TAS-CAS – Tribunale Arbitrale dello Sport – Corte arbitrale dello Sport (2011-2012)———-Tribunal Arbitral du Sport – Court of Arbitration for Sport (2011-2012) – official version by www.tas-cas.org – Arbitration CAS 2011/A/2670 Masar Omeragik v. Macedonian Football Federation, order of 29 March 2012 Panel: Mr Martin Schimke (Germany), President; Mr Clifford Hendel (United States); Mr Alasdair Bell (United Kingdom) Football Request for a stay of the decision Reputational damage as irreparable harm Money damages are not able, as a general matter, to compensate or adequately remedy reputational harm. However, a “per se” treatment of reputational damage – or of a prima facie likelihood or appearance of reputational damage – as sufficiently “irreparable” to satisfy the first prong of the test for provisional relief could have the practical effect of eliminating or virtually eliminating such test in any case challenging a suspension or other sanction

TAS-CAS - Tribunale Arbitrale dello Sport - Corte arbitrale dello Sport (2011-2012)----------Tribunal Arbitral du Sport - Court of Arbitration for Sport (2011-2012) - official version by www.tas-cas.org - Arbitration CAS 2011/A/2670 Masar Omeragik v. Macedonian Football Federation, order of 29 March 2012 Panel: Mr Martin Schimke (Germany), President; Mr Clifford Hendel (United States); Mr Alasdair Bell (United Kingdom) Football Request for a stay of the decision Reputational damage as irreparable harm Money damages are not able, as a general matter, to compensate or adequately remedy reputational harm. However, a “per se” treatment of reputational damage – or of a prima facie likelihood or appearance of reputational damage – as sufficiently “irreparable” to satisfy the first prong of the test for provisional relief could have the practical effect of eliminating or virtually eliminating such test in any case challenging a suspension or other sanction. 1. THE PARTIES 1.1 Mr. Masar Omeragik (the “Appellant”), is a former football player, football executive for the Macedonian municipal football union “Sturmica” (“MFU Sturmica”) and a delegate on behalf of MFU Sturmica to the General Assembly of the Football Federation of Macedonia (the “FFM”). 1.2 The FFM (the “Respondent”) is an organization established as a legal entity under Macedonian law. It is registered with the Central Registry of the Republic of Macedonia and has its headquarters in Skopje, FYR Macedonia. 2. FACTUAL BACKGROUND 2.1 On 30 April 2011, the FFM’s General Assembly convened inter alia in order to adopt the 2011 FFM Statutes. At that time, the 2008 FFM Statutes were in force. When the General Assembly voted on the 2011 FFM Statutes that were foreseen to come into force on the date of their adoption, the Appellant alleged several irregularities with the General Assembly. The claimed irregularities involved the alleged lack of the required 2/3rd majority approval for the adoption of the 2011 FFM Statutes, the voting of unauthorized individuals in favour of the 2011 FFM Statutes, the failure to have sent the 2011 Statutes for UEFA and FIFA approval, their non-compliance with UEFA and FIFA’s requirements, and their failure to take into account some recommendations of the working group on the 2011 FFM Statute. It is the FFM’s position that the 2011 FFM Statutes were validly adopted and properly accepted for filing by the Macedonian Central Registry (the “Central Registry”), a Macedonian administrative institution competent for the registration of trade entities by its decision dated 27 May 2011. 2.2 On 8 June 2011, the Appellant lodged an appeal against the Central Registry’s 27 May 2011 decision with the Central Registry’s Commission for Appeals. In this Appeal, the Appellant essentially alleged that the FFM’s General Assembly vote on the 2011 FFM Statutes violated the Macedonian Law on Associations and Foundations Act. In the Central Registry’s Commission for Appeal’s decision dated 17 June 2011, in brief, it was held that it is unclear whether the consolidated text of the 2011 FFM Statute had been validly adopted due to several doubts regarding the fulfilment of requirements of form. Accordingly, the Central Registry’s 27 May 2011 decision was annulled and the case was returned to the first instance authority for reconsideration of the underlying facts and proper decision-making. 