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    CAS 2015 A 4095 - Decision

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    Juan Cerini

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    ‘Tribunal Arbitral du Sport Court of Arbitration for Sport CAS 2015/4095 Bernardo Rezende & Mario da Silva Pedreira Junior v. Pédération Internationale de Volleyball (FTVB) ARBITRAL AWARD delivered by the COURT OF ARBITRATION FOR SPORT sitting in the following composition: Sole Arbitrator: Mr. Alasdair Bell, iwetor of Legal Affirs at UEFA, Nyon, Switzerland {in the arbitration between Bernardo Redende, Rio de Janeiro, Brazil First Appellant Mario da Silva Pedrelra Junior, Rio de Janeiro, Brazil oth represented by Mr, Bichara A, Neto and Mr, Pedro Fda of tichara ¢ Malia Advogados in Rio de Janeiro and Sao Paul, Brazil Second Appellant and Fédération Internationale de Volleyball, Lausanne, Switzerland Represented by Mr, Andteas Zaghlis of Martens Rectsanwilt in Munich, Gemany Respondent ‘Tribunal Arbical du Sport {CAS 201S/44085 Bando Revende & Court of Arbitration for Sport ry Mai Sve Pt unary, PIV Page? Parnes ‘emardo Rezende (the “Cooeh" or “Fest Appellant”) ia Brazilian naional and Head ‘Coach ofthe Baviian Men's National Volleyball Team, Mario da Silva Podrvira Junior (the “Player” or “Second Appellant” is @ Brazilian national who isa professional volleyball player and member of the Brazilian Men's National Volleyball Team. ‘The Féération Internationale de Volleyball (ihe “EIVB" or “Respondent”) is the inerational governing body of volleyball and exerises regulatory, supervisory, and Aiseiplinary functions over continental confederations, national assoiaions, clubs, oficial, and players worldwide FACTUAL BACKGROUND Background Facts [Below isa summary ofthe relevant fats and allegations based on the panies’ writen submissions, pleadings and evidence, Adkitional facts and allegations found inthe paris" writfen submissions, pleadings and evidence may be set out, sere relevant, in connection with the legal diseusion that follows. While the Sole Arbitrator has considered all the facts, allegations, legal arguments and evidence submited by the paris in the preset proceeding, he refers in his Award ony to the submissions and evidence he considers necessary to explain his reasoning This ease concerns the FIVB Men’s World Championship which tok place in Poland between 30 August and21 September 2014 (the “Competition"). More specifically the case relates to incidents which occured during o shortly after the mateh that took place tween Brava Pola Ue ey of Line wn 16 September 2014 (the “Mata ‘The Match was close and was won by Poland following a challenge made by the Polish coach toa point scored inthe final seconds by Brul. That challenge resulted inthe rofere changing his decision which, in tur, mean that Poland won the Match. Inthe immediate afermath, it appears that members of the Brazil eam, including coaching staff remonstrated with FIVE officials including Mr, Philip Berben, who was the responsible FIVB official and Game Jury President, According to his match report, Mr. Berbon sated that Brazilian players and sta? were angered about ie outcome of the Match, in paticulr, the decision ofthe referee to accept the challenge made by the Polish couch. Mr. Berben stated that players and officials of the Brazilian team ‘conducted themselves in an impolite and insulting manner and that he (Mr. Berben) had 4 wet fowel thrown in his face by a member of the Brziian team, Mr, Tomasz Wolke, the Event Press Director, also reported that, at the en of the Match, the Coach made a midle-finger gesture towards a radio commentator siting by ‘the court and refused to participate inthe post-match press conference. The Coach was Fined US 1,000 for ailing to appear atthe press conference afer the Match, Following Tribunal Arbital du Sport ‘CAS 2015/4095 Banas Rezende Maro Sia Pees ona. FIVE Page 3 Coust af Arbitration for Sport M4 ‘the subsequent match between Brazil and Russia on 17 September 2014, neither the ‘Coach or the captain ofthe Brazil team appeared tthe post-match conference either, (0n21 September 2014, following the match in which Brazil lst to Poland inthe final of the Competition, the Coach gave an interview to Brazilian television in which he Stated, iter alla, that “The FIVB plays dirty"; “referee's lineup chose to destabilise Brazilian team”; “The FIVB put two referees who they know that are the only referees ‘with whom we had serious problems tn the World League”; “the ‘dirty game" thas has ‘een permanently really worries me about the future of Volleyball"; “The FIVB is doing whatever they want with