Association of Unions of Football Players and Coaches v. Russian Football Union (RFU)

I. THE PARTIES

1. The Appellant, the Association of Unions of Football Players and Coaches, is a union of football players and coaches in Russia.

2. The Respondent, the Football Union of Russia (“FUR”), is the national football association of Russia and affiliated to the Fédération Internationale de Football Association (“FIFA”).

V. JURISDICTION — A. JURISDICTION AND STANDING TO APPEAL

35. In its Answer the Respondent argued that the CAS had no jurisdiction over the appeal. It repeated its position when it signed the Order of Procedure to which it added the following handwritten remark: “We think that the CAS has no jurisdiction to hear this specific matter”.

36. The arguments of the Respondent as to why the CAS would lack jurisdiction in the present matter are provided in Section 2 of the Answer, headed “2. No CAS jurisdiction over the Appeal”. This Section 2 is divided into sub-section 2.a, headed “The Appellant is not a subject to apply to the CAS against the decisions of election of the Chairman and the Deputy Chairman of the RFU DRC”, and sub-section 2.b, headed “The Contested Minutes cannot be a subject of an appeal according to the RFU Charter, the UEFA Charter and the CAS Code”.

37. In sub-section 2.a of the Answer the Respondent explains that the Appellant and the Respondent did not enter into any arbitration agreement which could serve as a basis for arbitration. The Respondent next argues that the Appellant has also no right to file an appeal with the CAS on the basis of the FUR Statutes as the Appellant is not to be considered an entity that is, according to Article 46.1 of the FUR Statutes, permitted to lodge a claim with the CAS. In particular, the Appellant is, as the Respondent argues, no such so-called “other footballrelated person” as would have a right to appeal. In essence, this means that according to the Respondent, the Appellant has no standing to appeal.

38. However, the Panel notes that standing to appeal is not an issue of competence or jurisdiction, respectively, but is rather a question of the merits of a case. The Panel, therefore, holds that even if the Appellant was not a person that according to the FUR Statutes would have a right to file a claim or appeal with the CAS, this would not affect CAS’ competence to hear the present matter if CAS had, in principle, jurisdiction. As a consequence, the Panel will analyze

the Appellant’s standing to appeal later in this award in the context of the merits of the case, but not in this chapter where the question of jurisdiction of the CAS is analyzed.

39. Likewise, the arguments that the Respondent advances in sub-section 2.b of its Answer are about the merits of the case, and not about jurisdiction. Whether the Challenged Decision was, as the Respondent contends, not directly made in respect of the Appellant and is not legally binding on it and that, for this reason, the Appellant has no right to file the present appeal is not a question that has to be reviewed in the context of jurisdiction. The Panel will, thus, discuss this issue also in the context of the merits of the case.

40. In sum, the Panel holds that the arguments that the Respondent brings forward under Section 2 of its Answer do not, in essence, challenge jurisdiction of the CAS. They rather challenge the Appellant’s standing to appeal which is, as already pointed out, a matter of the merits and which will, therefore, be analyzed later in this award.

B. COMPETENCE OF THE CAS

41. The present arbitration is an international arbitration in Switzerland and the lex arbitri is, therefore, Swiss law, to be found, in particular, in the 12th chapter of the Swiss Private International Law Statute (PIL). In accordance with Article 178 para. 2 of the PIL, an arbitration agreement is valid if it complies with the law chosen by the parties or if it complies with Swiss law. According to Swiss law, an arbitration agreement must be in writing, by means of telegram, telex, telefax or in any other form of communication that allows evidence of the agreement in text.

42. In the matter at hand, the parties have not signed a separate, specific arbitration agreement and the Appellant does not argue that such separate, specific arbitration agreement was signed. The Appellant rather argues that CAS is competent by virtue of Article 67 I of the FIFA Statutes, Article 46 I of the FUR Statutes and Article R47 of the Code.

43. According to standard practice of the Swiss Federal Tribunal, an arbitration agreement can also become valid and effective by affiliation to a federation and reference to an arbitration clause provided in the statutes of a sport federation. The Swiss Federal Tribunal, for instance held in its decision of 9 January 2009 (ATF 4A_460/2008, no. 6.2) that a Brazilian football player was bound by the arbitration clause set out in the FIFA Statutes conferring jurisdiction to the CAS by virtue of the reference provided in the statutes of the national Brazilian Football Federation to the FIFA Statutes. The player was seen as bound by these provisions in his capacity as professional football player in Brazil. The Swiss Federal Tribunal, therefore, held on the basis of the FIFA Statutes, the statutes of the Brazilian Football Federation and Article R47 of the Code, that the CAS had jurisdiction.

44. The Panel holds that, for the following reasons, these considerations are to be similarly applied in the present case.

45. According to Article R27 of the Code “These Procedural Rules [the ones of the Code] apply whenever the parties have agreed to refer a sports-related dispute to CAS. Such reference may arise out of an arbitration clause

contained in a contract or regulations or by reason of a later arbitration agreement (ordinary arbitration proceedings) or may involve an appeal against a decision rendered by a federation, association or sports-related body where the statutes or regulations of such bodies, or a specific agreement provide for an appeal to CAS (appeal arbitration proceedings).

