Fédération Royale Belge de Gymnastique (FRBG) v. Fédération Internationale de Gymnastique (FIG), Japan Gymnastics Association (JGA)

II. FACTUAL BACKGROUND

4. Below is a summary of the relevant facts and allegations based on the Parties’ written submissions and evidence adduced. Additional facts and allegations found in the Parties’ written submissions, and evidence may be set out, where relevant, in connection with the legal discussion that follows. While the Panel has considered all the facts, allegations, legal arguments and evidence submitted by the Parties in the present proceedings, it refers in its Award only to the submissions and evidence it considers necessary to explain its reasoning.

A. The Bidding Process

5. On 28 March 2018, the JGA requested the FIG to provide information about the bid applications for the 2023 Men’s and Women’s Artistic Gymnastics World Championships (the “2023 ART World Championships”). Later the same day, the JGA received from the FIG a blank copy of the Event Candidate Official Bid Contract (the “Bid Contract”) for the organization of the 2023 ART World Championships.

6. The Bid Contract received by the JGA stipulated in the section “Instructions – Applicant File” the following:

1. Questionnaire

a) The following form shall be completed by the Applicant National Federation and City officials.

b) The presentation of replies should be as simple and accurate as possible (the FIG is interested in the facts, not the presentation).

c) The FIG reserves the right to refuse any file which does not comply with the presentation requirements.

d) The Application File must be submitted as soon as possible but by no later than mid December 2018.

7. On 29 March 2018, the JGA asked the FIG to confirm whether its understanding that “the application files have to be submitted to the FIG Office by the middle to December 2018” was correct. The FIG replied “This is correct” later that day.

8. On 22 June 2018, the FIG announced in an official communication to the FIG authorities, the affiliated and associated federations, and the continental unions that the 2023 ART World Championships would be allocated during the next Council meeting, to be held in St- Petersburg, Russia, in May 2019. In this official communication, the FIG stated the following: “we kindly ask you to please send your possible candidature files as soon as possible, but not later than 30th November 2018 (date of receipt in Lausanne). Please note that no late candidatures will be accepted”.

9. In response to the FIG’s communication of 22 June 2018, the FRBG expressed on 3 September

(operative part of 25 April 2019)

2018 its interest in bidding for the organization of the 2023 ART World Championships.

10. On 4 September 2018, the FIG sent the Bid Contract to the FRBG, which, in the same way as the copy sent to the JGA on 29 March 2018, also stated that “the Application File must be submitted as soon as possible but by no later than mid-December 2018”.

11. On 5 October 2018, the FRBG sent an email to Ms Céline Cachemaille, Sports Event Manager of the FIG, seeking information about the deadline to submit its application. On that same date, Ms Cachemaille replied as follows: “for 2023, the Application File must be submitted by no later than mid-December 2018 and a decision will be taken by FIG Council in May 2019”.

12. On 15 November 2018, the FRBG requested an extension of the deadline to submit its bid until the end of January 2019 due to political issues related to local elections in Belgium.

13. On 27 November 2018, Mr André F. Gueisbuhler, Secretary General of the FIG, sent the following correspondence to the FRBG with respect to its extension request:

I very much regret, but I cannot help you in this matter.

Several member federations have shown interest to organise the 2023 Artistic Gymnastics World Championships and have received the bid forms.

Please accept that we have to treat all of them equally.

Therefore, only bids duly filled in received on or before 15th December 2018, including the necessary payment of the requested deposit of CHF 50’000.- will be considered.

Should FIG not receive any bid at this deadline, FIG might consider fixing another deadline until which bids can be presented and will be dealt with by the Council.

14. On 14 December 2018, the FRBG submitted its application.

15. On 17 December 2018, the FIG acknowledged receipt of the FRBG’s application to host the 2023 ART World Championships.

16. On that same day, 17 December 2018, the FRBG asked the FIG if other federations had submitted applications and whether the FRGB would have an opportunity to present its bid at the FIG Council.

17. On 18 December 2018, Ms Cachemaille confirmed that the FRBG was the only candidate to have submitted an application for the 2023 ART World Championships and that it would have the opportunity to present its bid on the second day of the FIG Council meeting in St. Petersburg on 4 May 2019.

18. On 21 December 2018, the JGA submitted its application to host the 2023 ART World Championships.

(operative part of 25 April 2019)

19. On 22 December 2018, the FIG acknowledged receipt of the JGA’s application.

B. Proceedings before the FIG Executive Committee

20. On 17 January 2019, the FIG sent the following letter to the FRBG and the JGA:

Dear BEL and JPN Federations,

There are some points to bring to your attention regarding the bid process for the 2023 ART World Championships. The points are as follows:

- The bid contract stated the deadline for submission was mid-December 2018. This term of “mid- December” is open to interpretation because its true definition is neither at the beginning nor at the end of the month.

- The FIG issued an Official Communication to all federations on 22 June 2018 entitled “2019 Council- Technical Regulations and FIG Events”. This document contained contradictory information regarding the deadline date for submission of the bids for the 2023 ART World Championships by stating a deadline of 30 November 2018.

We must acknowledge that we did receive two bids for the competition as follows:

- BEL on 14 December 2018

- JPN on 21 December 2018

By our observations, BEL determined mid-December as being by 15 December 2018, while JPN determined mid-December to be in the middle two weeks of the month. An argument could be made that both federations are late based on the Official Communication dated 22 June 2018, but we consider the contract terms to take precedence.

