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Pitfalls Of Sports Federations Playing Judge, Jury & Executioner – A Review Of Turk v FIM

22.02.22

The Complaint

FIM held a presidential election at its General Assembly on 1st December 2018. Initially there had been two nominees in the running: Mr Jorge Viegas and Dr Wolfgang Srb. However, Dr Srb withdrew due to ill-health which left Mr Viegas to run unopposed.

On 25th November 2018, Mr Turk, a longstanding member of the motorcycling governance community, filed a motion with the then FIM Board of Directors, President, and CEO in which he sought to delay the presidential election to allow for another nominee to enter the election race. In his motion, Mr Turk expressed concern by what he saw a lack of alternatives in the FIM presidential race. Mr Turk justified his concerns by noting in the motion that Mr Viegas was a “questionable candidate” and Mr Turk made reference to a letter that he and others in FIM received which alleged that Mr Viegas was involved in criminal proceedings.

The CAS award makes no reference to any vote or decision on the motion, but it is evident from events that the motion either was not passed or not voted upon; the election took place as planned and Mr Viegas was elected as President. However, the CAS’s findings make it plain that Mr Turk’s motion was not entirely ignored. On 6th March 2019, Mr Stephan Carapiet, a member of the FIM Board of Directors, filed a complaint about Mr Turk’s motion with one of FIM’s adjudicative bodies: the International Commission of Judges.

In The Ethical Chamber

An investigation was commenced into the complaint and the matter was subsequently forwarded to a FIM Ethical Chamber4 to determine whether Mr Turk had breached the Ethical Code by filing his motion to delay. Specifically, the investigation produced three allegations which can be summarised as follows:

1. Mr Turk had acted in a manner which is improper and which brought FIM into disrepute,
2. Mr Turk demonstrated a lack of respect for others, and
3. Mr Turk’s actions were prejudicial to the interests of FIM or motorcycle sport. The Ethical Chamber upheld the allegations and imposed, what can only be described as, the severest of sanctions for any motorcycle sports enthusiast:

“For a period of eight years from the date of the decision:

1. under clause 5, h) of the Code, exclusion from all FIM events or activities
2. under clause 5, j) of the Code, a ban on entering any FIM event
3. under clause 5, m) of the Code, exclusion from meetings or activities of FIM and/or CONU statutory bodies
4. under clause 5, o) of the Code, ineligibility for any FIM and/or CONU office or licence
5. Under clause 5, p) of the Code, a ban on taking part in any motorcycling-related activity.”

It is important to note that the Ethical Chamber’s findings and determination on sanction were made without any participation or submissions from Mr Turk. Although at least one email had been sent to Mr Turk to notify him of the investigation and the subsequent Ethical Chamber hearing, the Panel noted Mr Turk’s contention that the e-mail address in question did not work and was not in use. Further, although FIM was alleged to have sent Mr Turk the investigation report via courier, it had failed to produce evidence of delivery (eg a receipt or signature).5

Mr Turk appealed the decision by filing a Statement of Appeal with the CAS, as anticipated by FIM’s Code of Ethics, art 9.1.

And So To The CAS

The path to trial or a final hearing is rarely straightforward; any number of issues, substantive or procedural, can arise and threaten the process. This case was no exception. Those familiar with CAS proceedings will know that under the CAS Code of Sports-related Arbitration 2019 edition (the Code), a CHF 1,000 fee is payable “upon the filing of the statement of appeal”6 and that sanction for non-payment is that the arbitration “shall not proceed”.7 Additionally, article R51 of the Code requires appellants to file an Appeal Brief (detailed pleadings of fact and legal argument with exhibits) no later than 10 days after the expiry of the time to appeal.

Mr Turk filed his Statement of Appeal on 26th May 2020, which was the last day for filing. However, the requisite fee was not paid on the date of filing nor soon after, despite a warning from the CAS panel about the consequences of non-payment on 3rd June 2020. It was not until four days after the CAS panel informed Mr Turk that the arbitration would not proceed on 15th June 2020, that Mr Turk made the payment. Mr Turk’s explanation for the default was that no deadline had been given and that he had been in a car accident which prevented him from making the payment.

