Football Association of Serbia (FAS) v. Union of European Football Associations (UEFA)

III. FACTUAL BACKGROUND

4. This section of the award sets out a brief summary of the main facts, as relevant and as established on the basis of the Parties’ written submissions, the CAS file and the content of the hearing that took place on 16 April 2015. Additional facts are set out, where material, in other parts of this award.

5. On 14 October 2014, the national teams of Serbia and Albania played each other in a qualifying match for the 2016 UEFA European Championship (hereinafter the “Match”). The Match took place at the Partizan Stadium in Belgrade, Serbia. The Match referee was Mr. Martin Atkinson, from the United Kingdom (hereinafter also the “Match Referee”).

6. A total of 25,550 spectators attended the Match. Due to an agreement reached between the FAS and the Football Association of Albania (hereinafter also the “FAA”), no Albanian

supporters attended the Match. In fact, only approximately 100 individuals linked to the FAA (staff, delegates, family, sponsors, etc.) attended the Match from the Albanian side.

7. Before the start of the Match, the director of international relations of the FAA informed the UEFA delegate that its president had been hit by a piece of concrete as he stood on the sidelines in the tunnel corner of the stadium.

8. According to several reports and video clips, both during the pre-Match ceremony – in particular when the Albanian national anthem played – and throughout the Match, the Serbian supporters chanted xenophobic slogans including “Ubi Shiptara” (translated from Serbian to English as “Kill the Albanians”).

9. It is undisputed by the Parties and confirmed by the official reports of the Match Referee and UEFA officials that prior to the 42nd minute of the Match, the Serbian supporters committed the following incidents: – throwing a fire cracker onto the field from the section near the players’ tunnel in minute 13; – burning a NATO flag in minute 14; – setting off two flares, one of which was thrown onto the field and landed by the corner flag nearest to the players’ tunnel in minute 15; – using a laser pointer to disturb Albanian players in minute 24; – throwing a number of flares and objects when the Albanian side attempted to take a corner kick in minute 35; and – throwing two large lumps of rock towards the Albanian side’s technical area in minute 38.

10. It is also undisputed by the Parties and confirmed by the same reports that, in minute 41 of the Match, a number of unknown Serbian supporters set off and threw a number of flares, one of which landed on the field and caused the Match Referee to stop play.

11. During this stoppage, a drone carrying a banner depicting the map of an area that is sometimes referred to as “Greater Albania” – an area said to comprise the territory of Albania along with various parts of Serbia, Montenegro, Macedonia and Northern Greece, as well as Kosovo, and considered to form the lost national homeland of Albanians – and showing several Albanian nationalistic symbols was seen to hover above the field. Upon spotting the drone, one of the Serbian players, Mr. Danko Lazović, alerted the Match Referee of the drone’s presence. The Match stoppage continued as the drone hovered over the field.

12. Eventually, the drone began descending closer to the ground, until it was observed to come within reaching distance of a Serbian player, Mr. Stefan Mitrović, who reached the banner and began pulling the drone down by the cords from which the banner hung. According to Mr. Mitrović, who testified at the hearing, his intention was only to take down the drone and hand it to the fourth official so that the Match could resume.

13. As soon as Mr. Mitrović grabbed the banner, two Albanian players, Mr. Andi Lila and Mr. Taulant Xhaka, were seen to approach him and take the banner from his hands. At this point a greater chaos erupted across the entire playing field.

14. The Serbian substitute players abandoned their bench and ran onto the field towards the commotion. One of them went straight to headbutt Mr. Xhaka in the back of the head.

15. As this was occurring, a number of Serbian supporters invaded the field. The exact number is unclear, as the video footage available in these proceedings does not allow the number to be ascertained with precision. The Appellant claims that about 15 Serbian supporters invaded the field, while the Respondent considers 50 to be a fair count.

16. One of the Serbian supporters who invaded the field was observed to grab a plastic chair (which appertained to one of the security stewards around the field), and to then run with it all the way to the rim of the center circle, and then use the chair to hit one of the Albanian players, Mr. Bekim Balaj, on the shoulder. This same Serbian supporter then attempted to tackle Mr. Balaj, but instead took down the Albanian captain, Mr. Lorik Cana, who had intervened, seemingly to prevent an escalation of the scuffle. As they fell to the ground, a security steward was seen to run towards them, and, with his fists seen to be clenched, to throw punches. It is disputed between the Parties, however, whether the punches were aimed at the Albanian player or the Serbian supporter. The Panel finds, nonetheless, that based on a close examination of the evidence before it, that the security steward’s punches were intended to hit the Albanian player.

17. In other parts of the field of play, the following facts were observed (i) a Serbian supporter punched the Albanian player, Mr. Mergim Mavraj; (ii) a Serbian substitute player punched the Albanian player, Mr. Ermir Lenjani, in the face; (iii) a Serbian substitute player punched the Albanian player, Mr. Orges Shehi; and (iv) a notorious Serbian supporter, Mr. Ivan Bogdanov, accompanied by other Serbian supporters, walked calmly around the field waving and clapping his hands to incite the crowd (Mr. Bogdanov is recognized as an individual who took center stage in, and even faced criminal charges for, the incidents that occurred in 2010 during the 2012 UEFA European Championship qualifier match between Italy and Serbia).

18. From the stands, the Serbian supporters were observed to throw objects, including chairs, at the Albanian side’s bench.

19. Throughout these events the Match stoppage continued. Due to the chaos and massive disorder, the Match Referee decided for the players’ safety to instruct the players to head back into the locker rooms.

