been unfriendly, non-cooperative, intimidating and confrontational toward the WKF Commission and previous Commissions on the subject. None of the request by the Commission has been complied with.

Kindly note that the provisional disaffiliation of the SKF will be submitted for ratification of the WKF Congress at its next meeting. On that occasion, the SKF will be granted the opportunity to express its view with regard to its disaffiliation of WKF, if it so wishes.

Please also note that the Congress will have the entire discretion to disaffiliate SKF, irrespective of the above- mentioned grounds (article 5.16 of the WKF Statutes).

Please also be informed that your federation will, as of today, no longer be entitled to the rights reserved only to WKF members, including but not limited to participate in WKF events, use the WKF logo and name and represent the WKF in Singapore”.

21. As the letter explains, the provisional disaffiliation of SKF is to be put to a vote at the WKF Congress at the next meeting (which the Panel was told is scheduled for November 2021). It is a matter for the WKF Congress to vote on the provisional disaffiliation and decide whether it is to be rescinded or rendered permanent. The letter also states that SKF will have an opportunity “to express its view with regard to its disaffiliation … if it so wishes”.

22. At or about the same time, i.e. 3 June 2020, the WKFEC decided to recognise KUS as the member federation for Singapore, also on a provisional basis and subject to ratification by the WKF Congress. There was no notification of this decision by WKF to SKF; rather, the latter learned of it by seeing an entry to that effect on the WKF website. This is the Decision to Affiliate KUS.

IV. PROCEEDINGS BEFORE THE DISCIPLINARY AND LEGAL COMMISSION TRIBUNAL

23. On 24 June 2020, SKF challenged the Decision to Disaffiliate SKF and the Decision to Affiliate KUS by way of an appeal to the DCLT. The challenge was framed as an appeal: “(i) against the decision of the WKF Executive Committee (EC) that provisionally disaffiliated the SKF, which was communicated to the SKF on 3 June 2020; and (ii) against the decision of the WKF EC that provisionally affiliated the Karate Union of Singapore (KUS) replace the SKF as the WKF national karate association member for Singapore, which was indicated in (sic) the WKF website after 3 June 2020”.

24. On 30 October 2020, the DCLT dismissed the appeal (the matter was determined on the papers and without a hearing):

a. As to the Decision to Disaffiliate SKF, the DCLT concluded that the SKF “has neither demonstrated that the EC Decision is illfounded or contrary to the WKF Statutes, nor that it is arbitrary. On the contrary, the [decision] appears to be well reasoned. SKF’s appeal shall thus be dismissed”.

b. As to the Decision to Affiliate KUS, the DCLT took the view that this decision was “irrelevant to the Appealed Decision … and shall not be part of this procedure”.

V. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT

25. By a Statement of Appeal dated 20 November 2020 submitted in accordance with Articles R47 and 48 of the Code of Sports-related Arbitration (the “CAS Code”), SKF appealed to CAS against the Appealed Decision. In its Statement of Appeal, SKF also (a) requested that a three-member panel be appointed to determine the appeal and (b) made a number of requests for the production of documents by the Respondent.

26. By email dated 9 December 2020, SKF nominated Mr Michele Bernasconi as arbitrator.

27. By letter dated 21 December 2020, WKF nominated Mr José María Alonso Puig as arbitrator.

28. SKF filed an Appeal Brief on 30 December 2020 (in accordance with Article R51 of the CAS Code), by which SKF (a) appealed to CAS in respect of the Appealed Decision and (b) repeated its requests for document production.

29. By letter dated 15 January 2021, the CAS Court Office, on behalf of the Deputy President of the CAS Appeals Arbitration Division, informed the Parties as to the constitution of the Panel (as set out above) and directing the Respondent to submit its Answer within 50 days. Upon the Respondent’s application for an extension of time, the deadline for the Respondent’s Answer was extended (by the Panel) until 15 March 2021.

30. Under cover of letter dated 15 March 2021, the Respondent submitted its Answer dated 15 March 2021.

31. By letters dated 22 March 2021, each of the Parties requested an oral hearing in this matter, which hearing was fixed by the Panel to take place on 22 June 2021 (to comport with the convenience of the Parties).

32. On 22 March 2021, the Appellant submitted a request for disclosure and admission of documents. The Respondent was invited to comment on this request by 29 March 2021. The Respondent made no comment by that date.

33. The Panel ruled on the Appellant’s request for disclosure and admission of documents, and the Panel’s orders were communicated to the Parties by letter dated 19 April 2021 by which orders the Respondent was called upon to provide certain additional documents by 30 April 2021.

On that date, i.e. 30 April 2021, the Respondent sought a 10-day extension of time to produce the required documents, which request was duly granted. The Respondent sought an additional four day extension by letter dated 10 May 2021, which additional extension of time was also granted.

34. On 14 May 2021, the Respondent provided disclosure of the documents that had been ordered by the Panel to be disclosed save that it did not disclose those documents relating to the Decision to Affiliate KUS as had been ordered to be disclosed by the Panel. The Respondent instead asked for an explanation of the reasons for such an order submitting that this appeal was limited in scope to the Decision to Affiliate SKF and did not concern the Decision to Disaffiliate KUS.

35. The Panel provided those reasons by letter dated 19 May 2021 and directed that the Respondent provide disclosure of the documents within 10 days. The Respondent provided disclosure of these documents by letter dated 28 May 2021.

36. On 14 and 18 June 2021, respectively, the Parties signed and returned the Order of Procedure, which (inter alia) stated as follows:

“The Appellant relies on Article 26.1 of the WKF Disciplinary and Ethics Code as conferring jurisdiction on the CAS. The jurisdiction of the CAS is not contested by the Respondent and is confirmed by the signature of the present order. The Respondent claims however that the scope of the appeal is limited to a review of the decision rendered by the Single Judge of the Disciplinary and Legal Commission Tribunal of the WKF on 30 October 2020 … and that the decision by the Respondent by which provisional affiliation was conferred on the Karate Union of Singapore is outwith the scope of the appeal”.

37. A remote hearing took place (via WebEx) on Tuesday 22 June 2021, participated in by the following:

a. The Panel:

i. Mr James Drake Q.C., President

ii. Mr Michele A.R. Bernasconi, Arbitrator

iii. Mr José María Alonso Puig, Arbitrator

b. The Appellant:

i. Mr Ioannis Mournianakis, Counsel

ii. Mr David Thong, SKF representative

c. The Respondent:

i. Mr Jorge Ibarrola, Counsel

d. CAS Court Office:

i. Ms Sophie Roud, Counsel

38. At the outset of the hearing, the Parties confirmed that they had no objection to the jurisdiction of CAS or to the constitution of the Panel. At the conclusion of the hearing, the Parties expressly confirmed that their right to be heard had been fully respected.

VI. SUBMISSIONS OF THE PARTIES

A. SKF’s Submissions

39. By its Appeal Brief, SKF appeals against the Appealed Decision. By way of preliminary matters, SKF submitted that CAS had jurisdiction to hear this appeal pursuant to Article R47 of the CAS Code and that, via Article R58 of the CAS Code, the appeal was to be decided by applying the WKF Statutes and regulations and, subsidiarily, Spanish law.

