Academic journal article The International Sports Law Journal

Comment on CAS 98/200 AEK Athens and Slavia Prague V. UEFA

Academic journal article The International Sports Law Journal

Comment on CAS 98/200 AEK Athens and Slavia Prague V. UEFA

Article excerpt

I. Background

ENIC plc is an English company which had invested in several European football clubs. In 1997, it acquired controlling interests in AEK, Slavia and Vicenza. In the 1997/98 European football season, these three clubs took part in the UEFA Cup Winners' Cup and all qualified for the quarter final. Thus, three out of eight clubs left in the same competition belonged to a single owner.

ENIC and UEFA met together to discuss the issue of multi-club ownership in football. ENIC proposed a "code of ethics" but this was not considered as a viable solution by UEFA. After internal consultation, UEFA preferred a rule which had the effect to prevent clubs under common control to play in the same competition.

A few days after having sent the UEFA Cup regulations for the season 1998/99 to its member associations (regulations which at that time did not contain any limitation regarding multi-ownership), UEFA adopted the Contested Rule. It provides that "in the case of two or more clubs which are under common control, only one may participate in the same UEFA club competition" (1). Further, to determine which of two - or more - commonly owned clubs should be admitted, UEFA decided that the club with the highest "club coefficient" (i.e. a coefficient based on the club's results of the previous five years) would be admitted (and if the club coefficients were the same, the club with the highest national association coefficient based on the previous results of all the teams of the national association would be admitted; and in case of equal national association coefficients, lots would be drawn).

In application of the Contested Rule and these additional criteria, UEFA informed AEK Athens that it was not admitted to the UEFA Cup (Slavia Prague had the highest club coefficient). Thus, AEK had to be replaced by the club which had ranked immediately below AEK in the Hellenic championship.

AEK and Slavia Prague proposed to submit the case to CAS, and UEFA agreed.

II. CAS decisions

The Claimants AEK and Slavia first sought an interim order petitioning their admission to the 1998/99 UEFA Cup. This interim order has been granted by the President of the CAS Ordinary Division, who considered that the Contested Rule had been enacted too late, i.e. shortly before the start of the 1998/99 season and after the Cup Regulations had been sent - nota bene - without any restriction regarding multi-ownership. Therefore, CAS admitted that the Claimants could legitimately expect that no restriction was going to be adopted for that season. In CAS' view, the late adoption of the Contested Rule amounted to a violation of the rules of good faith and procedural fairness. However, this decision was only made for the duration of the 1998/99 season, without prejudice as to the validity of the Contested Rule.

In its final award of August 20, 1999, CAS confirmed the validity of the Contested Rule but decided that it could not be implemented until the end of the 1999/2000 football season - on the ground that commonly controlled clubs and their owners should have some time to determine their course of action.

III. Applicable law

As per Article R45 of the CAS Code, the dispute had to be decided "according to the rules of law chosen by the parties or, in the absence of such a choice, according to Swiss law".

The Claimants argued that the Contested Rule violated Swiss civil law: violation of the UEFA Statutes because it allegedly created different categories of members; breach of the principle of equal treatment (alleged discrimination between clubs which were under common control and other clubs); disregard of the Claimants' right to be heard; unjustified violation of the Claimants' personality; violation of EC competition law and Swiss competition law (restriction of competition; abuse of a dominant position), violation of EC provisions on freedom of establishment and free movement of capital, and general principles of law. …

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