20. Following the Match Referee’s instructions, the Albanian players ran towards the players’ tunnel in order to exit the field. As they approached the tunnel, the Serbian supporters were seen to be throwing objects towards the Albanian players, including coins, bottles and chairs. At the entrance of the players’ tunnel, the Albanian players were met by two Serbian supporters who physically attacked them with shoves, punches and kicks.

21. One of these two Serbian supporters, after attacking the Albanian players at the entrance of the tunnel, subsequently walked to the nearest corner flag and calmly sat down beside it. No security personnel approached him. He remained there until one of the Serbian players urged him to leave the field. As the supporter stood up, one of the security stewards was observed to walk right in front of him and to wave his arms up and down as though to encourage the crowd to

chant louder. After the security steward passed, instead of returning to the stands, as the Serbian player had urged him to do so, the Serbian supporter attempted to enter the players’ tunnel. A security steward who was inside the players’ tunnel stopped him from doing so and finally escorted him off the field.

22. Once all players and officials returned to their respective dressing rooms, a crisis group meeting was held. It was attended by the Match Referee Mr. Atkinson, Mr. Harry Been (the UEFA Match Delegate), Mr. Vincent Egbers (the UEFA Security Officer), Mr. Lutz Michael Fröhlich (the referee observer), Mr. Zoran Laković (the General Secretary of the FAS), Mr. Aleksander Bošković (the Serbian national team manager), Mr. Armand Duka (the President of the FAA) and Mr. Milivoj Mirkov (the Security Officer of the FAS). During this time, according to the evidence before the Panel, the UEFA officials were apparently in constant dialogue with the UEFA Match Centre in Nyon (Switzerland), and in particular, with Mr. Kenny Scott (UEFA Consultant and Security Adviser).

23. According to the evidence before the Panel, the UEFA personnel at the UEFA Match Centre apparently encouraged the UEFA officials in the Belgrade stadium to try to resume the Match once safety was ensured and the UEFA officials adopted this view.

24. While the Match was suspended, the FAS security officials gave assurances that extra police forces and stewards were being sent into the stadium to control the unruly fans and increase the level of protection of the field of play.

25. In the dressing rooms, the Match Referee and the UEFA delegate spoke with both national team captains and asked them whether they would be prepared to continue the Match, to which the Albania captain, Mr. Cana, answered in the negative, declaring that his team was not physically and mentally prepared to restart the Match.

26. Thereafter, the Match Referee decided to abandon the Match.

VII. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT

48. On 30 December 2014, pursuant to Article R47 of the Code of Sports-related Arbitration (hereinafter the “CAS Code”) and Article 62 para. 1 of the UEFA Statutes, the Appellant filed a Statement of Appeal with the Court of Arbitration for Sport (hereinafter the “CAS”) to challenge the Appealed Decision, taken on 2 December 2014 and notified to the Parties on 22 December 2014.

49. In the Statement of Appeal, the Appellant submitted an application for provisional measures requesting a stay of execution of the sanctions imposed by the UEFA Appeals Body, in particular with regard to the three-point deduction.

50. Following the CAS Court office’s invitation to the Respondent on 6 January 2015 to state its position with regard to the application for provisional measures submitted by the Appellant, the Respondent filed its answer to said application on 12 January 2015.

51. On 27 January 2015, the Appellant filed its Appeal Brief.

52. On 5 February 2015, the CAS notified the Parties of the formation of the Panel constituting of Mr. Massimo Coccia, Mr. Efraim Barak, designated by the Appellant, and Dr. Martin Schimke, designated by the Respondent.

53. By letter of 9 February 2015, the CAS Court Office notified the Parties that the Panel ordered (i) the Respondent, in accordance with the first paragraph of Article R44.3 of the CAS Code, to produce and provide the CAS with audio recordings of the hearing in the underlying procedure within three days; (ii) the Respondent, in accordance with the second paragraph of Article R44.3, to produce and provide the CAS with the complete, official video footage, including any and all available camera feeds, of the Match between Serbia and Albania; (iii) the Appellant, within 14 days of receipt of the audio recordings of the hearing in the underlying procedure, to transcribe all testimonies and any other declarations rendered in that hearing on which it intended to rely. Furthermore, the Panel granted the Appellant 14 days from receipt of the aforementioned audio recordings and of the Match video footage to file its comments on them and suspended, until receipt of said comments and the transcript of the underlying procedure, the Respondent’s 20 day limit for filing its answer, including its own comments on the audio recordings and Match footage.

54. In an Order dated 13 February 2015, the Panel dismissed the Appellant’s application for provisional measures and further indicated that the costs of that Order would be determined in the final award.

55. After having confirmed the Parties’ availability, on 9 March 2015, the CAS Court Office, on behalf of the Panel, informed the Parties that a hearing would be held on 16 April 2015 in Lausanne, Switzerland, and invited them to provide the CAS Court Office on or before 16 March 2015 with the names of all individuals who would be attending the hearing.

56. On 9 March 2015, the Appellant submitted the transcript of the underlying hearing and its comments, in which the Appellant requested to admit “new evidence” relating to a decision of the African Football Confederation to the record.

57. On 11 March 2015, the Respondent agreed to admit the Appellant’s “new evidence”, all the while indicating, inter alia, that it considered such evidence as completely irrelevant for the case at hand.

58. On 19 March 2015, the Appellant informed the CAS Court Office that the following individuals would be in attendance at the hearing: Mr. Zoran Lakovic (General Secretary of the FAS), Mr. Nebojsa Ivkovic (Head of Legal of the FAS), Mr. Zoran Damjanovic (Counsel of the FAS), Dr. Marco Del Fabro (Counsel of the FAS), Mr. Roy Levy (Counsel of the FAS) and Mrs. Maja

Trifunović (Independent Interpreter). The Appellant further indicated that the following individuals would testify as witnesses: – In person: Mr. Zoran Lakovic; – By telephone or in person, if required: Mr. Millivoj Mirkov (Security Officer of the FAS) and Mr. Zeljko Pantić (Chief of stewarding services); – By telephone: Mr. Stefan Mitrovic (football player of the Serbian team).

