Vernon Manilal Fernando v. Fédération Internationale de Football Association (FIFA)

II. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT

19. On 28 March 2014, the Appellant filed his statement of appeal at the Court of Arbitration for Sport (CAS) pursuant to art. R48 of the Code of Sports-related Arbitration (“CAS Code”). In his statement of appeal, the Appellant requested the following relief:

1. The annulment of the Decision of the Appeal Committee (A-1 and A-2) as well as any findings adverse to the Appellant in that of the Adjudicatory Chamber; 2. The setting aside of the convictions on each of the charges 1, 2 and 4 and recording verdicts of not guilty. 3. In the event that the convictions are not set aside, the substitution of a fair and proportionate sanction in place of the life ban, taking into account that the Appellant has already been suspended from all football related activity since the commencement of the proceedings on 11th March 2013. 4. The Respondent shall bear the costs of the proceedings below and in this arbitration. The Respondent shall pay to the Appellant a contribution towards his legal fees and other expenses incurred in connection with the proceedings to be determined at the end of this arbitration. This should also include the costs of the Appellant before the Adjudicatory Chamber and the FIFA Appeals Committee (including reimbursement of the CHF 3,000 paid pursuant to the Decision).

20. On 8 April 2014, pursuant to art. R51 of the CAS Code, the Appellant filed his appeal brief. In his appeal brief, the Appellant repeated his request for relief.

21. On 14 May 2014, pursuant to art. R55 of the CAS Code, FIFA filed its answer. It requested the CAS to issue an award:

A. Rejecting Mr Fernando’s prayers for relief. — B. Confirming the Decision under appeal.

C. Ordering Mr Fernando to pay a significant contribution of no less than CHF 50,000 towards the legal fees and other expenses incurred by FIFA in connection with these proceedings.

22. By letter dated 27 May 2014, the parties were advised that the Panel appointed to hear this appeal was constituted as follows: Prof. Luigi Fumagalli (President); the Hon. Michael J. Beloff QC and Prof. Ulrich Haas (Arbitrators). Mr Beloff and Prof Haas made appropriate disclosures to the parties regarding their independence, but no party raised any objection to the constitution of the Panel.

III. THE HEARING

23. By letter dated 25 August 2014, the parties and their witnesses were called to appear at the hearing to be held on 20 November 2014.

24. On 14 November 2014, the Appellant filed a chronology of events with the CAS. On the same day, the Respondent objected to the filing of the chronology, which it considered an unsolicited filing, in breach of art. R56 of the CAS Code.

25. On 20 November 2014 the hearing in this matter was held at the CAS headquarters in Lausanne. The Panel was assisted at the hearing by Mr Brent J. Nowicki, CAS Legal Counsel, and Ms Louise Reilly, ad hoc clerk

26. At the outset of the hearing, the Panel advised the parties that it would accept the chronology submitted by the Appellant into the record as an aide memoire, but that the fact that it did, did not mean that the Panel accepted all the details contained therein.

27. The Appellant attended the hearing in person and was represented by Mr Nithi Murugesu, Mr Anil Tittawella PC, Mr Hodge M. Malek QC, and Mr Andrew Tabachnik. FIFA was represented at the hearing by Dr. Antonio Rigozzi and Mr William McAuliffe.

28. The following witnesses gave evidence at the hearing:

By telephone: 1. E. 2. F. 3. G. 4. H. 5. J. In person: 6. K. 7. Mr Nithi Murugesu 8. M. The Appellant was also questioned by the Panel and counsel during the evidential part of the hearing.

A. E.

29. E. has been the General Manager of the Z. Hotel in Colombo, Sri Lanka for 11 years. He made a written statement and gave evidence in relation to invoices regarding payments made by the Appellant, which were apparently settled in cash and amounted to approximately US$ 11,242.46.

B. F.

30. F. owns F. Travels and Tours, a company which specialises in hiring out luxury vehicles. He made a written statement that the Appellant’s secretary paid in cash (Sri Lankan rupees) for the hiring of 15 luxury jeeps in April 2009. At the end of F.’s evidence, the Panel clarified that it was common ground that the date of payment was 5 May 2009.

C. G.

31. G. is an accountant by profession. He made a written statement and gave evidence regarding the Appellant’s tax returns 2007/2008—2011/2012.

