Trabzonspor v. Fenerbahçe Spor Kulübü, Turkish Football Federation (TFF), Union of European Football Associations (UEFA)

III. FACTUAL BACKGROUND

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

A. Proceedings in Turkey

8. On 22 May 2011, Trabzonspor finished the 2010-2011 season in second place after Fenerbahçe, with the same number of points but with fewer scored goals. In 2011, there were allegations of widespread match-fixing in the Turkish Super League. Arrests were made by the Turkish police. A criminal investigation was initiated by the Turkish public prosecutor. On 11 July 2011, the Executive Committee of TFF requested TFF’s Ethics Committee to conduct its own investigation into match-fixing.

9. On 24 August 2011, TFF withdrew Fenerbahçe from the 2011-2012 UEFA Champions League competition and a UEFA Emergency Panel decided that Trabzonspor would replace Fenerbahçe in the competition. On 2 December 2011, the Turkish public prosecutor issued a criminal indictment against numerous individuals, including officials of Fenerbahçe. On 20 December 2011, a report drafted by the TFF Executive Committee was issued, identifying several acts of match-fixing involving officials of Fenerbahçe.

10. On 13 April 2012, Trabzonspor filed a request with TFF demanding that TFF declare Trabzonspor the Super League champion for the 2010-2011 season.

11. In response to Trabzonspor’s filing, on 26 April 2012, the TFF Executive Committee issued a report asserting that while some officials from Fenerbahçe had attempted match-fixing, there was no proof that other members of the Board were aware of the activities. Thus, the practice was not found to be attributable to Fenerbahçe.

12. On 6 May 2012, the TFF Disciplinary Committee rendered a decision sanctioning three officials of Fenerbahçe. No actions were taken against the club itself (Third and Fourth Respondents). On 4 June 2012, the TFF Arbitration Body upheld the TFF Disciplinary Committee’s decision of 6 May 2012 and dismissed Trabzonspor’s appeal against such decision.

B. Proceedings before UEFA

13. On 20 March 2013, the Appellant wrote to UEFA to complain about TFF allegedly breaching and continuing to breach the UEFA Statutes. On 18 June 2013, UEFA responded to the Appellant informing it that it had appointed a Disciplinary Inspector. Ultimately, UEFA decided not to initiate disciplinary proceedings against TFF.

14. On 10 June 2013, Fenerbahçe was informed of disciplinary proceedings against it by UEFA. On 12 June 2013, the Appellant filed a request for intervention in the Fenerbahçe proceedings with UEFA. On 18 June 2013, the Appellant’s application to intervene was rejected.

15. On 22 June 2013, the UEFA Control and Ethics Disciplinary Body (“UEFA CEDB”) issued a decision determining that Fenerbahçe had violated Article 5 of the UEFA Disciplinary Regulations (“UEFA DR”) 2008 and disqualified Fenerbahçe from three consecutive UEFA club competitions for which it would qualify, with the disqualification from the third competition suspended for five years.

16. On 10 July 2013, the UEFA AB partially upheld the UEFA CEDB decision of 22 June 2013, sanctioning Fenerbahçe from participating in the next two European competitions for which it would qualify (“2013 UEFA AB Decision”). On 28 August 2013, the CAS dismissed Fenerbahçe’s appeal and upheld the UEFA AB Decision of 10 July 2013.

17. Between 30 October 2013 and 12 December 2013, the Appellant initiated another application with the TFF requesting the annulment of match results, deduction of points from Fenerbahçe and the awarding of the 2010-2011 Turkish Super League title to the Appellant. Trabzonspor’s application was rejected respectively by the TFF Executive Committee and the TFF Arbitration Board.

18. On 31 January 2014, the Appellant wrote a letter to the UEFA Executive Committee and UEFA Disciplinary Committee requesting them to sanction teams and individuals that had committed acts of match-fixing and take all necessary measures to ensure the Appellant’s losses were compensated and that the Appellant was awarded the 2010-2011 Turkish Super League title.

