The European Court of Human Rights has declared inadmissible an application submitted by former football player Michel Platini. The case concerned the disciplinary sanctions imposed on Platini by the Ethics committee of the FIFA and confirmed by the Court of Arbitration for Sport (CAS)
Platini had supported Joseph Blatter’s campaign to become President of FIFA in 1998. After Blatter had been elected, Platini started working for the FIFA as an advisor. He resigned from that post when he was elected as a board member of UEFA. He later also became vice-president of the FIFA.
In 2007, Platini demanded that his time working as an advisor be counted in for the calculation of his retirement entitlements. The FIFA acceded to the request.
In 2011, he sent an invoice over 2 Million Euros to the UEFA, stating the sum had been agreed upon orally as an additional salary on top of the salary fixed in his written contract. The FIFA paid the requested sum.
In 2015, the Swiss prosecution service instigated an investigative procedure against Platini (which is still pending). The Investigatory Chamber of the Ethics Committee of the FIFA initiated disciplinary proceedings regarding breaches of the Code of Ethics against Platini. The Adjudicatory Chamber of the FIFA Ethics Committee suspended the applicant from all activities related to football for 90 days.
After the investigation had been finalised, the Adjudicatory Chamber ruled that Platini had violated several provisions of the Code of Ethics. It referred, inter alia, to a provision according to which employees were not allowed to accept payments from ‘third parties’ It imposed a fine of 80.000 Swiss Francs on him and suspended him from all activities related to football for a period of eight years.
Platini appealed against this decision to the Court of Arbitration for Sport (CAS) in Lausanne. He contended, among other arguments, that the provision prohibiting payments from ‘third parties’ did not refer to payments made by the FIFA itself. He also called into question the proportionality of the sanctions that had been imposed on him.
The CAS reduced the fine imposed on him and shortened the period of suspension from eight years to six years.
Platini appealed to the civil section of the Federal Court of Switzerland. He stated that the CAS had rendered an arbitrary judgment, because it had based its decision on factual findings which were obviously not supported by the case file and because it had committed obvious errors in law.
The Federal Court held that it had jurisdiction to entertain the lawsuit. However, it stated that is competence was limited to examining whether the CAS had established facts which were manifestly contrary to the facts emerging from the case file and whether there were obvious violations of the law or of the principle of fairness. Both was, according to the Federal Tribunal, not the case.
Jurisdiction ratione personae
Regarding the admissibility of the application, the Court examined whether the Convention was applicable ratione personae. The ECHR governs in principle the relationship between states and persons within their jurisdiction. It does not directly apply to relationships between private individuals (although states may have a positive obligation to ensure that the Convention rights are respected when private individuals engage with each other, too). Since the FIFA is a body governed by Swiss private law, the question arises whether the Court is competent to examine procedures conducted by organs or bodies of the FIFA.
The Court pointed out that the responsibility of the Swiss state was engaged, since Swiss law provides for the enforcement of awards by the CAS and since the Federal Court of Switzerland is – albeit to a limited extent – competent to examine them when deciding upon their recognition. This is in line with the Court’s previous judgment in Mutu and Pechstein v. Switzerland.
Exhaustion of domestic remedies regarding article 6 ECHR
Among the several articles of the Convention Platini relied on was the right to a fair trial pursuant to article 6 ECHR. He questioned the impartiality of the CAS, contended that the rights of the defence had been unduly restricted and that he had been denied access to the case file.
The Court pointed out that applicants had to exhaust domestic legal remedies before submitting an application to the European Court of Human Rights. According to the Court’s long-standing jurisprudence, this does not only mean that the applicant has to avail himself of effective legal remedies. It also implies that he must address the legal point on which he bases the application at least in substance before domestic courts.
The Court’s jurisprudence in that regard is not entirely consistent. While the Court has stated many times that applicants are not required to refer to a specific article of the Convention to exhaust legal remedies, it has at times declared applications inadmissible on the grounds that the applicant had failed to rely on the article in question and on the pertaining jurisprudence of the Court in their pleading before domestic courts. This has been especially the case with applications concerning states which have incorporated the ECHR into their own legal system (see for example Budimir v. Croatia). On the other hand, the Court is sometimes quite generous regarding the requirement that a legal point has to be addressed in substance on the domestic level. For example, in Gestur Jonsson and Ragnar Halldor Hall v. Iceland, the Court considered it sufficient that the applicants had addressed the issue under article 7 ECHR in substance in their oral pleadings before the Supreme Court (the case was referred to the Grand Chamber).
The Court pointed out that Platini had not even in substance contended that article 6 had been violated in his pleadings before the Federal Court of Switzerland. Therefore, it declared the application inadmissible regarding this complaint.
Alleged violation of article 7 ECHR
The applicant also relied on article 7 which prohibits the retroactive application of laws in criminal matters. He submitted that the CAS had applied a version of the Code of Ethics of the FIFA which had not been in force at the time when he had accepted the payment.
The Court pointed out that article 7 referred to criminal offences. It stated that the term ‘criminal offence’ had to be interpreted autonomously. Referring to its case law, the Court stated that disciplinary sanctions such as the ones imposed on Platini could not be considered as criminal convictions, because they were measures taken against a member of an organisation comprised of a comparatively small group of persons, according to rules adopted by that organisation. Thus, according to the Court, the disciplinary sanctions did not amount to criminal convictions.
Alleged violation of article 8 ECHR
Finally, Platini had submitted that the disciplinary sanctions imposed on him violated his right to respect for private life pursuant to article 8 ECHR.
The European Court of Human Rights stated that the notion private life was a broad term not susceptible to exhaustive definition. Among the many aspects it encompassed was the possibility to develop and to interact with other persons. In that regard it could also be applicable to professional activities. Since the applicant had dedicated his entire professional life to football and was now banned from all activities in that field, the protection afforded by article 8 ECHR was engaged.
Furthermore, the court pointed out that the been imposed on Platini had to be considered from the perspective of positive obligations of the state to ensure the right to respect for private life even in the relationships among private individuals. A certain margin of appreciation had to be afforded to the state. It concluded that the CAS had cited sufficient reason for its decision to ban Platini. There Federal Court of Switzerland had confirmed the decision rendered by the CAS providing plausible and convincing reasons.
For that reason, the court stated that article 8 ECHR had not been violated.
It declared the application inadmissible as manifestly ill-founded.