1 Introduction: context and the CAS award in Keramuddin Karim v. FIFA

1.1 Context

The Court of Arbitration for Sport (“CAS”), in essence an arbitral tribunal with jurisdiction arising out of contractual relations between actors in sport,Footnote 1 has seen an increasing proportion of its awards involving appeals from sport body decisions in disciplinary matters.Footnote 2 This has involved arbitral panels in turn increasingly looking at evidence-based establishment of ‘offences’ defined in applicable governing body regulations, due process considerations, and determination of appropriate sanctions, inter alia. The varied framework applicable to each such matter creates complex jurisprudence—whether within doping, or manipulation of competitions, or, now, claims of abuse—independent even of basic questions such as whether these acts are criminalized and thus before which forum they must proceed,Footnote 3 or the ‘unique’ treatment of sport disputes.Footnote 4 This is compounded by CAS panels having held themselves not bound by principles such as stare decisis, as an arbitral body, or those of criminal law, as a forum with no criminal court jurisdiction.Footnote 5

This, for example, on one hand allows lower standards of proof, or evidence admissibility thresholds for conviction for offences where deemed popularly desirable, as seen in Keramuddin Karim v. Fédération International de Football Associations (“FIFA”, the award hereafter “Keramuddin”).Footnote 6 Yet, on the other hand, and perhaps more problematically so, this allows for easier athlete convictions for certain offences.Footnote 7 Further, this allows for discretionary sanctioning or easier heavy sanctioning, also seen in Keramuddin.Footnote 8 Consequently, the right to legal certainty of what constitutes certain serious offences, quantum of sanction (sometimes alongside parallel criminal action), or required due process, either affecting a party’s/athlete’s rights, or involving offences which violate human rights, is compromised.Footnote 9

1.2 Case-specifics and issue outline

Keramuddin is one of two CAS awards dealing with the subject of harassment and sexual abuse,Footnote 10 and is thus studied as the most recent CAS award wading into rights territory in the context of sexual harassment/abuse in what is otherwise a disciplinary appellate dispute from a federation adjudicatory decision.Footnote 11 The case is also relevant given the noted rise in the number of publicly alleged offences involving sexual harassment/abuse in sport, the surrounding activism and advocacy, and connected difficulties in grievance redressal in the recent past.Footnote 12

Offences involving harassment/abuse touch upon rights of actors subject to sport governing body jurisdictions, violations of which then amount to the aforementioned disciplinary offences under federation statutes. In this instance, offences including lack of protection, respect or safeguard(ing) (violating Article 23, para 1); sexual harassment (violating Article 23, para 4); threats and promises of advantages (violating of Article 23, para 5); and abuse of position (violating Article 25) of the FIFA Code of Ethics (“FIFA CoE”)Footnote 13 were found to be committed by the President of the Afghanistan Football Federation. The CAS upheld the FIFA Ethics Committee’s lifetime ban from taking part in any national or international-level football-related activity and fine of CHF 1,000,000.Footnote 14 Since then, the FIFA Ethics Committee has handed down other life bans for sexual abuse of athletes.Footnote 15

This essay analyses three elements addressed by the panel in Keramuddin: (1) constitution of offences, particularly of ‘sexual harassment’; (2) subjectivity in admissibility of types of evidence—in this case, for instance, anonymous witness statements; and (3) consistency in factors relevant to sanctioning, including their ‘gravity’, particularly relative to other disciplinary offences, in certain cases serving to increase, and in others, to decrease, the standard of proof prior to issuance of severe sanctions.

2 Analysis of select issues

2.1 Constitution of offences

In disciplinary matters before CAS, it is a sport federation’s internal regulations, whether or not specific to that offence, which constitute applicable law.Footnote 16 Unlike FIFA’s applicable regulations which incorporate certain specific offences (whether or not within a more ostensibly ‘ominous’ disciplinary code, as opposed to a more ‘general’ code of ethicsFootnote 17) and rights considerations/policies,Footnote 18 other sports’ regulations or indeed domestic regulations might not be as robust. Even so, in Keramuddin, the panel noted in particular how the offence of ‘sexual harassment’ went from a defined to an undefined term in 2018.Footnote 19 Given this, it relied on the “common meaning in the English language” based on prior CAS awards which had used this tool of interpretationFootnote 20 as well as the general dictionary definition of the term.Footnote 21