We want to acknowledge an email was sent by our Sports Event Manager, Céline CACHEMAILLE, on 18 December 2018 responding to Ilse ARYS of the BEL Federation’s question on how many bids has the FIG received. Our response to Ilse, “You are the only candidate who has presented a bid”. Celine delivered this information at the request of our former Secretary General, Mr Andre GUEISBUHLER. On 18 December 2018, there was indeed only one candidature received for 2023 at the FIG office.

After careful deliberation within the FIG office and consideration of past incidents with differences in interpretation, FIG will accept both bids and provide the opportunity for the two federations to present their bids (max. 15 min) at the Council 2019 in St. Petersburg (RUS) on the second day, 4th May. We have informed the FIG President, Mr Morinari WATANABE. The FIG office will provide more precise dates for future bids and try to avoid any contradictory information.

We wish the very best to both candidate cities for their presentations and in the final selection this May.

(operative part of 25 April 2019)

Please feel free to contact us should you have any questions or comments. Best wishes for a productive and successful 2019!

Kind regards,

Nicolas BUOMPANE Steve BUTCHER

FIG Secretary General FIG Sports Director

21. On 21 January 2019, the FRBG requested the FIG to correct its decision and confirm that: (i) the FRBG’s bid was the only procedurally correct bid; and, as such, (ii) the FRBG was the only candidate eligible to host the 2023 ART World Championships.

22. On 4 February 2019, the FIG informed the FRBG that the Presidential Commission considered the FRBG’s letter, but determined that “the final decision regarding which federation(s) can make a presentation for their bid” would be taken by the FIG’s Executive Committee (“EC”) during a meeting in Lausanne to be held on 19 and 20 February 2019.

23. On 5 February 2019, the FIG informed the JGA that the “FRBG has challenged the decision to allow two federations to bid for the 2023 ART World Championships” and that “the Presidential Commission has agreed that the final decision regarding which federation(s) can make a presentation for their bid would go to the Executive Committee (EC) at their 19-20 February 2019 meeting in Lausanne (SUI)”.

24. On 8 February 2019, the FRBG replied to the FIG’s correspondence of 4 February 2019, whereby it questioned the EC’s jurisdiction and requested to be heard during the EC meeting before a final decision was taken.

25. On 10 February 2019, the JGA sent a letter to the FIG, explaining that it had followed the FIG’s instructions in submitting its application and, therefore, that the JGA’s candidacy for the 2023 ART World Championships should be permitted.

26. On 12 February 2019, the FIG invited the FRBG and the JGA to submit a written report to the EC on the issue of the applicable deadline by no later than 17 February 2019.

27. On 15 February 2019, the JGA submitted its written report to the FIG and reiterated its position that it should be allowed to present its bid to the 2019 FIG Council, alleging it had followed the FIG’s instructions in relation to the submission of its application. Notably, the JGA asserted the following:

(…)

1. On March 28, 2018, we requested FIG to send us the bid contract application files.

2. On March 28, 2018, we received the files from Ms. Céline CACHEMAILLE. The deadline of “mid- December” was clearly mentioned in the bid contract.

(operative part of 25 April 2019)

3. On March 29, 2018, we asked Ms. Céline CACHEMAILLE for confirmation if we should submit the application files to FIG Office by the mid-December 2018 and if the Championships will be allocated by the 2019 FIG Council. Ms. Céline CACHEMAILLE wrote back to us on the same day, “This is correct”. Which means that we received the confirmation from Ms. Céline CACHEMAILLE that the deadline for submission is mid-December 2018.

4. On December 21, 2018, we submitted our file to FIG. (…)

We have the perception that “beginning of the month” means “the first week of the month”, “end of the month” means “the last week of the month”, and “middle of the month” means the weeks except for the first and the last weeks of the month. Therefore, our interpretation of the term “mid-December” is December 10th to 23rd. We successfully submitted our files within the deadline on December 21, 2018 based on this interpretation. (…)

The fact that FIG used a word “mid-December” which is not clear led to confusion among Japan and Belgium. In this sense, it is not reasonable to differentiate treatments of two federations on the grounds of discrepancy in the interpretation of “mid-December”. The host country has to be determined in a way to serve the best interests of gymnasts and participants. (…)

The FIG staff provided us unclear instructions as “mid-December”, and they are to blame for the failure. We cannot accept that they shift the responsibility to Japan Gymnastics Association which has been dedicating to organize the event. (…).

28. On 16 February 2019, the FRBG filed its written report to the EC, setting out its position on the matter, namely:

(…) As stated in the e-mail of 27 November 2018 sent by the acting FIG Secretary General, bids were only taken into consideration if they were received on or before 15 December 2018. 15 December 2018 is the only legally and semantically correct interpretation of “mid-December” 2018. No further interpretation of this concept is required or should be considered in this case.

Reference is also made in the letter of 17 January 2019 to the fact that both federations would be late following the due date of the bid, as stated in the Official Communication dated 22 June 2018. However, we agree with the conclusion in the letter that the contract terms, which indicate “mid-December” 2018 as the official due date for the bid of the 2023 ART World Championships, take precedence.

If the bid of the Japanese federation were to be taken into account, the principles of equal competition and equal treatment would be harmed in two ways.