2.3 By its unsigned decision of 5 August 2011, the Disciplinary Committee of the FFM (the “Disciplinary Committee”) held that the Appellant had violated Article 11 para. 1 clauses f, g and h as well as Article 16 para. 1 clauses a, d, e, f, g, h, l and k of the FFM’s Statute and, as a sanction for those violations excluded the Appellant from the football organization with immediate effect and without any time-limit, i.e., for life. This decision was ordered to be published in the FFM’s Official Gazette “Makfudbal”. The Disciplinary Committee reasoned that the Appellant had violated the above cited provisions of the FFM’s Statute and social sports behaviour, in short, by filing an appeal with the Macedonian Central Registry’s Commission for Appeals against the Central Registry’s decision accepting the filing of the FFM’s 2011 Statute, which – after the appeal was upheld – triggered another appeal (filed by the FFM) with the Macedonian Administrative Court. In the eyes of the Disciplinary Committee, all of this directly violated the above-cited provisions of the FFM’s Statute. The redress instructions advised the Appellant that an appeal with the Commission for Appeals of the FFM (the “Appeals Commission”) could be filed. 2.4 On 12 August 2011, the Appellant appealed the 5 August 2011 decision of the Disciplinary Committee to the Appeals Commission. The Appeals Commission, by unsigned decision dated 31 October 2011 (the “Decision”), rejected the Appellant’s appeal as unfounded, fully confirmed the Disciplinary Commission’s 5 August 2011 decision and pronounced the Decision as final. At the same time, the Decision advised the Appellant in the redress instructions that a request to the “Commission for Protection of the Legality in FFM” could be filed. The Decision was ordered to be published in the FFM’s Official Gazette “Makfudbal”. In the Decision, per the translation provided to the Panel by the Appellant, the scarce reasoning provided is that “The Disciplinary Commission of FFM acting on [sic] decision of the Management Board of FFM gave [sic] Disciplinary measure EXCLUSION FROM THE FOOTBALL FEDERATION. It is concluded that the appeal is on time and taxed. The Commission for appeals reviewed the documentation available, the appeal and allegations as well as the material submitted by the First ranged (Disciplinary), the Justification of the President of the Commission as well as the statements from the members of the Commission, in accordance [sic] to the provisions of the Disciplinary Rulebook of FFM and concluded as in [sic] dispositive”. 3. PROCEEDINGS BEFORE THE CAS AND THE PARTIES’ SUBMISSIONS 3.1 The Decision was received by the Appellant on 28 November 2011. 3.2 With his letter of 20 December 2011, the Appellant filed his Statement of Appeal and Application to Stay the Decision dated 19 December 2011 pursuant to Article R48 and Article R37 of the Code of Sports-related Arbitration (the “Code”). 3.3 On 9 January 2012, the Appellant filed his Appeal brief within the time-extension granted by the CAS Secretariat. 3.4 On 13 January 2012, the Respondent filed its comments with regard to the Appellant’s application for a stay of execution of the Decision. 3.5 On 7 February 2012, the Respondent filed its Answer to the Appellant’s Appeal and Appeal brief dated 27 January 2012. 3.6 On 22 February 2012, this Panel was appointed to decide this case pursuant to Article R54 of the CAS Code and the file was transferred to the Panel. 3.7 On 9 March 2012, the ad hoc clerk was appointed in this matter. 4. JURISDICTION OF THE CAS 4.1 Article R47 of the Code provides that: “An appeal against the decision of a federation, association or sports-related body may be filed with the CAS insofar as the statutes or regulations of the said body so provide or as the parties have concluded a specific arbitration agreement and insofar as the Appellant has exhausted the legal remedies available to him prior to the appeal, in accordance with the statutes or regulations of the said sports-related body”. 4.2 Pursuant to Article 186.1 of the Swiss Federal Code on Private International Law (the “PILA”) the Panel shall rule on its own jurisdiction. As regards Provisional and Conservatory Measures, pursuant to Article R37 of the Code, the Panel shall issue an order within a short time and shall rule first on the CAS jurisdiction. The extent of the jurisdictional analysis at this point is to assess whether on a prima facie basis the CAS can be satisfied that it has jurisdiction to hear the appeal. The final decision on jurisdiction will be made by the Panel in the award (cf. CAS 2010/A/2188). 4.3 Thus, in order to meet this prima facie test, firstly, for a valid appeal to be filed with the CAS by the Appellant, (i) the Statutes or regulations of the FFM must provide for an appeal to the CAS or an individual arbitration agreement must exist and (ii) the Appellant must have exhausted the legal remedies available on the basis of the FFM Statutes or regulations prior to the CAS appeal. 