19. On 30 May 2014, UEFA wrote to TFF and Fenerbahçe informing them that disciplinary proceedings had been instigated. On 11 December 2014, the UEFA CEDB issued its decision dismissing the Appellant’s requests. On 26 May 2015, the Appellant filed an appeal against this decision of 11 December 2014 to the UEFA AB. The Appellant requested, inter alia, that UEFA intervene indirectly by way of ordering TFF to impose the necessary sanctions. For the record, such request was not included in the prayers for relief before the UEFA CEDB.

20. On 17 September 2015, the UEFA AB rendered a decision against the Appellant (proceedings 27179). On 8 December 2015, the UEFA AB notified the grounds for its decision. On whether UEFA has competence to intervene at domestic level as regards match-fixing offences, the UEFA AB considered that “bearing in mind the applicable legal framework at the time of the facts in combination with the Case Law of CAS in this field, UEFA has not [sic] competence to deal with matchfixing offences which occurred at the 2010/2011 Turkish Super League”1.

1 Para. 46.

C. Proceedings before the CAS

21. On 17 December 2015, in accordance with Articles R47 and R48 of the Code of Sports-related Arbitration (“Code”), Trabzonspor filed a Statement of Appeal (CAS 2015/A/4343). On 15 January 2016, in accordance with Article R51 of the Code, Trabzonspor filed an Appeal Brief. On 2 March 2016, in accordance with Article R55 of the Code, the Respondents filed their Answers.

22. On 18 November 2016, in accordance with Article R57 of the Code, an oral hearing was conducted. The following experts were heard at Appellant’s request: Prof. Dr. Sylvain Marchand, Prof. Dr. Hüdai Murat Develioğlu, and Mr Mert Yaşar.

1. Suspension of ordinary proceedings

23. On 4 February 2016, in accordance with Article R38 of the Code, Trabzonspor filed a Request for Arbitration (CAS 2016/O/4430). On 17 May 2016, following the Respondents’ requests, the Panel decided to suspend the ordinary procedure (CAS 2016/O/4430) pending a decision from the Panel in the appeal’s matter (CAS 2015/A/4343).

24. On 20 June 2016, the Panel decided to resume the case CAS 2016/O/4430 in view of the impossibility to find an early hearing date and with the idea to hold the hearing in both proceedings at the same date.

25. On 22 September 2016, having received written submissions from the Parties on the subject of the contested CAS jurisdiction in the ordinary proceedings based on Article R39 of the Code, the Panel decided to suspend the CAS 2016/O/4430 proceedings until further notice.

2. Document production

26. On 25 May 2016, the Panel directed to the parties to complete and return a Redfern Schedule to address the Appellant’s request for disclosure in the case CAS 2015/A/4343. The Appellant and Respondents completed and returned Redfern Schedules on 1 June 2016 and 9 June 2016, respectively. On 20 June 2016, the Panel decided to partially grant Appellant’s request for disclosure. Fenerbahçe requested that the anonymity of third persons be protected and, on 23 June 2016, the Panel informed the parties that they would decide on this request in due course. On 11 July 2016, Fenerbahçe filed the documents requested by the Panel on 20 June 2016. Such documents, some of them redacted by the Panel, were forwarded to the other parties on 19 July 2016. On 28 July 2016, UEFA filed the documents requested by the Panel on 20 June 2016, and they were forwarded to the other parties on 2 August 2016. On 31 August 2016, the Panel requested that UEFA produce additional documents following Appellant’s request. On 28 September 2016, UEFA filed the documents requested by the Panel on 31 August 2016.

27. On 28 September 2016, the Appellant filed a new request for disclosure and commented on the objections of the Respondents to its initial request. Having received the Respondents’

comments on these new requests for disclosure, the Panel partially granted the request on 7 October 2016.

VII. SUBMISSIONS OF THE PARTIES — A. Appellant’s submissions

1. Breaches of sport regulations

50. The Appellant contends that the Respondents have committed various breaches of sport regulations:

- Committed by Fenerbahçe. The Appellant argues that Fenerbahçe’s practice of matchfixing during the 2010-2011 season constituted a breach of Article 5 UEFA DR 2008, as affirmed by the CAS2.

