Among other things, it was by referencing the Fenerbahce-UEFA case at the Court of Arbitration for Sport (CAS) that Kshitij Vyas, former chief justice of Bombay High Court, rejected FC Goa’s claim of double jeopardy.
“The case dealt with two different football authorities (namely, the Turkish Football Federation, and the Union of European Football Associations) which applied their own rules and regulations, and sanctions, to the same set of events. It was held that the principle of ne bis in idem (meaning “not twice in the same thing” — analogous to “double jeopardy”) would not apply. In the circumstances, I agree with this principle enumerated in the above cited case,” Vyas has written on pages 13 and 14 of his 21-page order, a copy of which is with HT.
Vyas was the ISL appeals commissioner whose ruling closed the issue festering since the final of ISL2 in Goa on December 20, 2015.
What CAS ruled in 2013
In 2013, Fenerbahce appealed to CAS after being banned by UEFA from the Champions League on charges of match-fixing in the Turkish league. UEFA had extended the ban by one more season and this led to Fener moving CAS. Fener’s appeal said the club was cleared of involvement in match-fixing by the Turkish federation and that it had already served a one-year ban from the Champions League for the alleged offence.
UEFA had countered: “…There is no infringement of the principle of ne bis in idem if the two (or more) measures aim at different goals.” It would be nonsensical if no higher sanction could be imposed, it had argued. Vyas too has spoken about different objectives in his order.
Europe’s apex football body had also cited the case of Spanish cyclist Alejandra Valverde who was first banned by the Italian cycling federation from competing in Italy and later by the world body for failing a doping test.
In August 2013, Fenerbahce lost the appeal at CAS which said since the Turkish federation and the UEFA were following what can be interpreted as a ‘two-stage’ process, the question of double sanctions did not apply. To elucidate the point, CAS said it was like someone withdrawing an amount of money due to him or her in two instances.
According to the UEFA’s rules, any club involved in match-fixing from 2007 would be barred from its competitions.
FC Goa had argued that the ISL Regulatory Commission had no jurisdiction to deal with disciplinary matters, that being the exclusive domain of the disciplinary committee of the All India Football Federation (AIFF).
‘No breach of AIFF, ISL rules’
Citing portions of the AIFF Disciplinary Code, which says sanctions can be imposed by ‘sports organisations’ in competitions not organised by the AIFF, and ISL rules that state disciplinary matters will be referred to the regulatory commission, the order explained why FC Goa’s claim doesn’t hold.
The order also cited an ISL rule (24) that states the regulatory commission can impose sanctions over and above the AIFF’s disciplinary committee. A letter signed by AIFF general secretary Kushal Das and ISL CEO Devang Bhimjyani and sent to FC Goa last February too mentioned this. Speaking to HT then, Das said the AIFF Disciplinary Committee has jurisdiction over matters on the field of play. Requesting anonymity, another AIFF official had then said the matter of a legal proceedings being initiated against Chennaiyin FC marquee Elano Blumer wouldn’t be in the disciplinary committee’s jurisdiction.
“The AIFF, despite having its own disciplinary code, agrees that its code does not preclude the ISL from taking parallel action and imposing sanctions on matters directly affecting the ISL’s reputation,” Vyas said in his order.
“In view of the above discussions, I see no merit in the submission advanced by the learned counsel appearing for FC Goa, namely, that, since ISL is a league run under the sanction and authority of the AIFF, and the AIFF is the apex body that governs the sport of football in India, therefore ISL is subordinate to and is bound by the decisions of the AIFF and its Disciplinary and Appeal Committee in so far as the matters before us are concerned,” the order said.
On FC Goa’s contention that being punished by two bodies for the same offence also violates “various provisions of law and Articles of the Constitution of India”, Vyas ruled that the benefits of protection for double jeopardy applies to criminal offences under applicable laws and said he wasn’t convinced that it was applicable in this case.
In two seasons of ISL, the regulatory commission has imposed sanctions on different teams for reasons as varied as missing mandatory media conferences and not fulfilling pre-match training requirements for the visiting team. FC Goa’s complaint about Atletico de Kolkata and Delhi Dynamos for not providing adequate training facilities last year were dealt by it.