us". Proceedings before the FIVB Tribunals On 18 September 2014, the FIVB Control Committee President, Mr. Aleksander Borcic, informed the Brazilian team and certain individual members of the Brazil ‘delegation haa disciplinary procedure had been opened in coanection with the conduct ofthe Brazilian team after the Match, Ina decision dated 12 December 2014, the FIVE Disciplinary Panel fund the Player uty of throwing a towel in the face of Mr. Berben in violation of Amicles 11.4 and 115 of the FIVB Disciplinary Regulations, ss this constituted bath physical sbuse and Aiseourteous behaviout towards an FIVB official. As u result, a sispension of six matches was imposed on the Player ‘The FIVB Disciplinary Panel found that the mile finger gesture giver by’ the Coach defamed the FIVB and warranted a three-match suspension. The file of the Coach {to partieipate inthe post-match press conference on 18 September 2014 was sanctioned ‘vith a fine of US 2,000 andthe comments made othe Brazilian media on 21 September 2014, which were considered to impugn the reputation and impartiality ofthe FIVB, ‘vere sanctioned with a seven-mateh suspension. Te decision ofthe FIVB Disciplinary Panel was appealed the FIVB Appeals Panel By decision dated 2 June 2015, the FIVB Appeals Panel upheld the findings of the Disciplinary Panel. The FIVB Appeals Panel confirmed the sanction ofa six-mateh suspension imposed on the Player for physical abuse and discourteous behaviour. As regards tothe Coach, the FIV Appeals Panel also confirmed all ofthe findings and sanctions imposed (hree-match suspension forthe mide finger pesture, US 2,000 fine {or nonattendance at the post-match press conference on 18 September 2014; seven ‘match suspension for comments made othe Brazilian media with regard tothe FIVB), PROCEEDINGS REFORE-THE COURT OF ARBITRATION FOR SPORT (On 12 June 2015, the Appellants filed their statement of appeal servings appeal brit against the Respondent with the Cour of Arbitration for Sport (he “CAS") in accordance with Aricle R47 ef seg. of the Code of Sports-elated Arbitration (the “Code”. The Appellants proposed thatthe appeal be submited ta Sole Arbitrator and suggested the names of Prof. Philippe Sands QC, Mr. Jose Maria Alonso, or Mr. Alasdair Bell, The Appellants also requested that the procedure be handled on an ‘expedited basis ‘Tribunal Arbitral du Sport ‘CAS 2015/4095 Reno Rend & Maro Sih Paint. FIVE Paget Court of Arbitration for Sport 15, 20. 21 2. 2 m4, 2s, 2%, 2 (On 15 June 2015, dhe Respondent objected tothe Appellants’ request hat that appeal ‘be handled on an expedited basis and also objected to the proposal thatthe appeal be referred to a Sole Arbitrator, stating instead a preference for a three-member Panel. (On 16 June 2015, the CAS Court Office informed the parties hat given the Respondent's objection, the appeal would not be handled on an expedited basis in accordance with Article R444 of the Code. In addition, given the Respondent's ‘objection concerning the number of aritatrs, that issue would be refered the President ofthe Appeals Arbitration Divison in aordance with Article RSD ofthe Code, The CAS Court Office also confirmed that the procedure would be condcted in English based upon the partis’ consent and in aevordance with Article R29 ofthe Code (023 June 2015, the CAS Court Office informed the partes that the Division President nad desided to submit the appeal toa Sole Arbitrator in accordance with Aicle RSO of the Code, (01 29 June 2015, the Respondent requested thatthe Division Presiden! reconsider her decison o refer the ease to a Sole Arbitator. (On 1 July 2015, the Appellants objected to the Respondents request foreconsideration snd requested the Division President's decision be maintained. (On6 July 2015, the CAS Court Office informed the partes thatthe Division resident ‘denied the Respondents equest for reconsideration, Later that same day, 6 July 2015, the Respondent informed the CAS Court Office that tiven the Divison Presidems decision, it would consent to the appointment of Mr Alasdair Bellas Sole Arbitator. (On 6 July 2015, the Respondent filed its answer in aecordance with Article RSS of the Code, (On 10 July 2015, the CAS Court Office on behalf ofthe Division Presdent, informed the partes that Mr. Alasdair Bell, UEFA Director of Legal Affairs in Nyon, Switzerand, had boen appointed Sole Arbitrator in accordance with Article RS4 of the Code (01 31 July 2015, the CAS Court Office informed the partis thatthe Sole Arbitator, after considering the partes silence om this issue, determined that he vas suficiently ‘wel informed to render a decision based solely on the parties writen submissions, Without