40. SKF’s submissions are summarised below in two parts: (a) the scope of the appeal and (b) the merits of the appeal.

(a) Scope of the Appeal

41. As to the scope of the appeal, the submissions on the part of SKF may be summarised as follows:

a. The scope of the arbitration extends to both the Decision to Disaffiliate SKF and the Decision to Affiliate KUS, as both decisions were the subject of the appeal by SKF to the DCLT and both were before the DCLT.

b. The fact that the DCLT dismissed the appeal against the Decision to Affiliate KUS on the basis that it was “unrelated” and decided that SKF was not entitled to challenge it on the basis that SKF was no longer a member of WKF in good standing, does not affect the scope of the appeal before CAS. In any event, it is difficult to see how the two decisions are unrelated.

c. SKF has complied with Article R47 of the CAS Code in that all internal legal measures have been exhausted by SKF.

d. SKF is entitled to challenge the Decision to Affiliate KUS, irrespective of its “relation” to the SKF’s provisional disaffiliation. Even if provisionally disaffiliated, SKF retains the right under the WKF Statutes to challenge decisions taken by WKF. This is true generally but also in particular where the decision in question is a decision to replace a national federation as a member of WKF – in those circumstances, the disaffiliated member must be able to challenge the decision to disaffiliate and the decision to affiliate a different member karate association in its place.

e. SKF has standing to sue the WKF in respect of the Decision to Affiliate KUS given SKF’s obvious legal interest in setting aside such decision, which may, if ratified by the WKF Congress, result in SKF’s replacement as the national karate association WKF member for Singapore.

(b) The Grounds of Appeal

42. As to the merits of the appeal, SKF articulates four grounds of appeal:

a. The provisional disaffiliation of SKF is in breach of Article 5 of the WKF Statutes.

b. The provisional affiliation of KUS is in breach of Article 5 of the WKF Statutes.

c. SKF’s “fundamental procedural rights have been irreparably violated”.

d. WKF’s conduct has been in violation of its freedom of autonomy as provided for in the Olympic Charter.

Ground 1: The Provisional Disaffiliation of SKF

43. The first and principal ground of appeal is that the Decision to Disaffiliate SKF is in violation of the WKF Statutes. The submissions in this respect may be summarised in the following way. A number of general points are made followed by submissions in relation to the construction and application of the specific rules in question, viz., Articles 5.14 and 5.16 of the WKF Statutes.

44. This is said by way of general principles:

a. The right to freedom of association is a fundamental principle of law that applies to international sports federations – such as WKF – which are, accordingly, “entitled to organise themselves freely and establish their own regulatory system and their relations with their members”.

b. That freedom is however not absolute but subject to limits – and it must be clear and certain to all members in what circumstances one’s membership may be at risk.

c. An international federation such as WKF enjoys a “certain discretion” with respect to its affairs but, once again, the discretion is not absolute but subject to limitations. Any exercise of any discretion must be exercised in accordance with the relevant rules and the applicable norms.

d. As made clear in CAS jurisprudence, once the conditions for the exercise of a discretion under the rules are met it is a matter for the federation to exercise that discretion subject however to review by CAS in the event that the exercise of the discretion is unlawful in some way, for example because “it entails arbitrariness, a misuse of discretionary power, leads to discrimination or breaches any mandatory legal principle or if the decision entails a violation of [the federation’s] own statutes and rules”: CAS 2018/A/5888 at [200].

e. The same case makes it plain that any decision taken by WKF must be proportionate in that the decision was necessary to meet the legitimate goal of intervention but goes no further: and does not go beyond: CAS 2018/A/5888 at [201].

45. SKF also addresses “the applicable regulations in the matter at hand”, namely Articles 5.14 and 5.16 of the WKF Statutes.

Article 5 provides in relevant part as follows:

Art 5. AFFILIATION AND DISAFFILIATION OF NATIONAL FEDERATIONS

…

5.14 The WKF Executive Committee may take any appropriate decisions for the protection of the sport of Karate and of the image and reputation of WKF in the country of an NF, including the provisional suspension of or provisional disaffiliation of such NF in case of termination by the latter of its affiliation or if the constitution, law or other regulations in force in the country concerned, or any act by any governmental or other body causes the activity of the NF or the making or expression of its will to be hampered.

…

5.16 Ultimately, the Executive Committee and the Congress may, respectively, at their entire discretion, reconsider the affiliation and disaffiliate, provisionally or permanently, a National Federation, in particular in case of changes in the National Federation’s Statutes without WKF’s approval, in case of violation of these Statutes or of the law, or for any other cause affecting the democracy of the sporting processes or the image and reputation of WKF or of the sport of Karate.

46. As to these provisions, SKF submits as follows:

a. Article 5.14 lays down a number of conditions for the exercise of the discretion to disaffiliate a member federation, which are to be read restrictively.

b. None of the “grounds for provisional affiliation” relied on by WKF in its letter of 3 June 2020 matches the restrictive conditions set forth in Art 5.14.

c. It must follow therefore that Art 5.14 provides no valid legal basis for disaffiliation in this case.

d. Article 5.16 must be interpreted as a legal and not a contractual provision, and it must be interpreted in the following way. The article begins with the word “ultimately” which is to be construed to mean “ultima ratio”; i.e., intended to be applicable only “for grave offences and only when all other options have been exhausted”.

e. Article 5.16 thus requires either (1) a “most severe” violation, such “conduct that seriously infringes a stated purpose of the WKF or threatens the image of the sport” or (2) that one of the circumstances set forth in the article is present, namely: (i) changes in a national federation’s statutes without WKF’s approval, (ii) in case of violation of these statutes or of the law, and (iii) for any other cause affecting the democracy of the sporting processes or the image and reputation of WKF or of the sport of karate.

f. In the event that these requirements are met, then one must ask whether the decision is otherwise unlawful because it is arbitrary, entails a misuse of discretionary power, is discriminatory, breaches any mandatory legal principle or is in violation of the WKF’s own statutes and rules.

g. This approach is in accordance with Spanish law.

47. It is submitted by SKF that this approach must be taken in respect of each of the grounds for provisional disaffiliation relied upon by WKF in the WKF letter of 3 June 2020. (The grounds are numbered (i) through (vii) in the letter. For ease of reference here they shall be numbered 1-7.) These were not addressed seriatim by SKF but in two tranches: Grounds 2 and 4 as to the SKF Constitution; and then Grounds 1, 3, 5, 6 and 7 as to the activities and conduct of SKF.

(i) Matters relating to the SKF Constitution

48. As to the former, the Appellant puts its case in the following way.

a. First, SKF submits that, when one compares the amended constitution with what went before, it is clear that “the 2018 version provide[s] for a more open and concrete structure”. By way of example, the 2011 Constitution required an aspiring member to send in a “complete dossier” relating to the organisation and its activities and, on approval, pay $2,500 as a non- refundable entrance fee. By contrast, the amended 2018 Constitution required only a completed application form and, on approval, a non-refundable fee of $500. Other examples were identified. In any event, it is a matter for SKF to its membership conditions and structure and cannot be for the international federation to interfere with such matters.

b. Second, SKF submits that Article 5.8 of the WKF Statutes, properly construed, does not require there to be “prior” approval of a constitution, only approval, and in this instance SKF provided a copy of its amended constitution in early 2019 without material comment from WKF and certainly without WKF’s disapproval. It is said that there is an essential difference between “approval” and “consent” and that in the absence of the word ‘prior’ from the statute the objective meaning is that any amendments are to be approved by the act of granting permission retrospectively.