4.4 With regard to the CAS jurisdiction for the appeal, the Appellant refers to Article 73.3 of the FFM Statute in the version “applied as a basis for the Decision” which provides: Article 73.3 of the FFM Statutes reads in Appellant’s English translation: “Any dispute of national dimension can be referred only to the last degree of the Court of Arbitration for Sport (CAS) in Lausanne (Switzerland) until the Republic of Macedonia there is no national court of arbitration for sport in accordance with the minimum requirements of FIFA and UEFA and which will be recognized by the General Assembly of FFM. CAS will resolve disputes that are not under the jurisdiction of the regular court, unless expressly prohibited by valid legislation of the Republic of Macedonia”. 4.5 The Appellant clarifies neither in his Statement of Appeal, nor in his exhibits whether he refers to the 2008 or the 2011 FFM Statutes. However, given that both the 5 August 2011 decision of the Disciplinary Committee and the 31 October 2011 Decision of the Appeal Committee have been rendered in 2011 after the purported adoption of the 2011 FFM Statutes on 30 April 2011, and that the wording of Article 73 of the FFM Statute as cited by the Appellant largely corresponds to the text of Article 73.3 of the 2011 FFM Statutes but diverges entirely from the wording of Article 73 of the 2008 FFM Statutes (not including an Article 73.3) as provided by the Respondent, which provides: Article 73.3 2011 FFM Statutes as submitted by Respondent reads: “Any dispute of national dimension may only be referred in the last instance to the Court of Arbitration for Sport (CAS) in Lausanne (Switzerland) as long as within the Republic of Macedonia no national sports arbitration court has been installed in compliance with the FIFA and UEFA minimum requirements and recognised by the General Assembly of FFM. The CAS will settle disputes for which the Ordinary Court is not competent, unless that is expressly prohibited by the legislation in force in the Republic of Macedonia”. Article 73 2008 FFM Statutes as submitted by Respondent reads: “Expenses 1. FFM covers the following expenses regarding its operation: a) the expenses provided for with the budget; b) other expenses approved by the General Assembly and the expenses to which the Executive Committee is entitled according to its scope o competencies; c) all other expenses for the accomplishment of the goals and tasks of FFM”. 4.6 The Panel finds it safe to assume that the Appellant bases the CAS’ jurisdiction on Article 73.3 of the 2011 FFM Statutes (hereinafter the “FFM Statute” or the “2011 FFM Statute”). Further considering Respondent’s statement in its Answer according to which by the adoption of the 2011 FFM Statutes, the Macedonian court of arbitration for sports “[…] was terminated and one of the option for resolving the national disputes is [sic] the respective CAS in Lausanne”, the Panel provisionally finds the first prong of Article R47 of the Code fulfilled since the FFM Statutes seem to provide for an appeal to the CAS. 4.7 This provisional finding is supported by the Respondent’s conduct in this proceeding. The full 2008 version of the FFM Statutes including the 2008 FFM Statute’s regulation on jurisdiction have not been provided to the Panel. The Panel notes that in its letter dated 13 January 2012 including the Respondent’s comments on the Appellant’s request for a stay of the Decision Respondent does not explicitly object to the CAS’ jurisdiction to issue a provisional measure although it opposes the stay of the Decision as requested by the Appellant. Further, although an Answer pursuant to R55 of the Code shall include “any defence of lack of jurisdiction”, Respondent again does not explicitly object to the CAS’ jurisdiction in its Answer; the Panel notes in this regard that Article 186.2 of the PILA provides that the objection of lack of jurisdiction must be raised prior to any defence on the merits. After evaluating whether Appellant refers to the 2008 or 2011 FFM Statute in its Appeal and Appeal brief, Respondent – like this Panel – concludes that Appellant must be referring to the 2011 FFM Statute which is in force according to Respondent and thus considers that Appellant also “approved” the 2011 FFM Statute. In the following, Respondent states that “And there is no need for examples for CAS Jurisdiction because we recognize this jurisdiction from our Statute as seen in Article 73” by which Respondent seems to confirm the CAS’ jurisdiction for this case. 4.8 The Panel turns to evaluate the second prong of R47 of the Code, requiring that the Appellant must have exhausted “the legal remedies available to him prior to the appeal” in accordance with the FFM Statutes or regulations prior to the CAS appeal. In this