On the one hand it should be noted that the Japanese federation did not respect the deadline of 15 December 2018 which was imposed and followed by the Royal Belgian Gymnastics Federation. This deadline was set out and communicated in the e-mail of 27 November 2018 to the Royal Belgian Gymnastics Federation as being a hard deadline. This approach should be applied to all interested federations, not only the Royal Belgian Gymnastics Federation.

On the other hand the possibility should be taken into account that the Japanese federation had knowledge of the official Belgian bid and was in a position to structure and alter its bid taking into consideration that there were

(operative part of 25 April 2019)

other official bids for the 2023 ART World Championships. If the Japanese federation indeed had knowledge of the Belgian bid, they had a clear and undeniable advantage over the Belgian bid. Even without knowledge of the Belgian bid, the Japanese federation has received an advantage over the Belgian bid, the latter not getting any extension beyond the deadline of 15 December 2018. (…).

29. On 19 and 20 February 2019, the EC held a meeting. The relevant points from the minutes of the meeting read as follows (emphasis in the original):

After President Watanabe, Rosy and Tammy left the room, Nicolas introduced the sensitive topic of the allocation of the 2023 ART WC. He was sorry to have to admit that the Office created a big mess. Unfortunately, it will not be possible to make a good decision, because either BEL or JPN will be disappointed. The lawyer confirmed that some information like “mid-December” could be subject to interpretation. We are not going to repeat this kind of mistakes in the future. Nevertheless, both federations already informed us that they might decide to go to court.

Nicolas summarized the various steps of the case file. According to the lawyer, the official communication would prevail, should we not have confirmed a different deadline in the bid document. The EC is therefore requested to vote on the 2 following questions:

Do you consider that the term “mid-December 2018” is open to interpretation, and that the bids sent by BEL and JPN should both be submitted to the Council in May 2019? Or do you not consider that the term “mid- December 2018” is open to interpretation, and that only the bid submitted by BEL should be submitted to the Council in May 2019?

Decision: The total number of votes was 19. 12 votes were in favor to present both bids, and 7 votes were of the opinion that BEL’s bid only should be presented at the Council.

30. On 20 February 2019, the FRBG and the JGA were informed that the EC had adopted a final decision allowing both of them to present their bids for the 2023 ART World Championships to the 2019 FIG Council (the “Appealed Decision”), which reads as follows:

Today the FIG Executive Committee deliberated regarding the bid predicament for the 2023 ART World Championships. A final majority vote was recorded to allow both federations, BEL and JPN, to present their bids to the FIG Council in St. Petersburg (RUS) in May of this year. It is important to mention that all EC members received the letters and essential emails exchanged with FIG and both federations, as well as the hearing reports submitted by 17 February. The EC members effectively discussed the issues based on the information distributed prior to arrival and presentations during the meeting.

31. On 1 March 2019, the FRBG filed a complaint with the Compliance Section of the Gymnastics Ethics Foundation (“GEF”) in which it “formally denounce[d] the FIG Executive Committee decision due to (i) the unequal treatment the RBGF has received in the bidding process, (ii) the fact that rules are being interpreted which are unequivocal and therefore do in no way need to be interpreted, and (iii) the fact that FIG violates its own rules and statutes in allowing late bid applications to be admitted”. At the same time, the FRBG expressly indicated that nothing in that complaint should be interpreted as an acknowledgment that the GEF constitutes or could be considered as an internal “legal remedy”

(operative part of 25 April 2019)

within the meaning of Article R47 of the Code of Sports-related Arbitration (the “Code”).

32. On 4 March 2019, the GEF acknowledged receipt of the FRBG’s complaint and confirmed it would keep the FRBG informed of any action the GEF would, or wouldn’t, undertake in the matter.

III. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT

33. On 1 March 2019, the FRBG filed its statement of appeal with the Court of Arbitration for Sport (the “CAS”) against the FIG with respect to the Appealed Decision in accordance with Article R47 et seq. of the Code. In its statement of appeal, the FRBG nominated Mr Pierre Muller as arbitrator. Included therewith was a request for an expedited procedure in accordance with Article R52 of the Code.

34. On 7 March 2019, the CAS Court Office noted that the appeal was not directed at the JGA, which was however designated as an interested party. The CAS Court Office informed the JGA that if it intended to participate as a party in the present arbitration, it should file an application to this effect, in accordance with Article R41.3 of the Code.

35. On 15 March 2019, the JGA filed a request for intervention. On agreement of the Parties, the JGA was thereafter permitted to intervene as a co-Respondent in this case.

36. On 19 March 2019, the CAS Court Office invited the Parties to submit an agreed procedural calendar and informed them that in the absence of an agreement, no expedited procedure could be implemented.

37. On 21 March 2019, the Parties filed with the CAS Court Office an agreed-upon procedural calendar and directions according to which Mr Pierre Muller and Mr Philippe Sands would act as co-arbitrators, and the President of the CAS Appeals Arbitration Division would appoint the chairman of the Panel.

38. On 22 March 2019, the CAS Court Office duly noted the agreed procedural calendar, acknowledging that the Parties waived an oral hearing and requested an award to be rendered on the sole basis of the Parties’ written submissions. Therefore, the Parties decided not to hold a hearing in accordance with Article R57 of the Code.

39. On 22 March 2019, the FRBG filed its appeal brief in accordance with Article R51 of the Code.

40. On 25 March 2019, the CAS Court Office accepted the Parties’ procedural agreement, except for the date of the issuance of the award, which could only be confirmed once the Panel was constituted.