(ii) Matters relating to the activities and conduct of the SKF

49. As to the latter, grounds 1, 3, 5, 6 and 7 relating to “the activities and conduct of the SKF”, the Appellant submits as follows.

a. These various grounds do not “come close to the gravity” required to provide a basis for the harsh consequence that is disaffiliation. None of the matters relied upon qualifies “as a violation of the most serious nature” that would warrant provisional disaffiliation.

b. It is factually mistaken to say that SKF is a minor karate organisation in Singapore. SKF is a member in good standing of the Singapore National Olympic Committee and “the most representative karate association in Singapore with a larger membership base than any of them”. Any contrary allegation is both not right and unproven.

c. The allegation that SKF is an organisation with majority of its members with no karate activities is an unfounded allegation without merit. SKF member clubs all actively participate in the SKF activities; for example, Seishinkan Karate Association produced a bronze medallist in the 2009 and 2011 SEA Games; and Edo Kan Karate Club has won medals in many international events.

d. The allegation that SKF’s participation in World Championships, Asian Championships and regional events in the period 2013-19 is unsatisfactory is not only factually incorrect but “misleading”.

e. The suggestion that SKF has been uncooperative is “simply not true”. SKF has always provided the information requested and has never been unresponsive.

Ground 2: The Provisional Affiliation of KUS

50. It is submitted by SKF that the Decision to Affiliate KUS is in breach of Article 5.4 of the WKF Statutes which provides that only one national federation per country shall be affiliated with WKF. Unless and until SKF is permanently disaffiliated by a decision of the WKF Congress then SKF remains the national federation member for Singapore and it is not open to WKF to affiliate, even provisionally, another national federation for Singapore.

51. The Decision to Affiliate KUS is also in breach of Article 5.7 of the WKF Statutes insofar as KUS does not have the required acknowledgement of the Singapore NOC or highest sports authority.

Ground 3: SKF’s Procedural Rights

52. It is submitted by SKF that WKF has treated SKF “with disrespect of the principles of impartiality and procedural fairness”. The submissions in this respect are as follows.

a. At the outset of this matter, WKF received a letter from the South East Asian Karate Federation (“SEAKF”) complaining that SKF was an inactive member. It is not clear to SKF what the relationship is between WKF and SEAKF and nor is it clear “how the latter is entitled to make such conclusions”.

b. WKF called upon SKF for an explanation as to why karate was not included in the SEA Games that were held in Singapore. It is not clear to SKF “how it would be possible for [SKF] to act for the inclusions of karate” when the inclusion or exclusion of a sport for those games was a matter the SEA Games organising committee. Moreover, karate was not included in the SEA Games on numerous occasions in the past.

c. SKF was not informed of the conclusions of any WKF “committees” or “investigations” relating to SKF. All such proceedings “have been prejudiced” and “partial” without due regard for SKF’s requests for information.

d. WKF did not give any prior notice to SKF of the date of that the WKF Executive Committee members were asked to vote on the question of disaffiliation of SKF and SKF was not offered the opportunity to be heard; and the Executive Committee members were not provided with any of the SKF responses to the matters under decision.

e. In all, SKF was denied “its fundamental rights that are enshrined in all continental legal orders and part of the ordre public” with the result that there is no way to be certain that the same decision would have been reached by the Executive Committee had the procedural rights of SKF not been violated.

Ground 4: The Olympic Charter

53. These are the submissions on the part of SKF:

a. The Olympic Charter in force at the time of the dispute provides in relevant part as follows:

“The Fundamental Principles of Olympism

5. Recognising that sport occurs within the framework of society, sports organisations within the Olympic Movement shall apply political neutrality. They have the rights and obligations of autonomy, which include freely establishing and controlling the rules of sport, determining the structure and governance of their organisations, enjoying the right of elections free from any outside influence and the responsibility for ensuring that principles of good governance be applied.

…

29 The National federations

To be recognised by an NOC and accepted as a member of such NOC, a national federation must exercise a specific, real and on-going sports activity, be affiliated to an IF recognised by the IOC and be governed by and comply in all aspects with both the Olympic Charter and the rules of its IF”.

b. By interfering with matters such as the content of the SKF Constitution and SKF’s admission requirements, which are matters internal to SKF, WKF has acted in violation of this fundamental principle.

c. WKF is “openly ignoring” the fact that SKF continues to be a member in good standing of the SNOC and the fact that the SNOC “confirms that SKF is the recognised governing body of the sport of Karate in Singapore”.

Relief

54. On the strength of those submissions, SKF seeks the following relief on this appeal:

“128 Subject to supplementing or otherwise amending the present prayer for relief at a later stage of the proceedings, SKF is hereby requesting the CAS:

128.1 On document production: to order the WKF to deliver the following documents to the SKF:

128.1.1 A copy of the decision appealed against by the SKF by its appeal filed on 24 June 2020 before the WKF DLCT, namely the decision of the WKF Executive Committee (EC) or of any other WKF organ to provisionally affiliate the Karate Union of Singapore (KUS) as the WKF national karate association member for Singapore, as indicated in the WKF website at https://www.wkf.net/structure-asian-karate-federation after 3 June 2020 and to this date.

128.1.2 A copy of the minutes of the WKF EC or of any other WKF organ which passed the decision to provisionally affiliate KUS as the WKF national karate association member for Singapore or, in the alternative, a copy of the relevant exchanges of email or correspondence in the event such decision was not taken during a meeting of the deciding body.

128.1.3 A copy of all the documents on which the WKF EC or any other WKF organ relied upon to pass the decision to provisionally affiliate KUS as the WKF national karate association member for Singapore according to articles 5.7 and 5.9 of the WKF Statutes, including, in particular, (i) the application filed by KUS for that purpose, (ii) proof of the application fee payment, (iii) the complete dossier of documents giving detailed information on the standing and capacity of KUS including a copy of the latest Audited Financial Statement (unless the organisation has not yet completed its first fiscal year), the Statutes and the Rules and Regulations of KUS and documentation of any acknowledgement by the National Olympic Committee or the Highest Sport Authority of the country.

128.2 On appeal:

128.2.1 To uphold the present appeal and set aside the Decision passed by the Single Judge of the Disciplinary and Legal Commission Tribunal (DLCT) of the WKF on 30 October 2020 to the effect that the provisional disaffiliation of SKF and provisional affiliation of KUS be lifted and to order that the WKF is not allowed to bring the matter of the disaffiliation of SKF to the WKF Congress for the grounds stated in the letter of 3 June 2020 or any other;

128.2.2 To grant all the requests included in the appeal filed by the SKF before the WKF DLCT on 24 June 2020 against the decision of the WKF Executive Committee (EC) that provisionally disaffiliated the SKF, which was communicated to the SKF on 3 June 2020, and against the decision of the WKF EC or any other WKF organ that provisionally affiliated the Karate Union of Singapore (KUS) to replace the SKF as the WKF national karate association member for Singapore, which was indicated in the WKF website after 3 June 2020, namely the following: “(ii) In the merits: to set aside and/or declare null and void and/or amend the decision of the WKF EC which was notified to the SKF on 3 June 2020 according to which “(…) the WKF Executive Committee has decided to provisionally withdraw the recognition of the Singapore Karate-do Federation (SKF) (…) as of 3rd June with immediate effect in accordance with the WKF Statutes (…)”, as well as to set aside and/or declare null and void and/or amend the decision of the WKF EC (or any other decision of another WKF organ) that provisionally (or in any other way) affiliated the KUS with the WKF as indicated in the WKF website”.

or, subsidiarily,

128.2.3 To make a decision that the CAS deems appropriate in the particular circumstances of this case;

and

128.3 On costs: to order the WKF to pay the entirety of the arbitration costs, in the event that Article R65 of the CAS Code does not apply; and, in any event, to order the WKF to pay the SKF’s legal fees, costs and expenses, as well as any other costs incurred by the SKF in the course of the present proceedings and the proceedings before the WKF DLCT, to be submitted at a later stage of the proceedings”.