59. Also on 19 March 2015, the Respondent indicated that UEFA would be represented at the hearing by Mr. Carlos Schneider (UEFA Disciplinary Lawyer), Dr. Jan Kleiner (Counsel for UEFA) and Dr. Emilio García Silvero (UEFA’s Head of Disciplinary and Integrity).

60. On 10 April 2015, the CAS Court Office sent the Parties the Order of Procedure and requested them to sign it by 13 April 2015. It also advised the Parties that all witnesses not present at the hearing would be allowed to testify by video link only. Finally, the CAS Court Office invited the Appellant to file a witness statement for Mr. Laković by 13 April 2015 as a condition to having him testify at the hearing.

61. On 13 April 2015, the Respondent returned to the CAS Court Office the signed Order of Procedure.

62. On 14 April 2015, the Appellant returned to the CAS Court Office the signed Order of Procedure, along with the witness statement of Mr. Laković, and also indicated that it was renouncing to call as a witness Mr. Milivoj Mirkov at the hearing.

63. On 16 April 2015, a hearing was held at the premises of the Association of National Olympic Committees (ANOC) in Lausanne, Switzerland.

64. In attendance at the hearing were for the Appellant’s side Mr. Zoran Lakovic, Mr. Nebojsa Ivkovic, Mr. Zoran Damjanovic, Dr. Marco Del Fabro, Mr. Roy Levy and Mrs. Maja Trifunović, and for the Respondent’s side Mr. Carlos Schneider, Dr. Jan Kleiner and Dr. Emilio García Silvero, all under their respective titles cited supra at para. 58 and 59.

65. The only witness heard in person at the hearing was Mr. Zoran Lakovic. Mr. Zeljko Pantić (Chief of stewarding services) and Mr. Stefan Mitrovic (football player of the Serbian team) both testified by video link.

66. At the outset of the hearing, the Parties confirmed that they did not have any procedural objections, nor any objections as to the constitution and composition of the Panel. The Panel disclosed on the record that the Arbitrators Prof. Massimo Coccia and Mr. Efraim Barak would be speakers in September 2016 at a seminar on “CAS system and procedures” organized by UEFA within the context of the educational programme entitled “UEFA Football Law Programme”. The Parties confirmed that they did not have any objection to the Panel’s composition even after this disclosure.

67. At the end of the hearing, after their closing submissions, the Parties acknowledged that the Panel had respected their right to be heard and procedural rights.

VIII. OVERVIEW OF THE PARTIES’ POSITIONS

68. The following is a brief summary of the Parties’ submissions and does not purport to include every contention put forth by the Parties. However, the Panel has thoroughly considered in its discussion and deliberation all of the evidence and arguments submitted by the Parties, even if no specific or detailed reference has been made to those arguments in the following outline of their positions and in the ensuing discussion on the merits.

VIII.1 The Appellant: Football Association of Serbia

69. The Appellant admits that prior to the appearance of the drone in minute 42 of the Match, the following incidents occurred: (i) three fire crackers/flares were thrown on to the field in minutes 13, 15 and 36; (ii) a laser pointer was used; (iii) some rocks were thrown towards the Albanian bench in minute 38; and (iv) the Match was interrupted twice due to the firecrackers thrown on or near the field. On the other hand, the Appellant denies the occurrence of the illicit chants “Kill the Albanians” and “Kill, slaughter the Albanians until they are exterminated” and denies the racist or illicit nature of the chants “Kosovo is Serbia” or those chants using the Serbian word “Shiptar”.

70. For all incidents occurring prior to the drone incident in minute 42 of the Match, the Appellant accepts as a fair punishment (as it did before the UEFA Appeals Body) the sanction of playing two matches behind closed doors. At the CAS hearing of 16 April 2015, the Appellant clarified that this apportionment of the sanctions was not drawn from the Appealed Decision itself, but rather from the Respondent’s Answer, which states that “(…) Appellant has already accepted and considered fair the disciplinary measure of two matches behind closed door for the incidents occurred during the first 42 minutes of the match… Hence, the only question to be addressed by the Panel is whether, for extremely serious incidents occurred just after the 42nd minute of the match, the deduction of three points (…) and the fine of € 100'000 are justified and proportionate” and “(…) Appellant accepted not only before the UEFA Appeals Body but also in its appeal brief submitted to CAS, the disciplinary measure of two matches behind closed doors for the above-described incidents (…). Therefore, no further comments or discussions are needed in relation to these incidents”.

71. As for all the incidents following minute 42 of the Match, the Appellant condemns them as “intolerable”, and, with specific reference to the invasion of the field, as “fundamentally unacceptable”; notwithstanding, the Appellant believes it should be exonerated from these incidents because they were all “a direct consequence of the massive provocation to the Serbian national pride associated with the statement of the fascist banner which was attached to the drone” and would not have occurred but for such provocation. At minimum, the Appellant maintains that such provocation should be considered a mitigating circumstance that must be taken into account in assessing the appropriate sanction(s).

