What does Manchester City’s Champions League ban have to do with human rights?
23 March 2020
Last month European football’s governing body, UEFA, announced that English champions Manchester City had been fined 30 million Euros and banned from the Champions League – the most illustrious competition in European football. The Adjudicatory Chamber of UEFA’s Club Financial Control Body (CFCB) handed down a two-year ban on the basis that Man City had breached Financial Fair Play Regulations. The club have responded fiercely, complaining of a ‘prejudicial process’ and alleging that the case was ‘initiated by UEFA, prosecuted by UEFA and judged by UEFA.’ Against this background it is thought likely that City will rely on human rights arguments in their appeal to the Court of Arbitration for Sport (a somewhat ironic development in the view of some commentators given previous criticisms of the human rights records of the club’s backers).
This blog post will set out the requirements of independence and impartiality under article 6 of the European Convention on Human Rights (ECHR) in the context of sports disputes, particularly in light of the recent ruling in Ali Riza and Others v Turkey (no. 30226/10, ECHR 28 January 2020). See
Independence and Impartiality under Article 6(1)
The core of the right to a fair trial under article 6 ECHR is a hearing by an independent and impartial tribunal established by law. ‘Independence’ refers to independence in relation to the parties and the other organs of government. ‘Impartial’ denotes the absence of prejudice and bias. Impartiality is judged by means of a subjective test assessing the personal conviction of the member of the tribunal towards the issues or the parties and by means of an objective test of whether the tribunal itself, in terms of its composition, offered sufficient guarantees to exclude any legitimate doubts as to impartiality.
City’s claim that their case was initiated, prosecuted and judged by the same party amounts to a claim of a lack of objective impartiality on the part of the relevant decision makers, but also an absence of structural independence between the CFCB and the other organs of UEFA. While conceptually distinct, in practice independence and impartiality are often linked and the approach of the European Court of Human Rights is often to consider them together.
As ever, the assessment of the independence and impartiality of any dispute-resolution procedure is a fact-sensitive one, but a recent example of the Court’s approach in the context of a complaint about the fairness of the procedures of a sporting tribunal can be found in Ali Riza and Others v Turkey.
Ali Riza and Others v Turkey
In Ali Riza a challenge to the independence and impartiality of the Turkish Football Federation’s Arbitration Committee was made by Mr Riza, a Turkish footballer involved in a contractual dispute with his former club, and Mr Akal, a referee who had been downgraded in status. Three other footballers’ applications were declared inadmissible because they were amateurs whose right to exercise a profession was not at stake (and accordingly a ‘civil right’ was not in issue and article 6 not engaged).
Ultimately the Court agreed with the applicants that the Arbitration Committee did not meet the standards of independence and impartiality required by article 6§1. In the Court’s assessment there were two key questions. First, was the nature of proceedings such that the applicants had waived their Convention rights? Second, did the tribunal meet the requirements of independence and impartiality as required by article 6§1?
Waiver of rights
It is possible to waive certain rights secured by the Convention as long as the waiver is made in a free, lawful and unequivocal manner. The issue of waiver is perhaps more likely to arise in disputes in a professional sports context because of their sui generis nature and the greater likelihood of recourse to a specialised arbitral tribunal. It may be unobjectionable for parties to waive the protections afforded by article 6§1 if they voluntarily entered into arbitration. However, if the parties had no option but to refer their dispute to an arbitral tribunal then the protections of article 6§1 must apply. The acid test is thus whether the arbitration was compulsory or voluntary.
The Court’s determination of this issue will involve more than a consideration of the formal arbitration agreement. For any waiver to be valid, it must be shown that it was free and unequivocal; in other words, acceptance of arbitration must be truly voluntary. Thus in Mutu and Pechstein v Switzerland (nos. 40575/10 and 67474/10, ECHR 2018) one of the applicants, the speed-skater Claudia Pechstein, had to accept an arbitration clause in order to take part in certain speed skating competitions. Accordingly, the applicant was faced with a choice between ‘accepting the arbitration clause and thus earning her living by practising her sport professionally, or not accepting it and being obliged to refrain completely from earning a living from her sport at that level’. This could not be said to be free and unequivocal. The other applicant, meanwhile, did not face such a binary choice. Ex-Chelsea footballer Adrian Mutu was in a contractual dispute with his former club. The applicable FIFA rules did not impose arbitration and ‘left the choice of dispute settlement mechanism to the contractual freedom of clubs and players’. In these circumstances it could not be said that the arbitration was compulsory. However, the failure to replace an arbiter whose impartiality had been challenged meant the waiver could not be considered unequivocal.
In Ali Riza the Court reiterated the importance of the compulsory-voluntary distinction. There was no dispute as to the compulsory jurisdiction of the Arbitration Committee but the Government argued that the sui generis nature of football disputes precluded the applicability of article 6. Unsurprisingly the Court rejected this argument, emphasising that the crucial issue was the nature of proceedings rather than the underlying subject-matter.
What, then, of any prospective challenge by City to UEFA’s procedures; could City be said to have waived their article 6 rights? The CFCB which handed down the punishment is made up of an Investigatory Chamber and an Adjudicatory Chamber. The CFCB has jurisdiction to determine whether clubs comply with the UEFA Club Licensing and Financial Fair Play Regulations. The criteria set out in these regulations must be complied with in order for clubs to be eligible to participate in UEFA club competitions. In such circumstances, it seems certain that Man City could not be said to have waived their rights. The only potential ‘voluntary’ aspect of the CFCB’s jurisdiction is that clubs ‘volunteer’ to participate in UEFA club competitions. On any realistic interpretation of European club football this is not a sustainable argument. As the Court said in Mutu and Pechstein (quoting the Swiss Federal Court):
An athlete wishing to take part in a competition organised under the auspices of a sports federation whose regulations prescribe arbitration would have no choice other than to accept the arbitration clause, in particular by signing up to the instrument of the sports federation in question in which the clause is to be found.