B. WKF’s Submissions

55. By its Answer, WKF responds to the appeal and seeks, inter alia, an order that the appeal be dismissed. By way of preliminary matters, WKF accepts that CAS has jurisdiction to hear this appeal pursuant to Article R47 of the CAS Code and Article 26.1 of the WKF Disciplinary and Ethics Code and submitted that, via Article R58 of the CAS Code, the appeal is to be decided by applying the WKF Statutes and the WKF Disciplinary and Ethics Code and, because the Respondent is domiciled in Spain, that Spanish law should be applied subsidiarily.

(a) Scope of the Appeal

56. As to the scope of the appeal, the submissions on the part of WKF may be summarised as follows.

a. The Respondent “strongly challenges” the contention that the scope of the appeal includes a consideration of the Decision to Affiliate KUS. The subject matter of the dispute decided by the DCLT was the Decision to Disaffiliate as set forth in the letter dated 3 June 2020.

b. The Appealed Decision “does not address at all the provisional affiliation of another member, which is therefore outside the scope of the dispute between the Parties”. The Appealed Decision was therefore right in this respect when that the two decisions are “unrelated”.

c. As a provisionally disaffiliated member, SKF is not entitled to invoke “rights reserved for members only, such as the right to challenge a provisional affiliation as provided for in” Article 5.17 of the WKF Statutes.

d. SKF failed to name KUS as a respondent in these proceedings. As a result, it is precluded from seeking relief that would affect KUS: a CAS panel cannot issue an arbitral award affecting the rights of a third party if such party was not given the opportunity “to defend

(b) The Grounds of Appeal

Ground 1: The Provisional Disaffiliation of SKF

57. The Respondent makes a number of general submissions.

a. When assessing the Decision to Disaffiliate SKF, the Panel must “exercise a degree of restraint in its assessment of the interpretation adopted by the federation” of the facts and the application of its own statutes and regulations to the facts: see CAS 2017/A/5287 at [281].

b. Article 5.14 of the WKF Statutes provides that the WKFEC may take “any appropriate decisions for the protection of the sport of Karate … in the country of an NF” and that the Decision to Disaffiliate SKF was one such appropriate decision in circumstances where SKF was “a minor karate organisation that has repeatedly failed to unite karate in Singapore”.

c. Article 5.16 of the WKF Statutes confers on the WKFEC a discretion to disaffiliate a member federation for any cause at all that affects “the democracy of the sporting processes or the image and reputation of WKF or of the sport of Karate”.

d. The discretion conferred upon WKF to disaffiliate a member federation is an “entire discretion to impose measures on members when the interests of the sport of karate are at stake”. It is accepted by the Respondent that this ‘entire discretion’ must not be exercised arbitrarily but that is the only limitation on the exercise of the general discretion afforded to WKF in the management and oversight of its member federations. The discretion is not, as is supposed by the Appellant, limited to the examples set forth in the article; these are merely illustrative examples of the circumstances in which the general discretion may be exercised.

e. It is a matter for the Appellant to show that the Decision to Disaffiliate was arrived at arbitrarily. It has failed to do so.

58. It is submitted by the Respondent that the Decision to Disaffiliate was “fully justified” and that the various matters relied on in the letter of 3 June 2020 are “well-founded”.

59. As did the Appellant, the Respondent puts the seven grounds of appeal into two categories: (i) grounds 2 and 4 relating to the SKF Constitution and (ii) grounds 1, 3, 5, 6 and 7 relating to the activities and conduct of the SKF.

(i) Matters relating to the SKF Constitution

60. As to the former, the Respondent puts its case in the following way.

a. Article 5.8 of the WKF Statutes requires a member federation to obtain WKF’s prior approval for any amendment to the member federation’s constitution. Article 5.8 provides that “affiliation [of the national federation] will be decided after the examination of the Statutes of the National Federation and their compatibility with those of the WKF. The approval of an applicant National Federation’s Statutes by the WKF Executive Committee is required for affiliation. The same applies to any subsequent change or amendment to the Statutes of a National Federation that will also have to be approved by the WKF Executive Committee. …”. Properly understood, this means that the decision to affiliate a given national federation will only be made after the examination and approval of that federation’s constitution and that, should an affiliated national federation subsequently wish to amend its constitution it must contain WKF’s approval to do so before implementing any amendments – i.e., the national federation must seek and obtain WKF’s prior approval to any amendments to the constitution.

b. SKF did breach this requirement when it amended its constitution in late 2019.

c. Article 5.16 of the WKF Statutes confers on the WKFEC a discretion to disaffiliate a member federation in circumstances where the member federation makes changes to its statutes without WKF’s approval.

d. It follows therefore that the WKFEC is entitled, pursuant to its statutes, to disaffiliate SKF on a provisional basis (on this ground alone).

e. The failure on the part of SKF to obtain prior approval for its constitutional amendments is all the more “alarming” because the amendments introduced operate to restrict, rather than expand, access to the membership of SKF. It is accepted that the amendments bring in reduced membership fees but they also seek to impose a significant restriction on eligibility, namely that an applicant for ordinary membership must be an established karate club in Singapore “for at least 3 years with a minimum of 250 active paying members”. This “strict” requirement is “not legitimate” in that it excludes from “the karate family under the umbrella of the WKF” all clubs which have less than 250 members, in circumstances where only half of the current SKF affiliates would meet that requirement. The result is to restrict membership and to hinder the development of karate in Singapore.

(ii) Matters relating to the activities and conduct of the SKF

61. The Respondent submits as follows.

a. SKF was asked to provide information in respect of its participation in international competition but generally failed to do so.

b. SKF has been “non-cooperative” throughout the investigations. It has failed to comply with reasonable deadlines for the provision of information and has failed, point blank, to complete and return the (straightforward) Forms A and B as requested by WKF and, moreover, it challenged the composition of the DCLT.

c. From what WKF has been able to discern, the majority of SKF members have no karate activities. During 2017-2019, which was the period of time considered by the WKF Commission, SKF was only able to demonstrate that one SKF member athlete “achieved decent results” in international competition.

d. As the WKF Commission determined, SKF’s participation in international competition has been scant. In the period 2017-2019, no athlete was sent to six out of 11 international events, and only one was sent to four other international events. The only competition in which more than one SKF athlete competed was the SEA Games in 2017, and that was a delegation of two athletes.

e. In 2015, when SEA Games took place in Singapore, the sport of karate was not even on the programme, having been removed due to SKF’s “incompetency” (according to the SEAKF) and because SKF did not meet the minimum requirements set by the Singapore NOC.

f. In all, SKF is not an active member.

Ground 2: The Provisional Affiliation of KUS

62. WKF makes no submissions on this question save that it is not part of the appeal (see above as to scope of the appeal).

Ground 3: SKF’s Procedural Rights

63. For the Respondent, any submission on the part of SKF that The Respondent rejects the suggestion that the Appellant’s procedural is both “irrelevant” and “grossly flawed”.

a. It is irrelevant because any alleged procedural deficiencies are cured by reason of the fact that this appeal is, pursuant to Article R57 of the CAS Code, a de novo review: see CAS

b. It is flawed because SKF was given every opportunity to respond to the concerns express by WKF and to provide information and documentation as to its affairs – during the time that the Commission was investigating matters and afterwards. SKF also benefited from fair proceedings before the DCLT.