respect, the Appellant submits that the redress instruction of the Decision refers to Appellant’s entitlement to submit a request to the Commission for Protection of the Legality in FFM but that in accordance with Article 31 of the FFM Statutes, recourse to this Commission does not present an ordinary but an extraordinary remedy that does not need to be exhausted prior to filing an appeal against the Decision with the CAS. The Panel notes that the Decision was pronounced “final” by the Appeals Commission. In its letter of 13 January 2012 including Respondent’s comments with regard to the Appellant’s application for a stay of execution of the Decision and in its Answer, Respondent likewise contends that the Decision of the Appeals Commission as the highest body of the FFM’s Disciplinary Organs is final pursuant to Articles 68 and 70 of the FFM Statute. 4.9 The Panel observes that R47 of the Code does not require the Appellant to exhaust “all legal remedies” but “the legal remedies” available to him under the FFM Statutes or regulation prior to the CAS appeal. This wording of Article R47 of the Code lends itself to a construction which only finds ordinary but not extraordinary remedies encompassed by Article R47 of the Code. The Panel notes that recourse to the Commission for Protection of the Legality in FFM is characterized as an extraordinary remedy pursuant to the English translations of Article 31 of the FFM Statutes submitted both by the Appellant and by Respondent, which reads in Appellant’s English translation: “Commission for the protection of legality commences the protection of the disciplinary rulebook by means of an extraordinary legal remedy in the case when the decisions have been passed by the authority of the board, i.e. such institutions whose decisions refer to the leagues. It consists of a chairman, vice-chairman and three members, who all have legal education”. Article 31 FFM Statutes as submitted by Respondent reads: “Commission for the Protection of the Legality – The Commission for Protection of Legality initiates a procedure for protection of the Regulations as an extraordinary legal remedy when it comes to Decisions reached by the FFM Executive Committee organs, i.e. those organs whose decisions refer to the leagues. It shall consist of a chairman, a deputy chairman and 3 members which have all legal education”. 4.10 Although it is correct that the Decision’s redress instruction by the Appeal Commission in principle advises on the possibility to submit a request to the FFM’s Commission for the Protection of the Legality, the Panel notes that the FFM’s Statutes define proceedings before the Commission for the Protection of the Legality as an extraordinary legal remedy against decisions reached by the “FFM Executive Committee organs”. Pursuant to Article 23.1 in Chapter III. “Organization” of the FFM Statutes, the “FFM consists of the following organs which are entitled to reach decisions on behalf of FFM: a) General Assembly – supreme statutory organ, b) Executive Committee – executive organ, c) Legal organs: i. Disciplinary bodies, ii. Club Licensing bodies, d) General Secretariat – administrative organ” and thus distinguishes the executive organs (Article 23.1. b), described in further detail in II.B. Article 59 et seq. of the FFM Statutes from the legal organs (Article 23.1 c), described in further detail in III.C. Article 68 et seq. of the FFM Statutes. According to Articles 68 and 70 of the FFM Statutes, the Appeals Commission as the body rendering the Decision qualifies as a second instance legal organ. In the eyes of the Panel, it is thus currently doubtful whether the extraordinary recourse to the Commission for the Protection of the Legality which is foreseen as a remedy against “Decisions reached by the FFM Executive Committee organs, i.e. those organs whose decisions refer to the leagues” would in fact be available against the present Decision of the Appeals Commission as a legal, but not an executive, organ whose decision, furthermore may not qualify as a “decision referring to the leagues”. Whether the Commission for the Protection of the Legality could be competent for the review of the Decision is all the more doubtful on the basis of Article 68.6. of the FFM Statute which stipulates that “Decisions taken by the legal organs are final and shall only be referred to the recognised independent and impartial arbitration tribunal as decided and recognised by the FFM General Assembly and to the exclusion of any Ordinary Court, unless expressly prohibited by the legislation in force in the Republic of Macedonia”. Article 68.6 of the FFM Statutes rather seems to suggest that it is either only the Macedonian national sports