Latest Updates – LawInSport

This blog in our series for international athletes explains the key legal points regarding taxation that should be considered when coming to compete in the UK. Specifically, it addresses the following questions: Is there specific legislation that I should be aware of? Do I need to pay UK income tax? Will a service company help me to mitigate tax? Do I need to file a tax return? Can I reduce my fixed payments? Who is responsible for deducting withholding tax and accounting for it to HMRC? What if I become UK resident? Are there any concessions I can take advantage of? The UK tax authority (HMRC) struggles with taxing international athletes in a proportionate manner within the current tax system. In particular, the UK will tax not only fees directly related to time spent in the UK, but will also seek to tax worldwide revenue (including image rights exploitation) on a percentage basis with reference to UK appearances in the tax year in question. Early negotiation with HMRC to explore the possibility of reduced withholding tax or to seek tax concessions is key for those sportspersons considering short term appearances in the UK. Different issues arise for those based in the UK for the longer term. AuthorLaura Dadswell

A dispute between two football clubs was first decided by the Single Judge of the FIFA Players’ Status Committee and was brought to the CAS in appeal, with a request for a sole arbitrator by the Appellant, to which the Respondent objected. The CAS Division President eventually decided to appoint a panel of three arbitrators and invited the Appellant club to appoint its arbitrator, drawing its attention to the fact that, if it did not comply within the deadline, its appeal would be considered withdrawn, pursuant to Art. R36 of the CAS Code. The Appellant appointed its arbitrator one day after the time limit expired, which led the Division president to terminate the procedure through a “Termination Order”. In its subsequent motion to set aside the Termination Order, the Appellant Club invoked a violation of procedural public policy. First, the Appellant raised an arbitrary application of Article R36 of the CAS Code by the Division President. The SFT swiftly dismissed this argument to the extent that the arbitrary application of the law does not fall within the scope of public policy and is not open to review; the SFT also considered that the aforementioned provision (which deals with the replacement of an arbitrator) is not of fundamental nature such as to ensure procedural fairness, and therefore its potential violation could not entail a breach of public policy. Second, the Appellant invoked a violation of the principle of excessive formalism to the extent that the Division President failed to grant a short grace period, by analogy to Article R48 of the CAS Code, in order to appoint its arbitrator. The SFT dismissed the arguments linked to the pandemic and to the fact that the Appellant was only represented by its legal department and not by outside counsel. The SFT also dismissed the arguments that the Appellant promptly remedied this procedural irregularity and that such irregularity did not have an impact on the proper conduct of the proceedings, by reminding that procedural forms are necessary for the implementation of legal remedies in line with the principle of equal treatment. It also applied by analogy – and referred to examples drawn by – its previous jurisprudence, such as the failure to pay the advance of costs in time or the sending of the statement of appeal by simple fax. The SFT judgment is a good reminder of the limited scope of excessive formalism under Art. 190 (2) (e) LDIP (Federal Act on Private International Law of 18 December 1987) and the various examples from judgments related to CAS awards At the same time, the SFT drew the distinction between the grace period granted under Article R48 CAS Code for the filing of an incomplete statement of appeal and the present case, to the extent that the Appellant was already given a deadline to appoint its arbitrator and it had the possibility to request an extension. Overall, this judgment is a good reminder of the limited scope of the excessive formalism under Art. 190 (2) (e) LDIP and of the various examples drawn by the SFT jurisprudence in CAS-related procedures. See also the more recent SFT Judgment 4A_324/2021. Note: This was originally published on SportsLegis, a specialised sports law practice run by Dr Despina Mavromati. The original can be found here. An English translation of the judgment can be viewed below. AuthorDr Despina Mavromati

In this recent football-related procedure the Appellant—represented by legal counsel—had sent its statement of appeal to the CAS by e-mail but failed to send it by courier within the granted time limit, invoking force majeure due to the COVID-19 pandemic. The appeal was declared inadmissible by the CAS Division President. In the subsequent motion to set aside the CAS award, the SFT rejected the force majeure argument, considering that the Appellant was able to reply to a CAS submission by post one day after its receipt, and that there was also the possibility to file the submissions by electronic filing. The SFT dismissed the appeal recalling the very limited scope of review in case of non-compliance with the form requirements and applicable time limits. See also the judgment 4A_416/2020. Note: This was originally published on SportsLegis, a specialised sports law practice run by Dr Despina Mavromati. The original can be found here. An English translation of the judgment can be viewed below. AuthorDr Despina Mavromati