41. On 9 April 2019, the CAS Court Office, on behalf of the President of the Appeals Arbitration Division, confirmed the appointment of the Panel as follows:

(operative part of 25 April 2019)

President: Prof. Luigi Fumagalli, Attorney-at-Law in Milan, Italy

Arbitrators: Mr Pierre Muller, former Judge in Lausanne, Switzerland

Mr Philippe Sands QC, Barrister in London, United Kingdom.

42. On that same date, the Parties were advised that Me Marianne Saroli, attorney-at-law in Montreal, Canada was appointed ad hoc clerk in this procedure.

43. On 11 April 2019, the FIG and the JGA filed their respective answers in accordance with Article

44. On 17 April 2019, the FRBG filed a reply in accordance with the agreed upon procedural calendar.

45. On 22 April 2019, the FIG and the JGA filed their respective rejoinders in accordance with the procedural calendar agreed upon by the Parties.

46. On 25 April 2019, the operative part of this award was issued.

IV. PARTIES SUBMISSIONS — A. The Position of the Appellant

47. In its statement of appeal and appeal brief, the Appellant sought the following relief:

(i) Setting aside the Decision under Appeal.

(ii) Ruling that the Japanese Gymnastics Association’s bid to host the 2023 ART World Championships was belated and cannot be considered by the FIG Council.

(iii) Awarding any other remedy the CAS deems appropriate.

(iv) Ordering the Fédération Internationale de Gymnastique and/or the Japanese Gymnastics Association to pay the arbitration costs of the present proceedings, if any.

(v) Ordering the Fédération Internationale de Gymnastique and/or the Japanese Gymnastics Association to pay a contribution to the Fédération Royale Belge de Gymnastique’s legal fees and expenses associated with these proceedings.

48. In essence, the Appellant’s position is that the JGA’s application of 21 December 2018 did not comply with the FIG’s formal requirements for the submission of a bid to host the 2023 ART World Championships. According to the Appellant, on the basis of: (i) the express terms of the Bid Contract; (ii) the FIG’s conduct; (iii) the JGA’s own bid documents; and (vi) Swiss law principles and common sense, the only possible meaning of “mid-December 2018”, as the deadline

(operative part of 25 April 2019)

for the filing of bids, is “15 December 2018”. In addition, by taking the Decision under Appeal, the FIG committed a breach of the principle of equal treatment. Therefore, the Appellant submits that its bid to organize the 2023 ART World Championships is the only procedurally correct bid and that it should thus be the only eligible candidate to host this FIG event.

49. The Appellant’s submissions in that regard may be summarized as follows:

a) The applicable deadline

- The FIG initially set out a 30 November 2018 deadline to all the member federations to submit their applications for the 2023 ART World Championships.

- Article l.d) of the Bid Contract, however, stipulates that “the Application File must be submitted as soon as possible but by no later than mid-December”.

- Mr Gueisbuhler, on behalf of the FIG, refused to grant the FRBG an extension of its deadline and expressly stated that the time limit was 15 December 2018.

- The JGA’s completed Bid Contract states on its first page that the submittal date for 2023 ART World Championships is 15 December 2018. The same information appears on the last page of the JGA’s bid contract.

- The FRBG’s interpretation is consistent with Swiss law. Article 76(2) of the Swiss Code of Obligations (the “SCO”) explains that “a time limit expressed as the middle of the month means the fifteenth day of that month”. Moreover, Article 77(1)(3) of the SCO stipulates that “the term ‘half-month’ has the same meaning as a time limit of fifteen days”. Furthermore, legal scholars are unanimous that “the middle of the month” equals to the fifteenth day of said month.

- The JGA is wrong to assert that “the beginning of December” means “the first week of December”, “the end of December” means “the last week of December” and “the middle of December” means “every day in between”. This interpretation is contrary to Swiss law and practice. Since the JGA submitted its application on 21 December 2018, its bid was late.

- Article 11.12.1 of the FIG Statutes provides that “any late candidature for the elections and/or organization of a FIG event (…) shall not be admitted”.

- With respect to applications deadlines, it appears that prior to 2012, it was possible, in certain circumstances, to file late candidatures. However, in 2012, the FIG adopted a new approach in this regard. During the 79th General Assembly on 25, 26 and 27 October 2012 in Cancun, the FIG made the following comments with respect to late applications:

A thorough study of the FIG Statutes had made it evident to him that this document did not provide any possibility of submitting late applications. Like the IOC the FIG is an association governed by Swiss law. Swiss law is extremely liberal, requiring only that statutes be established by the general assembly. Mr Denis Oswald’s legal opinion corroborated this fact.

(operative part of 25 April 2019)

Mr Gossin explained that since it had always been possible in the past to proceed in that way, late applications would still be accepted this year. However this would no longer be possible in the future. If the delegates deem this rule unsuitable, the Statutes would have to be modified accordingly.

- Thereafter, at the 80th General Assembly held on 29 and 30 October 2014 in Tashkent, the Assembly decided to modify the Statutes regarding late candidatures. Section 11.12.1 of the FIG’s 80th General Assembly minutes provides as follows:

11.12.1 – Agenda of the Congress

According to Mr Gossin’s remark concerning last minute additions.

ROU: Up to now a late candidature application could be accepted with a 2/3 majority at the opening session of the Congress. Perhaps the requirements for a candidature and for a proposal should be specified separately.

Norbert Bueche replied that an identical text will be added under the candidature item.