- Committed by TFF. The Appellant holds that TFF has failed to prosecute and sanction Fenerbahçe’s aforementioned breaches. In this regard, the Appellant submits that the mere fact that Fenerbahçe remained the official champion of the 2010-2011 Super League demonstrates TFF’s passivity, contrary to its duty to prosecute activities of match-fixing, pursuant to Article 2(1) (e) and 7bis (1)(a) of the UEFA Statutes. Moreover, according to the Appellant, TFF has also failed to prosecute breaches committed by individuals and other Turkish clubs in relation to the match-fixing scandal.

- Committed by UEFA. The Appellant claims that UEFA has a duty to prosecute and sanction match-fixing practices, pursuant to UEFA statutes and regulations. Accordingly, the Appellant contends that the sanctions imposed by UEFA against Fenerbahçe in relation to its participation in the UEFA Champions League are not sufficient in so far as they fail to address sanctions at national level. In this regard, the Appellant alleges in its Appeal Brief that UEFA is “hid[ing] from its responsibility behind an alleged lack of ‘competence to intervene at domestic level’”.

2. Breaches of Turkish and Swiss laws

51. The Appellant also submits that the Respondents have committed various breaches of Turkish and/or Swiss law:

- Contract law. The Appellant argues that, under Swiss and Turkish contract laws, there existed a simple partnership – in the meaning of Article 620 of Turkish Code of Obligations, corresponding to Article 530 of Swiss Code of Obligations – between TFF, Fenerbahçe, and the Appellant in pursuit of the “common goal to offer a sport show that generates income for the teams and for the TFF”. According to Trabzonspor, Fenerbahçe and TFF have breached their contractual obligations owed to Trabzonspor by committing match-fixing offences and by tolerating such offences without any appropriate measure. The Appellant thus argues that TFF and Fenerbahçe are liable towards the Appellant for damages suffered as a result of the breach of contract by the latter parties based on the existence of this alleged simple partnership.

- Liability based on trust. The Appellant makes further reference to Swiss law in relation to the Grossen and Swissair cases, which establish a liability based on trust in circumstances where the expectations of the claimant, in the context of an existing special relationship of trust between the claimant and respondent, is frustrated3. In the present context, the Appellant claims that such a relationship existed between the Appellant and UEFA, the latter breaching this obligation through its failure to take appropriate measures to combat match-fixing. As such, the Appellant contends that the appropriate quantum of liability should be calculated based on the appropriate counterfactual, i.e., the situation that would have existed had the Appellant been awarded the title to the 2010-2011 Super League. Alternatively, the Appellant seeks compensation for the amounts it paid for taking part in the 2010-2011 season of Super League as it would not have participated in the league had it known that match fixing would not be fought against. The Appellant notes that such amounts are significantly higher compared to the counterfactual scenario.

- Personality rights. The Appellant further submits that, pursuant to Article 28 (2) of the Swiss Commercial Code, its rights were breached due to UEFA’s inaction in restoring the title for the 2010-2011 Super League and asks for compensation of resulting damages.

- Competition law. The Appellant also claims that the TFF has abused its alleged dominance in the organization of the Turkish Super League and is liable towards the Appellant as a result of the breach of Articles 57 and 58 of the Turkish Competition Law No: 4054.

3. Damages calculation

52. In assessing the damages it has suffered following the match-fixing scandal, the Appellant relies on an expert’s assessment submitted as part of its Appeal Brief, which provides a calculation based on the counterfactual4. Accordingly, the Appellant submits that a conservative assessment of losses based on losses related to (i) broadcasting revenues, (ii) player transfer and values, and (iii) merchandising results in a total sum of TRY 90,659,000 (including interests until 31 December 2015). The Appellant further submits that, in the event that the proceedings in question do not result in Trabzonspor’s obtaining of the title for the 2010-2011 Super League season, the Appellant would incur an additional loss of TRY 15,200,000.

4. UEFA’s competence to impose sanctions in cases of national match-fixing

53. The Appellant underscores UEFA’s objective to “prevent all methods or practices which might jeopardise the regularity of matches or competitions or give rise to the abuse of football”5, which gives the organization a legitimate interest in ensuring the integrity of the game, as reflected in UEFA’s zero tolerance policy against match fixing.