Ground 4: The Olympic Charter

64. The Respondent does not accept that the Olympic Charter bears on the issues between and international and a national federation. Even if it were, this dispute is not about interference by an international federation in the internal affairs of SKF. It is instead about a decision taken by an international federation to disaffiliate a national federation on a provisional basis because it has failed to promote and develop the sport in its country and because it, the national federation, failed to cooperate with the international federation when asked to provide information as to its role in the sport in its country.

65. In addition, the fact that SKF is affiliated to the SNOC is not relevant because (a) recognition by a NOC is not a condition of membership/affiliation of WKF and (b) recognition by SNOC of SKF is not binding on WKF so that, whether recognised by SNOC or not, WKF is free to exercise its discretion to disaffiliate a member in appropriate circumstances, as obtain here.

Relief

66. On the basis of the above submissions, WKF seeks the following relief on this appeal:

“I. The Appeal filed by Singapore Karate-do Federation against the decision issued on 30 October 2020 by the WKF Disciplinary and Legal Commission is dismissed.

II. Singapore Karate-do Federation shall bear all the arbitration costs.

III. Singapore Karate-do Federation is ordered to pay World Karate Federation an amount, to be decided at the discretion of the Panel, to compensate its legal and other costs relating to the present arbitration”.

VII. JURISDICTION OF CAS

67. Article R47 of the CAS Code provides as follows:

An appeal against the decision of a federation, association or sports-related body may be filed with CAS if the statutes or regulations of the said body so provide or if the parties have concluded a specific arbitration agreement and if the Player has exhausted the legal remedies available to it prior to the appeal, in accordance with the statutes or regulations of that body.

An appeal may be filed with CAS against an award rendered by CAS acting as a first instance tribunal if such appeal has been expressly provided by the rules of the federation or sports-body concerned.

68. The appeal has been brought (expressly) pursuant to Article 26.1 of the WKF Disciplinary and Ethics Code which provides as follows:

“Decisions of the DLCT and the Appeal Tribunal may be appealed exclusively before the Court of Arbitration for Sport (CAS) in Lausanne, Switzerland, within twenty-one (21) days following receipt of the decision. Unless agreed otherwise by the parties, the CAS Panel will be composed of three arbitrators and the language will be English”.

69. The Panel, therefore, confirms that CAS has jurisdiction to decide this appeal, as is common ground between the Parties, and as confirmed by the signature of the Order of Procedure by both Parties.

VIII. ADMISSIBILITY

70. Article R47 of the CAS Code provides as follows:

“An appeal against the decision of a federation, association or sports-related body may be filed with CAS if the statutes or regulations of the said body so provide or if the parties have concluded a specific arbitration agreement and if the Appellant has exhausted the legal remedies available to it prior to the appeal, in accordance with the statutes or regulations of that body. An appeal may be filed with CAS against an award rendered by CAS acting as a first instance tribunal if such appeal has been expressly provided by the rules of the federation or sports-body concerned”.

71. Article R49 of the CAS Code provides as follows:

“In the absence of a time limit set in the statutes or regulations of the federation, association or sports-related body concerned, or in a previous agreement, the time limit for appeal shall be twenty-one days from the receipt of the decision appealed against. The Division President shall not initiate a procedure if the statement of appeal is, on its face, late and shall so notify the person who filed the document. When a procedure is initiated, a party may request the Division President or the President of the Panel, if a Panel has been already constituted, to terminate it if the statement of appeal is late. The Division President or the President of the Panel renders her/his decision after considering any submission made by the other parties”.

72. As is noted above, Article 26.1 of the WKF Disciplinary and Ethics Code provides that any appeal to CAS shall be made “within twenty-one (21) days following receipt of the decision”. In this case the Appealed Decision was communicated to SKF by email on 30 October 2020 and the Statement of Appeal was filed with the CAS Court Office within the 21-day period on 20 November 2020.

73. The Respondent accepts the admissibility of this appeal.

74. The Panel confirms that this appeal is admissible.

IX. APPLICABLE LAW

75. 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 that the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision.

76. In this appeal, the following matters are common ground:

a. The applicable regulations are: (a) the WKF Statutes and (b) the WKF Code.

b. The law chosen by the parties is set forth in Article 22.7 of the WKF Code, which provides that the governing law shall be the law of the country where the WKF is domicile which, as noted above, is Spain. The laws of Spain will therefore apply subsidiarily.

X. SCOPE OF THE APPEAL

77. This aspect of the matter may be dealt with quite shortly for, in the end, the fact that SKF chose to prosecute these proceedings without joining KUS as a respondent is fatal to the submission on the part of SKF that the Decision to Affiliate KUS is properly within the scope of the appeal.

78. In this respect, the Panel essentially agrees with the Respondent. It is a matter for an appellant to decide whom to sue and, absent exceptional circumstances, which do not obtain here, a Panel should not issue an arbitral award affecting the rights of a third party if such party was not given a full and fair opportunity to be heard and “to defend its rights”. That has been made plain on a number of occasions: see e.g. CAS 2011/A/2654; CAS 2013/A/3437.

79. No sensible (indeed none at all) explanation was given by SKF for its no doubt forensic choice not to sue KUS. The Panel is satisfied that, as determined in those CAS cases referred to above by the Respondent (namely, CAS 2011/A/2654; CAS 2016/A/4668; CAS 2017/A/5524; TAS 2017/O/5062; and CAS 2013/A/3437), WKF has no standing to be sued

alone in respect of all those requests that are submitted by SKF and directed against KUS and/or that any determination of the Decision to Affiliate KUS in the absence of KUS as a respondent to these proceedings would infringe upon the rights of KUS to be heard. In the result, this Panel can only dismiss any and all prayers for relief of SKF that are directed against KUS.

XI. THE MERITS OF THE APPEAL

80. There are four grounds of appeal on the part of SKF, described above as Grounds 1-4.

a. The provisional disaffiliation of SKF is in breach of Article 5 of the WKF Statutes.

b. The provisional affiliation of KUS is in breach of Article 5 of the WKF Statutes.

c. SKF’s “fundamental procedural rights have been irreparably violated”.

d. WKF’s conduct has been in violation of its freedom of autonomy as provided for in the Olympic Charter.

A. Ground 1: The Provisional Disaffiliation of SKF

81. SKF’s first and principal ground of appeal is that the Decision to Disaffiliate SKF is in violation of the WKF Statutes. Whether that is so or not depends on the proper construction and application of the WKF Statutes against the backdrop of general principles applicable to the decision-making autonomy of an international sports organisation and the proper role of this Panel.