Decision: The assembly tacitly approved the proposal along with the suggested addition.

b) Equal treatment

- Under the Swiss law of association, the principle of equal treatment is always applicable as a general principle, and, therefore, the members of an association should all be treated equally.

- According to the FIG, this principle shall be applied with respect to the bidding process for the organisation of FIG events.

- On 15 November 2018, the FRBG requested an extension of the mid-December deadline to submit its application due to political reasons in Belgium. However, on 27 November 2018, the FIG replied that an extension was not possible, because “several member federations have shown interest to organize the 2023 Artistic Gymnastics World Championships” and “we have to treat them equally”.

- When the FIG later accepted that the expression “mid-December” permitted the JGA to file an application after 15 December 2018, it violated the fundamental principle of equal treatment.

- The FIG cannot refuse to extend a deadline to the FRBG, based on the principle of equal treatment between the member federations, and then ignore the same principle a month later when it came to the Japanese bid. Hence, not only it is possible that the JGA had knowledge of the Belgian bid and thus could amend its own bid accordingly, but the JGA benefitted from the extension and was able to work on its bid for six more days, whereas the FRBG was informed that the 15 December 2018 was a hard deadline.

(operative part of 25 April 2019)

- The FRBG further notes that the FIG’s letter of 4 February 2019 (i.e., in which the Appellant was informed “the final decision regarding which federation(s) can make a presentation for their bid” would be taken by the EC at its 19-20 February 2019 meeting in Lausanne) specified that “the FIG President [would] not attend the section of the EC Meeting where this matter is discussed to avoid any potential conflict of interest”, the FIG President, Mr Morinari Watanabe, being Japanese.

c) On reply to FIG and JGA answers

- Contrary to the JGA’s assertion, the deadline of “mid-December” was not misunderstood by the JGA or open to interpretation as deadlines refer to a specific moment and not to a range of time. It is inappropriate for the FIG, as a sports-governing body, to endorse the JGA’s factual position.

- As opposed to the FIG’s contention, Article 76 of the SCO not only applies to contractual obligations, but also to any other legal acts.

- In any event, the Bid Contract is an actual contract under which bidding federations choose to be bound by, and therefore they are required to comply with, the deadlines outlined in it.

- The FIG is also bound by the principle of non venire contra factum proprium, which provides that when the conduct of one party has led to legitimate expectations on the part of the second party, the first party is barred from changing its course of actions to the detriment of the second party. However, the FIG disregarded such principle.

- While Swiss association law allows a federation to enact a rule that departs from the fundamental principle of Article 76 of the SCO, the FIG failed to do so. Hence, Article 76 of the SCO is applicable and “mid-December” means 15 December 2018. Moreover, Article 18 of the Bid Contract provides that “this Contract shall be governed by and interpreted exclusively in accordance with the Laws of Switzerland”.

- The FIG claims that it was competent to flexibly determine or extend the application deadline as it “deemed appropriate” and it deviated from Article 13.1.1 of the FIG Statutes when expressly laying down the “mid-December” date in the Bid Contract. According to the FRGB, the FIG exercised its discretion by superseding the five-month limit and setting out a “mid-December” deadline in the Bid Contract. Therefore, there was no further discretion to be exercised by the FIG afterwards. Claiming the contrary would contradict the approach taken by the FIG when it rejected the FRBG’s extension request.

- Nevertheless, Article 13.1.1 of the FIG Statutes did not play any role in the FIG’s decision to admit the JGA’s application, as it appears from the minutes of the EC’s meeting of 19 and 20 February 2019. In this respect, the FRGB highlights that the only relevant question raised during this meeting concerned whether the term “mid-December” was open to

(operative part of 25 April 2019)

interpretation or not. The FIG made further references to Article 13.1.1 in its answer as an ex post facto attempt to justify its decision to accept the JGA’s bid.

- Moreover, Article 13.1.1 of the FIG Statutes became irrelevant from the moment a specific deadline was expressly specified in the Bid Contract. In this context, FIG is incorrect to assert that “no protest or appeal was filed against the decision of the FIG to set the application date different from the standard in Article 13.1.1”. If the FRBG had been aware that the FIG intended to provide different deadlines for different member federations, or to accept applications after the expressly specified deadline, it would most certainly have objected like it did when it received the FIG’s letter of 17 January 2019.

- The FIG ignored the sequence of events and misrepresented the facts when it stated that the JGA was the only one to double-check the application date. Such statement is wrong as it was rather the FRBG, not the JGA, that double-checked the deadline after receiving the Bid Contract, which contained a deadline that was inconsistent with the one provided in the official communication of 22 June 2018.

- Finally, and with respect to the standing to sue, the FRBG admits that it did not lose its right to present its bid to the Council. However, the FRBG has a right to present its bid only against candidates that are subject to the same procedural rules. Indeed, the FRBG went from being the only candidate holding the right to present its bid to competing against a federation that enjoyed six more days to prepare its bid and whose nationality is the same as the FIG’s President.

- Unless there is evidence that the FRBG would violate the FIG Statutes, the FIG should award the organisation of the 2023 ART World Championships to the FRBG. In this respect, Article 34.5 of the FIG Statutes provides as follows: “[t]he organisation of events is entrusted, at an appropriate time, to Federations which fully guarantee that the Statutes and Regulations of the FIG will be observed together with the terms of the contract which they are obliged to enter into with the FIG. The preparation and conduct of the competitive programme is under the control of the FIG”.