On the other connected offences under Article 23, the award does not discuss the elements that might constitute/components to be established to establish the occurrence of the defined offences or prior awards—the panel directly evaluates if facts established before the court through evidence fulfil what the offences are interpreted to mean.Footnote 22 This approach of directly considering evidence is also seen to some extent, in the one prior award in Cyril Sen (where the applicable provisions were even more general but mention specific acts)Footnote 23 as well as consequent FIFA Ethics Committee decisions on the same provisions as in Keramuddin.Footnote 24 In Cyril Sen, the presence within regulations of certain nuance in the provisionFootnote 25 was applied by the sole arbitrator to overturn the appealed decision based on witness testimony,Footnote 26 though again, the provisions in themselves were not analysed but applied semantically to facts adduced.Footnote 27

In such instances, the CAS’s full power to re-consider facts de novo in an appealFootnote 28, while useful in the context of independence and access to justice,Footnote 29 may also be argued to be very wide in the absence of nuance in regulations. This compromise on nuance in drafted regulations and within award analysis consequently compromises the principle of legal certainty, emphasized in prior awards in a disciplinary context,Footnote 30 and as part of Article 6(1) of the European Convention of Human Rights (“ECHR”), as applicable to such disputes.Footnote 31 This compromise on certainty is further significant given that as an arbitral tribunal, there is a lack of mandate to follow precedent or the concept of stare decisis, with many awards not published,Footnote 32 particularly when paired with tough sanctions. Even so, relevant in a rights context, CAS may also make recourse to Swiss law, in turn required to comply with the ECHR, to supplement loopholes in regulations applicable.Footnote 33

Alongside, it might be important to note based on decisions such as those of the Swiss Federal Tribunal (“SFT”) in the appeal from Semenya, that both the CAS and the SFT (and thereby Switzerland) have left substantive policy that arguably impacts human rights, to private (sporting) body determination,Footnote 34 despite noting that relations between two private entities (which could include an alleged perpetrator of a disciplinary offence such as abuse and a governing body) are somewhat analogous to an individual and the state.Footnote 35 Yet, the SFT has also held that underlying principles of the ECHR or the Swiss Constitution can be considered to construe (or augment) ‘public policy’, which allows for scope to read in rights, and develop robust jurisprudence.Footnote 36

Sexual harassment and abuse touches on various rights, procedurally and substantivelyFootnote 37 within the ECHR—it has been argued before that these provisions will increasingly be relied on by parties before the CAS,Footnote 38 which would aid parties seeking redressal in the event of regulations being silent on key aspects of such offences including their definition.

2.2 Select evidentiary and procedural issues

The consideration of evidentiary issues in CAS jurisprudence and those that shall deal with such offences henceforth is important first, because within arbitration, and particularly sports arbitration, cases tend to turn on proven facts through admissible evidence.Footnote 39 Second, as noted in numerous CAS awards, despite the seriousness of offences, the investigative and prosecuting capabilities of federations remain limited particularly in case of offences which are in particular clandestine,Footnote 40 as well as, ostensibly when stigmatized or lack transparency when investigated due to conflict of interest, as abuse tends to be.Footnote 41

2.2.1 Standard of proof

In Keramuddin, the FIFA Ethics Committee was given discretion under regulations to “decide on the basis of their comfortable satisfaction”,Footnote 42 which was, accordingly, the standard of proof adopted by CAS, with the burden, based on the regulations and prior awards, being on each party to prove facts and allegations on which they relied.Footnote 43 ‘Comfortable satisfaction’, held to be the standard in between the civil ‘balance of probability’ and the criminal ‘beyond reasonable doubt’, is the commonly adopted standard across disciplinary offences, unless stated otherwise,Footnote 44 and sometimes, as here, mentioned categorically within the federation’s applicable regulations.Footnote 45

The application of the higher criminal law standard of ‘beyond reasonable doubt’ has been consistently held to be inappropriate for a sports arbitration forum like CAS, and even in disciplinary matters with potentially severe sanctions.Footnote 46 A combination of limited investigative ability, difficulty in adducing evidence, and seriousness of offence has justified adoption of an ‘in-between’, ‘lower’ standard,Footnote 47 but CAS panels have also independently found it difficult to follow.Footnote 48 This, on the one hand, reduces the threshold for conviction, as seen here,Footnote 49 popularly considered desirable in the context of abuse, but perhaps to a lesser extent where the balance of power is more skewed towards a federation, as seen in doping or in manipulation offences in tennis.Footnote 50 At the same time, the presence of a standard higher than merely a ‘civil’ standard has also been considered a safeguard against violation of due process.Footnote 51 Finally, independent of this, a lower threshold of admissibility of evidence could impact the right not to self-incriminate, recognized by panels in the past,Footnote 52 particularly given parallel (and likely) criminal proceedings.