arbitration court (apparently not currently established) or the CAS which presents the competent forum for the review of decisions of the FFM’s legal organs. This issue will need to be clarified further during the proceedings. Nonetheless, in view of the parties’ joint statement that the Decision is final, the language of Article 68.6 of the FFM Statute that subjects the Decision to the sole review of arbitral tribunals and the fact that recourse to the Commission for the Protection of the Legality is defined as an extraordinary remedy against decisions of the FFM’s executive organs while the decision-making body of the Decision under appeal is a legal organ, the Panel, finally referring to Respondent’s failure to explicitly object to the CAS’ jurisdiction, finds on a preliminary basis that all ordinary legal remedies against the Decision seem to have been exhausted by the Appellant and that in view of the above, the Panel is satisfied that there is a prima facie basis that the CAS has jurisdiction to hear this appeal. 5. APPLICABLE LAW 5.1 According to Article R58 of the Code, the Panel shall decide the dispute: “according to the applicable regulations and 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 application of which the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision”. The FFM whose Appeals Commission issued the Decision under appeal is domiciled in Skopje, Macedonia, accordingly substantive Macedonian law applies to the present case, in addition to the relevant FFM regulations. 5.2 According to S1 and R28 of the CAS Code, the seat of the CAS is Lausanne, Switzerland, accordingly Swiss procedural law shall apply in addition to the CAS Code. 6. ADMISSIBILITY 6.1 According to R49 of the Code, the time-limit for appeal is twenty-one days from receipt of the decision under appeal, unless the statutes or regulations of the federation set another timelimit. 6.2 Neither the Appellant nor the Respondent claim that the FFM’s Statute or regulations set another time-limit for the appeal. Since the Decision was received by the Appellant on 28 November 2011, the appeal with the CAS was timely filed on 20 December 2011. Consequently, the appeal is admissible. 7. LEGAL DISCUSSION 7.1 The Panel has the ability to consider an application for provisional measures pursuant to Article R37 of the Code and Article 183 of the PILA. 7.2 According to well established CAS jurisprudence, the Panel may grant provisional relief if there is a probability that (1) the party seeking such relief would suffer irreparable harm if the relief were not granted, (2) that party has a likelihood of success on the merits of the appeal, and (3) the interests of the Appellant outweighs those of the other party (award of 15 September 2003, CAS 2003/O/486; order of 25 May 2001, CAS 2001/A/329; order of 15 March 2001, CAS 2001/A/324; order of 12 July 2007, CAS 2007/A/1317; and order of 6 April 2010, CAS 2010/A/2071). 7.3 The three requirements for the grant of provisional measures (i.e. irreparable harm, likelihood of success on the merits of the appeal and balance of interests) are cumulative (order of 12 December 2007, CAS 2007/A/1403; order of 27 October 2007, TAS 2007/A/1397; and order of 6 April 2010, CAS 2010/A/2071). 7.4 In support of the Appellant’s request for a stay of the Decision under appeal and his Appeal, the Appellant argues that the Decision violates the FFM’s pertinent regulations as well as Macedonian law. The Appellant alleges irreparable harm since the Decision conclusively suspended the Appellant’s right to act as a delegate for MFU Sturmica at the FFM’s General Assembly and it further deprives him the ability to participate in any football-related activities, whether on a national or international basis. The Appellant would thus be unable to work as a coach, director or other sports executive in Macedonia or abroad. The Appellant is a former football player with a record of more than 300 matches for several Macedonian clubs and previously served on the board of the FFM. The Appellant’s exclusion thus has serious consequences for the Appellant’s reputation, credibility and dignity. “Every passing day reinforces the football community in their (false!) impression that [the Appellant] did something improper and will render his full reintegration, even after the CAS award, increasingly difficult”. 