Such disputes may involve matters of principle relating to sport or matters of pecuniary or other interests relating to the practice or the development of sport and may include, more generally, any activity related or connected to sport”.

46. In addition, Article R47 para. 1 of the Code provides that “An appeal against the decision of a federation, association or sports related body may be filed with CAS if the statutes or regulations of the said body so provide or if the parties have concluded a specific arbitration agreement and if the Appellant has exhausted the legal remedies available to him prior to the appeal, in accordance with the statutes or regulations of that body”.

47. Article 67.1 of the FIFA Statutes provides that “Appeals against final decisions passed by FIFA’s legal bodies and against decisions passed by Confederations, Members or Leagues shall be lodged with CAS within 21 days of notification of the decision in question”.

48. On national level in Russia Article 46.1 of the Statutes of the FUR provides that “Unless otherwise stipulated […] the RFU, its members, as well as the leagues, the clubs, the players, officials, agents of the matches and agents of players, other football-related persons recognizing the present Statutes, may not refer any disputes to the regular courts. Any disagreement shall fall under jurisdiction of FIFA, UEFA or FUR. As of last instance such disputes shall be adjudicated by Russian arbitration tribunal referred to in appropriate article of these Statutes or by CAS” and Article 47.1 of the Statutes of the FUR provides that “In accordance with the specific provisions of FIFA Statutes, UEFA Statutes and FUR Statutes any appeal against final and legally binding decision passed by FIFA, UEFA and FUR may be heard by the CAS. This court of arbitration for sport, however, shall not hear appeals on the categories of disputes as defined by FIFA, UEFA, FUR or against the decisions rendered by the independent and duly constituted Russian arbitration tribunal referred to in Article 45 of these Statutes”.

49. The FUR Statutes provide, in other words, that, inter alia, “other football related persons” shall be bound by the arbitration clause provided in the FUR Statutes and FIFA Statutes. Pursuant to Article 1.1 (14) of the FUR Statutes, “football-related” persons include, inter alia, “unions on the football sphere” and “other persons that recognize the rules set by the FUR and whose activity is connected with the competitions held under FUR jurisdiction”.

50. The Panel, therefore, finds that, on the basis of Article R27 and Article R47 para. 1 of the Code as well as Article 67.1 of the FIFA Statutes in connection with Article 46.1 and Article 47.1 of the FUR Statutes, the CAS is, in principle, competent to hear the present case as the Appellant must arguably be considered as a union “on the football sphere” or another “person that is connected with the competitions held under FUR jurisdiction”. The relevant regulations of the FUR, FIFA and CAS, thus, not only permit, but even oblige the Appellant to bring its appeal against the FUR before the CAS if it considers itself another football-related person. Whether the Appellant is actually such football-related person or whether it is not, as the Respondent argues, will be analyzed in the section on the Appellant’s standing to appeal.

C. IS THE CHALLENGED DECISION FINAL?

51. The Panel also notes that for the CAS to have jurisdiction the Appellant must have exhausted all instances within the FUR, if any, in order for the Challenged Decision to be final in accordance with Article 47 of the Code. In contrast to the standing to appeal, which is a question of the merits, the question whether or not the Appellant has exhausted all instances within the FUR before reverting to the CAS is a question of jurisdiction and shall, therefore, be analyzed at this juncture (cf. MAVROMATI/REEB, The Code of the Court of Arbitration for Sport, 2015,

52. When reviewing the question as to whether or not the Appellant exhausted all avenues available within the FUR the Panel noted that the Appellant for its part did not explain whether such avenues would have been available, and that the Respondent for its part never raised the objection that the Challenged Decision would not be appealable because of the existence of avenues within the FUR which had not been exhausted – in other words, the Respondent did not raise any objection against the present appeal on the basis that the Challenged Decision was not final.

53. This notwithstanding, the Panel, in application of Article R55 para. 4 of the Code, analyzed whether the Challenged Decision can be considered final.

54. In that context the Panel examined chapter 3 of the DRR which is headed “Jurisdiction of the Chamber and the Committee”.

55. Article 13 of the DRR sets out that the DRC shall review and adjudicate disputes in the context of registration, employment as well as transfer of players and coaches. Article 14 of the DRR deals with the Players’ Status Committee (“PSC”) and provides that the PSC is the jurisdictional body adjudicating on the appeals against the decisions rendered by the DRC on all matters falling within its jurisdiction.

56. This dichotomy of competences of the DRC and the competences of the PSC is repeated, in essence, in Articles 41 and 42 of the Statutes of the FUR. Article 41 of the FUR Statutes provides that “1. The Dispute Resolution Chamber is competent to handle extrajudicial resolution of disputes to which clubs, players, coaches, agents of players and other football-related persons under the Regulations on the Status and Transfer of Players are the parties and shall apply disciplinary sanctions for breach of Regulations on the Status and Transfer of Players and other regulations (rules) when so explicitly determined therein. 2. The decisions rendered by the Dispute Resolution Chamber on the categories of disputes as defined in the relevant regulations (provisions) may be appealed against before the Players’ Status Committee”. In accordance with Article 42.1 of the FUR Statutes, the “Players’ Status Committee shall determine the status of players, including resolutions of disputes connected with players’ status” and “shall hear appeals against decisions rendered by the Dispute Resolution Chamber and shall monitor compliance with the regulations on the Status and Transfer of Players”.