D. H.

32. H. is a wedding planner and works for Explorers Travel and Tours. She made a written statement and gave evidence about the nature and custom of Indian wedding gifts. H. was not involved in planning Y.’s son’s wedding, does not know the family and did not know anything about the event in question. Based on cultural traditions in India, she estimates that weddings cost from $1 million to $3 million as they are elaborate 3-4 day celebrations. She testified that it is normal to give gifts in cash to help the family meet wedding expenses and people operate on a cash basis. H. testified that there is no rule on what amount people give but that it would be an insult to be offered a gift and not accept it. Traditionally and culturally it is very rude to say “no” to a gift, and it would be a huge offence to refuse a gift from an important person.

E. J.

33. J. was appointed President’s Counsel (Sri Lankan equivalent of the rank of Queen's Counsel in the United Kingdom) in 1991 and is a former director of Holcim Ltd. He made a written statement and gave evidence to provide a character reference for the Appellant. He testified that under the Appellant’s tenure, Holcim went “from strength to strength”. He is aware of media articles regarding the negative corporate image of Holcim and allegations of corruption against the Appellant, but has no personal knowledge bearing on the truth or otherwise of such reports.

F. K.

34. K. is the Appellant’s assistant. He made a written statement and gave evidence that he handled the expenses for A.’s trip to Colombo at the end of April 2009. K. testified that he was mainly involved in planning people’s travel details, including sight seeing and shopping. He also dealt with hotels and car hire, although he was not involved in making payments. His job was to collect bills and send the invoices to the Appellant’s office. He cannot remember whether he sent the invoices to the football federation of Sri Lanka or Holcim. He collected all of the bills personally in Colombo, except for the invoice for vehicle hire which was faxed to his hotel in Kuala Lumpur. K. testified that he gave the bills to A.’s assistant, X., and asked him to reimburse the Appellant. K.’s recollection was that the invoices amounted to about $20,000.

G. Nithi Murugesu

35. Mr Murugesu was part of the Appellant’s legal team at the first-instance proceedings before FIFA. He made a written statement and gave evidence regarding a “secret pre-hearing” apparently held the first day of the AC hearing on 8 October 2013. Mr Murugesu testified that the morning of the hearing, he and the other members of the Appellant’s legal team were shown into the hearing room. He testified that they were surprised to see three members of the Investigatory Chamber already sitting there and apparently discussing the case with the members of the AC. Neither the transcript nor the oral recording of the hearing reveal the content of such meeting, which a FIFA representative described in subsequent correspondence to Mr Murugesu as being held purely for administrative reasons. The FIFA representative also stated in correspondence that only one of the three members mentioned by Mr Murugesu was present in the room prior to the hearing. Mr Murugesu confirmed that he did not make any objection at the time as he and his co-counsel decided not to run the risk of provoking the AC. However, he believes that this pre-hearing gave rise to a lack of independence or impartiality on the part of the AC.

H. Vernon Manilal Fernando

36. Vernon Manilal Fernando, the Appellant, made a written statement and answered questions of the Panel and counsel during the hearing. In his written statement, the Appellant stated that at the end of April 2009, he organised a banquet in Sri Lanka for A., the purpose of which was for A. to canvass votes for the upcoming election. The Appellant said he bore the costs of the banquet, including hotel accommodation, a banquet on 28 April 2009, and the hiring of jeeps. The Appellant said the cost amounted to approximately US$ 20,000 which he paid and then provided the bills to A.’s assistant, X., for reimbursement. The Appellant said he also paid for return flights for the Tajikistan delegation which amounted to just over US$3,000.

37. The Appellant stated that after the elections in May 2009, he sent an email to A. so that the latter would know who voted for him. In response to a question whether the 12 May 2009 email described as a “puff” was actually an untruth, the Appellant replied that he believed it was harmless. He wanted to prove that the Pakistani (N.) and Afghan (O.) delegates had voted for A., so that those countries would be treated first when it came to aid programmes. The Appellant denied that he gave anyone a mobile phone.

38. The Appellant explained that he and Y. are close friends, but for Y. A. is a “big boss” and Y. would never accept a gift from him. The Appellant stated that he put US$20,000 cash in an envelope and gave it to Y. at a dinner in India between 16-18 May 2009. The purpose of the gift was to help with Y.’s son’s wedding expenses. The Appellant referred to the amount of US$20,000 as “peanuts” in his interview with the FIFA Investigatory Chamber, by which he meant that he did not consider US$20,000 to be a disproportionately large sum to give as a wedding gift, and that he could afford to make it. He visited India 5-7 times in 2009. On these visits, he would contact Y. to see how AIFF was faring, and they also met at the Congress in Colombo.