7.5 The Appellant further argues that his case stands at least a reasonable chance of success. He submits that he did not violate either Article 11 or 16 of the FFM Statutes as cited in the Decision since he did not initiate any “regular court” proceedings in the sense of Articles 11 and 16 FFM Statutes inasmuch as the Central Registry is not a court but an administrative authority. Even if the Central Registry was a “regular court”, by filing the appeal with the Central Registry, the Appellant only exercised his right to rectify the procedural discrepancies under Macedonian law perceived by the Appellant. In addition, the FFM’s own subsequent appeal to the Macedonian Administrative Court of the Central Registry’s 17 June 2011 decision reversing its first decision cannot be attributed to the Appellant in support of the sanction pronounced. The Appellant further contends that the Decision itself violates the FFM Statutes in that it is unsigned, lacks reasoning and fails to meet the attendance quorum prescribed by Article 70 of the FFM Statutes. Finally, the Appellant argues that in view of the Central Registry’s decision dated 17 June 2011 and the Central Registry’s confirmation letter of 28 September 2011, the 2008 FFM Statute has not been validly amended which is why the Appellant’s exclusion from the Macedonian football organization on the basis of the 2011 FFM Statutes is anyway illegal. Also, the Appellant alleges that he has not been heard by the FFM’s Appeals Commission and that the penalty imposed on the Appellant, i.e. the exclusion from the Macedonian football organization for life, is excessive in relation to the misconduct held to have occurred by the FFM bodies, in particular in view of the fact that the Appellant’s purported misconduct was the filing of an appeal with the Central Registry which, in the Appellant’s view, is a right of the Appellant pursuant to Macedonian law. The Appellant argues that at the minimum, the sanction should have been limited to a fixed term. 7.6 Balancing the interests of the Appellant and Respondent would turn out to the Appellant’s advantage in the Appellant’s view since a stay of the Decision would not hinder the FFM to pursue a potential reinstatement of the 2011 FFM Statutes whereas there is no need to immediately exclude the Appellant from the Macedonian football organization with immediate effect. 7.7 In support of the Respondent’s position to dismiss the Appellant’s request for a stay of the Decision, the Respondent contends the following: The Decision cannot be stayed since the Appeals Commission’s decisions are final pursuant to Article 68.6 FFM Statutes. The Respondent provided copies of the FFM Statutes to support its position that the Appellant’s request is against the Statutes and regulations of the FFM. Irreparable harm 7.7 The Appellant seeks a stay of the Decision because of the damaging effect on the Appellant’s reputation caused by the sanction of the Appellant’s exclusion from the Macedonian Football organization, which allegedly deprives him of playing a role in the FFM or indeed in any other respect relating to football. 7.8 The Panel understands that the Appellant has been intensely involved in Macedonian football since 1990, first as a championship winning football player with over 300 matches for several Macedonian football clubs and as from 2000 until 2005 as a member of an FFM commission and subsequently as an FFM Management Board member. Until October 2011, the Appellant further acted as a delegate to the FFM’s General Assembly for MFU Sturmica. The Decision excludes the Appellant from the Macedonian Football organization for life and as such has terminated the Appellant’s activity as a delegate to the FFM’s General Assembly (the next general meeting of which, Appellant has informed the Panel, is scheduled for 28 April 2012). 7.9 The lifetime-exclusion from the Macedonian football organization for improper conduct on the part of the Appellant signifies that in the FFM’s view such purported misconduct was so severe that it justified the maximum sanction: the lifetime exclusion of the Appellant. There is a good probability (as is evidenced by the newspaper articles of July and September 2011 submitted by the Appellant) that sanctioning the Appellant with a lifetime ban from the Macedonian football organization that was published at the order of the respective FFM bodies triggered its public discussion as well as discussion of the Appellant’s underlying conduct and thus may well have considerably harmed and be continuing to considerably harm the Appellant’s reputation. 