57. By contrast, the Chairman and the Deputy-Chairman of the DRC shall be elected in accordance with chapter 2 of the DRR (“Organizational Basis of the Chamber and the Committee”), in particular with Article 81 of the DRR.

58. Interpreting Article 81 of the DRR in conjunction with chapter 3 of the DRR the Panel concludes that elections do not fall within the scope of decisions of the DRC pursuant to Article 13 of the DRR that are open to appeal with the Players’ Status Committee in accordance with Article 14 of the DRR. The Respondent did not argue otherwise.

59. Moreover, chapter 2 of the DRR that deals with the organizational basis of the DRC (only) does not provide any specific provision as to how elections of members of the DRC can be challenged and does not, in particular, identify any appeal instance within the FUR with which such challenge could be filed.

60. The Panel, therefore, holds that there is no specific legal remedy available within the FUR in case of a challenge to the election of a Chairman or a Vice Chairman of the DRC. In particular, the Players’ Status Committee would not be competent to hear any such challenge or appeal, respectively. Therefore, any such appeal must be addressed to the CAS in accordance with Article 47.1 of the FUR Statutes.

D. CONCLUSION

61. For these reasons, the Panel holds that the Challenged Decision is a final decision in the sense of Article R47 para. 1 of the Code, and that the CAS has jurisdiction to hear the present dispute.

VI. ADMISSIBILITY

62. Article R49 of the Code provides as follows:

“In the absence of a time limit set in the statutes or regulations of the federation, association or sports-related body concerned, or in a previous agreement, the time limit for appeal shall be twenty-one days from the receipt of the decision appealed against […]”.

63. The Challenged Decision was rendered on 2 July 2015 and notified to the Appellant on 10 July 2015. The Appellant filed its statement of appeal on 31 July 2015. Therefore, the 21-day deadline to file the appeal was respected. Likewise, the appeal brief was timely filed on 10 August 2015.

64. The Panel, therefore, holds that the appeal is admissible.

VII. APPLICABLE RULES OF LAW

65. Pursuant to Article R58 of the Code, the dispute must be decided “according to the applicable regulations and, subsidiarily, to the rules of law chosen by the parties or, in the absence of such a choice, according to the law of the country in which the federation, association or sports-related body which has issued the challenged decision is domiciled or according to the rules of law the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision”.

66. The parties have not expressed themselves on the laws applicable. The case at hand is about a dispute between a Russian union of football players and coaches and the FUR, i.e. the Russian

football union which is domiciled in Russia. The “applicable regulations” in the sense of Article R58 of the Code are, therefore, the statutes and regulations of the FUR which is the Respondent. The Panel thus holds that the dispute is to be determined by applying the statutes and regulations of the FUR and, absent any express choice of law by the parties, Russian law.

VIII. MERITS — A. SCOPE OF THE PANEL’S REVIEW

67. Pursuant to Article R57 of the Code, the Panel has full power to review the facts and the law. It may issue a new decision which replaces the decision challenged or annul the decision and refer the case back to the previous instance.

B. THE BURDEN OF PROOF

68. According to general principles of law, each party must provide evidence for any fact on which it intends to rely.

69. This means, in the case at hand, that the Appellant has the burden of proof to demonstrate, in particular, that it has grounds to request the CAS to annul the Challenged Decision, i.e. the election of Mr. Lyakhov as Chairman and Mr. Pivovarov as Deputy Chairman of the DRC.

C. LEGAL ANALYSIS

C.1 The legal issues at hand

70. The Panel has identified and analysed the following main legal questions.

(i) Does the Appellant have standing to appeal, i.e. is it entitled to challenge the Challenged Decision and to act as appellant in the present proceedings? (ii) Are Mr. Lyakhov and Mr. Pivovarov impartial and independent in accordance with the relevant rules of the DRR? (iii) When does a challenge of the election of a Chairman or Deputy-Chairman have to be filed?

71. The Panel took note that the Appellant also contended that the elections of 2 July 2015 violated the quorum requirements under Article 81 of the DRR as well as Article 94 of the DRR. These issues will be discussed further below.

C.2 Interpretation of the DRR

72. The DRR and the FUR Statutes do not provide any specific rule that would explain the method of interpretation that is to be applied in case of any ambiguity of the DRR or the FUR Statutes.

73. At the hearing, the parties confirmed that also under Russian law, and, in particular, in respect of the DRR and the FUR Statutes, the principle applies that the relevant rules must be interpreted by taking into consideration the meaning that reasonable parties acting in good faith would give to the provisions in question.

74. When interpreting the DRR and the FUR Statutes the Panel followed this principle.

C.3 Does the Appellant have standing to appeal?

75. In the Respondent’s view the Appellant is not entitled to file the present appeal. It argues that the Appellant is not a “football-related person” as defined in Article 1.1 (14) of the FUR Statutes, while the Appellant, on the other hand, argues that it has such capacity.