a hearing, n accordance with Article RS7 ofthe Code, On 3 and 12 August 2015, the Respondent and Appellant, respectively, signed and returmed the Order of Procedure to the CAS Court Offic, SUBMISSIONS OF THE PARTIES ‘The Appellants’ submissions in essence, may be summarized as follows: Generally, the Appellants allege that there wasa sudden change tothe Campetition rules \hich had the effet of destabilizing the Bravlian team. In particular, iis alleged that Tribunal Arbitral du (CAS 2014095 Berd Resende & Masi Siva Psi Soin FIV Pape Court of Arbitration for Sport 28 29, 30, 31 22 even though the Brazilian team had finished top in its group, it was nevertheless included in drawing of lots forthe subsequent stages ofthe Competition, which meant that the Brezilian team eventually had to tavel fo another town (Lodz) for the match against Poland. It is alleged that this change was ilegal and had the effect of Aisadvantaging the Brazilian team, For example, when the team travelled to is new hotel in Lodz, team members had to wait fortwo hours inthe lobby ofthe hotel because their accommodation was not ready. The Appellans allege that these factors contributed fo a highly charged atmosphere for the match that subsequently took place between Brazil and Poland on 16 September 2014, Furthermore a point scored by the Brazilian team inthe closing seonds ofthe “Match was reversed following a challenge made by the Polish coach. The Appellants also argue tat, contrary to usual practic, the FIVE deliberately did ct show a video replay ofthe incident in question, Further contributing to the healed atmosphere. It was against allthis background that certain conduct occured whieh resulted dieipinary proceedings being opened agains the Brazilian team. The FIVB opened disciplinary proceedings on 17 and 18 September, lergely based on ‘the match report of Mr, Besben. In this respect, the Appellants allege that Mr. Besben provided narrow and partial descriptions of the incidents in question. ‘They further allege that, by inviting the CBV to provide its comments by the end of 18 September, this violated due process and the right to be heard. In particular, the Apyllants submit ‘thatthe Brazilian team and CBV delegation was tired, that important matches were sill coming up in the Competition, and consequenly it was unreasonable and not justifiable toallow the CBV such a shore deadline to respond, In this connection, the Appellants argue thatthe FIV Appeal sub-Conmittes did not, in any event, render any decison unt the end ofthe Competition and only forwarded the relevant documents, including the Appellant's reply tothe FIVB Displinary Panel (on 22 September 2014, The Appellants also dispute the impartiality of the FIVB judicial bodies. In this connection, the Appellants allege that messages sent to the FIVB Appeals Panel are ‘outnely recived and read by the FIVB's ouside attorney (Mr. Andreas Zagkls). The “Appellants argue that because the FIVI i a client of Mr Zagklis its uacoeptable for him tobe involved, in an advisory capacity, with decisions made by te FIVE. judicial bodies. ‘The Appellants further argue that because Mr. Zaps sin the same lave frm asa well-known CAS arbitrator (Mr. Disk-Reiner Martens) this also resuts in “conic. oF interests" In support of these arguments, the Appellants refer to the provisions of various international conventions, including Amticle 10 ofthe Universal Declaration of Human Righis 1984, Artele 6 of the Convention forthe Protection of Human Rights and Fundamental Freedoms, and Amicle 14 of the Intemational Covenan: on Civil at Political Righis, which ll generally provide that everyone is entied te a fll and fair hearing “by an independent and impartial tribunal". Against the background ofthese legal provisions the Appellants call for “profound efor” ofthe FIVB. dial bodies Tribunal Arbitral du Sport {CAS 2015/4095 Bend Rezende & Mari aS Peri ar FIVE Page Court of Arbitration for Sport 2. 4. 3 36 37 58. 39, 40, ‘As egards the merits ofthe case, the Couch admis that he had no excuse for filing to ‘tend the post-match press conference on 18 September 2014 and therefore he does not contend the fin imposed (US 2,000), ‘As regards to the three-match suspension imposed for the alleged middle finger gesture ‘atthe end ofthe Match on 16 September 2014, the Coach alleges that no proper evidence js provided that any such gesture was made and that witness statements made by FIVB. officals re not impartial. He therefore considers that the FIV as not discharged the burden of proof in establishing that any such offensive gesture was mad by him. ‘The Coach futher alleges tha, even if could e established that an