72. In support of its contention that the drone provoked all incidents after minute 42 of the Match, the Appellant submits that: (i) no Serbian spectators had run onto the field and there were no signs of escalation before the two Albanian players “attacked” Mr. Mitrović and took away the banner from him; and (ii) even the UEFA Ethics and Disciplinary Inspector, who represented UEFA before the UEFA Appeals Body, stated in his reply to the FAA’s Appeal of 24 November 2014 that “[i]n the case at hand, not only was a banner of a political nature (absolutely unrelated to football) displayed by the [Albanian] supporters, but its display was the catalyst of all the intolerable incidents

that followed, including: a. The invasion of the field by Serbian fans in attendance. b. The on-field brawl between players and supporters. c. The interruption of the Match. d. The Match eventually being abandoned by the appellant’s refusal to continue to play”.

73. The Appellant denies that it infringed Article 16 para. 1 DR. The Appellant contends that 15 individuals managing to invade the field does not amount to insufficient organisation under Article 16 para. 1 DR. For the Appellant, what matters is that it took the most intense security measures in the history of the FAS. In its view, it is unrealistic to expect security to be 100% effective and if that is UEFA’s goal, then it will have to play all matches behind closed doors. At the hearing the Appellant added to this argument that (i) UEFA verified security before the Match, making no objections whatsoever and (ii) that it is far too simplistic to declare that since the incidents occurred, security was insufficient – one has to also take into consideration the circumstances surrounding the Match.

74. The Appellant argues that the sanctions UEFA imposed on it (i.e. a three-point deduction and a fine of EUR 100,000) are evidently and grossly disproportionate. The Appellant believes that UEFA imposed the three-point deduction only to ensure that neither team (the FAA having been declared the losers by forfeit in a separate CEDB decision) walked away from the Match with any points to their name. To support the alleged lack of proportionality of the sanction, the Appellant principally submits that: 1) It is unclear from reading the Appealed Decision which misbehaviour corresponds to which sanction, as the UEFA Appeals Body, like the CEDB before it, simply named all the infringements occurring during the Match, listed the aggravating circumstances, dismissed the mitigating circumstances, and, finally, proceeded to impose “an overall sanction for everything that happened during the match”. As a result, the Appellant believes that UEFA has contravened Article 18 DR (see supra at para. 33). According to the Appellant, this unlawful act by the UEFA Appeals Body “made it impossible for the Appellant to analyze the assessment of the sanctions”. 2) The UEFA Appeals Body wrongly considered some incidents as aggravating under Article 17 para. 1 DR, including (i) the behaviour of the security stewards, (ii) the FAS’ disciplinary record, (iii) Mr. Ivan Bogdanov’s attendance, and (iv) the Serbian supporters’ misbehaviour. (i) First, according to the Appellant, no steward “instigate[d] the crowd to behave in a bad manner”. The Appellant maintains that the security stewards were well-trained and that while it is true that one steward gestured to the crowd to chant louder, he did not wave for the crowd to come closer, nor did he imitate a throwing motion, so it is erroneous and unclear how he “instigate[d] the crowd to behave in a bad manner”. In any case, this steward only represented 1 out of 947 stewards present at the Match and was fired for his actions. Further, the Appellant explains that no steward attacked any Albanian player. The steward accused of doing so was actually hitting the Serbian supporter lying underneath the Albanian player. (ii) Second, the Appellant is adamant that its disciplinary record cannot be described as “appalling”. The Appellant argues that the UEFA Appeals Body only cites one

match in support of its claim that the FAS has a poor disciplinary record – the UEFA European Championship qualifiers match between Italy and Serbia in 2010

– but this match took place 4 years ago, meaning that it is far-removed, and was played in Genoa, Italy, meaning that the FAS had no responsibility for the safety and security of the match. (iii) Third, according to the Appellant, it had no legal right to prevent Mr. Ivan Bogdanov from entering the stadium, since under Serbian public law that could have only be accomplished if: (1) a court had imposed a ban on Mr. Bogdanov or (2) a steward had concluded by the behaviour of Mr. Bogdanov upon attempting to enter the stadium that he was under the influence of alcohol or drugs or that he was likely to behave in a violent way or to misbehave. Further, his purchase of a ticket could not be prevented given that under Serbian law an individual has the right with proper identification to purchase up to seven tickets. The purchaser becomes responsible for the other six attendees but the identity of those attendees remain unknown to the seller. (iv) Finally, the Appellant contends that the Serbian supporters’ misbehaviour cannot act as both a cause for a sanction and as an aggravating factor as that would be double punishment. 3) The UEFA Appeals Body failed to consider some mitigating circumstances under Article 17 para. 1 DR, including: (i) UEFA’s joint responsibility for the incidents occurring during the Match. The Appellant insists that UEFA allowed the Match to be played, despite being fully knowledgeable of the long lasting conflict between Serbia and Albania, and that, therefore, it is jointly responsible for the incidents occurring in that Match. The Appellant cites that in the past UEFA had intervened in other instances when delicate combinations of countries were selected into the same group (e.g. Armenia/Azerbaijan, Russia/Georgia, Russia/ Ukraine, and Spain/Gibraltar) yet failed to do the same with Albania and Serbia; (ii) the extraordinary security measures that the Appellant allegedly took. According to the Appellant, since the Match was one of high risk, it took extraordinary security measures, including (1) forming three rings of security checkpoints around the stadium; (2) conducting, at the entrance of the stadium, body searches of the spectators, taking away from them many prohibited objects albeit not all (the Appellant points out that football supporters are very creative in finding ways to

sneak objects into the stadium); and (3) deploying 4,000 police officers (of which 1,000 were riot police) and 947 stewards in and around the stadium (i.e. more than 2/3 of all 1,200 available stewards), which was in the history of the FAS the highest number of police officers and stewards ever deployed in the Partizan Stadium. The Appellant disagrees with the UEFA Appeals Body’s statement that “the measures allegedly taken by the home team to guarantee safety, although laudable, form part of the general duties of any UEFA member association participating in UEFA competitions”. To the Appellant, this statement is not supported by CAS 2013/A/3139, which considered security measures taken as a mitigating factor; (iii) that the security personnel at the Match managed to prevent a massive field invasion and as a result only 15 individuals succeeded in invading the field;