3 CHAPPUIS C., La responsabilité fondée sur la confiance, in SJ 1997 165 ff, pp. 165-166. 4 FTI report. 5 UEFA Statutes (edition 2010), Art 2(1)(e).

54. In this regard, the Appellant also holds that TFF is not independent in creating its own rules and practice on match-fixing and should be bound by the decisions and regulations of UEFA.

55. The Appellant contends in its Appeal Brief that, should the CAS find UEFA to not have competence at domestic level, nothing would prevent a member football association from awarding titles “even if the most serious offences were committed”. In the Appellant’s view, this would lead to the “absurd” situation where a club could fix matches without any sanction at national level if the national association does not remedy the situation (for instance, because it is biased and protects the club).

56. As such, the Appellant argues that Article 2(4) and 23(4) of the UEFA DR 2013, which give UEFA the competence to take measures against all match-fixing activities in European football, should apply to the proceedings in question.

57. The Appellant claims that the introduction of Article 23(4) of the UEFA DR 2013 is merely a confirmation of UEFA’s competence to intervene in the event a football association fails to prosecute or does not prosecute in an appropriate manner a serious violation of the UEFA statutory objectives. In that regard, the Appellant highlights the previous CAS decision, confirming UEFA AB’s decision of 10 July 2013, sanctioning Fenerbahçe with a two-year period of ineligibility for European competitions. In particular, the Appellant refers to the following section of the CAS decision:

“The majority of the Panel considers the introduction of article 23(4) in the UEFA DR (2013) to be a confirmation of UEFA’s disciplinary competence in matters of particular importance to UEFA, despite the fact that such matters should normally be dealt with by national associations”6.

58. The Appellant adds that, even if the Panel were to find that Article 23(4) of the UEFA DR 2013 introduced a new power not existing previously, the rules contained in the 2013 edition should still apply from a temporal point of view, given that TFF’s lack of appropriate prosecution is still continuing.

59. Finally, the Appellant asserts that the reference in Article 14(1)(I) of the UEFA DR 2008 to the “withdrawal of title or award” in relation to the imposition of disciplinary measures against member associations and clubs is not limited to titles awarded by UEFA, which gives UEFA and the CAS, as an appeals body, the necessary competence to withdraw the title of a national championship.

5. Standing

60. The Appellant contends that it is directly affected by the Appealed Decision primarily because the insufficient prosecution of the subject matter of the Appealed Decision has resulted in the 2010-2011 Super League title being incorrectly awarded to Fenerbahçe and caused financial damages to the Appellant.

61. In this regard, the Appellant draws from the 2002 CAS decision to submit that a competitor placed second has an underlying cause of action in challenging the decision related to the award of the title and to the financial benefits of such title7.

6. Ne bis in idem and res judicata

62. The Appellant submits that the object of the proceedings that led to the CAS Award 2013/A/3256 was to pronounce sanctions against Fenerbahçe in relation to UEFA competitions. In the Appellant’s opinion, the present proceedings are distinct in so far as they aim to pronounce sanctions against Fenerbahçe in relation to the unjustly awarded national benefits and title. In this regard, the Appellant makes reference to the 2013/A/3256 proceedings in which the Panel held that there would be “no infringement of the principle of ne bis in idem if the two (or more) measures aim at different goals”. Hence, the Appellant submits that the two proceedings complement and do not exclude each other. Accordingly, the Appellant considers the ne bis in idem and res judicata defences inapplicable.