- The FRBG has a right to be the only federation allowed to present its bid to the Council, which is, notably, the only remedy the FRBG is requesting in this arbitration.

B. The Position of the First Respondent

50. In its answer, the First Respondent sought the following relief:

(1) The Appeal shall be dismissed to the extent it is admissible.

(2) The costs of this arbitration shall be borne by the Appellant.

(3) The Appellant shall pay a fair contribution to the FIG’s legal costs and expenses related to these proceedings.

(operative part of 25 April 2019)

51. The First Respondent, in other words, requests the CAS to dismiss the appeal. According to the First Respondent, in fact, the EC exercised its power and discretion in a legally correct, responsible and fair manner when it concluded to admit both the Appellant and the Second Respondent to the presentation of their bids to the Council. In addition, according to the First Respondent: (a) there is no “right” to be awarded a FIG event, even if the Appellant would be the only bidder; (b) the FIG is competent to organize the bidding process for hosting the 2023 ART World Championships and to specify the time limits for the submission of the applications; (c) the relevant time limit of “mid-December 2018” has been met by both applicants; (d) the FIG has the responsibility and the competence to decide on the admission of candidates for the organization of the 2023 ART World Championships, and (e) the FIG has not disadvantaged the Appellant, since its bid was accepted and would be presented to the Council on 4 May 2019 for decision.

52. The First Respondent’s submissions in that regard may be summarized as follows:

a) The FRBG’s legal interest

- The FIG recognizes that a rejected bidder would be entitled to appeal against an exclusion from the bidding process, but it contests that an accepted bidder has a right to appeal under Article R47 of the Code, since the admission of both candidates to the presentation of the bids does not prejudice the Council’s award of the 2023 ART World Championships.

- In accordance with Article 13.4(h) of the FIG Statutes, the FIG’s Council is competent to decide the federation to be awarded the organisation of the 2023 ART World Championships.

- Article 13.1.1 of the FIG Statutes provides the framework of the application process and namely refers to Article 11.16.3, according to which all proposals must be put to vote regardless of the number of applicants. In this context, the Council must vote even if there is only one single candidate. The sole applicant’s bid must receive a simple majority of the votes cast to be elected as the host for the 2023 ART World Championships.

- If no candidate can convince a simple majority of the Council members, the application process must be reopened, and all member federations have another chance to submit a new bid. Therefore, an applicant has no right to organise a FIG event, even if it represents the sole candidate.

- The FRBG was not disadvantaged by the admission of the JGA’s bid. Consequently, the FRBG has no legitimate legal interest in the case.

b) The applicable deadline

- There was no strict time limit of 15 December 2018 for the submission of the bids. When the FRBG requested to postpone the application date, the then Secretary General Mr

(operative part of 25 April 2019)

Gueisbuhler sent a written response in which he referred to the date of 15 December 2018. However, this date was never communicated to the JGA or any other member federation. As a result, this cannot be held against the Appealed Decision and the JGA.

- Article 13.1.1 of the FIG Statutes stipulates a time limit for the submission of the applications, which corresponds to five months prior to the Council meeting. The five months’ notice shall permit the Council enough time to study the applications prior to the meeting whereby the decision will be taken. In this context and since the Council meeting was planned from 3 until 5 May 2019, the statutory time limit would have expired at the beginning of December 2018.

- The FIG made the template bidding documents available (i.e., the Bid Contract) in Spring 2018 to the member federations. Upon request, the FIG sent the Bid Contract to the interested federations, which stated that the applications had to be filed by “mid-December 2018”. On 28 March 2018, the JGA requested and received the Bid Contract whereas the FRBG requested it on 3 September 2018 and received it the following day.

- Pursuant to Article 13.1.1 of the FIG Statutes, the FIG informed the member federations on 22 June 2018 that the candidatures should be submitted no later than 30 November 2018.

- The FRBG and the JGA relied on the information from the Bid Contract and not the official communication of 22 June 2018. Only the JGA double-checked the application date with the FIG.

- The FRBG was aware of the time-limit of “mid-December 2018” since it asked for a postponement of the application date until “mid-January 2019” because of domestic reasons. In response to this enquiry, Mr Gueisbuhler replied that the applications should be submitted by 15 December 2018 and consequently, the FRBG understood that “mid- December 2018” meant the exact date of 15 December 2018. On the other hand, the JGA understood “mid-December 2018” in good faith as a period of time in the middle of December 2018.

- Both the FRBG and the JGA submitted their applications on time according to their own understandings of the deadline.

- When interpreting a legal provision, the Swiss Federal Tribunal’s consistent jurisprudence established that Swiss law does not protect excessive formalism.

- The FIG underlines that the date of submission was already moved from the beginning of December to the middle of the month and that the five months’ notice had no other purpose but to make sure that the Council had enough time to study the applications.

(operative part of 25 April 2019)

- Therefore, “mid-December” means the middle part of December, which is a certain time period and not a single date. In this context, 21 December can certainly be counted to the period of “mid-December” as it was also understood in good faith by the EC.

- In addition, the 15 December 2018 was a Saturday and cannot serve as a submission date according to procedural law. There is no time limit to determine the applicable deadline when it expires on a weekend or a public holiday.