(iv) that the stewards did not have sufficient time to fully extend the tunnel to the field as is the ordinary procedure; (v) that the Appellant filed criminal complaints against Mr. Bogdanov and the other individuals that invaded the field; (vi) that the Serbian spectators were allegedly provoked by the banner of “Greater Albania” hanging from the drone. According to the Appellant, provocation should be considered a mitigating circumstance based on numerous laws and regulations. The Appellant cites Swiss tort law, under which prior provocation reduces the amount of indemnity which the wronged party may claim, as well as Swiss criminal law, under which a prior provocation may result in a reduced punishment. Additionally, the Appellant submits that various judicial bodies in football evidence that provocation is a mitigating factor. The Appellant refers, inter alia, to CAS 2014/A/3665, 3666 & 3667, where the CAS declared: “Based on art. 39 par. 4 FIFA DC, all relevant factors and the degree of the Player’s guilt shall be taken into account when imposing the sanction. In this view, it is first of all uncontested that the Player acted with intent when biting Mr Chiellini. Further, it is clear the Mr Chiellini did not provoke the Player, and that there was no immediate chance to score a goal as the ball was at the side line and therefore far away from the Player and the Italian goal. In other words, the action of the Player was fully gratuitous”. To the Appellant, this paragraph read a contrario establishes that if Mr. Chiellini had provoked Mr. Suarez prior to the biting, the guilt of Mr. Suarez would have been lesser and would have led to a less severe sanction. The Appellant adds that UEFA, in contrast with other sports judicial bodies as well as ordinary courts, has stubbornly refused to accept that provocation is a mitigating circumstance; (vii) that the “attack” of the two Albanian players, Mr. Xhaka and Mr. Lila, on the Serbian player, Mr. Mitrović, triggered all the subsequent incidents; and (viii) that the drone incident was unforeseeable. 4) The UEFA Appeals Body decision deviates from other decisions purportedly related to similar facts and circumstances. The Appellant points out that CAS jurisprudence, particularly CAS 2012/A/2821, has held that a sanction may be disproportionate and may

be reduced if a comparison with other similar cases shows such a deviation. As to comparable cases, the Appellant refers to the matches of Italy v. Croatia of 16 November 2014, Bulgaria v. Croatia of 10 October 2014, Romania v. Hungary of 11 October 2014, and FC Basel v. Real Madrid of 26 November 2014. According to the Appellant: “when comparing this case to previous cases of UEFA it becomes clear that the sanctions imposed on the Appellant are disproportionate. It seems that UEFA felt forced to deduct 3 points from the Appellant because it was forced to declare the match forfeit due [to] the Albanian team’s refusal to continue to play. As the forfeit win means that the Appellant would receive 3 points, UEFA may have felt that in light of a kind of ‘equal treatment of the parties’ it should also deduct 3 points from the Appellant although the facts would not justify such a severe sanction”. The Appellant also compares the present case with a CAF disciplinary case dated 5 February 2015, in which Equatorial Guinea was fined USD 100,000 and sanctioned with

one match behind closed doors (the latter sanction suspended) because its Africa Cup of Nations match against Ghana was interrupted for 30 minutes due to the throwing of bottles by the home supporters and other violent incidents that led to injuries. The Appellant recognizes that CAF and UEFA are different regional confederations but maintains that since both confederations operate under the supervision of FIFA and apply their disciplinary codes, which have the same variety of sanctions, with similar determinations, the case should nonetheless be considered as persuasive precedent.

75. At the hearing, the Appellant expressed it is not challenging that it is subject to strict liability under Article 16 para. 2 DR, but rather it is only challenging that the sanctions imposed under this principle of strict liability are evidently and grossly disproportionate. Further, it asserted that if in the proceedings CAS 2015/A/3874 Football Association of Albania v. UEFA & Football Association of Serbia the FAS is held responsible for the Match not being played in full and thus charged with a 0:3 forfeit, said forfeit would have to be considered in the present appeal as an additional sanction and taken into account in assessing the proportionality of Appealed Decision. In the Appellant’s view, it cannot be sanctioned both with a forfeit and also with a deduction of three points as this would constitute double punishment and raise even higher the level of disproportionality of the Appealed Decision.

76. Finally, the Appellant requests, in the event that the CAS does not set aside the three-point deduction, that it suspends said deduction for a probationary period. According to the Appellant, UEFA often suspends severe sanctions as it did for example in the UEFA Appeals Body decision of 29 October 2012 against PAOK FC (2012/2013 July-December).

77. At the hearing, in support of its position, the Appellant called to be heard as witnesses Messrs. Zoran Laković (the General Secretary of the FAS), Zeljko Pantić (the Chief of Stewarding Services) and Stefan Mitrović (Serbian national team player).