39. In relation to the email of 25 May 2009, the Appellant stated that A. wanted to know how much the Appellant gave as a wedding gift to Y.’s son, because A. wanted to “match it”, i.e., give the same amount. The Appellant said he told A. that Y. would be reluctant to take money directly from him, so the Appellant would give Y. $20,000 and A. would reimburse him that amount in July. The Appellant stated that was what he was referring to in his email and that he mentioned the airway bill so that A. would know it was outstanding.

I. M.

40. M. is a Swiss lawyer who co-signed 3 legal opinions on Swiss law and was called as an expert by the Appellant. His area of expertise is sports law. The gist of his evidence is that there is sport disciplinary law in general, which has a legal regime defined by case law, and there rare particular provisions under the FCE. M.’s evidence was that sport anti-corruption bodies do not have more powers than anti-doping bodies, but can compel witnesses and parties to appear and have the power to impose a sanction up to a life ban if a party does not cooperate; he believes that anti-corruption bodies traditionally have more coercive powers than sports bodies. M. stated that where there is a lacuna in any such regime and that it has to be filled with provisions of criminal or civil rules of procedure. Counsel for FIFA pointed out that the only limitation on arbitrators in this regard is procedural public policy, which was not discussed in the legal opinion.

41. M. agreed that fair trial rights in the European Convention on Human Rights (“ECHR”) form the minimum standard, and that in principle sports tribunals fall within the first part of art. 6 of the ECHR. However, in his opinion there are basic standards that apply in sports disciplinary cases and that with more coercive powers come more protective rights. M. ventured the opinion that there is a balance to be struck between the interests of sports associations to implement the rules they want and the interests of parties, subject to such rules, to be protected from unfairness.

J. Conclusion of the hearing

42. The Appellant’s statement: the Appellant made a statement at the end of the hearing to tell the Panel that the FIFA decision has devastated him professionally. He has become the biggest corrupter in the eyes of the public and cannot work in publicly quoted companies. The decision also affects his family members. He has never before had allegations made against him. He challenged the allegations before every available instance, right up to CAS. He provided all his bank account details to FIFA for 2009-2014 and they did not find a single penny from A. related to football.

43. At the conclusion of the hearing, the Panel directed that the parties file post-hearing legal submissions. On 10 December 2014 the parties filed their post-hearing submissions. On 18 December 2014 the parties filed their reply post-hearing submissions.

IV. SUBMISSIONS OF THE PARTIES

44. The Appellant submits that the relevant standard of proof was that the prosecution must make out its charge to the standard of “personal conviction” (art. 51 FCE) and the burden throughout must be on the prosecution to prove its case (art. 52 FCE) and not on the defence to disprove that case to the requisite high standard.

45. The Appellant’s submissions, in essence, may be summarised as follows:

A. The Allegation as to photographing ballots for the May 2009 FIFA Executive Committee election

46. The Appellant denies that he exercised undue pressure on O. or N. to photograph their ballots. The Appellant’s explanation is that his email of 12 May 2009 is a “puff”, designed to give A. comfort that the delegates from Afghanistan and Pakistan voted for him in the election. These soldiers were unlikely candidates to accept instructions from the Appellant.

47. N.’s interview makes it clear that FIFA was looking for evidence against the Appellant. N. was told he was just a witness but he was never asked whether he voted for A. The Chief Investigator carried out a misleading examination of N. by informing him that the Appellant had admitted that he had given N. a phone and had asked him to take a photo of his ballot, whereas in fact he had made no such actual admission. N. denied photographing his ballot and confirmed that he received no money or gifts from the Appellant or A. O. for his part was so indignant at the suggestion that he had photographed his ballot that he wanted to sue the Appellant.

48. There can be no confidence that the evidence was collected fairly or that the Investigatory Chamber carried out its investigation fully. The Appellant submitted it was improbable that two men in senior positions, with no previous convictions would have committed such an offence. Furthermore, it was significant that no proceedings or investigations were opened against them.

49. In the run up to the election there was a rumour that photos would be taken and B. was concerned about cameras above the booths. One could expect certain precautions would be taken, which would have a deterrent effect on anyone who had intended to take photos. No photos of ballots were ever produced and there was no suggestion that the photos were taken. If the events in the email had really happened, the Appellant would have shown A. on his phone at the time at the Congress. Had they all been engaged in improper conduct, there would have been no point in keeping that secret until 12 May 2009.

50. The Appellant’s counsel submits that two legal issues arise in connection with this charge: whether there is a proper basis for concluding that there have been violations of art. 13(1)-(4) and /or 19(2) of the FCE; and FIFA’s new case (i.e., that even a “puff” constitutes a violation of the FCE) in the alternative. The Appellant’s counsel submits that if the factual situation is as the Appellant contends, there is no breach of the above-mentioned articles. The Appellant’s counsel relies on CAS 2009/A/1914 to support his position that FIFA could not bring into this appeal matters (such as its new case) with which the Appellant had never been charged.