76. As already pointed out, according to Article 1.1 (14) of the FUR Statutes the term “footballrelated persons” includes, among others, “unions on the football sphere” as well as “other persons who recognize the rules set by the FUR and whose activity is connected with the competitions held under the FUR jurisdiction”. The Panel holds that the Appellant is undoubtedly a “union on the football sphere”, and notes that the Respondent did not argue otherwise.

77. In addition, the Appellant’s activity “is connected with the competitions held under FUR jurisdiction” since the Appellant is involved in the nomination of the members of the DRC who shall adjudicate disputes relating to, inter alia, “infringement of the terms and conditions of registration […] of football players and coaches […] of transfer contracts, of employment contracts with football players and coaches” or on “availability or absence of a ‘foreigner’ status with a football player” (Article 13.1 of the DRR). As the DRC has the power to determine issues in relation to competitions held under the FUR’s jurisdiction and as the Appellant has the power to nominate arbitrators or members of the DRC the Panel has no difficulty in concluding that the Appellant is a “football-related person” as defined in accordance with Article 1.1 (14) of the FUR Statutes.

78. For these reasons, the Panel does not accept the Respondent’s contention that the Appellant’s activities are not in any way related to any competition held under the auspices of the FUR and that the Appellant does not recognize the norms set by the FUR. As has been shown above, the Appellant’s activities are connected with the competitions held by the FUR. In addition, the fact that the founder of the Appellant, the Union of Football Players and Coaches of Russia, has, as the Respondent contends, still not reimbursed the disputed expenses that the Respondent incurred in another arbitration before the CAS, does not, in the Panel’s view, demonstrate that the Appellant does not respect the FUR Statutes.

79. However, as the Appellant was not directly affected by the Challenged Decision, in the sense that the Appellant was not a candidate during the relevant election proceedings, the Panel also analyzed whether the Appellant was affected by the Challenged Decision in a way that justifies hearing its appeal before the CAS, i.e. whether the Appellant has a right to claim that the elections are held in accordance with the applicable rules which is worthy of protection by the

80. The parties do not differ in respect of the policy underlying the enactment of the current version of the DRR, including the aim to ensure impartiality and independence of the arbitrators as well as equal representation of arbitrators appointed by the employers’ side (clubs and leagues) and the employees’ side (in particular unions of players). This basic goal is also reflected in Article 4 of the DRR which provides “The hearing shall be made on the basis of principles of legitimacy, confidentiality, independency and impartiality of members of the Chamber, optionality, competitiveness and equality of the parties, equal balanced representation of Arbitrators from professional football clubs and unions of players”.

81. The unions of players (and coaches), thus, play an important role in respect of the composition of the DRC and, more generally, in respect of the jurisprudence of the FUR legal bodies. Their involvement ensures that the players are equally represented (with the clubs) in the DRC. In other words, the unions, including the Appellant, have a fiduciary duty on behalf of the players (and coaches) to concern themselves in the proper composition of the DRC which is an important condition for fair and equitable proceedings between the clubs (and leagues) as well as the players (and coaches). The Appellant would frustrate the trust that the players gave it if the Appellant did not take action against decisions in respect of the composition of the DRC which are, or which the Appellant deems to be, in violation of the FUR regulations to the detriment of the Players.

82. The Appellant argues that Mr. Lyakhov and Mr. Pivovarov are not independent because they are too closely connected with the clubs and the national league. In view of the role of the Appellant as fiduciary or trusted representative of the players the Panel has no difficulty in accepting that the Appellant has a legitimate interest in appealing against the Challenged Decision as it undoubtedly has practical and important effects on the Appellant. Should the newly elected Chairman and Deputy-Chairman of the DRC not be independent because they are too closely related with the clubs and the national league as the Appellant contends, the entire system under the DRR envisaged at ensuring impartiality, independence and representation of clubs and players would be at stake. The Panel, thus, concludes that the Appellant has an interest worthy of protection and has a right to have the Challenged Decision reviewed by the CAS, even if the Appellant was not a formal party to the elections that led to the Challenged Decision. The CAS already confirmed in other cases that standing to appeal can be given even if the appellant was not party to the previous instance proceedings, provided it is affected by the relevant decision and has a legitimate or sufficient interest in challenging it (cf.

C.4 Do Mr. Lyakhov and Mr. Pivovarov fulfil the requirements on impartiality and independence?

83. After having discussed whether or not the Appellant has standing to appeal the Panel analyzed whether at the date of their election on 2 July 2015 Messrs. Lyakhov and Pivovarov were impartial and independent in accordance with the relevant rules under the DRR.

84. In analyzing this issue the Panel first noted that Article 7 of the DRR provides the legal framework for the composition of the DRC. In accordance with Article 7.1 of the DRR, the DRC shall be composed of (i) the Chairman, (ii) the Deputy Chairman, (iii) ten representatives

from the professional football players, and (iv) ten representatives from the professional football clubs. The members of the DRC shall be nominated in the manner as described in Article 8 of the DRR.