78. Mr. Laković testified, inter alia, that: i) he had organized many risky matches in the past, but that this was a very particular case (“a security nightmare”) given that it was the first match between Serbia and Albania since 1967; ii) the FAS took all security measures possible, having 4,000 policemen, 947 stewards and a security plan to which nobody at UEFA objected; iii) the stewards were well-trained; iv) the oil drum in the stadium (approved and checked by security personnel and police) was empty and used simply as a platform by the chant leaders, thus posing no security risk; v) while the fans were highly provoked by the fascist banner on the drone, no Serbian supporters entered the field until after the two Albanian players ran aggressively towards and pushed Mr. Mitrović and took the banner away from him (Mr. Laković described this as an “attack” although he admitted that it was not a horribly intensive one); vi) security personnel at the stadium prevented a “huge” number of Serbian supporters (around 100) from entering the field; vii) the FAS filed criminal complaints against all individuals that invaded the field (tens of individuals were arrested, interviewed and processed);

viii) since the Match Referee interrupted the Match and ordered the players to return to the field, the stewards had no time to fully extend the players’ tunnel to the field in order to keep players safe as is the normal procedure; ix) the Serbian substitute player’s headbutting of the Albanian player, Mr. Xhaka, did not occur until after the Albanian players’ attack on Mr. Mitrović, i.e. the catalyst; x) while these sorts of incidents are not expected in football in other parts of Europe, in countries like Serbia, Albania, Montenegro, and Russia, among others, it is a reality due to the many wars that have taken place and the existing political tensions; xi) it would be problematic if all these countries would request not to play each other; and xii) he had never seen a drone at a football match before and to this day does not know how its use at a football match can be prevented.

79. Mr. Pantić testified, inter alia, that: i) 1,200 stewards work for him; ii) the preparation for the Match lasted 2 months; iii) at the Match there were 947 stewards, 109 of which surrounded the field at the beginning of the Match (usually only 40 or 50 stewards surround the field at the beginning of the Match); iv) 2 security rings were set up, the first to remove suspicious individuals and the second to control tickets and search and remove from individuals dangerous objects and offensive banners; v) a huge number of flares and firecrackers were removed from individuals; vi) during the Match he was in constant communication with the FAS Security Officer and the head of police; vii) one Serbian supporter managed to get through the stewards surrounding the stadium (who were three meters apart from each other), grab a chair and hit an Albanian player, but immediately thereafter the stewards captured him and removed him from the field; viii) the field invasion occurred before extra security forces were sent to strengthen security; ix) the steward accused of attacking Mr. Cana was actually trying to protect him and to punch the Serbian supporter who was lying underneath; x) the steward who pumped up the crowd was fired and represented just 1 out of the 947 stewards working that day; xi) an additional 210 stewards were sent to surround the field after the incidents of the 42nd minute occurred; and xii) in only 2 minutes, order in the stadium was restored and all possibility to invade the field again eliminated.

80. Mr. Mitrović testified, inter alia, that he had never seen a drone before the Match and that his intention in grabbing the banner was only to pull down the banner and to hand it to the fourth official so that the Match could continue.

81. In light of the above, the Appellant requests in its prayers for relief (confirmed at the hearing) that the CAS: “Declare the appeal of the Football Association of Serbia to be upheld. 1. Set Aside point 1, point 3 and point 4 of the Decision under appeal. 2. Declare that no deduction of any points is imposed on the Football Association of Serbia, or alternatively order that the deduction of three (3) points is suspended, or alternatively order that only one (1) point is deducted. 3. Order the fine of EUR 100,000 to be considerably reduced. 4. Declare to stay the execution of the Decision under appeal. 5. Declare that the costs of these proceedings shall be borne by UEFA and the Appellant shall be compensated for its lawyers’ fees and all expenses in relation to this proceeding including the proceeding before the UEFA Appeal Body”.

VIII.2 The Respondent: UEFA

82. The Respondent principally submits that: 1) The Appellant is strictly liable for the misbehaviour of its supporters described in para. 9 et seq. herein. In support of the applicability of the principle of strict liability, the Respondent points to Article 16 para. 2 DR, which states that clubs are responsible for the misbehaviour of its supporters “even if [the association] can prove the absence of any negligence in relation to the organisation of the match”. Further, the Respondent adds that the Appellant does not contest said principle’s applicability. As a result, the Respondent maintains that the Appellant had to be punished under Articles 16(a), (b), (c), (d), (e) and (h) DR for the misbehaviour of its supporters throughout the Match. Observing that the Appellant contested the occurrence of the illicit chants, the Respondent argues that there is sufficient evidence (i.e. images and video footage exhibited during these proceedings, as well as media coverage) to prove to comfortable satisfaction that the Serbian supporters made offensive xenophobic chants including “Kill the Albanians” in violation of Article 16(e) DR, making it irrelevant whether the FARE report constitutes hearsay as the Appellant alleges. 2) The Appellant was negligent in implementing the appropriate safety and security measures. According to the Respondent, the Appellant violated Article 16 para. 1 DR. While the Respondent sympathizes with the security measures apparently implemented by the FAS, the Respondent stresses that, ultimately, those measures failed completely. The result shows that the security was insufficient. As fundamental failures, the Respondent refers to the fact that (i) security perimeters were easily breached and overrun, allowing, without any obstruction, supporters from accessing the field and attacking the Albanian players and returning back to the stands (more specifically, the