The Appeal Brief was also late, although Mr Turk was aware that it would be. In his Statement of Appeal, Mr Turk expressly requested an Appeal Brief deadline extension until pro bono counsel was appointed to his case. This request and a further extension request were granted before Mr Turk filed the Appeal Brief.

The Award

By the time that the matter reached a final hearing before the appointed Panel (Professor Stephan Breidenbach chairing as Sole arbitrator), the parties’ battlelines were clearly drawn and can be separated into three lots: (1) arguments on admissibility, (2) lawfulness of the Ethical Chamber’s findings, (3) the appropriateness of sanction. 8

Admissibility

The Panel gave arguments on admissibility relatively short shrift. FIM argued that Mr Turk’s alleged failure to pay the CHF 1,000 fee on time and his failure to lodge the Appeal Brief within the article R51 deadline rendered the appeal inadmissible. However, the Panel held that the articles R32 and R48 of the Code endowed the President of the appointed Panel or, if not appointed, the President of the relevant Division, with the power to extend time limits on justified grounds, to rectify possible mistakes or to complete an incomplete statement of appeal. In the present case, the Panel decided that there was no prejudice to FIM and that, conversely, deeming the appeal inadmissible would amount to the type of excessive formalism, which is prohibited under the law of the seat, namely Swiss Law.9 Accordingly, the procedural irregularities at the appeal’s inception presented no obstacle to the arbitration.

Mr Turk’s arguments on admissibility went to the substance of the appeal rather than the CAS procedure. Mr Turk submitted that the triggering event to proceedings, Mr Carapiet’s complaint, was inadmissible because it had been filed out of time. The arguments put forward were, on the face of it, compelling. Article 6.1.2 of FIM’s Code of Ethics stated plainly that,

“To be admissible the complaint shall be filed within one month of the [complainant’s] knowledge of the alleged breach of the Code.”

However, the panel noted that article 6.2.1 of the Code of Ethics, granted the Ethical Chamber with a wide discretion to decide to open an investigation, even where the one-month time limit had elapsed. Article 6.2.1 even prevents parties from appealing the Ethical Chamber’s decision in the exercise of this discretion. The provision’s wording is worth repeating:

“6.2.1. Full discretion is left to the Ethical Chamber to open and conduct an investigation, on its own initiative and ex officio, if it comes into possession of evidence of facts that may be considered, prima facie, as breaches of the Code. The Panel, by a majority vote, shall take a decision to open or not to open any ex officio investigation. If a complaint has been filed after the one month period specified in section 6.1.1 above has elapsed, the Ethical Chamber may nevertheless decide to open an investigation. No right of appeal lies against such decisions.”

The panel held that the effect of the provision was to grant the Ethical Chamber a discretion to open an investigation at all times and, therefore, Mr Carapiet’s complaint was admissible.10

The panel’s conclusion is understandable from a reading of art 6.2.1 in isolation, but the decision fails to resolve the tension between the wide discretion under article 6.2.1 and the one-month time limit under art 6.1.2 satisfactorily. Plainly, for 6.1.2 to have any real force there must be limits to the Ethical Chamber’s discretion to extend time. For instance, it would be surprising if the Ethical Chamber could extend time where its grounds for doing so were arbitrary or capricious. This matter is all the more pertinent in Mr Turk’s case because the complaint emerged a considerable amount of time after the offending motion, from a party that was not obviously affected by the motion’s contents. Yet, no reason was given for the Ethical Chamber’s decision to extend time or open the investigation or, at least, the Panel did not explore the reason.

Mr Turk submitted that reliance on article 6.1.2 of FIM’s Ethical Code in the present case was misconceived for a related but more concerning and compelling reason: the Ethical Chamber did not provide its reasons for extending time to file the complaint because the Ethical Chamber never in fact decided or even considered the issue of time. In other words, the Ethical Chamber did not consciously exercise its discretion to extend the deadline, however broad that discretion might have been. Rather, it chose to simply press on with an investigation without considering whether it was in time and, if not, whether it was appropriate to extend the time for the investigation. This argument was not addressed by the Panel or even mentioned in the CAS panel’s award.