offensive hand pesture had been made then it would ave been directed 10a media officer ard not an FIVE, official within the meaning of Aricle 1 of the FIVB DR. It would fellow that there ‘would be no violation of the FIVB DR in any event, Finally, the Couch argues that a throe-match suspension forsuch a gesture, even fi could be proven tohave taken place, ‘would be a disproportionate sanction, having regard tothe eircumstancesand to relevant CCAS jurisprudence, and so if any Sanction would be imposed it should only be a ‘warming rather than a suspension. ‘As regards to the interview given by the Coach tothe Brazilian media which resulted inthe imposition of aseven-match suspension, ti argued first of ll tht these remarks ‘were made bythe Coaeh “inthe heat ofthe moment" just shortly after Brazil had lost the final math in the Competition to Poland. tis further argued that moking such remarks was justified onthe basis of fundamental rights, namely, the right of fee spoech und expression, a recognised in Article 10 of the Universal Declaration of Human Rights, Anticle 19 of the Inerationa Covenant on (Civil and Political Rights, and Article 162) and 17 of the Swiss Federal Constitution ‘The Coach further argues thatthe remarks made in the interview do not violate the Aigntyof the FIVB, noe were they detimental tothe reptation of the FIVE, that hese remarks were justified under the constitutionally protected right of Feedom of expression and tht they went no father han legitimate etcism of the manner in which the FIVB operates The Coach Joubts the legality of Artile 11(5) ofthe FIVB DR and angus tht this rule cannot be applied in a manner designed to “censor opinion” and fo potect the FIVB. from any form of ertiism. Finally, while the Coach considers that no sanction should be imposed in respect of the remarks made othe Brazilian media itis further argued that ifasaneton should be imposed then it ought to he reduced, in aplication ofthe proportionality principle. In this respect, the Coach argues that a more appropriate Sanction would be a warning ora much shorter period of suspension. ‘The layer argues tha! the decision to sanction him with a sx-match suspension is based ‘on poor evidence, in particular, since thee is allegedly no clear video footage establishing tat he threw a towel in the direction of Mr Berben. The Player argues that in the absence of eonerete evidence incriminating him the CAS should determine tht tho alleged disciplinary violation was unproven. Sinoe the Player considers there tobe insufficient evidence of any rle violation by him he requests the CAS to annul the si-match suspension imposed. Alteratively, should Tribunal Arbital du Sport ‘CAS 201A 408S Bardo Rezete & Mar Siva Peis ani. FIVE age 3 Court of Arbitration for Sport 4. 2 4 the CAS determine that there was a rule violation, the Second Appelint requests that the sanction be reduced toa warming which, he submits, would be a more proportionate Intheir statement of appealappeal brief, the Appellants request the following elie hd Inview of the foregoing, the Appellants submit she following reaests for relief a) That the Appeals of Messrs, Bernardo Rezende and Mario Pedreira Junior are admisibie 1) Thar the decision rendered by the FIVB Appeals Panel shall be set aside: ©) Mr Bernardo Recende hereby reinforces his main and alternative requests ‘detailed in paragraphs 93, 94 and 9S above (First Reques for Relie) and paragraphs 106,107 and 108 above (Second Request for Relief) ) Mr. Mario Pedreira Junior hereby reinforces his main and alternative request detaled in paragraphs 125, 126, 127 and 128 above (Second Appellants Requests for Relie): ©) Order FIVB to bear any and all legal costs and attorneys jees incurred by ‘he Appellants in connection with the present proceedings, ar well as during the lower instances ~ and partial — proceedings, in an amount not fower than CCHF 30,000.00 arty thousand Swiss Francs) LD) Order IVE to reimburse the administrative fees pad by the Appellants in ‘he lower instance proceedings ~ in accordance with Article 2.2 ofthe FIVB DR in cave the present appeals are successful and the Appealed Decision ts ser aside or partially upheld: .