Respondent refers to the Serbian supporter who managed to hit an Albanian player with a chair, and to Mr. Bogdanov, who, accompanied by other Serbian supporters, calmly walked around the field); (ii) a steward kicked an Albanian player; (iii) a steward pumped up the crowd as the Albanian players were being attacked by the tunnel. Concerning the stewards’ behaviour, the Respondent maintains that “the only relevant perspective… when assessing these actions is that of an ‘objective onlooker’” (CAS 2013/A/3324, at para. 9.13). From such an objective perspective it can hardly be disputed that the attitude of a steward, who would have the main and essential task of maintaining security, but instead is involved in the mass confrontations and on this occasion also pumps up the crowd, is simply intolerable. To the Respondent, “such behaviour once more casts doubts on the diligence of Appellant when organising and implementing the necessary security measures including hiring well-qualified stewards”. The Respondent insists that “[a]t the end of the day, it is not the quantity of security personnel, but the organisation, the professionalism, the behaviour and the efficiency of such personnel that is decisive. The fact that the measures taken by the Appellant were anything but sufficient is sadly proven by” all the incidents that occurred throughout the Match. The massive intervention taken to restore order in the stadium was exactly what was lacking before in terms of security. 3) The disciplinary sanctions imposed on the Appellant are not evidently and grossly disproportionate. The Respondent considers that the sanctions are at least proportionate, if not too lenient. According to the Respondent, CAS jurisprudence limits a Panel’s “review of disciplinary sanction to cases of clear and obvious deviations from the regulations, i.e. to cases of evidently and grossly disproportionate sanctions (…) to avoid that CAS becomes a kind of ‘Court of Automatic Discounts’”. The Appellant believes that the sanctions imposed on the FAS cannot be viewed as evidently and grossly disproportionate given that: i) The sanctions reinforce UEFA’s fight against hooliganism. The Appellant calls attention to the fact that in CAS 2007/A/1217 the Panel took a clear stance against hooliganism, indicating that it deserves severe sanctions.

ii) The FAS is solely responsible for the incidents. In the Respondent’s view, the Appellant’s attempt to lay part of the blame on the Respondent, by claiming that it allowed the Match to be played while knowing the conflictive history between the two countries, is groundless. For two associations to be prevented from playing each other, one of three conditions must be fulfilled: (i) there must be abnormal diplomatic relations between the two countries involved; (ii) there must be an ongoing military or armed conflict between the countries involved; or (iii) a request to be kept apart must be made by either of the two associations. This is the standard practice of UEFA, which is well known to all members but not stipulated in any of the UEFA regulations. Since none of these conditions were met, there is no reason nor regulatory possibility for UEFA not to have let Serbia and Albania play each other. At the hearing, the Respondent, in relation to this argument, compared the present case with that of the Royal Spanish Football Federation (RFEF) and the Gibraltar Football Federation (GFA). It explained that even though the Governments of Spain and of the United Kingdom (under whose sovereignty is the territory of Gibraltar) have a normal diplomatic relationship, the RFEF has refused to play against the GFA, and for this reason UEFA, in applying its standard practice, has not drawn the sides to play against each other. In the present case,

neither before the Match nor even to this day has either the FAS or the FAA, in this or any other competition, requested that they not be drawn against each other. Given that the governments of Serbia and Albania have a normal diplomatic relationship, this means that UEFA, in applying its standard practice, will not interfere if the sides are matched up. Finally, at the hearing, the Respondent, on the question of UEFA potentially being partially responsible, asserted that Article 64 of the UEFA Organisational Regulations (Edition 2014), which stipulates that the match delegate acts as “UEFA’s official representative at a UEFA match” and is responsible that “especially the rules of order and security inside and outside the stadium before, during and after the match are observed”, does not place on the UEFA match delegate the responsibility of guaranteeing safety. iii) The Appellant’s security measures failed completely. The Respondent believes that the Appellant was completely negligent and that the security measures it took were utterly inefficient. All of the incidents that occurred throughout the Match “display a worrying picture, and one can simply not speak of efficiency or diligence of the security and safety organisation. This total lack of adequate security measures is in total contradiction with UEFA’s values and the level of competition. Therefore, these facts do not only make the sanctions imposed proportionate. Rather, and even more, the large number of incidents constitute aggravating circumstances, which, here again, reinforce the position of the UEFA disciplinary bodies”. iv) The behaviour of the fans before and after minute 42 of the Match is so unacceptable that it is enough to impose even the exclusion from participating in UEFA competitions. The Respondent stresses that regardless of what provoked the misbehaviours, the fact of the matter is that the incidents prior to and after the stoppage of the Match in minute 42 did take place and that such incidents were “intolerable” as admitted by the Appellant. As a result, the Respondent argues that the Appellant must bear the consequences applicable for said misbehaviours under the UEFA regulations and it cannot escape responsibility based on hypothetical/theoretical assumptions, nor can it have the sanctions reduced based

on the purported existence of a provocation. The Respondent explains: “in no way can CAS justify the attitude of the Serbian supporters. Provocation has no mitigating effect in UEFA disciplinary proceedings (…) There is no possible way to justify the incidents by an alleged provocation triggered by the entrance of the drone. Rather, this drone merely serves as an excuse for the regretful and violent misbehaviours and the failures of Appellant to provide safety and security for all spectators. To consider the appearance of this drone as provocation with a mitigating effect is to grant these supporters the right to commit such atrocities every time they would felt [sic] “provoked”. Evidently, this would go against the very spirit of all applicable UEFA Regulations”. The fact is that the incidents “did occur” and so the Appellant must bear the consequences. The Respondent adds that, in any case, even before the drone appeared, the Serbian supporters had already caused the Match to be stopped twice due to their misbehaviours, for which the Appellant has even accepted the sanction of two matches played behind closed doors. Thus, it is clear to the Respondent that the Appellant never had control of security in the stadium and the drone consequently cannot be seen as having provoked the incidents occurring after minute 42 of the Match. The Respondent further comments that the same is true for the argument that the Albanian players provoked the incidents by “attacking”