B. The allegation as to the payment of US$20,000 to Y. as a reward for voting for A. at the May 2009 AFC Congress

51. The Appellant’s counsel submits that the 25 May 2009 email cannot be looked at in isolation, but has to be read in conjunction with or in the context of the evidence of Y., A., the Appellant’s own evidence, and other witnesses who spoke of the generosity of the Appellant. The tradition in India is that family and very close friends will give money to help families finance weddings, as there is social pressure to host expensive affairs.

52. The AC Decision states that Y. personally secured the vote for A. However, the unanimous view of the AIFF was that they would support A. and Y. was bound and mandated by his federation to follow their resolution. As regards an email from Y. to A., the Appellant submits there is nothing wrong with Y. saying he supported A., as his whole federation did. The Appellant’s counsel pointed out that no attempt appears to have been made to interview R., President of the AIFF, who, the Appellant’s counsel submits, would have been a key witness in relation to this charge. R. was a strong supporter of A. and there is no suggestion he was acting improperly in any way.

53. It has never been disputed that US$20,000 was paid to Y.; the Appellant admitted it immediately and explained that it was a wedding gift. The Appellant’s counsel submits that bribery cannot occur if the recipient does not realize he is being paid to do something. Both Y. and the Appellant say the US$20,000 was a wedding gift. Furthermore, both Y. and the Appellant are of Indian culture and close family friends going back many years. The Appellant is a wealthy man and to gift US$20,000 to a family friend is within his means. Counsel also points to other evidence of people the Appellant has helped, including a friend who needed a liver transplant to whom the Appellant gave US$50,000. So far as Y. was concerned, the money had nothing to do with the elections. It was not suggested that anyone else was given a payment and there was no evidence why AIFF needed a bribe (as they had already decided unanimously to support A.).

54. Counsel submits that the payment was made when the Appellant went to India from 16-18 May 2009. This trip is evidenced by a stamp in the Appellant’s passport which was not disputed. The Appellant’s submission is that it is clear that if there was a bribe, the logical time to pay Y. was before the election, and not during the visit of 16-18 May 2009. Counsel submits that if there was no reimbursement from A., there is no bribery as the money was received as a gift. There must be an improper act and Y. must have received the money in expectation of doing a wrongful act. So far as Y. was aware, he was receiving a gift.

55. In relation to the 7 June 2009 email, the counsel submits that it is quite common to reply to the last email received from someone. The Appellant’s counsel questions whether a bribe would be sent by a wire transfer given that such transfer is traceable. A bribe could easily be repaid to the Appellant in Doha. The Appellant’s case is that US$23,000 was paid in reimbursement of expenses for the event in Colombo at the end of April 2009. Counsel submits that the expenses are proven through the witnesses’ evidence.

56. Counsel also points to a letter from A.’s lawyers date 9 November 2012, which he submits is clear evidence from A. why the US$23,000 was paid. The only payment identified from A. was

US$23,000. If is correct that the reimbursement was for a bribe, then it would follow that the Appellant was never reimbursed for the expenses incurred in April 2009.

57. The Appellant’s counsel submits that for a case of bribery to exist, the undue payment and/or promise must be committed before the wrongful act; there must be a purposive link. The Appellant’s counsel also points out that there is no equivalent of art. 21(3) in the 2006 FCE, and therefore that no violation can be found pursuant to art. 3 of the FCE. In any case, the Adjudicatory Chamber found no breach of art. 21(3) of the FCE and there was no appeal to the AC: as a result, CAS has no jurisdiction in relation to the relevant charge.

C. The allegation as to alleged false statement to FIFA investigators in September 2012

58. Charge 4 alleges that the Appellant made three false statements:

1. Denied giving mobile phones; 2. Not reimbursed for gift to Y.; and 3. Did not know that P. was associated to A.

59. Counsel submits that this all falls short of proving that the Appellant lied. Counsel also submits that the way in which the Appeal Committee dealt with the P. allegation was disturbing, as the AC had no jurisdiction over it. The Appellant’s counsel submits that the fact that FIFA is requesting a sanction under art. 21(3) – even though there was no appeal on this point and no offence under the 2006 FCE – is unfair, duplicitous, and offends the principles of due process. It goes against the principles of art. 6 of the ECHR for someone to be charged with both a substantive offence and also an offence of denying the charge. Counsel submits that the Appellant was a suspect from the outset of the FIFA investigation and should have been made a party. In short he was the victim of an ambush.