85. In respect of personal qualifications and personal requirements Article 7.4 provides that “Members of the Chamber shall be citizens of the Russian Federation and may not be members of the FUR Executive Committee, the Committee, as well as occupy the position of Executives of the Leagues and/or associations. Members of the Chamber are forbidden to be representatives of the parties in cases (disputes) adjudicated by the Chamber” (emphasis added) and Article 5.5 provides that the “Chairman and Deputy Chairman of the Chamber shall have high legal educational background and practical experience in a legal sphere of no less than five (5) years”.

86. The Appellant contends that the current Chairman and Deputy Chairman of the DRC occupy leading functions in the national league and a club, respectively. The Panel has, therefore, to assess whether Mr. Lyakhov and Mr. Pivovarov are executives of a league or an association pursuant to the terms of Article 7.4 of the DRR.

87. The terms “executive” and “association” are not defined in the DRR. During the hearing it was, however, confirmed that the term used in the original Russian version of the DRR for “executive” is “Руководитель”, and the term used for “association” is “Ассоциация”. In response to the Panel’s question it was confirmed that “Руководитель” describes a person who can give directions irrespective of the level of the entity’s hierarchy and is, in particular, not limited to identify a leading function on the top hierarchy level. And in respect of “Ассоциация” it was confirmed that this is a broadly used term for legal entities and that it also may, in the given context, refer to a club. None of the parties raised any objection to the Panel’s use of these definitions. The Panel, therefore, concludes that according to Article 7.4 of the DRR nobody shall become a member of the DRC if he or she holds a leading function within a league or a club and has the competence to give directions in his sphere of competence.

88. During the hearing, the Respondent and Mr. Lyakhov, who was heard as the Respondent’s witness, confirmed that Mr. Lyakhov is the Director of the Legal Department of the National Football League, and it is also undisputed that Mr. Pivovarov is the Deputy General Director of the football club Zenit Saint Petersburg. The Panel has, therefore, no difficulty in determining that both, Mr. Lyakhov and Mr. Pivovarov, are “executives” of a “league” (Mr. Lyakhov) or an “association” (Mr. Pivovarov), respectively. The positions of a director of the legal department of the national football league of Russia as well as a deputy general director of a football club like Zenit Saint Petersburg are undoubtedly to be seen as conferring on the relevant holder of the position the right to give directions to others and being a leader or manager of the relevant arm of the league or club, respectively.

89. Consequently, as both Mr. Lyakhov and Mr. Pivovarov are executives of a league or club they do not fulfil the requirements for their independence and impartiality pursuant to Article 7.4.

C.5 When does a challenge of the election of a Chairman or Deputy-Chairman have to be filed?

a. Issues at hand

90. After determining that Mr. Lyakhov and Mr. Pivovarov hold executive functions within a league or club, the Panel had to analyze whether it was appropriate for the Appellant to submit its appeal after the elections of 2 July 2015 or whether the appeal was late as the Respondent contended during the hearing.

91. In analyzing this question the Panel noted that the DRR do not set out detailed rules on the election process and do not describe a specific procedure in case of a challenge of the Chairman or Deputy Chairman of the DRC.

92. During the hearing it was established that prior to 2 July 2015, i.e. the day when the election of Mr. Lyakhov as Chairman and Mr. Pivovarov as Deputy Chairman took place, Mr. Lyakhov was already a member of the DRC holding the function of the Deputy Chairman, while Mr. Pivovarov was no member of the DRC. While Mr. Lyakhov was elected Deputy-Chairman of the DRC on 5 December 2014, Mr. Pivovarov became a member of the DRC only on 2 July 2015 when he was elected Deputy Chairman. In light of these differences between the history of Mr. Lyakhov and Mr. Pivovarov, the Panel decided to analyze the present question for Mr. Lyakhov and Mr. Pivovarov seperately.

b. The challenge of Mr. Lyakhov

93. The parties confirmed that when Mr. Lyakhov was elected Deputy Chairman of the DRC in December 2014 no challenge was lodged. Therefore, the Panel has to determine whether the DRR suggest that the right to challenge Mr. Lyakhov’s appointment as a member of the DRC was forfeited given that he became Vice Chairman of the DRC in December 2014 and no challenge against his membership in the DRC had ever been lodged before the present appeal was filed. The Panel also analyzed whether it is appropriate, under the DRR, to challenge a Chairman (or Deputy Chairman) after the elections or whether a challenge must be raised at an earlier point in time.

b.1. Was the Appellant prevented from challenging the Chairman and to lodge the appeal after the elections?

94. The Panel notes that Article 8.7 of the DRR provides that the “FUR Legal Committee shall check the fitness of the candidates to the requirements applicable to the members of the Chamber. The requirements applicable to the members of the Chamber shall be approved by the FUR Executive Committee”. This provision equally applies to ordinary members of the DRC (arbitrators) as well as to the Chairman and Deputy Chairman. In respect of the selection of potential candidates for the position of the Chairman and Vice Chairman Article 81 1 of the DRR provides that “A list of candidates to the position of Chairman of the Chamber composed out of 5 individuals and candidates to the position of Deputy Chairman of the Chamber composed out of 5 individuals shall be approved by the Executive Committee after taking into account views of football-related persons”.