Mr. Mitrović. The Respondent believes that, on the one hand, there is not sufficient evidence of an “attack” and second, that “if UEFA had to count the attitude of players as a mitigating circumstance (quod non), then supporters would be allowed to invade the pitch each time they would feel ‘provoked’ by the attitude of adverse players”. v) The Respondent objects to the Appellant’s apportionment of sanctions. It stresses that the Appealed Decision made no distinction between those incidents occurring prior to the 42nd minute of the Match to those occurring thereafter. The Respondent adds that even if it were to accept such apportionment of sanctions, that the sanctions would be proportionate. If for the incidents up to the 42nd minute of the Match the appropriate sanction in the eyes of the Appellant is two matches behind closed doors, then the sanction for all the incidents occurring thereafter could easily exceed those imposed by UEFA (a three-point deduction and EUR 100,000 fine) and reach even the exclusion from the competition. vi) The Appellant is a recidivist and has a poor disciplinary record. The Respondent submits that under Article 19 DR, the previous record of the Appellant counts as an aggravating circumstance, and thus plays an important element in assessing the proportionality of the Appealed Decision. The Respondent considers the sanctions imposed on the Appellant as “a logical further step taken by UEFA in light of the range of sanctions at its disposal pursuant to Article 53 of UEFA Statutes and is in no extent evidently and grossly disproportionate to the offences witnessed during the match”. To support this, the Respondent refers to the FAS’ disciplinary record, noting that in connection with senior national team and U-21 competitions the FAS has been sanctioned six times by UEFA in the past five years. In this connection, the Respondent places particular emphasis on the senior national team match between Italy and Serbia of 12 October 2010 in which the FAS committed several incidents that led UEFA to impose the following sanctions: a forfeit, two matches behind closed doors (1 under probation), a ban from ordering tickets for its supporters for any remaining home matches in the 2012 UEFA European Championship qualifiers and a fine of EUR 120,000. For comparative purposes, the Respondent lists the incidents that

occurred during that match: the throwing of fireworks into the stands and onto the field (one of which appeared to have hit the Italian goalkeeper, Emiliano Viviano, on the foot or lower leg without causing any injury) causing the referee to interrupt the match, an attempted field invasion, the use of banners and flags displaying insults and political statements, the burning of an Albanian flag, and chanting of insults. The Respondent concludes: “UEFA cannot understand how Appellant having the above precedent regarding less ‘serious’ incidents, but a greater sanction, contends today that UEFA bodies overpassed their powers or at least exaggerated the importance of its previous records whilst enforcing Article 19 UEFA DR”. The Respondent dismisses the Appellant’s argument that as it was not the host team in that match of 2010, that it bore no responsibility for the safety and security: “This argument is simply nonsense. In fact, there is a difference between both cases, which aggravates the position of Serbia as regards the current proceedings. Serbia as a host team bears an additional responsibility in accordance with Article 16(1) UEFA DR, in addition to the one imposed as regards to the improper conduct of its supporters (Article 16(2) UEFA DR)”.

vii) In the Respondent’s view, given that the offences committed by the FAS in the Match are more serious than those committed in the Italy v. Serbia UEFA European Championships qualifier match of 2010, the adequate sanction is, at least, the one actually imposed by the UEFA Appeals Body, if not the exclusion from participating in UEFA competitions altogether. Bearing this in mind, coupled with the fact that the disciplinary history of the FAS shows highly worrying figures, the Respondent claims that it cannot be adduced that the sanctions imposed in the Appealed Decision are evidently and grossly disproportionate. viii) With regard to the decision of the CAF disciplinary decision of 5 February 2015, the Respondent affirms that it is completely irrelevant as it was “rendered by a different disciplinary body, within the scope of a different confederation, under a different legal framework and in accordance with a different internal jurisprudence to tackle hooliganism in football”. ix) The sanctions comply with UEFA’s standing practice. According to the Respondent, UEFA deals with disciplinary proceedings on a case-by-case basis, which may lead to more or less severe sanction depending on the particularities of each case. In any case, the Respondent cites that the case at hand is not analogous with the matches of Italy v. Croatia of 16 November 2014, Bulgaria v. Croatia of 10 October 2014 and Romania v. Hungary of 11 October 2014 because none of those cases included: (1) the throwing of fireworks at players; (2) the throwing of rocks at the opponent’s bench; (3) the invasion of the field by supporters; (4) a direct attack on the players; (5) a field invasion by a renowned “fanatic”; and (6) the kicking and punching of players as they attempted to scamper off the field. Finally, the Respondent did not consider relevant the Appellant’s references at the hearing to sanctions imposed in domestic league matches, as only the UEFA regulations and standards are applicable to the case at hand. The recent Montenegro v. Russia 2016 UEFA European Championship qualifiers match of 27 March 2015, also mentioned by the Appellant at the hearing, is of much more pertinence in the Respondent’s opinion. In that case, for the setting off/throwing of fireworks (one which struck the goalkeeper and seriously injured him), the Football Association of

Montenegro (FSCG) was deemed to have lost the match by forfeit 0:3, ordered to play its next two UEFA competition match as host association behind closed doors (the second of these deferred for a probationary period of two years) and fined EUR 50,000. x) The consideration of mitigating and aggravating circumstances was made in accordance with Article 17 DR. The Respondent contends that some of the alleged mitigating circumstances have no legal ground (e.g. the alleged responsibility of UEFA for allowing the Match to be played). Other alleged mitigating circumstances simply cannot be considered as such (e.g. the alleged extraordinary security measure implemented for the Match, which appeared as utterly inefficient). Finally, other alleged mitigating circumstances were simply irrelevant (this includes, the fact that Mr. Bogdanov is subject to criminal complaints, as well as the purported provocation of the drone/“attack” of the Albanian players).

83. In light of the above, the Respondent requests in its prayers for relief (confirmed at the hearing) that the CAS issue an award: “- Rejecting the reliefs sought by the Appellant;

• Charging all costs and expenses of these proceedings to Appellant;

• Granting a substantial contribution to Respondent for the legal fees incurred”.