4A_520/2021, judgment of March 4, 2022 , A v. FIFA, motion to set aside the CAS Award of 31 August 2021 (CAS 2019/A/6344). This important judgment of the Swiss Federal Supreme Court (Swiss Federal Tribunal, SFT) deals with the thorny issue of independence and impartiality of CAS arbitrators, examining the strict admissibility requirements for filing a request for challenge and the issue of repeated appointments within the specific context of CAS proceedings where FIFA is a party (see also the recent Newsletter of Hansjörg Stutzer of 20 April 2022).  The case related to the widely known “FIFA-Gate” which revealed, following an investigation by the U.S. authorities, that several individuals were involved in a bribery scheme related to the sale of rights to several football competitions, and charged them with various offences. The Appellant, a former President of the Brazilian Football Confederation Marco Polo Del Nero (also a former member of various FIFA and CONMEBOL committees), was one of the individuals and was also banned for life by the FIFA Ethics Committee and the FIFA Appeals Committee and given a fine of CHF 1,000,000. Ruling in appeal, the CAS reduced his sanction to twenty years and confirmed the fine. The Appellant filed a motion to set aside the CAS Award for violation of his right to be heard and for lack of independence and impartiality of the arbitrator appointed by the CAS to act as the chairman of the panel. While the latter initially merely disclosed that “FIFA are a party in another case I have on – CAS 2019/A/6229. I am President of that Panel”, following the hearing (which took place almost one year after the panel’s appointment) and at the Appellant’s request for updated declarations related to appointments involving FIFA, the Arbitrator provided the parties with a quite extensive list of ongoing matters involving himself and FIFA. Furthermore, the Arbitrator disclosed that a colleague at his law firm had “(…) recently advised FIFA on an entirely unrelated matter involving GDPR / data protection. For the avoidance of any doubt I was not involved in that matter in any way”. The Appellant’s request for challenge before the ICAS Challenge Commission was rejected and led, after the final CAS award, to the SFT proceedings examined here. The starting point for the analysis was whether the Appellant’s claim was admissible, to the extent that the parties must raise any such claim as soon as the pertinent fact becomes known, and within the specific time limit of seven days enshrined in Art. R34 (1) of the CAS Code. The SFT considered as decisive the fact that the appellant’s counsel knew of other appointments of the Arbitrator as well as of the FIFA mandate of the Arbitrator’s colleague – through other cases in which it acted before the CAS (at 5.3.1) and failed to raise any objections on time. The SFT confirmed that the knowledge of the counsel is attributable to his client directly and rejected the appellant’s claim as inadmissible for failing to file the request for challenge on time. Even though it held that the claim was inadmissible, the SFT still examined the arguments raised by the Appellant and concluded that the claim would have, in any event, been unfounded: while the Appellant largely based his claim on the failure of the Arbitrator to comply with his duty of disclosure, the SFT reiterated that such duty relates principally to elements which may give rise to legitimate doubts as to the arbitrator’s impartiality and would be insufficient, per se, to justify the challenge of an arbitrator. As such, the SFT found no evidence of deliberate concealment likely to lead to the recusal of the Arbitrator: the fact that the Arbitrator had already disclosed other appointments in the context of another procedure (in which the Appellant’s counsel was involved) was the decisive element to disprove any intentional concealment. With regard to the issue of the repeated appointments of the Arbitrator, the SFT specified the cases prone to play a role in the determination of the arbitrator’s independence, holding that only the cases in which the arbitrator was appointed by FIFA can count as “recurring appointments” that could raise doubts as to his impartiality. It also implicitly accepted that consolidated procedures count as one appointment, acknowledging that the three times where the Arbitrator was appointed directly by FIFA in the previous three years may seem problematic under Art. 3.1.3 of the IBA Guidelines. Importantly, however, the SFT referred to the specificities of CAS proceedings and the closed list of the CAS arbitrators in order to justify this number, noting that the arbitrator appointed by the appellant himself was also appointed by FIFA six times in the course of the previous three years! Another issue discussed in this judgment related to the disclosure of a FIFA mandate by a law firm colleague of the Arbitrator: the SFT examined the specific circumstances of the case and concluded that this was an isolated instance, with no connection to the case or the specific arbitrator that brought an insignificant amount to the firm’s turnover. Overall, this case is important for a variety of reasons. On the one hand, it reiterated the high burden of the “duty of curiosity” of the parties’ counsel (which was somewhat narrowed down in the Sun Yang judgment, 4A_318/2020 of December 22, 2020) and the strict admissibility requirements in order to request the challenge of an arbitrator as soon as the ground for challenge becomes known: As such, the arbitrator’s disclosure, even in another case involving the party’s counsel, triggers the time limit for a potential request for challenge.  On the other hand, it confirmed that repeated appointments are common in CAS arbitration in view of the closed list of arbitrators and particularly for FIFA which is called to appoint numerous arbitrators every year. In this context, the arbitrator’s failure to duly disclose any appointments with the initial declaration of independence or to regularly update such declaration during the proceedings is not as such sufficient to challenge such arbitrator unless more incriminating elements are present (which, as seen above, were clearly not present in this case). It seems that, here again, the burden shifts to the party’s counsel to prove a “deliberate concealment”, which can be extremely difficult at times. Nonetheless, and as noted by both the ICAS Challenge Commission’s decision and the SFT (at 5.5), it becomes evident that arbitrators must always act in a diligent manner, and not only submit a full declaration (of both past and ongoing cases and appointments by the parties) but also regularly and spontaneously update their declarations during the proceedings. Note: This was originally published on SportsLegis, a specialised sports law practice run by Dr Despina Mavromati. The original can be found here. An English translation of the judgment can be viewed below. AuthorDr Despina Mavromati