95. During the hearing, it was established that one list with five candidates was presented for the election of the Chairman and that such list also served for the election of the Vice Chairman. As the Chairman was elected first a list of five candidates was actually available so that the Panel takes the view that Article 81 1 of the DRR was complied with when the Chairman was elected. It will be discussed later whether these requirements under Article 81 1 of the DRR were also fulfilled when the Deputy Chairman was elected.

96. In its next step the Panel analyzed whether the presentation of the list of candidates by the Executive Committee was a “decision” in the sense of Article R47 para. 1 of the Code that (rendered ahead of the elections) the Appellant should have challenged. In this context the Panel also considered previous practice of the CAS regarding the concept of a “true decision” of a sports governing body that is subject to appeal.

97. The Panel noted that in CAS 2008/A/1634 the CAS held that “an appealable decision of a sport association or federation is normally a communication of the association directed to a party and based on an ‘animus decidendi’, i.e. an intention of a body of the association to decide the matter” (no. 11 with reference to relevant literature). Already in CAS 2004/A/748 the CAS held in respect of “decisions” that “In principle, for a communication to be a decision, this communication must obtain a ruling, whereby the body issuing the decision intends to affect the legal situation of the addressee of the decision or other parties” (no. 14 with reference to CAS 2005/A/899). In CAS 2004/A/659 the panel held that “A decision is a unilateral act, sent to one or more determined recipients and is intended to produce legal effects” (no. 10). These decisions are in line with the definition provided by the Swiss Federal Tribunal in respect of orders or decisions, respectively.

98. Against the above background, it can be concluded that for an act to be a true “decision” so that it can become the subject of an appeal such act must (i) express the animus decidendi of the respective sports governing body in respect of a specific topic or legal situation, and (ii) must be communicated to the relevant addressees.

99. The Panel is of the opinion that Article 81 1 in conjunction with Article 8.7 of the DRR cannot be read in a way as to justify the conclusion that by presenting the list of candidates the Executive Committee rendered a “true decision” ruling that the candidates fulfilled the criteria under Article 7.4 of the DRR. Lacking any specific provision in the DRR that would give guidance in respect of the procedure of the selection of the candidates, the assessment of their characteristics and the proper way of communication of their selection, the Panel holds that the current version of the DRR does not permit it to conclude that it was the intention of the authors of the DRR to enact a rule pursuant to which a challenge of the Chairman or Deputy Chairman must be lodged when the candidate appears on the list prepared by the Executive Committee. The Panel, rather, concludes that Article 81 1 and Article 8.7 of the DRR are of an administrative nature and aim at preparing the elections without, however, conferring on the Executive Committee the competence to render a “true decision” with regard to the conformity of the candidates with the requirements under Article 7.4 of the DRR.

100. Therefore, the Panel holds that on the basis of the current DRR a challenge of the Chairman or Deputy Chairman cannot be lodged before the elections have taken place. The presentation

of the list of candidates is not a separate decision (rendered ahead of the elections) that would be amenable to an appeal.

101. The Panel, therefore, concludes that the Appellant’s appeal is not late in the sense that it would have had to file an appeal against the presentation of the list of candidates if it was of the opinion that Mr. Lyakhov was not eligible.

102. Because, however, Mr. Lyakhov was already a member of the DRC when the elections of 2 July 2015 took place the Panel analyzed, as a next step, whether the right of the Appellant to challenge Mr. Lyakhov is forfeited as Mr. Lyakhov’s membership in the DRC was never challenged before.

b.2. Is the appeal in respect of Mr. Lyakhov late?

103. As has been pointed out above, Mr. Lyakhov was already a member of the DRC when he was elected Chairman on 2 July 2015. He had been Deputy Chairman since 5 December 2014, and both parties confirmed that Mr. Lyakhov had never been challenged hitherto. Therefore, the question arises whether a challenge of Mr. Lyakhov should have been brought earlier and whether, in particular, the present challenge was lodged out of time.

104. Given that the DRR do not provide any explicit rule in this respect, the Panel had again to find the answer by interpreting the provisions available in the current version of the DRR in their given context.

105. The starting point for the Panel’s analysis was Article 7.4 of the DRR which states, as already discussed above, that “Members of the Chamber shall be citizens of the Russian federation and may not be members of the FUR Executive Committee, the Committee, as well as occupy the positions of Executives of the Leagues and/or associations. Members of the Chamber are forbidden to be representatives of the parties in cases (disputes) adjudicated by the Chamber”. The Panel also took note of Article 4 of the DRR setting out that the “hearing shall be made on the basis of principles of legitimacy, confidentiality, independency and impartiality of members of the Chamber, optionality, competitiveness and equality of the parties, equal balanced representation of Arbitrators from professional football clubs and unions of players”.

106. The purpose of these provisions is clear. It is to ensure that each and every proceeding brought before the DRC shall be heard by a panel where the members are impartial and independent. In accordance with Article 82.1 of the DRR “Disputes are to be adjudicated by the Arbitrators nominated out of members of the Chamber by the Chairman of the Chamber or the Deputy Chairman of the Chamber upon assignment made by the Chairman of the Chamber”. Furthermore pursuant to Article 82.2 of the DRR a “dispute shall be adjudicated by the Chamber sitting in no less than three (3) Arbitrators, including the Chairman of the Chamber or the Deputy Chamber of the Chamber, complying with the principle of equal representation of Arbitrators of the football clubs and of the players”. This means, in essence, that after their election the Chairman and the Deputy Chairman become standing members of the panels of the DRC as either the Chairman or the Vice Chairman must sit on each of such the panels.