2.2.2 Type of evidence considered

In Keramuddin, large reliance was placed on anonymous witness statements,Footnote 53 which, the panel noted, relying on prior CAS jurisprudence, were not per se prohibited under Swiss or European law,Footnote 54 and had been ruled admissible by the European Court of Human Rights (“ECtHR”) and the SFT,Footnote 55 but considered here due to the number of witnesses, with protection of their identity coupled with FIFA’s limited interrogatory powers being weighed above the accused’s procedural right to interrogate witnesses.Footnote 56 This was supplemented by the panel’s making note of consistency across witness depositionsFootnote 57 and with those before lower fora,Footnote 58 as well as lack of proven personal undisclosed reasons to make accusations, or of proven concoction of testimony.Footnote 59

CAS panels have considerable discretion in admitting evidence and are not bound by Swiss civil or criminal rules of evidence, even as ‘guidance’.Footnote 60 Yet, prior awards have both allowedFootnote 61 and disallowedFootnote 62 anonymous witness testimony. Where permitted, admission was made contingent on granting the other party the right to cross-examine witnesses based on Article 6 and Article 29.2 of the Swiss Constitution and the specific forum’s ability to confirm identification, among few other modalities.Footnote 63 Where not, such admissibility was considered infringement of the right to be heard and to a fair trial, as personal data was essential to test credibility—abstract danger to personal safety, among other things would not be sufficient for anonymity.Footnote 64

In Keramuddin, the panel undertook extensive consideration of CAS, ECtHR and SFT precedent, noting, inter alia, that right of witnesses to life, liberty and security was to be balanced with that of those of defence, with conviction not based solely on such testimony, particularly where reliability of witnesses has not been tested.Footnote 65 Ultimately, fulfilment of each factor based on adduced fact was consideredFootnote 66—such determination also remains a subjective determination of the respective CAS panel.Footnote 67 The panel’s fairly detailed determination in Keramuddin, given also the survivor trauma for sexual harassment/abuse victims to be considered in addition to the usually considered factors, is difficult to fault and in line with certain prior panel decisions.Footnote 68

2.2.3 General due process

While on the one hand, ECtHR after Pechstein requires procedural rights, including those to a fair trial, to be guaranteed even by private bodies,Footnote 69 in practice, the mandatory nature of CAS as a forum in disciplinary matters,Footnote 70 among other practical considerations could be argued to have hindered the ability to grant this. Examples include insufficient access to legal aid and access as a barrier to filing complaints, particularly on federations’ exclusion of domestic law applicability/jurisdiction, within which human rights protections or jurisprudence might usually be found.Footnote 71 That said, within the sport dispute resolution process, particularly for disciplinary procedures, the difficulties in ensuring due process have been studied and critiqued prior,Footnote 72 and panels have hesitated to apply CAS’s ability to hear cases de novo to cure deficiencies.Footnote 73

Connected to this, the issues of standing or ability to participate in proceedings (and its being only guaranteed by limited bodies), has previously been raised,Footnote 74 with certain federations excluding, in entirety, the ‘entitlement’ to commence proceedings, including in practice.Footnote 75 Under the FIFA CoE, survivors are not considered or allowed to be parties, but are entitled to receive the decision.Footnote 76 Remedies, however, might lie within Swiss law, given that this is where federation  bodies are usually headquarteredFootnote 77—the distinction between ‘denouncer’ and ‘plaintiff’ has previously been noted, the latter having standing based on direct interest worthy of protection.Footnote 78

Additionally, federations’ dragging their feet in investigation or prosecution could be argued in itself to be an appealable decision within Rule 47 of the CAS Code. This has certain parallel precedent in connection with football,Footnote 79 as well as within the broader arbitration world external to sport.Footnote 80 Failure to initiate disciplinary proceedings against a party, which is likely to affect the legal situation of others, has also been considered an appealable ‘decision’.Footnote 81 Similarly a ‘decision’ is said to be made on admissibility if a party is invited to proceed before national courts instead of the sporting bodyFootnote 82— a situation survivors of abuse might face. In the absence of this, the ability to appeal to CAS, irrespective of fulfillment of the grounds of ‘denial of justice’, still remains a possibility — this would include situations involving failure of a ‘judicial’ body to rule within a reasonable period of time, a decision being arbitrary and offending a sense of justice, or the applicable regulations being silent on the next steps examined under Swiss law.Footnote 83