- Contrary to the FRBG’s assertion, Article 76 of the SCO only concerns the time of performance of a contractual obligation. Hence, Article 76 of the SCO has no relevance in the present context as it serves a completely different purpose.

c) The FIG’s competence to determine the application deadline

- There is no law requiring an association or a federation to draft its internal rules pursuant to the Swiss Civil Code (the “SCC”) or the SCO. In fact, Articles 60 to 79 of the SCC, which define the scope and meaning of the regulatory power of associations and federations, grant them a wide discretion in this respect.

- While the FIG deviated from Article 13.1.1 of the FIG Statutes when it determined the application deadline, such decision was not challenged by the FRBG or any other member federation. Hence, all member federations recognised that Article 13.1.1 was not subject to a strict application as the FIG still had a certain margin of discretion. Moreover, all member federations accepted that the FIG had power to set a specific deadline to submit their application and to change it in the course of the bidding process if deem necessary. They did not consider a precise date to be crucial for the validity of the bid.

- As a result, the application deadline was not a mandatory rule, but rather an organisational one, subject to changes when deemed necessary by the FIG.

- It is the EC’s statutory competence to decide whether it could accept the application of the JGA under the circumstances and submit it to the Council for vote and this decision does not constitute a discrimination of the Appellant.

c) On rejoinder to FRBG’s reply

- FIG is not defending one federation over another or endorsing the JGA’s position. Rather, it is defending the Appealed Decision, which admitted the presentation of the two bids before the Council. Indeed, the FIG never denied the problem of contradicting communications about the application date and always acted in full transparency.

- Contrary to what the FBRG insinuates, the Appealed Decision has nothing to do with the FIG President’s nationality.

(operative part of 25 April 2019)

- The date of 15 December 2018 was never communicated to the FIG member federations or to the JGA, since the only reference to 15 December 2018 was in Mr Gueisbuhler’s email of 27 November 2018 to the FRGB.

- The FRGB failed to demonstrate it understood “mid-December” as the exact date of 15 December 2018 prior to the receipt of Mr Gueisbuhler’s email on 27 November 2018.

- In its email of 5 October 2018, the FRBG did not refer to the “discrepancy” between FIG’s official communication of 22 June 2018 and the Bid Contract.

- Contrary to the FRBG’s assertion, the correspondence between the FIG and the JGA dated of 29 March 2018 demonstrates that it is the JGA who double-checked the deadline after having received the Bid Contract.

- The strict application of the FIG Statutes would have led to the conclusion that both bids were submitted too late, namely after the statutory deadline of 5 months prior to the beginning of the Council meeting of 3-5 May 2019. The same goes with respect to the official communication of 22 June 2018 referring to an application date of 30 November 2018.

- Contrary to the FRBG’s allegations, the blank template form of the Bid Contract is not a contract, but a questionnaire qualified as a tender invitation, which becomes an offer once it is completed, then a contract only upon review, acceptance and countersignature by the FIG. Without the FIG’s acceptance, only the legal provisions about tenders and offers apply (in particular Article 3 of the SCO) but not those relating to the performance of contracts. Hence, the FIG has discretion to accept a late application.

- Based on the plain wording of Article 13.1.1 of the FIG Statutes, the EC could have excluded both bids, but it applied its discretion to accept them for the following reasons:

- A strict application of the 5 months statutory deadline could have led to a delay in the bidding process;

- “Mid-December” means a certain period and is not a synonym for 15 December;

- 21 December can be understood in good faith as being the middle period of December;

- Provided an alternative if a candidate were to be excluded from the bidding process, notably on the basis of political or financial reasons;

- Offered the Council a real choice as it was not prejudiced by a prior decision of the EC.

- The FRBG does not suffer a disadvantage from the JGA’s invitation to present its bid to the Council as the Appealed Decision was only a preliminary decision, a sole applicant’s

(operative part of 25 April 2019)

bid is always subject to vote and the awarding of the 2023 ART World Championships is based on the concept of a competition among candidates to ensure the best possible quality of the event. If being the only candidate may be profitable, it is not an enforceable right.

- While the FRBG claims that it was deprived because the JGA had six more days to prepare its application, the FIG announced the opening of the bidding process in the beginning of 2018. The JGA expressed its interest on 28 March 2018 whereas the FRBG requested the Bid Contract in the beginning of September 2018. Hence, the FRBG had plenty of time to prepare its application and besides, it failed to substantiate how those six additional days would have been beneficial to its candidacy.

C. The Position of the Second Respondent

53. In its answer, the Second Respondent sought the following relief:

a. declaration that the Decision Under Appeal shall not be set aside; and

b. orders that:

i. the FRBG to pay the arbitration costs of the Present Arbitration; and

ii. the FRBG to pay the JGA’s legal fees and expenses in relation to the Present Arbitration.

54. In support of its requests the Second Respondent submits, in essence, that: (i) the meaning of “mid-December” is open to interpretation and, as a result, “15 December” is not the only possible meaning of “mid-December”, and (ii) even if the Panel finds that “mid-December 2018” does mean “15 December 2018”, the JGA’s bid should not be discarded, because this would constitute a breach of the principle of equal treatment.

55. More specifically, the Second Respondent’s submissions may be summarized as follows:

a) The FRBG’s legal interest

- The FRBG has no positive right to challenge the Appealed Decision.

- Accepting the JGA’s application does not affect the FRBG’s opportunity to present its bid and have it considered on its merits, and the FRBG would still have a chance of winning the right to host the 2023 ART World Championships.

- On the other hand, rejecting the JGA’s application would cause it serious detriment as it would lose the chance to present its bid. In addition, all the time devoted by the JGA to, and the cost incurred in good faith for, the preparation of its bid, reasonably relying on the FIG’s acceptance, will have been wasted.