®) Sanction FIVB amd order a deep reform in its structure in view ofthe strong ‘evidences that confirm the partiality and lack of independence of ts fuicial bodies, namely the FIVB Diseplinary Panel and the F1VB Appeals Panel, vhich ultimately violate and disrespect imernational princes of ta. the Olympic Charter and the Ompism. The Respondents submissions n essence, may be summarized a follows First ofall, the Respondent makes the general observation that neither Appellant has sctually denied that he engaged in the conduct which resulted in th imposition of disciplinary measures. Thus, the Coach does not deny that he made anofensive hand gesture, he rather contends that there is insuficient evidence tat he wes guilty of such offence. Similarly, the Payer does not deny that he threw a wet towel at Mr. Berben, rather he contends thatthe evidence on which the FIVE disciplinary bodies relied was insufficient, As regards to the interview given to the Brazil 20 an media en 21 September the Coach contends that he was legally entitled to make such remarks based on his right of freedom of expression under vatious international conventions as well a5, Swiss law, Tribunal Arbitral du Sport (CAS 2015/4005 Beard Reznde & Maro Si Pasa Jeni FIVE age 8 Court of Arbitration far Sport 4 4. 4%. 4”, 48, 49, ‘As regards tothe alleged middle finger gesture made by the Coach, be Respondent refers to the Witness Statement of Mr. Tomasz. Goradzdowski (a Pelish accredited journalist), the email report of the event Press Director (Mt, Thomas Wolfke), and an ‘email from Ms, Anna Tomas, FIV press delegate. Both Mr. Wollke and Ms. Tomas have also provided Witness Statements confirming the content oftheir emails ‘As regards to the wet towel incident, the Respondent refers to the video sequence contained in footage recorded by a handheld camera showing that the Player was holding a wet towel and vas inthe vicinity of Mr. Berben at one moment and then, 3 Few seconds Inter, his hand was empty, during exactly which time Mr. Berben was hit inthe face by a wel toe! The Respondent generally refers tothe testimony of Ms. Aragon, a representative of the Brazilian team, as given tothe FIVB on 18 September 2014. Hee Ms. Aragon apologises fr the conduct of the Brazilian team and states that Mr, Barben “is right” ‘Ms, Aragns further explains tha the match against Poland on 17 September 2014 was very intense thatthe Brazilian eam was disturbed by having to play the match in Lodz and having to wait o get their hotel rooms in the city. A the same time she states that ‘he Brazilian tam is “net proud of what happened.” ‘The Respondent argues tha neither Appellant has a legal intrest in conning with the Appeal since all the relevant suspensions have been served and the fine imposed for not attending the pres conference was not challenged by the Coach. The Respondent ‘rgues that CAS cannot grant the rele as requested by the Appellants owing othe fact. that the suspensions have been served, mening thatthe Appeal has become moot ‘The Respondent rejets the allegation that the FIVB Disciplinary sodies are not independent. In ths respect, the Respondent refers to the fact that members ofthe FIVB. ‘Appeals Panel are independent of the FIVB itself tht the Disciplinary Rules have been drafted to preserve their independence thatthe members are appointed fora four-year term and do not receive any remuneration, that they must have legal trining and tht there is un established process for removing any member who might have a confit of interests. The Respondent points out that in the present ease the Chaieman ofthe FIVB. Diseipinary Panel stepped down since the matter involved members cf the Brian national tam. The Respondent states that the members of the Appeals Panel can render any decision as they’see fit an in the present ase the appealed decision was drafted entiely by Ms, Emba Leung, Char ofthe FIVE Appeals Panel and an atorey-a-law in Hong Kong, ‘The Respondent further argues that communication tan outside lawyer (sueh as Mi, Zaghlis, in hs capacity as advisor tothe FIVB) does not compromise the independence ‘of the FIVB Appeals Panel. In this respect, the fact that an ouside laser might have ‘ead an e-mail does not prove that the decision ofa sports disciplinary body has been improperly influenced ‘Tribunal Arbiteal du Sport (CAS 25/4005 Baa Rend & Masi da Siva Pee Janis VB Page Court of Arbitration for Sport 50. su 2 33. ss Inits Answer, the Respondent request the following reli 168. FIVB requests that CAS: ‘+ Dismiss nfl he appeal filed by Mr. Bernardo Rezende and Mr: Maro daSilva Pedeira nor: ‘© Confirm the 2 June 2015 decision rendered by the FIVB Appea's Panel insofar ‘ast has been challenged withthe Appel; 1+ Order Mi, Bernardo Rezonde and Mr. Mario daSilva Pedreirato pay FIVB an ‘amount of at least EUR 20,000 for its legal fes an expenses this case. wu Ispicri0N Anite R&7 ofthe Code provides as follows: ‘An appeal agains 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 vody so provide ‘or as the partes have concluded a specific arbitration agreement and insofar ax the

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