107. Against this background the Panel concludes that the requirements under the DRR on impartiality and independence of the DRC members and panels can presently never be fulfilled

as the current Chairman and the current Deputy Chairman fail to fulfil the requirements of Article 7.4 of the DRR.

108. This notwithstanding, the Panel finds that it cannot uphold the challenge against Mr. Lyakhov as Mr. Lyakhov became Deputy Chairman of the DRR, and thus a standing member of the DRC panels, already in December 2014. That election was never challenged. The change of his function from Deputy Chairman to Chairman of the DRC does not, in the Panel’s view, raise new grounds for a challenge that could not already have been raised in December 2014. Therefore, although the Panel is of the opinion that Mr. Lyakhov does not fulfil the requirements of Article 7.4 of the DRR, it cannot intervene now and undo an election that should have been challenged earlier. The Appellant itself is estopped from mounting such a challenge.

c. The challenge of Mr. Pivovarov

109. Like Mr. Lyakhov, Mr. Pivovarov does not fulfil the requirements under Article 7.4 of the DRR on independence and impartiality. Mr. Pivovarov is an executive of an important club. But unlike Mr. Lyakhov, Mr. Pivovarov became a member of the DRC only on 2 July 2015 so that the above considerations regarding the timing of Mr. Lyakhov’s challenge do not equally apply. As Mr. Pivovarov became a member of the DRC only on 2 July 2015 his election could not be challenged before.

110. Furthermore, the Panel noted that Article 82.4 of the DRR provides that “In the event where a football club is a party to the dispute, as an Arbitrator – a representative of the professional football clubs may not be nominated a member of the Chamber nominated by the same League, to which the club – a party to the dispute is a member, and if the club – a party to the dispute shall have filed a motion with the Chamber to exclude nomination of Arbitrator nominated by the relevant league”. In light of this provision, Mr. Pivovarov would be prevented from exercising his function as Deputy Chairman in each case where a club of either the Premier League or the National League is involved as Zenit Saint Petersburg has a team in the Premier League and, as has been confirmed during the hearing, in the National Football League.

111. In addition, it seems that the process of his election was not fully in line with Article 81 1 of the DRR which requires that in respect of the election of the Deputy Chairman a separate list of five candidates shall be presented. It was confirmed at the hearing that in respect of both, the election of the Chairman and the election of the Deputy Chairman, only one list with five candidates in total was available. The Panel is of the view that, based on the DRR, it is not clear whether a violation of this rule would per se be serious enough to form a ground for a challenge of the elected Deputy Chairman. However, given the other deficiencies discussed above the Panel is also of the view that this question can be left open for purposes of the present award.

112. In light of the above the Panel concludes that Mr. Pivovarov does not fulfill the criteria under Article 7.4 of the DRR on impartiality and independence of a DRC member. As, in contrast to Mr. Lyakhov who was elected Deputy Chairman in December 2014, no challenge could be raised before the present appeal was lodged, the present appeal must be seen filed on time as

far as Mr. Pivovarov is concerned. The Panel, therefore, decides that the election of Mr. Pivovarov as Deputy Chairman must be annulled.

C.6 Was Article 81 of the DRR violated?

113. The Appellant also argues that the elections took place in violation of the quorum requirements under Article 81 of the DRR. Article 81.3 of the DRR provides that a candidate to the position of the Chairman or Deputy Chairman of the DRC shall be deemed elected if supported by a 2/3 majority of votes cast out of the total number of members of the DRC. If none of the candidates to the position of the Chairman or Deputy Chairman is supported by such 2/3 majority of votes a second ballot shall take place (Article 81.4 of the DRR). In accordance with Article 81.6 of the DRR, a candidate shall be deemed elected in a second ballot if supported by a simple majority of votes cast out of the total number of members of the DRC.

114. The Appellant argues that these provisions are to be understood as requesting that 2/3 of the members of the DRC must be present to form a valid quorum for the elections of the Chairman and Deputy Chairman. The Panel, however, finds that the aforementioned provisions do not imply that a presence quorum of 2/3 of the members of the DRC is required. These provisions only deal with the number of votes that are required, i.e. 2/3 of the total number of members of the DRC in the first round and simple majority of the total number of members of the DRC in the second round. The DRR are, thus, silent about a presence quorum, and the Panel holds that this is to be understood as not requiring any such specific presence quorum notwithstanding the fact that the members of the DRC may have decided at their meeting of 5 December 2014 that a 2/3 presence quorum was to apply for the elections held at the occasion of such meeting as the Appellant’s witness explained at the hearing.

115. The Panel, therefore, analyzed whether the Chairman and Deputy Chairman obtained (at least) a simple majority of votes cast out of the total number of members of the DRC. In this context the Panel considered that at the hearing both parties explained that the DRC, as a rule, consists of 22 members in total, i.e. of 20 arbitrators as well as of the Chairman and the Deputy Chairman. Taking 22 members as a reference, the simple majority of votes would have been 12 votes.