7.10 The question of the “irreparable” nature of reputational damage has been the subject of discussion in jurisprudence and doctrine, both CAS, Swiss and other. It is hard to dispute, on the one hand, the unlikelihood of money damages (not sought or available in this case) being able, as a general matter, to compensate or adequately remedy reputational harm. On the other hand, a “per se” treatment of reputational damage – or of a prima facie likelihood or appearance of reputational damage – as sufficiently “irreparable” to satisfy the first prong of the test for provisional relief could have the practical effect of eliminating or virtually eliminating such test in any case challenging a suspension or other sanction. The consequence of this latter treatment could be to give a preponderant and nearly exclusive weight (among the three prongs of the test for provisional relief) to the test of the prima facie strength of the merits. Indeed there is certain CAS jurisprudence which could be and has been characterized as lenient or flexible with respect to the first test (irreparable harm) when the strength of the case seems particularly strong. 7.11 This issue was raised in a case presenting a factual situation broadly similar to that in the case at hand (CAS 2010/A/2188). In that case, a member of the executive committee of the International Boxing Association was suspended for 18 months from the association for alleged disparagement of the association’s interest on television shows aired nationally and internationally. He sought a provisional stay of the suspension on the ground of reputational harm and on the ground that the suspension would deny him from participating at the association’s upcoming congress where elections to the executive committee, presidency and vice-presidency of the association were to take place and in which he might present himself as a candidate. The Deputy President of the CAS Appeals Division concluded that the deprival of the appellant’s right to be a candidate for a top position in the association constituted irreparable harm for purposes of the first of the three criteria, and accordingly that a stay would be useful to prevent substantial damage that would be difficult to remedy at a later stage of the proceedings. Finding further that, on a prima facie basis, the appellant’s case was at least plausible and that the balance of interests tipped in the appellant’s favour, the stay was ordered. 7.12 It is noteworthy that the decision in the case CAS 2010/A/2188 was not based on the reputational damage issue per se, but on the deprivation of the right to be a candidate for toplevel election within the association. Thus, even if this Panel were to view the decision as having significant precedential value, it would be distinguishable on its facts due to what would seem to be a significant difference between the member of the executive committee’s position and imminent aspirations within the International Boxing Association and the Appellant’s position and imminent aspirations within the FFM in this case. And this irrespective of what, on a prima facie basis at least (particularly in light of what might seem to be an extreme sanction, the lifetime suspension) would appear to be a strong case on the merits for the Appellant in this case. 7.13 The Panel accordingly finds that in the circumstances of the present case, the specific facts substantiating the claimed reputation damage (in particular, involving the alleged impact on the Appellant’s employment situation and prospects, as to which there is no evidence whatever on record) are not sufficiently established, the presumptive level of the claimed reputational damage is not sufficiently high, and the accompanying facts and circumstances – in particular, the inability of Appellant to attend and vote at upcoming FFM assemblies – are not so compelling so as, in the aggregate, to constitute “irreparable damages” for purposes of the first prong of the test for provisional measures. In particular, given that the sanction imposed on the Appellant is under appeal and may ultimately be lifted in the final award, any damage to the Appellant would appear – on the factual record as presented – to be limited and any harm temporary, by contrast to a football player who is unable to play or earn a salary while under a ban. It is accordingly unnecessary for the Panel to consider the second and third tests. Conclusion 7.14 The Panel considers that the first criterion requested in order to issue preliminary and conservatory measures is not met in this case and that accordingly such measures should not be granted. 8 COSTS 8.1 According to standard CAS practice, the costs of this part of the proceedings will be settled in the final award or in any other final disposition of this arbitration. 9 MISCELLANEOUS 9.1 This decision is a procedural order not an award. ORDER The Court of Arbitration for Sport rules: 1. The application for provisional and conservatory measures filed by Masar Omeragik on 20 December 2011 in the matter CAS 2011/A/2670 Masar Omeragik v. Macedonian Football Federation is denied. 2. The costs of the present order shall be determined in the final award.