7. Requests for relief

63. On the basis of these submissions, the Appellant requests the CAS Panel to issue an award:

“1) setting aside the Decision under Appeal;

2) removing all points received by the Third and/or Fourth Respondent in relation to matches fixed by the Respondents during the Turkish Super League 2010-2011;

3) withdrawing the Turkish Super League 2010-2011 title from the Third and/or Fourth Respondent, and/or ordering the TFF and/or UEFA to withdraw the Turkish Super League 2010-2011 title from the Third and/or Fourth Respondent;

4) declaring that the First and/or Second and/or Third Appellant is the champion of the Turkish Super League for the 2010-2011 season and ordering the TFF and/or UEFA to take all measures in order to register and recognise the First and/or Second and/or Third Appellant as the champion of the Turkish Super League for the 2010-2011 season;

5) awarding the Turkish Super League 2010-2011 title to the First and/or Second and/or Third Appellant, and/or ordering the TFF and/or UEFA to award the Turkish Super League 2010-2011 title to the First and/or Second and/or Third Appellant;

6) ordering the Respondents, as joint and several debtors, to pay the First Appellant, alternatively the Second Appellant, an amount of TRY 90’659’000 – alternatively TRY 105’859’000 if the title is not awarded to Trabzonspor - , together with interest at the rate of 15% per annum as from 31 December 2015;

7) taking all other appropriate measures, including without limitation relegation of the Third and Fourth Respondents, alternatively ordering UEFA to take all such appropriate measures, to sanction the Third and Fourth Respondents and/or the TFF as a result of the match-fixing activities committed during the Turkish Super League 2010-2011 season and as a result of the absence of appropriate prosecution by the TFF of such activities;

8) ordering the TFF to organise a trophy ceremony for the award of the Turkish Super League 2010-2011 title to the First and/or Second and/or Third Appellant”.

B. Respondents’ submissions

1. TFF

a. Standing

64. The First Respondent submits that, pursuant to Article 62 of the UEFA Statutes, only third parties that are directly affected by a decision can appeal that decision. In this regard, TFF contends that, while relying on the precedent of CAS 2008/A/1583 in determining whether competitors are to be considered directly affected, the Appellant has failed to quote the necessary criteria. In CAS 2008/A/1583, the CAS stated:

“Where the third party is affected because he is a competitor of the addressee of the measure/decision taken by the association, – unless otherwise provided by the association’s rules and regulations – the third party does not have a right of appeal. Effects that ensue only from competition are only indirect consequences of the association’s decision/measure. If, however, the association disposes in its measure/decision not only of the rights of the addressee, but also of those of the third party, the latter is directly affected with the consequence that the third party then also has a right of appeal”8.

65. In this regard, TFF argues that the Appellant is not directly affected by the Appealed Decision. TFF first submits that the case at hand does not affect any rights of the Appellant. Accordingly, TFF distinguishes the current proceedings at hand from the CAS 2008/A/1583 and 1584 by way of arguing that pursuant to CAS 2015/A/4151 standing to appeal should be restricted only to clubs that can show the Panel that they can “directly replace the excluded club”9. As such, TFF claims that even if Fenerbahçe had been sanctioned, there exists no legal basis for automatically awarding Trabzonspor the title of champion for the 2010-2011 Turkish Super League. In this regard, TFF does not consider Trabzonspor’s status as the runner up to be sufficient in establishing that the title would have reverted to them. There is no legal basis under the TFF’s or UEFA’s statues and disciplinary regulations providing for the automatic award of the title to the Appellant in the event the title is withdrawn from Fenerbahçe. Further, TFF notes that absent such legal basis, the title may very well be withdrawn without being awarded to any other team. In that respect, TFF refers to an example in the 2004-2005 season of the Italian Serie A where Juventus was stripped of its title without the title being awarded to the runner-up AC Milan or any another team.

66. Secondly, TFF submits that any possible sanction on Fenerbahçe and/or the TFF would have no effect on the Appellant. In this regard, TFF considers that Trabzonspor could have a standing to sue if it were to benefit from the consequences of the sanctions imposed on Fenerbahçe and/or the TFF. However, TFF argues that UEFA cannot impose sanctions on TFF for the domestic conduct of one of its members. Thus, there exists no way for the Appellant to benefit from the imposition of sanctions on TFF. As regards sanctions imposed on Fenerbahçe, TFF submits once again that the Appellant’s status as the runner up would not automatically mean that Trabzonspor would benefit from the sanctions imposed upon Fenerbahçe.