(operative part of 25 April 2019)

- Pursuant to Article 11.16.3 of the FIG Statutes, “all proposals contained in the agenda must be put to the vote (…)”, meaning any bids must be put to a vote at the 2019 FIG Council. Even if the FRBG was the only bidder, it would not be automatically awarded the 2023 ART World Championships, as it would still be within the FIG’s power to reopen the bid process.

b) The applicable deadline

- Contrary to the Appellant’s assertion, it is not clear that the meaning of “mid-December 2018” corresponds to 15 December 2018. The term “mid-December” is not precise enough for all federations to universally understand “15 December” to be the only possible date that may reasonably be interpreted as “mid-December”. That term, in fact, can also mean “around the center of December”.

- The term “mid-December” should be interpreted in a manner consistent with common usage. Various member federations, acting reasonably, may come to different conclusions as to the meaning of “mid-December”. For instance, the Japanese equivalent to “middle” (“nakaba”) means in Kojien Dictionary, 7th Ed “the central section of a place or in time”. Hence, a common meaning of the term “mid-December” in Japan would be “around the center of December”, not “15 December”.

- Since member federations are located all over the world, the FIG should strive to use terms that are clear and whose meanings are commonly understood. Where doubt over the meaning of a term exists, it should be interpreted in a way consistent with its plain English meaning and common sense. Thus, the plain English meaning of “mid-December” cannot only mean “15 December”.

- In accordance with the Concise Oxford Dictionary of Current English, 8th Ed, “mid” refers to “the middle of”, which means “the point at or around the centre of a period of time, activity, etc”. Therefore, a specific point in time is not the only possible meaning of term “middle”. Both words can describe a precise point or a range. For instance, “mid-afternoon”; “midmonth”; “mid-year”; or “mid-19th century” all refer to a range in time, not to a precise point.

- In the Collins Cobuild Advanced Dictionary, the term “the middle of (…) period of time” means “the part that comes after the first part and before the last part”. Consequently, the 15th day of a month is not the only meaning commonly assigned to the “middle of a month”.

- If the FIG had intended to apply the narrow definition of “mid-(month)” under Swiss law, it should have explicitly stated in the Bid Contract template that the deadline was “15 December”, but it did not.

- On 29 March 2018, the JGA asked the FIG to confirm the deadline for filing the application by sending an email that stated: “May we understand that the application files have to be submitted to the FIG Office by the middle to (…) December 2018 and the Championships will be allocated by the 2019 FIG Council?”. On the same day, the FIG replied: “This is correct”.

(operative part of 25 April 2019)

- The FIG did not provide the JGA with a specific date to submit its application. Therefore, the JGA reasonably believed that the JGA had to submit its application by the “middle of December”. By accepting the JGA’s application, the FIG confirmed that the JGA’s understanding was correct.

- The date of 15 December on the JGA’s completed Bid Contract is just a coincidence as it was the date the JGA’s administrative staff inserted as a tentative date by which the JGA internally aimed to fill out the Bid Contract.

c) Equal treatment

- Different deadlines were communicated to the FRBG and to the JGA. The FRBG was instructed to submit its application on or before 15 December, but the JGA was not. However, both federations complied with the deadlines provided by the FIG, i.e. on or before 15 December for the FRBG and “mid-December” for the JGA.

- The FIG was fully aware that the JGA was also preparing its application when it instructed the FRBG about the 15 December deadline. Nevertheless, the JGA was not informed of a specific date to submit its bid.

- The JGA filed its application reasonably relying on the instructions it had received from the FIG. If the FIG had instructed the JGA to submit its application on or before 15 December, then the JGA would have done so.

- Insisting that the JGA should comply with the deadline that was exclusively communicated to the FRBG would be unfair and result in unequal treatment.

d) On rejoinder to FRBG’s reply

- The EC also interpreted the meaning of “mid-December” in the same way as the JGA did. The EC, as recorded in the minutes from its meeting of 19 and 20 February 2019, confirmed by 12 votes to 7 that the term “mid-December” is open to interpretation. Since the EC is comprised of individuals from many countries, this supports the JGA’s position that the term “mid-December” used by an international organization is not commonly understood to be inherently limited to a precise date.

- Moreover, the EC concluded that both bids from the FRBG and the JGA should be submitted to the FIG Council in May 2019, demonstrating that 21 December falls within the meaning of the “mid-December”.

- Limiting the meaning of “mid-December” to the 15th was probably not the FIG’s intention since it did not indicate “15 December” as the deadline in the Bid Contract.

- As opposed to the FRBG’s assertions, the JGA did contact the FIG regarding the deadline immediately after it received the Bid Contract template on 28 March 2018.

(operative part of 25 April 2019)

- The JGA received no further communications from the FIG in relation to the deadline for the submission of the applications after the FIG confirmed the time limit as the “middle to (…) December” on 29 March 2018.

- In addition, there was no document, material, communication or other evidence about the deadline which was available to the JGA at the time which indicated that “mid- December” exclusively meant 15 December. The sole exception to this is one email between the FIG and the FRBG on 27 November 2018, which referred to 15 December as the deadline. However, this email was not shared with the JGA nor was the information contained in the email communicated to the JGA in any other way.

- The JGA had adequate time to complete its application after receiving the Bid Contract on 28 March 2018. The extension of some days provided it no benefit.