Lawfulness of the Ethical Chamber’s Findings

Mr Turk launched a two-pronged attack on the Ethical Chamber’s decision to uphold the allegations. The first prong was that the decision was made in the absence of representations from Mr Turk; Mr Turk’s right to be heard had been violated. In the Panel’s view, there was no evidence to support the contention that an invitation for submission or even notice of complaint had reached Mr Turk and, therefore, the FIM Ethical Chamber had failed to take sufficient measures to safeguard Mr Turk’s right to be heard. The Panel rejected FIM’s contention that its Code of Ethics did not mandate a hearing or require FIM to send a notice of hearing to Mr Turk. In accordance with longstanding CAS jurisprudence, the Panel held that the right to be heard must be respected and protected regardless of whether such measures are expressly set out in FIM’s policy documents.11 Yet, the Panel highlighted that such procedural defects can be cured by the CAS panel since the Panel has “full power to review the facts and the law” which allow it to hear the case de novo. The Panel was satisfied that Mr Turk had been able to make representations and heard during the CAS proceedings and so, the violation was effectively cured.12

The second prong was that the Ethical Chamber’s finding on breach of the Code of Ethics was not open to it on the facts. The Panel agreed. In the Panel’s view, the provisions of the FIM Code of Ethics in play were designed to sanction for causing detriment to FIM’s and FIM members’ (or as the Panel put it, “FIM family”) interests and reputation. The Panel could not see where the breach lay, at least in respect of detriment to FIM. Mr Turk’s motion was published internally and not to the wider public, and it merely repeated accusations that had already been circulated within FIM. The Panel held that, in fact, Mr Turk’s motion to delay elections served FIM’s interests; it was made to protect FIM’s reputation.13 Of course, Mr Turk’s motion might have been viewed as detrimental to Mr Viegas, who was a member of the “FIM family” at the time of Mr Turk’s motion. Yet, for the Panel, such detriment was merely apparent because Mr Viegas was still elected notwithstanding Mr Turk’s notice; no damage had been done. Finally, and crucially, the Ethical Chamber’s own reasoning was self-defeating. The FIM Ethical Chamber expressly decided to give Mr Turk the benefit of the doubt and “not conclude that the allegations were made maliciously”.14 In the Panel’s view, such a finding meant that Mr Turk lacked any intention to bring FIM into disrepute nor was he motivated by malice towards Mr Viegas. Rather, Mr Turk was simply asking for clarity on the allegations.

The Panel held that there was no breach or misconduct, so the third point on proportionality of sanction simply fell away; obviously, no sanction is proportionate where no wrong has been committed. On this basis, the Panel annulled the Ethical Chamber’s decision and, consequently, Mr Turk’s sanctions are likewise annulled.

Conclusion

For FIM and regulators alike, Mr Turk’s case is a salient reminder that disciplinary proceedings must be undertaken in accordance with common principles of fairness, rationality and transparency, whether or not such principles are expressly enshrined in their founding articles or policies. The sport setting does not provide carte blanche to sanction and penalise perceived offenders when the allegation, the evidence and the penalty do not stand up to scrutiny.

There are at least three practical takeaways:

1. To avoid the time consuming and costly exercise of CAS proceedings, regulators would do well to seek independent legal review of their processes and specific legal assistance on sanctions, particularly those which exclude an individual from the sport for an extended period of time.
2. Thought should be given to time limits within internal proceedings, even if such limits can be extended or waived. The issue of time limits did not trouble the Panel in this case, but a less forgiving Panel could well have annulled the Ethical Chamber’s decision on the basis that the originating complaint was time-barred and inadmissible.
3. It is not enough for regulators to simply send an email and hope that correspondence reaches the intended addressee; regulators must go further to safeguard the right to be heard. Regulators are advised to use read receipts, to follow up emails with telephone calls, and to include well-advertised provisions within its policies that require participants to keep contact information up to date.

Happily, Mr Turk can continue to enjoy and participate in motorcycle sports. It is hoped that his case will be a warning to other regulators to review their processes and, if they find themselves acting as prosecution, judge, jury and executioner, to pause, reflect, and seek advice.