67. Finally, TFF submits that Article 23(4) Disciplinary Regulations (edition 2013) does not give a third party the right to petition UEFA on the basis of its own consideration that a UEFA member association has failed to prosecute, or prosecuted in an inappropriate manner, a serious violation of the UEFA statutory objective.

b. UEFA’s competence to impose sanctions in cases of national match-fixing

68. TFF submits that pursuant to UEFA Regulations, UEFA jurisdiction only extends to matches and competitions organized by UEFA, and that the determination of participation in various leagues is the responsibility of national associations and not UEFA. Consequently, TFF contends that the scope of UEFA’s involvement in match-fixing allegations at domestic level relates to UEFA Champions League (“CL”) and UEFA Europa League (“EL”) Regulations.

69. Even if UEFA had jurisdiction to revisit the match-fixing allegations against Fenerbahçe, UEFA had no competence to grant the relief requested by the Appellant as the applicable 2008 edition of the UEFA DR does not foresee or cover the requests submitted by the Appellant.

c. Breaches of sport regulations and Turkish and Swiss laws

70. As regards the Appellant’s substantive arguments against TFF, TFF contends that it has not breached any sports regulations. In particular, TFF stresses that it has duly carried out a twobodied appeal procedure regarding the allegations. TFF submits that its duties resulting from Article 2(1)(e) and 7bis(1) of the UEFA Statute does not in any case place TFF under any obligation to impose sanctions on Fenerbahçe based on the Appellant’s sense of being wronged. TFF further highlights that it instituted proceedings against Fenerbahçe, and it is clear that it duly considered all facts in light of the applicable regulations.

71. In regard to the Appellant’s claims that TFF was in breach of its contractual relationship with the Appellant, TFF argues that UEFA has no competence to deal with the application of Turkish contract law, regardless of the Appellant’s assessment of similarities between the Turkish and the Swiss Civil Codes.

72. TFF also submits, in relation to the Appellant’s claim that it has been abusing its dominant position, that match-fixing activities of football clubs are outside of the scope of Turkish

competition legislation given that neither football clubs nor the TFF would constitute an undertaking for the purposes of competition law.

73. Finally, TFF contends that the causal link between TFF’s actions and the damages suffered by the Appellant has not been satisfactorily established under Swiss Law.

d. Prayers for relief

74. On the basis of these submissions, TFF requests the CAS Panel to issue an award as follows:

“1) CAS has no jurisdiction to rule upon the appeal filed by Trabzonspor Futbol Isletmeciligi Tic. A.S. and Trabzonspor Kulubü Dernegi against the Decision rendered buy the UEFA Appeals Body on 17 September 2015.

2) Trabzonspor Sportif Yatirim ve Futbol Isletmeciligi Tic. A.S. and Trabzonspor Kulubü Dernegi have no standing to appeal the Decision rendered by the UEFA Appeals Body on 17 September 2015.

Alternatively

3) The appeal filed by Trabzonspor Sportif Yatirim ve Futbol Isletmeciligi Tic. A.S., Trabzonspor Futbol lsletmeciligi Tic. A.S. and Trabzonspor Kulubü Dernegi against the decision rendered by the UEFA Appeals Body on 17 September 2015 is inadmissible, respectively dismissed.

4) All prayers for relief of Trabzonspor Sportif Yatirim ve Futbol Isletmeciligi Tic. A.S., Trabzonspor Futbol lsletmeciligi Tic. A.S. and Trabzonspor Kulubü Dernegi are denied.

At any rate

5) Trabzonspor Sportif Yatirim ve Futbol Isletmeciligi Tic. A.S., Trabzonspor Futbol lsletmeciligi Tic. A.S. and Trabzonspor Kulubü Dernegi shall bear all arbitration costs.

6) Trabzonspor Sportif Yatirim ve Futbol Isletmeciligi Tic. A.S., Trabzonspor Futbol lsletmeciligi Tic. A.S. and Trabzonspor Kulubü Dernegi shall be ordered to pay the Turkish Football Federation a contribution towards the legal and other costs incurred by the latter in the framework of these proceedings, in an amount to be determined at a later stage”.