2.3 Award of sanctions

The panel in Keramuddin, at the outset, sought to visit proportionality of the sanctions awarded in the FIFA Ethics Committee’s decision through the factors expressly listed to be taken into account while sanctioning, including nature of the offence, assistance and cooperation of the accused, motive, circumstances, degree of the accused’s guilt (including seriousness of the violation), extent of acceptance of responsibility and mitigation of guilt by returning the advantages.Footnote 84 Any sanctions other than monetary ones are to be based on the most severe breach found established among those before the panel.Footnote 85 Considering the guilty finding on both counts ‘most serious’,Footnote 86 illegal and immoral and thus necessitating deterrent punishment, particularly given his ‘high position’ which warranted an increase of sentence,Footnote 87 the awarded life ban and fine were found to be proportionate.Footnote 88 The presence of such factors provides for a standardized set of considerations, but allows for discretion within those. As seen in the case of other offences such as manipulation, in the absence of further guidelines, this discretion applied by CAS panels may vary vastly in application across sports.Footnote 89

Interestingly, independent of these, the panel drew a comparison to prior CAS awards confirming FIFA sanctions of life bans (in certain cases with the same CHF 1,000,000 fine) for officials involved in other offences (being match fixing, bribery and corruption), finding that Keramuddin involved offences of “unprecedented gravity” which violated “basic human rights and damaged the mental and physical dignity and integrity” of the survivors, ‘irreparably’ damaging their lives.Footnote 90 This consideration of proportionality is in line with prior CAS precedent on sanctions in general.Footnote 91

While arguably warranted in this instance, and with a deterrent objective, the approach involving comparison to relative gravity and issuance of equally severe sanctions in other offences relative to this offence (and award) could be reconsidered - justification of harsh penalties in other offences when found ‘proportionate’ for such crimes could be difficult going forward. Additionally, ‘seriousness’ of an offence is often cited to heighten the standard of proof or impose bans by CAS panels in awards involving offences like doping or manipulation,Footnote 92 which could therefore create complex questions on thresholds to justify level of and consistency across sanctioning. Certainty, meaning no punishment without law, a consequence of consistency or predictability across awards and as relevant also to determination of occurence of an offence, has been ruled on in a sanctions context within sport by the CASFootnote 93 and ECtHR,Footnote 94 where it was deemed necessary, despite an offence not being criminal in nature.Footnote 95 Finally, the CAS has also upheld the importance of predictability, and thereby legality of sanctions in specific, as well.Footnote 96

3 Concluding observations

Based on the observations above, a few consistent themes emerge. The potential dearth of robust codification of offences and the variation across regulations is a potential primary barrier in addressing such abuse. Though certain bodies offer more safeguards in their regulations than others, none do so in a manner attributing the same gravity to the offence (dedicated nuanced definitions or procedure, or sanctions, inter alia) as certain other disciplinary offences, such as doping, have received, despite the arguably comparable, if not more egregious nature of the offence. This, arguably, inhibits analysis at the CAS level which could potentially result in compromise of due process for both survivors and the accused. Given the history of development of sporting regulation in a reactive manner, an example being the increase in focus on safeguarding seen now, this might perhaps be a matter of time.

For sexual harassment and abuse, unlike other sport-specific disciplinary offences, the likelihood of having applicable law per country and jurisdiction, or offences meeting a threshold to be independently proceeded against, is likely. Thus, considerations of appropriate forum and standing are likely to arise. Keeping in mind resistance to, but necessity of, application of higher (perhaps criminal law) standards for evidence and procedure, among other practical issues such as investigative ability, there is need for further pushing alertness to criminal law-adjacent procedural guarantees to protect party rights, including at the federation level, as the CAS’s ability to rehear a case entirely might disincentivize the guarantee of procedural propriety until then. Given the longer time taken to change statutes and the anticipated differences with domestic law, sexual abuse and harassment being mostly criminalized in domestic law and not unique to sport as an offence, the increasingly judicial arbitration nature of the CAS, as contended by a few noted above, could be used to provide clarity based on precedent on what would constitute such an offence within lex sportiva.

Even so, the decision in Keramuddin, though different in certain aspects from prior awards, incorporates nuance both into procedural and sanctioning considerations, particularly those affecting rights. However, from the standpoint of certainty in constitution of an offence, which goes to the heart of the human rights violation and effective remedies, there is more to be done. Finally, pending ECtHR decisions involving cases like Semenya, where potential substantive rights could be looked at, as compared to largely procedural analysis prior, it is contended that normatively, such analysis would occur at the CAS level itself, both as permitted jurisdictionally, and as often contended by and required in party interest. Until such time, reliance on external rights considerations in contentions and awards at CAS is likely to build further.