Any determination of what constitutes a sanctionable rule violation and what sanctions can be imposed must take into account the general principle of law “tempus regit actum”, whereby these issues shall be determined in accordance with the law in effect at the time of the allegedly sanctionable conduct and new rules and, in consequence, regulations do not apply retrospectively to facts occurring before their entry into force. However, in accordance with the principle of lex mitior, the UEFA Disciplinary Regulations (DR) apply to disciplinary offences committed before their entry into force if they are more favourable towards the accused than the regulations in force at the time of the offence.

The ne bis in idem principle applies to disciplinary matters. Indeed, it would contravene any principle of justice if any person could be sanctioned for an offence for which it has already been sanctioned in a final decision. UEFA conducts a two-stage process in respect of match-fixing. Such a two-stage process, with a first stage being an administrative measure, is justified because sport has a compelling interest to act immediately against undesirable behavior that threatens its integrity. Thus, there is a need to have a procedure allowing immediate exclusion of a club from a competition, without prejudice to the possibility that later the same club can be made subject to a disciplinary sanction taking into account the nature of such behavior and all the related circumstances. The one year of ineligibility imposed in the administrative measure is taken into account in the disciplinary measure, so there is no double-counting of the sanction. Also, the administrative measure is limited to the competition in question, while a disciplinary measure can extend to other UEFA competitions. Therefore, the two-stage procedure followed in UEFA match-fixing cases does not infringe the principle of ne bis in idem.

Anonymous witness statements do not breach the right to be heard when such statements support the other evidence provided to the court. Although admissible, the use of anonymous witnesses is subject to strict conditions. The right to be heard and to a fair trial must be ensured through other means, namely by cross examination through “audiovisual protection” and by an in-depth check of the identity and the reputation of the anonymous witness by the court.

CAS arbitrators are free to assess expert evidence and its weight and may take into account whether the expert is a tied or affiliated person or a truly independent witness when assessing the expert evidence in any particular case. It is established practice in international arbitration that parties file their own expert testimony, which can be tested in cross-examination, and if their opinions diverge, the arbitrators are free to evaluate the competing merits of that diverging evidence. To decide whether a document is a factual document or an expert report, a panel takes into account its nature and its author, so that, as a general principle, a document that analyses a technical aspect written by somebody who has (or is alleged to have) technical expertise on that matter in hand, can be qualified as an expert report, without prejudice of the value that the panel gives to it which is a separate question.

Swiss law considers disciplinary proceedings to be civil proceedings. As such, as a general rule, the standard of proof shall be that of beyond reasonable doubt. However, Swiss law offers several means to ease the difficulty of proving certain facts, either by imposing a duty to collaborate on the other party, against whom the facts have to be proved, or by shifting the burden of proof, or lowering the standard of proof. This is notably the case if a party has no access to direct evidence (but only to circumstantial evidence) in order to prove a specific fact. The nature of match-fixing and corruption, the environment in which such activities take place and the limited powers of investigations that sports governing bodies may have to detect such behaviors are relevant factors to determine the standard of proof. Indeed, while national authorities have techniques, such as telephone tapping, that allow them potentially to obtain direct evidence, sports bodies do not benefit from such methods; it is very rare that a sporting disciplinary body will have direct evidence of match fixing, as distinct from indirect evidence. Therefore, the relevant standard of proof in cases of match-fixing should be the comfortable satisfaction of the court having in mind the seriousness of the allegation which is made.

The role of the UEFA Betting Fraud Detection System (BFDS) is to highlight irregular betting movements, both pre-match and in-game (live), in the core betting markets by monitoring major European and Asian bookmakers. If a match displays irregular betting patterns the match is “escalated” and a report generated. This escalation process is key for the reliability of the system. In a first step, the BFDS uses mathematical calculation to simply flag irregularities on odds but does not offer possible explanations that could justify a flagged irregularity. If it only consisted of this step, the BFDS would not be reliable at all because it is just a mathematical analysis that disregards other circumstances. The basis of the proceedings are the subsequent reports and evidence in relation to the flagged matches. Indeed, in order to come to the conclusion that a match is fixed, the analytical and mathematical information needs to be supported by other, different and external elements which point in the same direction, i.e. a differentiation must be made between the so-called quantitative information and a qualitative analysis of the quantitative information, which is also needed. Once a match has been flagged in the first step, the second step is divided in two stages. In the first stage, the analyst reviewing the case decides to label the match as suspicious, or determine whether it should be hotlisted for further investigation. A hotlisted match is then reviewed by analysts prior to a group discussion of the case, and at least three analysts must agree that a match is suspicious. Therefore, the decision is not taken only by one person but by a group of people and after discussion. Further, additional research for information has to be carried out and the correspondent in a country that covers the relevant competition is asked to answer questions about the match. Once the relevant information has been assembled, the match is considered by all available analysts/supervisors, and generally a consensus is sought on whether a match should be reported. For all the above, the BFDS is a reliable mechanism to assist in the detection of fixed matches.

Witness statements denying match-fixing are insufficient to rebut other evidence. Those involved in match fixing cannot be expected to admit their misconduct.

In order for a club to be subject to disciplinary measures for match-fixing, Article 8 UEFA DR does not require that a specific individual is identified but only that it can be established that members, officials, supporters or players of the club are involved in match-fixing activities, in the sense that the adjudicating body must be comfortably satisfied that people belonging to any of these groups and not to other groups (for instance referees) are the ones that committed the offence. This enlarged approach of article 8 UEFA DR is consistent with the fact that the behaviors that are sanctioned, match-fixing and corruption, are concealed and wiretapping and other types of evidence available to state authorities that are useful to unearth such misconduct, are not available to sports governing bodies, due to their limited coercive powers.

In the absence of any guidance in the applicable regulations as to particular objective and subjective circumstances to be taken into account in pronouncing an appropriate sanction, a CAS panel, in determining an adequate sanction to be imposed, relies on 1) its de novo competence to review the facts and the law afresh; 2) the range of sanctions pronounced in earlier cases before the CAS. In relation to the first element, a line of CAS jurisprudence suggests that CAS panels should review sanctions imposed by disciplinary bodies of federations only when the sanction is evidently and grossly disproportionate to the offence. Another line suggests that, given that a CAS panel has de novo powers, while it may naturally respect the federation’s decision as conditioned by the requirements of the game it regulates, any such self-restraint is a matter of choice, not compulsion. On either basis, a CAS panel will take into account circumstances, such as, inter alia, whether the disciplinary body is facing a case of a first offence, the type and gravity of offence or whether there have been multiple offences, as opposed to a single one.