2. UEFA

75. The Second Respondent emphasizes that the Appellant bases its requests primarily on Article 2(3)–(4) and Article 23(4) of the UEFA DR in their 2013 edition, provisions which are not applicable to the merits of the present proceedings. UEFA further submits that even under the 2013 edition of the UEFA DR, UEFA is not competent to intervene in the national matchfixing in Turkey in the manner requested by the Appellant.

76. UEFA notes that in the previous proceedings against Fenerbahçe, the CAS has already clarified that Article 5(1)(a) of the UEFA 2008 DR only applies to competitions organized by UEFA10. UEFA thus submits that “[d]espite the fact that some provisions, notably UCLR and UELR stipulating admission criteria process for clubs participating in the UEFA competitions, extend the territorial scope also to national leagues and competitions, UEFA does not have a carte blanche in prosecuting clubs for national match fixing violations”. According to the Second Respondent, since the domestic competition in Turkey is not part of an admission procedure in accordance with the UEFA CL or EL Regulations, the requests of the Appellant should be rejected.

77. UEFA further contends that, even in the event that the 2013 edition of the UEFA DR were applied to the merits of the case, the fact that the match-fixing practices were investigated and prosecuted in an appropriate manner by the TFF prevents the extension of UEFA’s competence to matches and competitions not organized by UEFA as Article 2(3)-(4) of the UEFA 2013 DR foresees the abovementioned extension of competence in circumstances where the violation is not otherwise prosecuted in an appropriate manner by one of UEFA’s member associations. The Second Respondent asserts that the Appellant’s “subjective feeling of being treated unfairly” does not amount to an inappropriate prosecution.

78. UEFA also lists the immediate actions it has taken in regards to the match-fixing practices in Turkey. UEFA highlights that sanctions against Fenerbahçe’s participation in UEFA European club competitions, as affirmed by the CAS in 2013/A/3256, demonstrate the extent of UEFA’s involvement in investigating the matter in question.

79. In addition, UEFA contends that the sanctions imposed by UEFA on Fenerbahçe, as confirmed by the CAS and the Swiss Federal Tribunal, are res judicata and, on that basis, not only Fenerbahçe and UEFA, but also Trabzonspor cannot ask UEFA to alter its decision against Fenerbahçe by imposing new additional sanctions.

80. As regards standing to appeal, UEFA pleads that within the scope of the Appellant’s seventh prayer for relief, the Appellant is not directly affected by the Appealed Decision by the mere fact that it lodged a complaint before UEFA. In UEFA’s view, “whenever a disciplinary sanction is imposed on any player, club or association in the course of disciplinary proceedings, this solely determines the status and the legal consequences of the stakeholder on which the respective sanction has been imposed”. Concerning the seventh request for relief, UEFA distinguishes the CAS precedent of CAS 2002/O/373 from the situation at hand by submitting that IOC’s decision not to award a gold medal to a runner up athlete is different from the nature of the Appellant’s seventh request, which requires UEFA to issue disciplinary sanctions on TFF and Fenerbahçe – intervening in domestic competitions and incidents which happened on a national level under the auspices of the national association.

81. On the basis of these submissions, the Second Respondent requests the CAS Panel to issue an award:

“1) Declaring the Appeal of Trabzonspor as regards point VII of its requests inadmissible and reject the Appeal as for all other requests.

2) In any event reject the appeal and dismiss all the prayers for relief of Trabzonspor.

3) In any event, ordering Trabzonspor to bear all the costs of these arbitration proceedings and to award UEFA with a contribution to the legal fees incurred at an amount of minimum EUR 50.000”.

3. Fenerbahçe

a. UEFA’s competence

82. The Third Respondent contends that the CAS cannot impose further non-monetary sanctions on Fenerbahçe as the Panel can only grant requests for relief that fall within the competence of UEFA. In this regard, the Third Respondent makes reference to the “Competition-related Competence Principle” enshrined in relevant UEFA decisions and UEFA Statutes and regulations11. The Third Respondent also makes a reference to the CAS/A/2612 decision in which the Panel held that Swiss law requires that a federation may only base a disciplinary measure on provisions that provide a clear and unambiguous authority to do so. The Third Respondent contends that UEFA has no competence at domestic level regarding the requests submitted by the Appellant, due to the lack of an explicit provision in the applicable Disciplinary Regulations.