82. In the Panel’s determination, having regard to the applicable rules and to Spanish law on the subject (which applies subsidiarily) and to general principles to be found within the CAS jurisprudence, the general principles are:

a. WKF is the international federation for the sport of karate. Its stated objective, per Article

1.6 of the WKF Statutes, is of “promoting, organising, regularising and popularising the sport of karate all over the world”.

b. WKF enjoys a fundamental right of association, which right includes the right to regulate its own regime and to regulate the causes and procedures for the expulsion of members. As an association, WKF is based on “the free will of its members to join and remain united in order to fulfil the aims of the association, and those who join the association are deemed to know and accept as a whole the statutory rules to which they are subject”: Constitutional Court, Sentence dated 22- 11-1988, nº 218/1988, rec. 1008/1986 (BOE 306/1988, of 22 December 1988).

c. As the governing body of the sport of karate, WKF is free to make decisions in relation to matters of membership save that any such decision must be lawful in that must be in accordance with WKF’s rules and regulations, namely the WKF Statutes, and it must not

be arbitrary in a way that could leave its “members’ rights undefended or unjustifiably harmed”: Sentence of the Cadiz Provincial Court dated 22 October 2020. WKF must also act in a manner that provides for procedural fairness (in accordance with notions of natural justice).

d. The Panel will not intrude upon WKF’s decision-making unless it does not adhere with these elements. The Panel shall instead be focussed on “the review of legality and the protection of fundamental rights and the reasonableness of the decision adopted”: Sentence of the Cadiz Provincial Court dated 22 October 2020.

e. Whether or not a decision is reasonable in this sense means that any decision taken by WKF must be proportionate in that it necessary to meet the legitimate goal of intervention but goes no further and does not go beyond: CAS 2018/A/5888 at [201]. Reasonable here also means rationally in the sense that, in arriving at its decision, WKF has taken into account relevant matters and not taken into account irrelevant matters.

f. This accords with CAS jurisprudence (generally applying Swiss law) which provides that, once the conditions for the exercise of a discretion by WKF under the WKF Statutes are met, it is a matter for WKF to exercise that discretion subject only to review by the Panel in the event that the exercise of the discretion is unlawful in some way, for example because “it entails arbitrariness, a misuse of discretionary power, leads to discrimination or breaches any mandatory legal principle or if the decision entails a violation of [the federation’s] own statutes and rules”: CAS 2018/A/5888 at [200].

g. When assessing the Decision to Disaffiliate SKF, the Panel must “exercise a degree of restraint in its assessment of the interpretation adopted by the federation” of the facts and the application of its own statutes and regulations to the facts: see CAS 2017/A/5287 at [281] where this was said:

“In addition to these general principles of interpretation, the settled jurisprudence of the Swiss courts concerning the principles of le droit d’association requires arbitral tribunals to demonstrate reasonable deference to a federation’s good faith interpretation of its own governing instruments and rules (Unpublished decision 5C.328/2001 of the Federal Court of July 22th 2002). In this regard, it is recognised that federations (including sport federations) are sometimes called upon to apply indeterminate legal concepts to specific factual circumstances. In such cases, a tribunal which is called upon to review such a decision will exercise a degree of restraint in its assessment of the interpretation adopted by the federation (see Margareta Baddeley, L’association sportive face au sport, Helbing & Lichtenhahn, Bâle, 1994, p. 231)”.

83. In this appeal, it is the proper construction and application of Article 5 of the WKF Statutes that is in issue. Article 5 provides in relevant part as follows:

Art 5. AFFILIATION AND DISAFFILIATION OF NATIONAL FEDERATIONS

5.1 The affiliation of a National Federation by the WKF will be granted in accordance with these Statutes.

5.2 National Federations wishing to be recognised by and subsequently affiliated to the WKF must be an independent organisation in their own country. The President and the other members of the Executive Committee of a National Federation must be democratically elected and hold the citizenship of their own National Federation country. Governments or other public authorities shall not designate any members of a National Federation. However, a National Federation may decide, at its discretion, to elect as members representatives of such authorities.

…

5.4 Only 1 (one) National Federation per country shall be affiliated with WKF.

…

5.6 The right of provisional affiliation or disaffiliation or of the suspension of National Federations or Associations rests with the Executive Committee of the WKF, while the Congress shall decide on the permanent affiliation or disaffiliation of a National Federation or of an Association.

5.7 National Federations wishing to be affiliated to the WKF must send to the General Secretary, together with the relative application fee payment, which in the event of acceptance of the application will be applied to the first year’s membership fee, a complete dossier of documents giving detailed information on the standing and capacity of the National Federation including a copy of the latest Audited Financial Statement (unless the organisation has not yet completed its first fiscal year). This dossier must include the Statutes and the Rules and Regulations of the applicant Federation and documentation of any acknowledgement by the National Olympic Committee or the Highest Sport Authority of the country. The membership fee payment shall be in the form of a bank cheque or bank transfer and of such amount as specified by the WKF. This payment must be cleared at the WKF bank before membership may proceed.

5.8 The affiliation will be decided after the examination of the Statutes of the National Federation and their compatibility with those of the WKF. The approval of an applicant National Federation’s Statutes by the WKF Executive Committee is required for affiliation. The same applies to any subsequent change or amendment to the Statutes of a National Federation that will also have to be approved by the WKF Executive Committee. Such Statutes shall, at all times, conform to the WKF Statutes and make explicit reference to the affiliation to WKF and to the acceptance and subordination to the WKF Statutes. If there is any doubt as to the meaning or interpretation of the Statutes of a National Federation or if there is a contradiction between such Statutes and WKF Statutes, the latter take precedence.

5.9 Also the Rules and Regulations of the National Federations members shall conform to WKF Rules, Regulations and standards. WKF only recognises as official national titles won in competitions where WKF Competition Rules are applied in their entirety, including the official modalities and categories.

5.10 If more than one National Federation claim for their affiliation with WKF, the Executive Committee will decide on the provisional affiliation of a National Federation and the Congress will ultimately decide on its permanent affiliation. The provisional and permanent affiliation shall be granted, at the entire discretion of the Executive Committee and the Congress, respectively, taking into account the capacity of the National Federation to provide the best guarantees for the representation and development of the sport in its country.

…

5.12 Following Rule 29 and Bye-Laws to Rules 28 & 29 of the Olympic Charter, the WKF will communicate the provisional and permanent affiliation or disaffiliation of a National Federation to the National Olympic Committee and the Highest Sports Authority of the country in question. Rule 29 of the Olympic Charter will apply for the recognition of a National Federation (NF) by a national Olympic committee (NOC). (References to the Olympic Charter are based on the 15 September 2017 version). Rule 28 of the Olympic Charter (2 August 2016 Version), “Composition of the NOCs” will also apply while Karate is part of the programme of the Olympic Games and WKF NFs shall make their best efforts to implement this rule in their country for the benefit of Karate.

…

5.15 National Federations are prohibited from being affiliated with any karate organisation not recognised by WKF. They also prohibited from having any sporting relationships with such non-recognised organisations or with any suspended WKF National Federation. Non-compliance with this prohibition would give rise to disciplinary sanctions. Illegal double affiliation would constitute just grounds for disaffiliation from WKF.

5.17 An appeal can be presented before the Disciplinary and Legal Commission within 21 (twenty-one) days following the notification of the provisional affiliation or disaffiliation decision by the Executive Committee and/or the final affiliation or disaffiliation decision by the Congress.

84. The principal focus of the Parties was on Articles 5.8, 5.14 and 5.16. Before addressing these articles, the Panel draws out the following matters from the remainder of Article 5. None of the following is contentious.

a. Article 5.1 provides that affiliation of a national federation will be granted by WKF in accordance with the WKF Statutes. This is to be understood as providing that it is for WKF to “grant” affiliation to any given national federation, i.e., it is a matter for the discretion and decision of WKF, which discretion is to be exercised or decision taken in accordance with the provisions of the WKF Statutes.

b. Article 5.4 makes it plain that only one national federation per country is to be affiliated with WKF.

c. Article 5.6 provides that the WKFEC has the right to decide on the provisional affiliation or disaffiliation of a national federation and that it is for the WKF Congress to decide on the permanent affiliation or disaffiliation of such federation. In making the Decision to Disaffiliate SKF, WKFEC was acting in accordance with this right.

d. Article 5.7 relates to the information to be provided by any national federation wishing to be affiliated with WKF. It provides that the national federation must send “a complete dossier of documents giving detailed information on the standing and capacity” of the national federation including the latest audited financial statements, a copy of the national federation’s statutes and rules and regulations, and an acknowledgement from the relevant NOC or sporting authority.

