TAS-CAS – Tribunale Arbitrale dello Sport – Corte arbitrale dello Sport (2010-2011)———-Tribunal Arbitral du Sport – Court of Arbitration for Sport (2010-2011) – official version by www.tas-cas.org – Arbitration CAS 2010/A/2266 N. & V. v. UEFA, order on provisional measures of 29 November 2010 Football Match-fixing Request for a stay of the decision Likelihood of success When deciding whether to stay the execution of the decision appealed from, CAS considers whether the action is not deprived of any chance of success on the merits (“likelihood of success” test).

TAS-CAS - Tribunale Arbitrale dello Sport - Corte arbitrale dello Sport (2010-2011)----------Tribunal Arbitral du Sport - Court of Arbitration for Sport (2010-2011) - official version by www.tas-cas.org - Arbitration CAS 2010/A/2266 N. & V. v. UEFA, order on provisional measures of 29 November 2010 Football Match-fixing Request for a stay of the decision Likelihood of success When deciding whether to stay the execution of the decision appealed from, CAS considers whether the action is not deprived of any chance of success on the merits (“likelihood of success” test). If in their request for a stay, the Appellants do not address the merits of their case, CAS cannot consider any element that would tend to demonstrate that the action of the Appellants is not deprived of any chance of success on the merits. N. was born in Hungary and he is professional football player of the Club Debreceni VSC (Hungary). V. was born in Montenegro on 30 August 1983 and he is a professional football player of the Club Debreceni VSC (Hungary). N. and V. will be jointly referred to as “the Players” or “the Appellants”. The Union European de Football Association (UEFA, “the Respondent”) is the sports governing body for football in Europe. It is established in Switzerland in the form of an association and governed by Art. 60 et seq. of the Swiss Civil Code. UEFA investigations’ in cooperation with German investigation authorities reveled that a criminal gang were planning to manipulate the UEFA Champions League match Debreceni VSC v. Fiorentina to be held on 20 October 2009. Deeming that the Appellants had violated the principles of loyalty and integrity by failing to inform UEFA of the requests they had received to manipulate matches, the Control and Disciplinary Body of UEFA issued a decision on 24 June 2010 by virtue of which suspended N. until 31 December 2011 and fined him with EUR 7,000, while V. was suspended until 30 June 2012 and was fined with EUR 10,000. The decision of the Control and Disciplinary Body of UEFA also added that FIFA would be requested to extend the effects of the sanctions so as to give them worldwide effect. On 12 July 2010, the Appellants lodged an appeal against this decision before the UEFA Appeals Body. On 8 September 2010, the UEFA Appeals Body issued the judgement appealed before CAS and decided as follows: “1. The appeal is rejected. Consequently the challenged decision of 24 June 2010 is upheld. 2. The costs of the proceedings, amounting to EUR 6,000, are charged to the appellants, each appellant to pay half of this amount after deduction of the appeals fee. Debreceni VSC and the Hungarian Football Federation shall be responsible for the collection of this amount. 3. This decision is final, in accordance with Article 66 DR. 4. […]”. This decision (“the appealed decision”) was notified to the Appellants on 19 October 2010. On 29 October 2010, the Appellants filed a statement of appeal with the CAS against the appealed decision. They requested the Court of Arbitration for Sport (CAS) to grant the following relief: “(A) […] the judgment of the UEFA Appeals Body issued on 8 September 2010 – also with regard to the decision of the UEFA Control and Disciplinary Body issued on 24 June 2010 – be set aside; and (B) N. be cleared of the charges against him; (C) The suspension period of V. be reduced, this sanction be suspended pursuant to article 15bis of the UEFA Disciplinary Regulations, and the fine be disregarded”. With their statement of appeal, the Appellants also filed an application for a stay of the challenged decision. In support of their request for a stay, the Appellants argue as follows: “I further request that the Honorable CAS award a stay of execution, until the final decision is made, with respect to the suspension of the players pursuant to Article R48 and R52 due to the reasons as follows: Pursuant to the decision rendered by the Respondent, N. is suspended until 31 December 2011 and he is fined EUR 7,000, while player V. is suspended until 30 June 2010 and he is fined EUR 10,000. FIFA has extended the decision with respect to the players in question so as to give it a worldwide effect. The Appellants are professional football players who have staked everything on it. They fail to have a profession or occupation other than that. By suspending them, they were deprived of their only source of income, they career was interrupted. The further maintain of their suspension may result in