The same considerations would surely apply here. In any event, the fact that the CFCB’s Adjudicatory Chamber is not an arbitral tribunal may well be enough on its own to refute the ‘voluntary’ argument.
Independence and impartiality in Ali Riza
Once it had established that the applicants had not waived their rights (and also that the tribunal was established by law), the Court turned to consider whether the Arbitration Committee was independent and impartial. Its assessment of the issue was in two parts: the relevant structural features of the Committee; and the implications of these for the independence and impartiality of its members.
The Court examined the composition of three organs of the Turkish Football Federation (TFF): the Congress, the Board of Directors and the Committee itself. The Court found that Congress was dominated by representatives of football clubs. Likewise, the Board of Directors was largely made up of members or executives of clubs. In contrast, the Arbitration Committee was composed exclusively of lay assessors.
The Court was not troubled by the composition of the Committee itself but was concerned about its relationship with the other organs and the sufficiency of the safeguards in place to ensure the members’ independence and impartiality. The Court noted that the duration of the members’ mandate was not fixed and was the same as that of the Board of Directors and President. Members of the Committee were not immune from any action which may be brought against them and they were not bound by any rules of professional conduct or required to swear an oath. There was a further absence of any requirement on members to disclose circumstances which may affect their independence. Although it was open to a party to request the withdrawal of a member, crucially there were no rules in place on the specific procedure to be followed when such a challenge was brought to a member’s independence and impartiality, nor any body identified as competent to adjudicate on such a challenge.
Conversely, the Court noted with approval the obligation placed on members to decide matters independently and that individuals who sat on the Board of Directors were not permitted to become members of the Committee. The Court also restated its view that the fact that members of a tribunal received remuneration determined by the executive body did not in itself suggest a lack of independence and impartiality (see Mutu and Pechstein).
In spite of this the Court concluded that there were a number of ‘strong organisational and structural ties’ between the Board of Directors and the Arbitration Committee. As a result, the Board of Directors enjoyed a significant level of influence over the functioning of the Committee. Having reached this view, the Court moved on to the implications of these structural features on the applicants’ cases.
Mr Riza’s case arose from a contractual dispute between an individual player and a club. While the interests of football clubs are not always aligned, the Court noted that
The outcome of a contractual dispute between a club and player has implications on other disputes of a similar kind and a decision in favour of a player could constitute a precedent on which other players could rely in their disputes with their respective clubs.
In other words, football clubs had a shared interest in a particular outcome. The Court had already found that football clubs dominate representation in the Congress and Board of Directors. It had also identified structural ties between the Board of Directors and the Arbitration Committee and suggested that this gave the Board of Directors a level of influence. These factors taken together gave rise to sufficient doubts about the independence and impartiality of the members of the Committee. The same considerations applied to Mr Akar’s dispute, which was of a regulatory nature, but involved the same structural deficiencies and the potential for a conflict of interest on account of the close ties between members of the refereeing committee and the Board of Directors. There was thus a violation of article 6§1.
Relevance to Man City’s appeal
Without undertaking a comprehensive analysis of the independence and impartiality of the CFCB, it is possible to identify some of its features which, in light of Ali Riza, may be of relevance.
Like members of the TFF Arbitration Committee, members of the CFCB are appointed by the executive body of the organisation. Their term of office is defined as four years, which is the same period as members of the Executive Committee (Procedural Rules Governing the UEFA Club Financial Control Body, Edition 2019, article 5). A shared term of office (‘undue alignment’) was something that the Court in Ali Riza highlighted as potentially calling into question the guarantees of independence and impartiality.
However, a number of the key structural defects which concerned the Court in Ali Riza are absent. While the nature of the Financial Fair Play proceedings is such that it will always involve UEFA bringing proceedings against an individual club, there is no suggestion that any particular group holds sway or is over-represented in any of the organs of UEFA. This can be contrasted with Ali Riza where the Court was able to identify implications of the structural inequality likely to favour one of the parties involved in a dispute. Further there are a number of safeguards in place in relation to individual members of the CFCB: they are not liable for any action, decision or failure to act in connection with proceedings before the CFCB (Procedural Rules, article 8); they are required to disclose any circumstances which might give rise to a conflict of interest; and there is a specified procedure for bringing a challenge against the independence and impartiality of members, with the rules also specifying who decides any dispute (Procedural Rules, article 9).
Such factors alone are enough to distinguish the procedures of the CFCB from those considered in Ali Riza. Additionally, there is the issue of the availability of appeal. In Ali Riza the Arbitration Committee’s decision was final and not subject to review, whereas decisions of the CFCB can be appealed to the Court of Arbitration for Sport (CAS) (Procedural Rules, article 34). As a consequence, even if it could be shown that the proceedings before the CFCB did not meet the requirements of article 6, no violation would be found if the proceedings before the CAS remedied these shortcomings by providing ‘sufficient review’ (see Ramos Nunes de Carvalho e Sa v. Portugal no. 55391/13 ECHR 2018). It suffices to say for the moment that the European Court has endorsed the Swiss Federal Court’s assessment of CAS as providing ‘proper judgments comparable with that of a national court’ (Mutu and Pechstein, §149).
More generally, Ali Riza confirms that the protections afforded by article 6 are increasingly likely to apply in the context of sports disputes. It is almost certain that a number of sports federations will have to consider the judgment and revisit the structure of their dispute-resolving bodies to ensure compatibility with article 6 – or face the threat of decisions being challenged in the courts.