85. The Panel turns then to those articles in respect of which there was debate as to their proper construction and application.

86. Article 5.8 is the first. For WKF it was submitted that this requires prior approval by WKF of a national federation’s statutes and of any amendment by the national federation of the same such that SKF was required to seek and obtain WKF’s approval to any amendments to the SKF Statute. SKF points to the absence of the word “prior” and submits that all that is required is that WKF gives its approval at some juncture.

87. On this issue, the Panel agrees (by and large) with the Appellant. Take first the situation where a national federation makes application for membership. It is plainly anticipated by the language that the aspiring national federation will be in existence and will have put in place its governing statutes in the ordinary way. It makes no sense in this context to speak of “prior” approval, or approval prior to formal adoption by the national federation. It is a three-step process. First, on application it is a matter for the applicant federation to provide, pursuant to Article 5.7, a copy of its statutes and rules and regulations as part of the dossier of documents submitted with the application. Second, under Article 5.8, it is a matter for WKF to examine the statutes and rules and regulations so submitted. Third, in the event that WKF is satisfied (amongst other things) that the statutes and rules and regulations conform to the WKF Statutes then (and only then) will it grant (that is the operative verb used in Article 5.1) affiliation. If WKF is not so satisfied it may decline to grant affiliation without, for example, some amendment to the national federation’s constitutional documents. In this way, approval is a condition precedent to affiliation.

88. The same construct applies where an affiliated national federation makes amendments to its statutes after WKF has granted it affiliation. In that event, the national federation must submit the amendment documents to WKF for (a) examination and (b) approval. It is not a requirement, express or implied, that such approval be sought and obtained prior to the adoption of the amendment. However, continued affiliation with WKF is contingent upon the approval by WKF of the amended statutes. If therefore WKF properly forms the view that the amendment means that the national federation’s statutes are no longer in conformity with the WKF Statutes then WKF may withhold its approval to the amendments and, if necessary, rescind its grant of affiliation – in other words, disaffiliate.

89. That is the control mechanism that is afforded to WKF pursuant to Articles 5.7 and 5.8. There is no requirement for approval prior to adoption or implementation of the amendment to the national federation’s statute but affiliation nevertheless remains conditional or contingent upon WKF’s approval of the amendment(s).

90. Next is Article 5.14 which, for ease of reference provides as follows:

91. On this, the Panel rejects the argument proffered by SKF that the article specifies certain conditions which must be satisfied for the exercise by WKF of the discretion to disaffiliate a member federation, which conditions are to be read narrowly and restrictively. In the Panel’s view that is to misread the article. On its plain and ordinary meaning, the article provides a general power (or discretion) in the WKFEC “to take any appropriate decisions for the protection of the sport of Karate and of the image and reputation of WKF in the country of an NF”. What follows that general statement are illustrative examples of the circumstances in which the general power may be exercised. On any fair reading, they do not prescribe and limit the situations in which the power may be exercised and the argument that WKF must be able to establish one of the stated conditions as the foundation of its Decision to Disaffiliate is rejected.

92. Next is Article 5.16 which, also for ease of reference provides as follows:

93. As outlined above, SKF runs two arguments in favour of narrowing the meaning and operation of Article 5.16. It is first contended, once again, that the cases listed after the words “in particular” are to be regarded as the specific and limited examples for the exercise of the discretion to disaffiliate a national federation. For the reasons limned above in respect of Article 5.14, the Panel disagrees. What precedes the words “in particular” is the articulation of a general power or discretion in the WKFEC and the WKF Congress to disaffiliate a national federation member. The particular circumstances that follow are not limiting in nature and are not intended to be.

94. It is next argued that the word “ultimately” as used in this article means that any decision to disaffiliate a national federation must be one of last resort, only when all other options have been exhausted. With respect, the Panel finds this argument misconceived. That is not what the word “ultimately” is doing in that article. It is instead saying “in the end”, “in the final result” or “finally”. What it is seeking to say is that, in the end, it is a matter for the entire

discretion of the WKFEC to reconsider the affiliation of a member federation and to decide, or not, to disaffiliate that member on a provisional basis.

95. In the light of these views as to the proper construction of the WKF Statutes, the Panel turns to the specific matters relied upon by the WKFEC in its letter of 3 June 2020.

(a) Matters relating to the SKF Constitution

96. As noted, there are two matters companied of: the failure to obtain prior approval for the 2018 amendments to the SKF Constitution and, as well, the fact that the amendments have the effect of unduly restricting access to membership.

97. In light of the Panel’s determination on the proper construction of Article 5.8, the Panel is of the view that there was no requirement on SKF to obtain prior WKF approval of the amendments. Of itself, the failure to do so is neither here nor there and certainly not a breach of the WKF Statutes.

98. As mentioned above, the Panel is satisfied that in principle, and based on its statutes, WKF is entitled to examine and to form a view about the quality and character of amendments introduced by one of its national member association and to ensure that they conform with the WKF Statutes. Such a monitoring power is not uncommon in international sport and, when used properly, ensures that a certain sport is governed, internationally, in a harmonised manner.

99. In the present matter, however, the Panel is not satisfied that WKF made use of its monitoring power in a proper manner, if only from a timing point of view. As confirmed in the Appealed Decision, the amendments to the SKF Constitution were made and communicated to WKF at the end of 2018 and in the beginning of 2019. There is no evidence before the Panel that WKF has raised any issues concerning such amendments before December 2019, i.e., almost one year after having received the documentation. In the Panel's view, if an amendment of a constitution of a national member association is of such a nature to be used as a ground for a disaffiliation of such member, then it is fair to request the international federation to act reasonably quickly, in the interests of the sport in the respective country.

100. In the Panel’s view it follows that WKF was not entitled to ground its decision to disaffiliate SKF on the alleged lack of request for a prior approval of the amendments, since as set out above no such approval in advance was due. Further, the Panel is not satisfied that WKF could disaffiliate SKF because of the content of such amendments, after having waited almost one year to address the issue.

101. The criticism moved by Appellant against this part of the Appealed Decision finds the support of the Panel. However, for the reasons that follow, this is in view of the Panel no sufficient reason to set aside the Appealed Decision.

(b) Matters relating to the activities and conduct of the SKF

102. As noted above, it is not for the Panel to second-guess the WKFEC in respect of the matters brought to account by it as the grounds for the Decision to Disaffiliate SKF. Instead, the question is: Is the Decision to Disaffiliate SKF based on the grounds relied upon lawful in the following senses: (a) does it conform with the WKF Statutes; (b) is it neither arbitrary nor capricious; and (c) is it reasonable in the sense that it is proportionate to achieve the legitimate objectives of WKF as the international federation for the sport of karate?