never being able to be transferred to a football team. The Appellants have paid the fine imposed on them, in accordance with the decision. However, upon their suspension, and as a result, by the cessation of their income the subsistence of their family, children and wives have been jeopardized. In the light of the aforesaid, the suspension of the players, already under execution, may cause irreparable damage to the Respondents, which may not be compensated, considering the interruption of their career. It can be established that the immediate execution of such sanctions have so serious consequences on the Appellants and their families which are not proportionate to the advantage that may result from the execution of such sanctions. In the light of the aforesaid, the sanction with regard to the suspension of the players be suspended”. On 15 November 2010, the Respondent filed its answer brief to the request for a stay. LAW Jurisdiction and Admissibility 1. Pursuant to Article 183 of the Swiss Private International Law Act, an international arbitral tribunal sitting in Switzerland is empowered to order provisional or conservatory measures at the request of one party. 2. Pursuant to Article R52 of the Code, the President of the Appeals Arbitration Division, or his deputy, may, upon application by the Appellant, provisionally stay the execution of the challenged decision. 3. The CAS prima facie jurisdiction results in casu from art. R47 of the Code and from art. 62 par. 1 of UEFA Statutes (Edition June 2007). Furthermore, it has not been challenged by the Respondent. 4. Filed within the deadline set by art. 62 par. 3 of UEFA Statutes, the appeal is prima facie admissible. Analysis 5. The Appellants have requested the stay of the execution of challenged judgement. Pursuant to articles R37 and R52 of the Code, such application is treated as a request for provisional and conservatory measures. 6. In accordance with consistent CAS jurisprudence, as a general rule, when deciding whether to stay the execution of the decision appealed from, CAS considers: (a) whether the action is not deprived of any chance of success on the merits (“likelihood of success” test): “The Appellant must make at least a plausible case that the facts relied upon by him and the rights which he seeks to enforce exist and that the material criteria for a cause of action are fulfilled” (CAS 2008/A/1453, CAS 2008/A/1677, CAS 2009/A/1918). (b) whether the measure is useful to protect the applicant from irreparable harm (“irreparable harm” test): “The Appellant must demonstrate that the requested measures are necessary in order to protect his position from damage or risks that would be impossible, or very difficult, to remedy or cancel at a later stage” (CAS 2009/A/1918 and quoted references). (c) whether the interests of the applicant outweigh those of the opposite party and of third parties (“balance of interest” test): “It is then necessary to compare the disadvantage to the Appellant of immediate execution of the decision with the disadvantages for the Respondent in being deprived such execution” (CAS 2008/A/1453, CAS 2008/A/1677, CAS 2009/A/1918). 7. In accordance with the CAS case law, these factors are in principle cumulative (see, for instance, CAS 98/200, CAS 2007/A/1397 and CAS 2009/A/1918). 8. The Deputy President of the CAS Appeals Arbitration Division hereby notes that, in their request for a stay, the Appellants do not address the merits of their case. When requesting the stay of the challenged judgement, they have hence not even mentioned any element that would tend to demonstrate that their action is not deprived of any chance of success on the merits (see CAS 2010/A/1920, order on a request for a stay of 20 August 2009). 9. As one can see the Players have not satisfied this ground for provisional relief. In particular, they have omitted to present any argument in support of a possible likelihood of success on the merits of the present appeal and the President of the Division is not itself obliged to search for it, moreover when the appealed decision seems to be, prima facie, clear and not manifestly illfounded (see CAS 2010/A/2182, order on provisional measures of 18 August 2010). 10. On the basis of the request for a stay filed by the Appellants, the Deputy President of the CAS Appeals Arbitration Division can only note that the first above-mentioned requirement is clearly not met. 11. Accordingly, the Deputy President of the CAS Appeals Arbitration Division decides that the application for a stay of the challenged decision shall be dismissed. 12. The Deputy President deliberately expresses no opinion on the ultimate outcome of the case, which will be decided by the Panel to be constituted The Deputy President of the CAS Appeals Arbitration Division rules that: 1. The application for provisional and conservatory measures filed by N. and V. is dismissed. 2. The costs of the present order shall be determined in the final award or in any other final disposition of this arbitration.