A review of the CAS Panel’s decision in AC Milan v. UEFA - The devil is in the (procedural) detail

In the midst of turbulence from the recent Football Leaks1 indirectly affecting - among other issues – the Club Licensing and Financial Fair Play Regulations (CL&FFP Regulations) in European football, the Court of Arbitration for Sport (CAS) published the full award in the case AC Milan v. UEFA2.

The case relates to a sanction that was imposed by the UEFA Club Financial Control Body (UEFA CFCB). According to the first-instance decision, the Adjudicatory Chamber of the UEFA CFCB initially determined that AC Milan failed to fulfil the break-even requirement of Articles 58 through 63 of the UEFA CL&FFP Regulations, and excluded AC Milan from participating in the next UEFA club competition for which it would otherwise qualify in the next 2 seasons (i.e., in 2018/19 and 2019/20).

Following an appeal to the CAS by AC Milan, the CAS Panel partially upheld AC Milan’s appeal and remitted the case back to Adjudicatory Chamber of the UEFA CFCB for a "proportionate disciplinary measure".3 In the Panel’s view, ‘certain important elements had not been properly assessed by UEFA’s Adjudicatory Chamber, or could not be properly assessed’ when the UEFA Decision was rendered in June 2018 and AC Milan’s financial position was better following the recent change in ownership.4

Unlike previous cases related to the UEFA CL&FPP Regulations like the Galatasaray case, where the club challenged the UEFA CL&FFP Regulations (for a second violation of the regulations) and more specifically their compatibility with EU law,5 AC Milan directly challenged the proportionality of the sanction imposed by the UEFA CFCB.6 In the Galatasaray case, the Panel had highlighted the existence of mitigating factors in the UEFA CL&FFP Regulations that would be taken into account by the UEFA hearing panel in order to render a proportionate decision under the individual circumstances of each case.7

In view of the latest developments in European and international football, the CAS Panel’s award (which was published on November 8, 2018) is very interesting and worth a close look because it raises more general questions as to the scope and limits of the UEFA CL&FFPRegulations. More crucially, it brings to the forefront questions of procedural nature before the CAS, such as the scope of the Panel’s full power of review under Article R57 of the CAS Code,8 and more particularly the control of proportionality of the sanction and the production of new (factual) evidence before the CAS. Additionally, it addresses the important procedural issue of the admissibility of the appeal (or a portion of it) when a particular part of the decision was not supposed to be subject to appeal. This article examines the decision and learning points, looking specifically at:

• A summary of the background facts 

  • The UEFA CL&FFPRegulations

  • AC Milan’s financial situation and the UEFA CFCB decision of June 2018

• The CAS Panel’s award and the importance of the procedural detail

  • The expedited procedure, the production of documents and the submission of new evidence by AC Milan

  • Is the referral decision of the CFCB Investigatory Chamber an “appealable decision” according to Article R47 of the CAS Code?

  • The many faces of the CAS Panel’s (full) power of review

    • On the “decisive reference date”

    • On the “depth of scrutiny”

• The merits of the appeal