83. Given UEFA’s lack of competence at domestic level pursuant to the applicable 2008 edition of the UEFA DR, Fenerbahçe submits that the CAS cannot (i) deduct points or withdraw the championship title from Fenerbahçe (as requested by the Appellant’s prayer for relief II) or (ii) declare Trabzonspor the champion or award the title to it (as requested by the Appellant’s payers for relief IV and VIII). Fenerbahçe also submits that the lack of competence on behalf of UEFA as regards sanctions at domestic level further precludes the CAS from ordering UEFA to impose further non-monetary sanctions on Fenerbahçe including (i) the withdrawal of the championship from Fenerbahçe (as requested by the Appellant prayer for relief III) , (ii) the award of the title to Trabzonspor (as requested by the Appellant’s prayer for relief V) and (iii) the registration and recognition of Trabzonspor as the champion (as requested by the Appellant’s prayers for relief IV and VIII.)

84. Contrary to the Appellant’s view that the decision in CAS 2013/A/3256 calls into question UEFA’s lack of competence regarding domestic sanctions, Fenerbahçe argues that the requests at hand are decisively different from the sanction that was the subject matter of CAS 2013/A/3256 as the previous case concerned UEFA’s interest to protect its own competitions.

85. In parallel with their submission that the CAS cannot, by itself or through UEFA, impose nonmonetary sanctions on Fenerbahçe, the Third Respondent further contends that the CAS cannot order TFF to impose non-monetary sanctions on Fenerbahçe either. In this regard, Fenerbahçe submits that in order for the CAS to do so, Trabzonspor’s prayer for relief III

11 UEFA Statutes (edition 2010), Articles 2(1), 60 and 74. See also AC Milan, UEFA Emergency Panel decision of August 2, 2006.

should be based on UEFA Regulations. As already submitted by the Third Respondent, the applicable edition of the Disciplinary Regulations do not foresee involvement at domestic level. In any case, TFF is not competent to enforce the Regulations which fall within UEFA’s sole jurisdiction. Even in the event that TFF was found to be in breach under the applicable Disciplinary Regulation, Fenerbahçe submits that it cannot be found liable for an offence committed by TFF.

86. As regards the Appellant’s prayer for relief VI concerning the imposition of monetary sanctions on Fenerbahçe, the Third Respondent contends that such sanctions cannot be ordered as (i) there is no legal basis in the UEFA framework which would allow UEFA or the CAS on appeal to award such damages and (ii) Fenerbahçe has no civil liability towards Trabzonspor on the basis of contractual relations.

b. Res judicata and ne bis in idem

87. The Third Respondent holds all claims of the Appellant to be inadmissible on grounds of res judicata and ne bis in idem. In the alternative, Fenerbahçe holds the requests to be contradictory and vague and contends that the claims are inadmissible.

88. Fenerbahçe argues that “[r]es judicata not only refers to reliefs granted or orders made on the basis of certain facts but also on reliefs not granted or orders not made based on those facts. Accordingly, UEFA’s decision in 2013 not to impose any sanctions based on allegations looked into by UEFA has likewise obtained res judicata effect once it became final and binding”. The Third Respondent further submits that, should the present appeal be deemed admissible, the final and binding nature of the decisions taken by the UEFA against Fenerbahçe in 2013, which were eventually proclaimed by the CAS, would be altered.

89. Moreover, Fenerbahçe submits that the imposition of any of the sanctions sought by the Appellant against the Third Respondent would constitute a second sanction for the same offence and breach the legal concept of ne bis in idem, given the UEFA decision to ban the Third Respondent from two UEFA Champions League seasons, as confirmed by CAS 2013/A/3256.

c. Prayers for relief

90. On the basis of these submissions, the Third Respondent requests the CAS Panel to:

“a) Uphold in full the Decision under Appeal;

b) Dismiss all prayers for relief submitted by Trabzonspor;

c) Order the Appellant to pay the costs of the present arbitration;

d) Order the Appellant to pay the legal fees and expenses of Fenerbahçe, to be determined at a later stage of the proceedings”.