Safeguarding practice is about protecting and promoting wellbeing. It encompasses a wide variety of actions that are designed both to protect individuals from abuse and maltreatment, and to positively improve individuals’ lives and outcomes. In keeping with that, safeguarding proceedings are not about the punishment of those who perpetrate abuse – that is a function of criminal and disciplinary proceedings. Safeguarding proceedings are instead concerned with the management of risk. However, insofar as proceedings might be necessary to manage the risk an individual might pose to others, safeguarding practice is concerned with ensuring (as far as possible) that such proceedings are not themselves the cause of harm or distress. This is especially so in respect of the giving of evidence by children and adults at risk at hearings. Fortunately, it is possible for sports regulators to resolve most safeguarding cases without the need for there to be a hearing involving live evidence. Alternative outcomes can readily be legislated for in sports regulators’ safeguarding rules and regulations. In respect of lower level (poor practice) concerns, cases can often appropriately be resolved through measures such as guidance and training. In cases following criminal convictions, the fact of the criminal conviction will usually stand as irrefutable evidence of the facts relating to the conviction – so there is no need to hear factual evidence to establish the same facts. And in cases across the spectrum of severity, sports regulators can reach agreement with individuals who admit poor practice and/or abuse as to the appropriate risk management measures to be applied in their cases. The most difficult safeguarding proceedings in sport are those that are contested and require a hearing involving oral evidence to determine relevant facts (often involving cases that failed to meet the threshold for criminal prosecution, or that resulted in an acquittal when tried against a higher criminal standard of proof) – such cases are difficult for those who have been abused, for those who stand accused of abuse (and/or of posing a risk of harm to others), for friends and family of those parties, for witnesses, and indeed often for any lawyers and other experts involved in the process. Achieving a procedure for safeguarding cases that finds the right balance, particularly as between the treatment of victims/survivors/complainants on the one hand, and respondents to safeguarding proceedings on the other, is no easy task. This article examines how that balance may be best achieved, by looking at Complainants’ perspective Respondents to safeguarding proceedings Steps that can help find the right balance Adopting an inquisitorial approach to proceedings Adopting “special measures” If live evidence is required, seeking to ensure it is required to be given only once Support for complainants Support for the respondent AuthorRichard Bush