103. In answering that question, the Panel takes account of the following matters.

a. The dispute between the parties appears to have had a long (and difficult) history. WKF has appointed a number of commissions to investigate the performance of SKF as the national federation and the state of karate in Singapore more generally.

b. In the current context, WKF appointed the Special Commission in December 2019. The particular trigger appears to have been the submission from SEAKF on 9 December 2019 articulating its view as to the poor historic performance of and representation by SKF at various international events over some considerable time and calling upon WKF to do what it could to unify the karate fraternities in Singapore and, if necessary to achieve that end, to disaffiliate SKF.

c. The Special Commission was chaired by Mr Toshihisa Nagura, the then WKF General Secretary, but also included two non-WKF representatives, both from AKF, a Mr Che and a Mr Chen. This commission was asked by WKF to assess the progress made by SKF since the previous commissions, to investigate the current state of affairs at SKF, and to recommend to WKF what, if any, action to be taken.

d. SKF levelled a great deal of criticism at the Special Commission and at its members. But the Panel can see no reason why it should not accept the report of the Special Commission at its face value.

e. The Special Commission performed its appointed tasks. It concluded that SKF had made no progress and that the conclusions reached by the earlier commissions were still apt, namely that (1) SKF had been the largest karate organisation in Singapore prior to 2008 but from 2010 onwards it had become “a minority karate organisation in Singapore”; and (2) since 2011, it had been controlled by “clubs which have no karate activities at all”. The Special Commission found that SKF “has achieved no improvement and remained a minor karate organisation in Singapore”. Three new karate organisations were registered but seven clubs remained dormant “with no dojo or any karate activity”.

f. The Special Commission concluded that the constitutional amendments introduced by SKF in late 2018 imposed what were described as “a series of difficult conditions. These conditions are much more difficult to be met than applying for membership to WKF and AKF, for example, an intended organisation must submit a 4-year plan”.

g. The Special Commission recommended to WKF that it disaffiliate SKF.

h. Each of the matters relied upon by WKF for the Decision to Disaffiliate SKF as set forth in detail in its letter of 3 June 2020 is based upon the findings and conclusions of the Special Commission.

i. Finally, as explicitly retained in the Appealed Decision, the disaffiliation imposed on the Appellant is a provisional, and not a final one, as it will be for the WKF Congress to decide at its fair discretion whether or not SKF shall continue to be a "full" member of WKF.

104. In the result, bearing in mind the narrow role to be played by the Panel in the review of the Decision to Disaffiliate SKF, the Panel is of the clear view that there is no proper basis for the Panel to intrude upon or interfere with the decision. The role of the Panel is merely supervisory; the function of the Panel is not to make the decision in the stead of WKF but to ensure that WKF has done so within lawful bounds.

105. In the Panel’s view, WKF has so acted within lawful bounds. It has the “entire discretion” to reconsider the affiliation status of a national federation and to disaffiliate such member in order, at its most general, to protect the sport of karate. The decision was taken after a long history of investigation of karate in Singapore culminating in the recent review and report of the Special Commission. The Special Commission did its work and delivered its recommendation, and it was a lawful and rational exercise of its entire discretion to disaffiliate a national federation for WKF to decide to disaffiliate SKF on a provisional basis based upon the various findings of the Special Commission.

106. Such a decision cannot, in the view of the Panel, be characterised as arbitrary or capricious. Instead, it is possible to describe the decision as a considered and careful response to a long- standing concern as to the role of SKF and of the health and integrity of the sport of karate in Singapore. Moreover, also taking into consideration its provisional nature, the Panel is of the view that the Decision to Disaffiliate SKF is reasonable in the sense that it is proportionate to achieve the legitimate objectives of WKF (as the international federation for the sport of karate) of “promoting, organising, regularising and popularising the sport of karate all over the world” (per Article 1.6 of the WKF Statutes).

107. In the final result, paying heed to its limited supervisory role and bearing well in mind that it behoves the Panel to exercise a degree or restraint or, put another way, to allow the international federation a fair margin of appreciation in respect of its decision-making and discretion, the Panel concludes that the Decision to Disaffiliate SKF was lawful. By taking this decision the Panel is comforted by the fact that it will be for the WKF Congress to decide, at its fair discretion and on the basis of the evidence and the facts that will be put forward to the Congress at the given point of time, whether or not SKF shall be readmitted as a "full" member.

B. Ground 2: The Provisional Affiliation of KUS

108. In light of the Panel’s determination as to the lack of standing to be sued alone of WKF, no more need be said about Ground 2. It is beyond the scope of this appeal and the requests filed by SKF and addressed against KUS shall be dismissed. For avoidance of any doubt, this determination does not mean that the Panel has ratified any membership of KUS in WKF. Indeed, it will be again only for the WKF Congress to decide whether or not KUS shall be admitted as a member to WKF.

C. Ground 3: SKF’s Procedural Rights

109. The third ground of appeal put forward by SKF is that its procedural rights have been breached and that, accordingly, the Decision to Disaffiliate SKF should be set aside.

110. SKF’s complaints and the Panel’s observations are as follows.

a. SKF complains about the letter from SEAKF dated [] (see paragraph [] above). It says it is not clear how SEAKF “is entitled to make such conclusions”. That, however, is not a procedural irregularity.

b. SKF next complains that it is unfair to criticise SKF for the exclusion of karate from the Singapore SEA Games. Likewise, that is not a procedural irregularity.

c. SKF next complains that it was not informed of the conclusions of any of the commissions relating to SKF. It is not apparent what SKF was told or not told in respect of the earlier commissions but WKF certainly informed SKF of the formation of the Special Commission and of the conclusions of the Special Commission.

d. SKF next complains that it did not have prior notice of the vote of the WKFEC on the question of disaffiliation of SKF and SKF was not offered the opportunity to be heard and none of its responses were passed on to the WKFEC. It is not immediately apparent why a national member should be heard prior to the taking of such a vote. In any event, as explicitly confirmed in the Appealed Decision, SKF is afforded a right to be heard in respect of the decision to be taken by the WKF Congress in November 2021. It will be for the WKF Congress to decide, after having heard SKF's arguments and position, whether or not the disaffiliation shall be set aside.

111. In addition, as the Respondent submitted, SKF had the benefit of a full and fair hearing before the DCLT and, moreover, any procedural deficiencies that may have taken place are cured by reason of the fact that this appeal is, pursuant to Article R57 of the CAS Code, a de novo review:

112. As a consequence, this ground of appeal provides no basis for the Decision to Disaffiliate SKF to be set aside and must fail.

D. Ground 4: The Olympic Charter

113. The fourth and final ground of appeal is that the overall conduct of WKF is in breach of the Olympic Charter and that, accordingly, the Decision to Disaffiliate SKF should be set aside. The essence of this complaint appears to be that the Olympic Charter provides that each sports organisation shall enjoy autonomy and that, by its conduct generally, WKF has interfered with the autonomy of SKF.

114. With respect, this ground does not advance the appeal at all. The autonomy to be enjoyed by SKF as a national federation affiliated with WKF as the international federation is prescribed by the terms of the WKF Statutes. If therefore WKF acts in conformity with its statutes there is no separate and different claim to be had by SKF for the breach of its autonomy.

115. Accordingly, this ground is to no avail and is dismissed.

E. Conclusion

116. In view of all the above considerations, the Panel holds and determines that the appeal brought by the Appellant should be dismissed in its entirety. For this, SKF shall remain provisionally disaffiliated and it will be for the WKF Congress to decide on the membership of SKF. To avoid any possible doubt, the object of the present Award has been only the Appealed Decision, i.e. the provisional disaffiliation of Appellant: the issue of a possible final disaffiliation was not object nor part of the present proceedings.

117. The above conclusion, finally, makes it unnecessary for the Panel to consider the other requests submitted by the Parties. Accordingly, all other prayers for relief are dismissed.

ON THESE GROUNDS

The Court of Arbitration for Sport rules that:

1. The appeal filed by the Singapore Karate-do Federation against the World Karate Federation with respect to the decision rendered by Disciplinary and Legal Commission Tribunal on 30 October 2020 is dismissed.

2. The decision issued by Disciplinary and Legal Commission Tribunal on 30 October 2020 is confirmed.

3. (…).

4. (…).

5. All other and further claims or prayers for relief are dismissed.