60. Counsel referred to M.’s opinion that if someone does not realize he is being been treated as a suspect, any adverse information collected at that time cannot be used against him.

61. Counsel submits that this charge should be dismissed for being a violation of the right against self-incrimination. Counsel also questions whether the AC had jurisdiction to consider this charge, and accordingly, whether CAS has jurisdiction in this respect.

D. The Appeal Decision was the result of a flawed investigation by the Investigatory Chamber and/or a flawed and unfair process before the Adjudicatory Chamber and Appeal Committee

62. The Appellant submits that his affirmation to FIFA dated 28 September 2012, was given after he was interviewed under compulsion. He was not told that he was a suspect, even though FIFA believed the emails were conclusive of his guilt. The Appellant’s first right of defence was infringed; he should have been made a party if FIFA had inculpatory material against him. If that had happened, the Appellant could not have been prosecuted for giving a false answer and he would have had legal representation.

63. Counsel submits that the manner in which O. and N. were questioned by the Investigatory Chamber was misleading, and that the treatment of Y.’s interview was also selective and unfair.

E. Sanction

64. Counsel submits that the life ban imposed was based on a finding of bribery and that if bribery is not proved, time served would be more than a sufficient punishment. The sentence imposed is the harshest sentence possible. Counsel submits that the charges are not at the most severe level and do not deserve the most severe sentence. Before the Adjudicatory Chamber hearing, the Appellant was offered a plea bargain of 5 years if he did not contest the charges.

65. Football is central to the Appellant’s life. He has worked tirelessly for football. Since his sanction, he has been shunned and treated like a leper. He does a vast amount of charitable work. He accepts that the “puff” was a stupid thing to send. On any view, the Appellant has not himself received anything as a result of any misconduct – the votes were for A.

66. In the Appellant’s case, there is no risk of a repetition. He realises he will never return to the FIFA Executive Committee. His future and legacy is in the Panel’s hands. The Appellant requested that the Panel take into account the conduct of the proceedings and the consequences of the ban.

67. FIFA’s submissions, in essence, may be summarised as follows:

68. FIFA submits that Y. is a good friend of the Appellant’s and his family, and that for such reason he backed the story that the US$20,000 gift was not related to the election. The Appellant tries to undermine the role of Y. in the vote, but Y. was central as far as the vote was concerned. FIFA referred to emails in February and March 2009, in which Y. mentioned the AIFF voting for A. and arranged that Y. would attend the Congress in Kuala Lumpur as the AIFF’s voting delegate. Y. met A. in advance of the election and assured him that he supported him.

69. In relation to the email of 25 May 2009, FIFA submits that it now seems clear that the claim for the reimbursement for the air tickets was correctly made. However FIFA submits that the entire wedding gift theory to explain the rest of the email is not convincing and is a desperate excuse. FIFA also submits that the ex post production of invoices, which magically add up to about US$20,000, must be considered in context and assessed for what it is. FIFA’s case is that the invoices are particularly convenient and coincidental. FIFA submitted that the Panel would have to assess based on the evidence heard during the hearing whether it was even convinced that the invoices were legitimate.

70. In relation to the email of 12 May 2009, FIFA submits that by the Appellant’s own admission, taking a picture of ballots is interfering with the democratic process. If there was a picture of a ballot, that is a violation of the FCE. FIFA submits that there is contemporaneous evidence that photos were taken. FIFA questions why the Appellant needed to “puff” about the vote if the previous vote of Afghanistan and Pakistan was clear. FIFA submits that there was no reason to come up with a “puff”, particularly if by doing so one is making a false statement that can cause trouble for other people.

71. FIFA notes that the email was carefully drafted, the email was structured, and it was marked “confidential”. It sets out who definitely voted for A., who might have and who did not. FIFA questions why the Appellant would take the risk to incriminate two delegations and himself. In relation to N. and O., FIFA submits that their status as military men is irrelevant to the plausibility of the allegations made as to their involvement.

72. On the issue of sanction, FIFA submits that if the Panel accepts Charge number 2, there can be no discussion but that this is a life ban. FIFA compared the case to CAS 2010/A/2172, no. 74 et seq. where a life ban was confirmed.

73. FIFA submitted that it offered cooperation for N. and O. to attend the hearing, but it was never followed up by the Appellant. FIFA requested that the Panel look at the evidence and put aside as immaterial arguments based on fairness. The Appellant had the opportunity to give an explanation and the case does not turn on the burden of proof, but rather with assessment of the evidence.