116. The Panel notes that according to the minutes of the 2 July 2015 elections submitted by the parties, the new Chairman obtained, in the second round of the ballots, 12 votes and, thus, achieved the simple majority of votes cast out of such total number of members of the DRC.

117. On the other hand, the Panel also noted that the new Deputy Chairman obtained, in the fourth round of the ballots, 11 votes, so that the question arises whether he would have reached the threshold of a simple majority of votes. Even if the Panel holds that the Deputy Chairman’s election must be annulled for other reasons, this question shall be further analyzed for sake of completeness.

118. The Panel discussed whether for purposes of the elections and assessment of the required number of votes the Chairman and the Deputy Chairman have also to be counted as members of the DRC, in which case the total number of members of the DRC would be 22 and the

simple majority would be 12 votes, or whether they have to be disregarded, in which case the total number of members of the DRC would be 20 and the simple majority of votes would be 11. The Panel noted that again the DRR are silent in this respect.

119. When analyzing the sequence of the elections of 2 July 2015, the Panel noted that at the time of the election of Mr. Pivovarov, Mr. Ljakhov had already been elected as Chairman so that at that time the number of members of the DRC was 21. On the other hand, Mr. Pivovarov was not yet a member of the DRC so that the Panel did not have to also analyze whether Mr. Pivovarov would have had to abstain from voting given that he was himself a candidate in which case he could not have been taken into account when assessing the total number of DRC members entitled to vote.

120. On the premise that the relevant number of members of the DRC when Mr. Pivovarov’s election took place was 21, the simple majority threshold was 11. As Mr. Pivovarov obtained such 11 votes his election would have been valid had it not to be annulled for the reasons discussed above.

121. The meeting minutes indicate, on the other hand, that the members of the DRC were of the opinion that for purposes of the elections the total number of members of the DRC was 20. Both, in respect of the election of the Chairman and in respect of the election of the Deputy Chairman, the minutes provided that the relevant simple majority threshold was 11 out of 20. This would also indicate that Mr. Pivovarov would have reached the simple majority of the votes.

122. After assessing the relevant majority thresholds, the Panel had to analyze whether pursuant to Article 81 of the DRR a Chairman or Deputy Chairman can only be validly elected if he or she is elected in the first or second round of the ballot as the Appellant argues. In this context, the Panel first noted that the Chairman was actually elected in the second round as the minutes of the elections indicate so that this argument of the Appellant need only be considered in the context of the election of the Deputy Chairman.

123. Whilst it is true that Article 81 of the DRR only mentions a first and a second round and does not expressly refer to any further round, the Panel holds that this will not necessarily exclude the possibility for the members of the DRC to move on to another round if none of the candidates could be elected in the preceding two rounds. Article 81 5 of the DRR is based on the assumption that only two candidates have to move to the second round. However, in case of the election of the Deputy Chairman, three candidates had to move one stage further since two of them had achieved the same number of votes in the first round. This necessarily triggered the need for a third round. A strict and literal construction of Article 81 5 of the DRR would lead to the conclusion that such third round was in violation of the DRR. The Panel, however, holds that this would be unreasonably over-formalistic given that the purpose of Article 81 of the DRR is clearly to have two candidates in the last round of the ballot and such situation can only be achieved in cases where three candidates move to the second round, if a third round takes place with the two candidates that obtained the most votes in the second round. The Panel is of the provisional view that even engaging in a fourth round may have been legitimate as after the third round no candidate had obtained a simple majority of the votes cast out of the total

number of the DRC. However, the Panel holds that this question can finally be left open as the election of Mr. Pivovarov must, for the reasons explained above, be annulled.

C.7 Was Article 94 of the DRR violated?

124. The Appellant also argues that the course of the elections of 2 July 2015 also violated the provisions of Article 94 of the DRR. The Panel, however, sees no ground for a possible violation of Article 94 of the DRR. This Article concerns “early re-elections” as not only the title of this article, but also the introductions to the various sub-paragraphs clearly express.

125. The elections of 2 July 2015 were not early re-elections. Mr. Lyakhov was elected as new Chairman and Mr. Pivovarov would have been elected as new Deputy-Chairman of the DRC. The Panel, therefore, holds Article 94 of the DRR was not violated.

C.8 Conclusion

126. In sum, the Panel holds that the present appeal must be rejected as far as the election of Mr. Lyakhov as Chairman of the DRC is concerned, but that it must be granted as far as the election of Mr. Pivovarov as Deputy Chairman of the DRC is concerned.

127. Consequently, the election of Mr. Lyakhov as Chairman of the DRC that took place on 2 July 2015 is confirmed and the election of Mr. Pivovarov that took place on 2 July 2015 is annulled.

128. The Appellant also requested that the CAS cause the FUR and arbitrators of the DRC to conduct new elections of the Chairman and Deputy Chairman of the DRC strictly on the basis of the applicable DRR and within the shortest possible time limit. The Panel, however, holds that there is no basis for the Panel to accede to that request at this stage, as it has no indications, and the Appellant did not submit any argument or evidence that would indicate that the Respondent will not hold new elections in due course.